Legal

This Accellion File Transfer System Agreement (“Agreement”) is a legally binding agreement between you on behalf of yourself and your employer (“You,” or “you”), and Accellion USA, LLC (“Accellion”) (each a “Party”; collectively, the “Parties”). BY EXECUTING THE ORDER FORM, USING THE ACCELLION APPLIANCE OR SOFTWARE, OR CLICKING “I AGREE”, YOU INDICATE THAT YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

ACCELLION IS WILLING TO SELL YOU THE HARDWARE AND LICENSE THE ACCELLION SOFTWARE TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, NO LICENSE IS GRANTED TO YOU.

As used herein, the “Order Form” shall mean the documentation between you and Accellion, or its authorized channel partner (“Channel Partner”), that specifies the Accellion Appliance and Software. The “Effective Date” shall be the date of the shipment to you of the Accellion Appliance or the date Accellion makes the Software available to You for download, as applicable. The Order Form shall be binding only if accepted by Accellion or its Channel Partner. You acknowledge and agree that where the Order Form is submitted to a Channel Partner, only the line items for Accellion’s published products and services mentioned therein and which are delivered and/or provided to You shall constitute the “Order Form” for the purposes of this Agreement and no other terms and conditions in such documents shall have any force or effect as between you and Accellion.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the authorized representatives of both Parties agree to the terms and conditions of this Agreement. In the event of any conflict between the terms of any Order Form, and the terms set forth below, the terms set forth below shall govern.

General Terms and Conditions

In accordance with the following terms and conditions, Accellion hereby agrees to license the Accellion Software and provide the Accellion Appliance(s) to You.

1. Definitions.

In this Agreement, the following words shall have the following meanings:

“Accellion Appliance” refers to the appliance provided by Accellion to You as set forth in an Order Form; such appliance includes both the Hardware and Accellion Server Software;

“Hardware” refers to all servers, equipment and other hardware provided by Accellion to You under this Agreement for running the Accellion Server Software;

“Accellion Server Software” means the server software in object code form that is provided to You by Accellion, or that is pre-installed by Accellion in the Hardware, or that is made available to You through Hosted Services, in each case as set forth on the Order Form, and includes all related modifications, Updates, Releases and Documentation provided by Accellion under this Agreement, including without limitation any modifications to such software agreed to by the Parties in accordance with this Agreement;

“Accellion Client Software” means the client software in object code form provided by Accellion to You as set forth in an Order Form to this Agreement, and all related modifications, Updates, Releases and Documentation provided by Accellion under this Agreement, including without limitation any modifications to such software agreed to by the Parties in accordance with this Agreement;

“Accellion Software” means the Accellion Client Software and Accellion Server Software collectively;

“Designated User” means you (if you’re an individual) and your employees and you independent contractors for whom you have purchased Designated User license as set forth on the applicable Order Form and any additional Designated Users added pursuant to Section 3.3 below;

“Documentation” means Accellion’s standard written materials and specifications for installation and use of the Accellion Software and Accellion Appliance, as the case may be, that Accellion provides to You;

“Hosted Services” means the remote access and use of a hosted version of the Accellion Server Software;

“Maintenance Support Service” means the support service provided by Accellion to You in accordance with the applicable Maintenance Support Policy set forth at described in Section 9 below;

“Release” means a new version of the Accellion Software or any component thereof, provided by Accellion and which constitutes a substantial improvement or upgrade in user functionality which is generally identified by a change in the version number to the left of the decimal point (e.g. 1.0, 2.0, 3.0); and

“Update” means additions or modifications to the Accellion Software or any component thereof, provided by Accellion under this Agreement for the purposes of error corrections or maintenance fixes. Updates are generally identified by a change in the digit(s) to the right of the decimal point of the version of the Software delivered to You (e.g. 1.1, 1.2, 1.3, etc.). Updates do not include Releases.

2. License Terms.

2.1 License Grant. Subject to the terms and conditions of this Agreement, Accellion hereby grants to You during the License Term, a non-exclusive, non-transferable (except as provided in Section 12.1) and non-sublicenseable license to: (a) for each Designated user, install and use one copy of the Accellion Client Software on one computer for each Designated User; and (b) use the Accellion Server Software solely to support the operation of the Accellion Client Software. All rights not expressly granted hereunder are reserved.

2.2 Software Usage. Use of the Software by You and your Designated Users shall be for your internal business purposes only in compliance with this Agreement and the Documentation, and solely on specified equipment. Except as expressly set forth in this Agreement, You shall not, directly or indirectly, and shall not allow any other person to: (i) copy, except for a reasonable number of backup copies, modify, translate, or create derivative works based on, the Accellion Appliance or Accellion Software; (ii) sell, lease, rent, sublicense, distribute, transfer, loan or use the Accellion Appliance or Accellion Software to provide service bureau, time-sharing or other such services to third-parties; (iii) remove any Accellion Server Software from any Accellion Appliance or use it on another device; or (iv) remove, alter or destroy any proprietary trademark, patent or copyright markings or notices used in conjunction with, placed upon or contained within any Accellion Appliance or Accellion Software. Further, You shall not, directly or indirectly, and shall not allow any other person to: decompile, disassemble or otherwise reverse engineer the Accellion Appliance or Accellion Software. Provided however that in jurisdictions where a right to reverse engineer is provided by law unless information is available about such products in order to achieve interoperability, functional compatibility, or similar objectives, You agrees to submit a detailed written proposal to Accellion concerning Your information needs before engaging in reverse engineering.

2.3 Third Party Products. You acknowledges that the Accellion Appliance may include third party materials, including but not limited to, software and/or hardware (e.g. operating system software, utilities, etc.) and agree to comply with any standard third party software and/or hardware licenses and related terms and conditions embedded in or furnished in connection with the Accellion Appliance, all of which are provided to you under the terms of those licenses and are not included as part of the Hardware or Accellion Software under this Agreement. Accellion shall have no responsibility for any products or services provided by Channel Partner.

2.4 Hosted Services. If You have elected Hosted Services, then You agree that except for Accellion’s warranty obligations below, Accellion shall have no liability to You related to the use, operation, failure or inaccessibility of the Hosted Services. If Hosted Services are managed by Accellion, then You acknowledge and agree to the following: (i) the Hosted Services are obtained by Accellion from Amazon Web Services LLC (“AWS”) or other hosting providers (each, a “Hosting Provider”); (ii) You represent and warrant that You have all necessary rights to any data stored on or sent through the Hosted Services (“Your Data”) and that use of Your Data as contemplated herein does not violate any third party rights; (iii) You hereby grant Accellion and applicable Hosting Providers the right to use, copy, and transmit Your Data for use with the Hosted Services; (iv) You agree to comply with the usage restrictions of the Hosting Provider (“Usage Restrictions”) (if the Hosting Provider is AWS, Usage Restrictions are found in the AWS Customer Agreement located at http://aws.amazon.com/agreement/); (iv) any remedy exercisable by a Hosting Provider based on your use of the Hosted Services may be exercised by Accellion under and as part of this Agreement; (v) You shall indemnify, defend and hold Accellion harmless form and against any claims, losses, liabilities, damages, costs (including reasonable attorneys fees) and expenses arising from its breach of this Section 2.4, with such obligation to survive expiration or termination of this Agreement and not to be subject to Section 8 below; and (vi) Accellion’s sole obligation to You, and Your sole and exclusive remedy in the event of a problem with Hosted Services (other than a problem covered under the Accellion warranty) is for Accellion to use reasonable commercial efforts to seek an appropriate resolution from the Hosting Provider to restore Hosted Services.

3. Payment; Additional Purchases.

3.1 Payment. Accellion will invoice You for any fees as set forth in an Order Form between Accellion and You; such invoices shall be payable within thirty (30) days from invoice date. All fees are nonrefundable. Accellion may apply a late charge on overdue invoiced amounts at the rate of the lower of one and one-half (1 1/2%) percent per month or the maximum rate permitted by law. You shall pay all costs of collection, including reasonable attorney and expert fees and court costs. Payments due hereunder are not subject to set-off or withholding. Channel Partner will separately invoice You for any fees due under the separate terms of any Order Form issued by Channel Partner.

3.2 Taxes. The fees mentioned in this Agreement do not include any taxes and You shall promptly pay any applicable custom, duties, sales, use, value added or any other taxes, federal, state or otherwise, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Accellion’s net income. For transactions directly with Accellion, you shall be the “importer of record” for all purposes.

3.3 True-Up. If permitted on the Order Form, You may exceed the number of licensed Designated Users by the maximum number permitted on the Order Form (such additional users referred to as “Excess Users”), provided that You notify Accellion of the number of Excess Users promptly following the end of each calendar quarter in you have Excess Users. Accellion will then invoice You for such Excess Users at a quarterly prorated amount of the annual rate stated in the applicable Order Form, where such prorated payment calculation will include the immediately prior calendar quarter and the remaining calendar quarters of the term (the “Remainder Term”). Upon payment, Excess Users shall be deemed Designated Users under this Agreement and for any renewals.

3.4 Audit. You agree to allow Accellion, with reasonable prior notice, to enter premises under your possession or control during normal business hours, or, with Your prior consent, not to be unreasonably withheld, to electronically access the Accellion Appliances and Accellion Software, or, with respect to Accellion Hosting, to monitor use, to verify Your compliance with this Agreement. You shall promptly pay to Accellion any underpaid fees revealed by such audit and, if the audit reveals an underpayment of 5% or more, the reasonable costs of the audit.

3.5 Additional Products and Services. You may purchase additional Accellion products and services under this Agreement by both Parties executing an additional Order Form fo such products and services.

3.6 Reporting. You acknowledge and agree that the Accellion Server Software (whether or not installed in an Accellion Appliance) periodically transmits emails to Accellion containing the following usage information for each day the Accellion Software is in use: (i) the number of Designated Users, (ii) the number of restricted senders using the Accellion Software, (iii) the number of recipients of attachments transmitted using the Accellion Software, and (iv) if You have enrolled in “Accellion Green” or a similar program, the number of transactions (transmissions, receipts, etc.) involving the Accellion Software, the total number of “envelopes” transmitted, the number and size of files transmitted, and the total size of attachments sent by each category of Designated User. You will not in any way attempt to prevent the transmission or delivery of such usage reports. The Accellion Server Software does not transmit to Accellion any information concerning the content of any emails or attachments or any personally identifiable information. Accellion will not use or disclose any usage reports received from You without Your prior written permission except: (a) for Accellion’s own internal business purposes, and (b) if disclosed publicly for marketing and similar purposes, in an aggregated form in which Your identity and usage are not revealed.

4. Ownership.

All right, title, and interest, including without limitation trade and service marks, patent rights, copyrights, trade secrets and all other forms of intellectual property, in and to the Accellion Software, Accellion Appliance and Documentation, including any and all modifications, enhancements, derivative works, Updates and Releases to the foregoing are the sole and exclusive property of Accellion and its Licensors. You shall not remove, and shall reproduce on any permitted copies, all proprietary, copyright, trademark and trade secret notices contained in or placed upon the Accellion Software, Accellion Appliance and Documentation.

5. Confidentiality.

5.1 Confidential Information. “Confidential Information” shall mean any information disclosed by one party to the other party in connection with this Agreement which is disclosed in writing, orally or by inspection and is identified as “Confidential” or “Proprietary” or which a party has reason to believe is treated as confidential by the disclosing party. Any information, in whatever form, disclosed by Accellion that relates to the Accellion Software and that is not publicly known shall be considered Confidential Information. Each party shall treat as confidential all Confidential Information received from the other party, shall not use such Confidential Information except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third party without the other party’s prior written consent; provided however, You may allow your independent contractors to make use of the Accellion Software solely in support of their engagement with You, and solely for your benefit, on the condition that You bind such independent contractors to a confidentiality agreement consistent with the terms and conditions of this Agreement. Moreover, each Party may share Confidential Information of the other party on a confidential basis with legal and financial advisors. Each Party shall take measures to prevent the disclosure and unauthorized use of Confidential Information of the other party that are equivalent to the measures taken by the receiving party with respect to its own confidential information of a similar nature, but no less than reasonable measures.

5.2 Exceptions. Notwithstanding the above, the restrictions of this Section shall not apply to information that: a) was independently developed by the receiving party without any use of the Confidential Information of the other party; b) becomes known to the receiving party, without restriction, from a third party without breach of this Agreement and who had a right to disclose it; c) was in the public domain at the time it was disclosed or becomes in the public domain through no act or omission of the receiving party; or d) was rightfully known to the receiving party, without restriction, at the time of disclosure. In the event that a court, administrative agency, or other governmental body orders the disclosure of Confidential Information, the receiving party shall provide prompt notice thereof to the other party and shall use its reasonable best efforts to obtain a protective order or otherwise prevent public disclosure of such information.

5.3 Injunctive Relief. Each party agrees that in the event of such party’s actual or threatened violation of the provisions of this Section, the other party will not have an adequate monetary remedy and shall be entitled to seek appropriated immediate injunctive relief without any requirement to post bond, in addition to any other available remedies.

6. Limited Warranty and Disclaimer.

6.1 Limited Software Warranty. Accellion warrants that, for a period of thirty (30) days following shipment of the Accellion Software to You, that (a) the medium on which each copy of the Accellion Software is furnished will be free from defects in materials and workmanship; and (b) the Accellion Software will function substantially in accordance with the Accellion Software Documentation published by Accellion under normal use. As Your sole and exclusive remedy and Accellion’s sole and exclusive liability for any breach of the foregoing warranty identified to Accellion in writing during such period, Accellion will, at its sole option and expense, promptly repair or replace any medium or Accellion Software which fails to meet this limited warranty, or, if Accellion is unable to repair or replace the medium or the Accellion Software, refund to You the applicable license fees paid upon return of the nonconforming item to Accellion. Accellion does not make any warranties, whether express or implied, regarding Hosted Services.

6.2 Limited Hardware Warranty. Accellion purchases Hardware from third-party hardware manufacturer(s) (each, a “Supplier”). Accellion may utilize authorized service partners, including the Supplier, to perform the services set out in this Section and in the Accellion Maintenance Support Policy. Accellion shall use its reasonable efforts to assign the applicable Supplier’s warranty to You if required. Accellion warrants to You that for a period of thirty (30) days from the date of delivery of the Accellion Appliance or the period of the Supplier’s warranty whichever is the longer, the hardware will be free from material defects or workmanship under normal use. As Your sole and exclusive remedy and Accellion’s sole and exclusive liability for any breach of the foregoing warranty, and provided that Accellion is notified in writing of any such breach during the warranty period, Accellion will repair or replace, or cause to be repaired or replaced, at its option, any Hardware that does not meet the above limited warranty. All exchanged parts replaced under the Supplier’s warranty will become the property of the Supplier. If for any reason the Hardware cannot be fixed, Accellion will, at its sole option and expense, replace the same with new hardware, or refund to You the applicable fees paid upon return of the nonconforming item to Accellion.

6.3 Limited Services Warranty. Accellion warrants that all services provided by Accellion hereunder will be of a professional quality and will conform to generally accepted industry standards. This warranty shall be valid for thirty (30) days from the completion of the applicable services. As Your sole and exclusive remedy and Accellion’s sole and exclusive liability for breach of the foregoing warranty, Accellion will, at its sole option and expense, and provided that Accellion is notified of any such breach during the warranty period, re-perform the services, or if Accellion is unable to perform the services as warranted, refund the fees paid to Accellion for the service.

6.4 Exceptions. Accellion is not liable under any warranty or otherwise for defects or liability caused by the use of the Accellion Appliance or Accellion Software in any manner or for any purpose other than that for which it was licensed to You, or for causes not within Accellion’s reasonable control. Limited Hardware and Software warranties are void if failures thereof are caused in whole or in part by accident, abuse, misuse, or modification not authorized in writing by Accellion. In order to provide warranty and maintenance services hereunder, as well as any Updates and Releases, Accellion requires both reasonable remote and on-site access to the Accellion Software and Accellion Appliance. Failure to provide Accellion with such reasonable access shall relieve Accellion of its warranty, support, Update and Release obligations hereunder with respect to such Accellion Software and Accellion Appliance.

6.5 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE, ACCELLION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WHETHER STATUTORY OR NOT, INCLUDING BUT NOT LIMITED TO, WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ACCELLION DOES NOT WARRANT THAT THE ACCELLION SOFTWARE OR ACCELLION APPLIANCE OR ANY HOSTED SERVICES WILL MEET YOUR REQUIREMENTS OR OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU, OR THAT THE OPERATION OF THE ACCELLION SOFTWARE OR ACCELLION APPLIANCE OR HOSTED SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. IT IS YOUR SOLE RESPONSIBILITY TO IMPLEMENT APPROPRIATE SECURITY AND BACKUP PROCEDURES FOR YOUR NETWORK AND E-MAIL SYSTEMS.

ACCELLION MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE PRODUCTS OR SERVICES PROVIDED BY ITS CHANNEL PARTNERS OR ANY HOSTED SERVICES PROVIDERS, AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY ACT OR OMISSION OF ANY CHANNEL PARTNER OR HOSTED SERVICES PROVIDERS. NO CHANNEL PARTNER OR HOSTED SERVICES PROVIDER SHALL HAVE ANY AUTHORITY TO BIND ACCELLION TO ANY TERMS OR CONDITIONS OTHER THEN THOSE EXPRESSLY SET FORTH HEREIN.

7. Indemnification.
7.1 Accellion Indemnity. Accellion shall defend any action brought against You to the extent that it is based upon a claim that the Accellion Software, as provided by Accellion to You, or as modified by Accellion under this Agreement, and used within the scope of this Agreement, infringe any U.S. patent or foreign equivalent thereof existing as of the Effective Date of this Agreement or any copyright, or misappropriates any trade secret, specifically excluding any infringements relating to Hosted Services, and will pay any costs and damages attributable to such claim that are finally awarded against You (and all of Your reasonable attorneys’ fees), provided that You: (a) promptly notify Accellion in writing of the claim; (b) grant Accellion sole control of the defense and settlement of the claim; and (c) provide Accellion with all assistance, information and authority required for the defense and settlement of the claim.

7.2 Exclusions. Accellion will have no liability for any infringement or misappropriation claim of any kind to the extent it results from: (a) modification of any Accellion Software made by a party other than Accellion; (b) the combination, operation or use of the Accellion Software with software, equipment or devices not supplied by Accellion; (c) Your failure to use updated or modified software or hardware provided by Accellion; or (d) compliance by Accellion with designs, plans or specifications furnished by You or on your behalf of.

7.3 Injunction. If Accellion determines that a third party claim may substantially interfere with Your use of the Accellion Software, Accellion, at its sole discretion, may (a) replace the Accellion Software, without additional charge, with a non-infringing product that is at least functionally equivalent; (b) modify the Accellion Software to avoid the infringement; (c) obtain a license for You to continue use of the Accellion Software, and pay any additional fee required for such license: or (d) if none of the foregoing alternatives are commercially reasonable, Accellion may terminate the license for the infringing Accellion Software. In such event You shall promptly return the infringing software to Accellion, and Accellion shall refund to You that portion of the license fee paid as relates to the infringing product less an amount for use computed on the basis of straight line depreciation over five (5) years. THIS SECTION 7 SHALL CONSTITUTE ACCELLION’S SOLE AND EXCLUSIVE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR A CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

8. LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF SECTION 5 (CONFIDENTIALITY) OR FOR YOUR INTENTIONAL BREACH OF THE LICENSES GRANTED IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, AND ACCELLION’S LICENSORS AND SUPPLIERS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. WITHOUT LIMITING THE FOREGOING IN THIS SECTION, EXCEPT FOR A BREACH OF SECTION 5 OF THIS AGREEMENT (CONFIDENTIALITY), ACCELLION’S AGGREGATE LIABILITY FOR DAMAGES SHALL IN NO EVENT EXCEED THE TOTAL FEES PAID BY YOU TO ACCELLION UNDER THIS AGREEMENT IN THE PREVIOUS TWELVE MONTHS. The parties expressly acknowledge and agree that the prices and terms of this Agreement were made in reliance upon the limitation of liability specified herein, which allocate the risk between Accellion and You.

9. Maintenance Support Services. You may purchase Maintenance Support Services for the Accellion Software. If purchased, Accellion will provide Maintenance Support Services for one (1) year from the Effective Date of this Agreement or the applicable Order Form in accordance with Accellion’s then-standard Maintenance Support Policy or, if you have paid for Enterprise Support, Accellion’s then-current Enterprise Support Policy. Accellion’s Maintenance Support Policy in effect as of the Effective Date of the Agreement is set forth at https://www.kiteworks.com/legal/maintenance-support-policy-standard/ and Accellion’s Enterprise Support Policy is set forth at https://www.kiteworks.com/legal/maintenance-support-policy-enterprise/. Following the first anniversary of the Effective Date, as long as Accellion is offering Maintenance Support, and provided that this Agreement is still in effect, the Maintenance Support Services shall automatically renew and Accellion shall invoice You for the specified maintenance fees. Provided however that, You may terminate the Maintenance Support Services upon the expiration of any one (1) year maintenance term upon providing Accellion with written notice at least thirty (30) days before the expiration of the then-current term. In the event You allow Maintenance Support to lapse, You may thereafter renew such support for the affected Accellion Software and/or Accellion Appliance by paying the then current annual Maintenance Fee plus an amount equal to the aggregate Maintenance Fees that would have been payable for the affected Accellion Software and/or Accellion Appliance during the period of lapse.

10. Updates and New Releases. Provided that You have purchased Maintenance Support Services, Accellion will make available to You all Updates to the supported Accellion Software that Accellion makes generally available to its other customers. You shall provide Accellion access to the Accellion Software and/or Accellion Appliance, as the case may be, to install such Updates if required by Accellion. The provision of new Releases shall be at Accellion’s sole discretion and shall be subject to the payment of additional fees.

11. Term and Termination.

11.1 Term. This Agreement commences on the Effective Date set forth in the Order Form cover page to this Agreement and, unless terminated as set forth in this Section, shall continue for the License Term set forth on such Order Form. The parties may agree in writing to renew this Agreement for additional License Terms upon the execution of an Order Form specifically referencing this Agreement.

11.2 Termination. Either Party may terminate this Agreement or any license granted under this Agreement if: (i) the other party breaches any material provision of this Agreement for any reason, which breach has not been cured within thirty (30) days of written notice; or (ii) the other Party becomes subject of a voluntary or involuntary petition in bankruptcy, or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, which is not dismissed within sixty (60) days after commencement.

TERMINATION SHALL NOT RELIEVE YOUR OBLIGATIONS TO PAY ALL CHARGES THAT HAVE ACCRUED UP TO THE DATE OF TERMINATION NOR ENTITLE YOU TO ANY COMPENSATION (WHETHER FOR LOSS OF RIGHTS, GOODWILL OR OTHERWISE).

11.3 Consequences of Termination. Upon termination or expiration of this Agreement, for any reason, all rights granted under this Agreement shall terminate, and You will promptly return to Accellion or, at Accellion’s request, destroy, the applicable Accellion Software, Accellion Confidential Information and Accellion Appliance, in all forms and types of media, and provide Accellion with written certification by your officer of compliance with the foregoing.

11.4 Provisions Surviving Termination. The following provisions shall survive any expiration or termination of this Agreement: Sections 4, 5, 8, 11 and 12 and the restrictions set forth in Section 2.2.

12. Miscellaneous.

12.1 Assignment and Transfer. You may, upon providing prior written notice to Accellion, assign this Agreement to the acquirer of all or substantially all of your assets, or the assets of the business unit making use of the Accellion Software, provided that such acquirer agrees in writing to be bound by the terms and conditions of this Agreement and, if required by Accellion as a result of obligations to AWS, obtain its own Hosted Services solution. Any other purported assignment shall be null and void. The terms and conditions of this Agreement shall bind the Parties, and each of their respected acquirers, successors and assigns.

12.2 Notice. Notices under this Agreement shall be sufficient only if in writing and transmitted via facsimile (with confirmation of receipt), personally delivered, delivered by a major commercial rapid delivery courier service or mailed, postage or charges prepaid, by certified or registered mail, return receipt requested to a Party at its addresses set forth on the Order Form cover page of this Agreement, or as amended by notice pursuant to this Section. If not received sooner, notice by mail shall be deemed received five (5) days after deposit in the U.S. mails.

12.3 Force Majeure. Neither Party will incur any liability to the other on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of such Party. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, terrorism, riots, acts of war, internet and network failures, earthquakes, fire and explosions. The foregoing in this Section 12.3 shall not apply to Your payment and the mutual confidentiality obligations hereunder.

12.4 Modification, Waiver, and Remedies. This Agreement, including properly referenced attachments and accepted Order Forms explicitly referencing this Agreement, contains the entire understanding between Accellion and You with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous agreements, dealings and negotiations. No modification, alteration, amendment or addition shall be effective unless made in writing, dated and signed by a duly authorized representative of each Party. To the extent that a purchase order or like document contains terms that are different from or inconsistent with this Agreement such terms are hereby rejected and this Agreement shall control over any such different or inconsistent terms. No waiver of any breach hereof shall be held to be a waiver of any other or subsequent breach. Each party’s rights and remedies are in addition to any other rights and remedies provided by law or in equity. No choice of any remedy shall constitute an election of remedies hereunder. This Agreement may be executed in counterparts and all signed fax copies of this Agreement shall be deemed as valid as originals. This Agreement conveys no third-party beneficiary rights on Channel Partner.

12.5 Severability. If any provision of this Agreement is finally determined to be contrary to, prohibited by, or invalid under applicable laws or regulations, this Agreement will be modified so as to give effect to the intent of the Parties to the maximum possible extent. The remaining provisions of this Agreement shall remain in full force and effect.

12.6 Export Compliance. You acknowledge that the Accellion Software and Accellion Appliance are subject to U.S. export laws and regulations and any transfer of the same must be authorized under those laws and regulations. You will not use, distribute, transfer or transmit the Accellion Software or Accellion Appliance except in compliance with U.S. Export Regulations and all foreign export laws and regulations. You will indemnify, defend, and hold Accellion harmless from and against any claims, penalties, loss or damages arising out of any breach of Your obligations hereunder.

12.7 Government Licensing. All Accellion Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227 -14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable. All rights reserved.

12.8 Relationship; Governing Law. The relationship of the Parties is that of independent contractors. This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to conflict of law principles thereof. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Parties irrevocably submit to the exclusive personal jurisdiction and venue of the state and federal courts located in Santa Clara County in the State of California.