Master Cloud Services Agreement

This Enterprise Master Service Agreement (the "Agreement") governs the use of the Tessell Service (defined below), including any free trials, and includes the Service Level Agreement found at https://www.tessell.com/sla (the "SLA"), along with any support plans, which are hereby incorporated by reference in their entirety. This is a legal agreement between Tessell, Inc. ("Tessell") and you or the entity that you represent ("Customer"). By accepting this Agreement, either by physically signing this Agreement, by clicking a box or button indicating your acceptance, by executing a purchase order or similar instrument that references this Agreement, or by accessing the Tessell Service, you agree to the terms of this Agreement. If you do not agree with the terms of this Agreement, you must not accept this Agreement, and may not use or access the Tessell Service.

1.    Definitions

1.1. An "Affiliate" of a party means any entity that directly or indirectly controls, is controlled by, or is under common control with the party. For purposes of this definition, "control" means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the party.

1.2. "Customer Data" means Customer's content and application data uploaded by or on behalf of Customer to the Tessell Service.

1.3. "Customer Personal Data" means Customer Data that is Personal Data owned or controlled by Customer and which Tessell, a Tessell affiliate or subcontractor may process in the course of providing the Tessell Service.

1.4. "Documentation" means any documents regarding the Tessell Service made available to Customer by Tessell, including user guides made available to Customer within the Tessell Service itself.

1.5. "Downtime Period" means the same as defined in the SLA.

1.6. "Effective Date" means the date Customer accepts the terms of this Agreement.

1.7. "Order" means a purchase order or other agreed upon legally binding document placed by Customer that specifies a subscription period, quantities, description of the Tessell Service, and any ancillary services such as support and professional services purchased by Customer 

1.8. "Personal Data" means (i) any information relating to an identified or identifiable natural person; and/or (ii) any information that identifies, relates to, describes, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Unless prohibited by applicable laws or regulations, Personal Data shall not include information or data that is anonymized, deidentified and/or compiled on a generic basis and which does not name or identify a specific person.

1.9. "Tessell Service" means the Tessell cloud-based Database as a Service (DbaaS)offering purchased by Customer as specified in an applicable Order, or as set out on Tessell's website if purchasing online. The Tessell Service includes all updates, copies, modifications, and derivative works thereof. The Tessell Service does not include free trials, or software that originates from Customer or a third party and interoperates with the Tessell Service. If purchased online, (1) orders may be made by the Customer after registering at Tessell's website or automatically by using APIs of the Tessell Services; (2) the Customer shall be responsible for any orders made under the Customer's account, whether by the Customer itself, by its authorized users, or by the Customer's data systems automatically, and shall be responsible for the payment of all fees based on orders made under the Customer's account; and (3) no order made by the Customer is valid until accepted by Tessell. Tessell shall be deemed to have accepted the order if it supplies the Tessell Services to the Customer. Tessell reserves the right to place controls and restrict the Customer's orders of the Tessell Services.

1.10. "Term" means the period of time from the Effective Date until the last subscription period, including any renewals, in any Order expires or one (1) year, whichever is later.

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2.    Customer License

2.1. License to Use the Tessell Service; Service and Support. Subject to Customer's compliance with this Agreement and Customer's payment of all fees due, for the duration of the applicable subscription period, Tessell grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as may be expressly permitted herein) revocable, right to access and use the Tessell Service in accordance with any Documentation, solely for Customer's internal business purposes, limited to the quantities, duration, and any other limitations set forth in the applicable Order. Customer may use the Tessell Service for the benefit of its Affiliates, and Affiliates may use the Tessell Service for their own benefit, limited to the quantities and any other limitations as set forth in the applicable Order and subject to compliance with all terms of this Agreement. Customer guarantees that each Affiliate will fully perform its obligations here under, and Customer is responsible for any breach of this Agreement by its Affiliates. Tessell will use commercially reasonable efforts to provide availability for the Tessell Service during the applicable subscription period in accordance with the SLA. Notwithstanding anything to the contrary in this Agreement, any use of the Tessell Service by Customer or its users that threatens the security, integrity or availability of the Tessell Service (in Tessell's reasonable judgment) may result in the immediate suspension of Customer's access to the Tessell Service; however, Tessell will use commercially reasonable efforts to provide Customer with notice and an opportunity to remedy such breach or threat prior to such suspension. During the applicable subscription period, Tessell will provide support services to Customer purchased under an applicable Order.

2.2. Subscription Period; Term of Agreement. Subject to Customer's compliance with its obligations under this Agreement, Customer may use the Tessell Service for the duration of Customer's subscription specified in the applicable Order. If Customer does not opt to cancel the subscription within thirty (30) days of the end of the then current subscription, the subscription shall automatically renew for an additional one (1) year period. If Customer provides such thirty (30) day written notice to not renew the subscription to the Tessell Service, as of the end of the subscription, Customer's right to use the Tessell Service terminates and the Tessell Service will no longer operate. The Agreement will remain in effect for the Term.

3.    Customer Obligations.

3.1. Use of the Tessell Service. Customer will not, nor will Customer assist others to: (i) copy or distribute the Tessell Service or Documentation (except for a reasonable number of copies of theDocumentation for internal use) or modify, encumber, enhance or create any derivative works of the Tessell Service or Documentation, including without limitation, customization, translation or localization; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or the underlying ideas, algorithms, structure, sequence and organization of the Tessell Service; (iii) sell, license, sublicense, rent, lease, lend or transfer the Documentation or Tessell Service or provide, disclose or use the Tessell Service or Documentation for the benefit of any third party,; (iv) remove, alter or obscure any patent, copyright, trademark or other proprietary notices on the Tessell Service or Documentation; (v) publish or disclose to any third party any technical features or specifications, performance, functionality, or benchmark tests, or comparative or competitive analyses relating to the Tessell Service and free trials; (vi) access or use the Tessell Service or Documentation to promote, distribute, sell, or support any product or service competitive with Tessell; (vii) violate or circumvent any technological restrictions in the Tessell Service; (viii) use the Tessell Service for any purpose or in any manner not authorized by this Agreement; (ix) use the Tessell Service in violation of any applicable local, federal, or other laws and regulations; or (x) host, support, use or otherwise deploy the Tessell Service as a service on behalf of any unaffiliated third party without Tessell's express written agreement. Customer must promptly notify Tessell of any unauthorized use of or access to the Tessell Service purchased by Customer.

3.2. Customer Credentials. Customer is responsible for using a key management system for secure storage of Customer's passwords, keys or other access authentication methods ("Credentials"). Customer acknowledges and agrees that Tessell is unable and has no obligation to recover Customer's Credentials if lost by the Customer. Customer acknowledges the loss of such Credentials by Customer may result in the loss of access to Customer Data. Customer is responsible for maintaining the confidentiality of all usernames and passwords required for its use of and access to the Tessell Service and for all activities conducted in connection there with.

3.3. Customer Data in Tessell Service. Customer shall only upload Customer Data to the Tessell Service that it has the authority to upload.

4.    Fees

4.1. General. The rates applicable for the Tessell Service may be reviewed at Tessell's web site or an Order, with the Order taking precedence. Actual fees for Tessell Service will vary depending on the Customer's use of the Tessell Service.

4.2. Invoicing. All fees are automatically charged monthly in arrears from the Customer. If separately agreed with the Customer, the fees for the use of the Tessell Service shall be invoiced monthly in arrears based on the Customer's use of the Tessell Service. In case a separate invoice is sent, the Customer is responsible for paying any fees properly due in accordance with the invoices sent by Tessell. Unless stated otherwise in an applicable Order, all payments are due within thirty (30) days of invoicing.

4.3. Price Adjustment. Tessell reserves the right to increase the rates applicable to the Tessell Service due to the general increase of Tessell's costs and expenses of production (such as but not limited to general increase of labor costs and expenses). Further, Tessell may increase the rates applicable to the Tessell Service by an amount corresponding to an increase of costs of relevant third party offerings. Tessell will inform the Customer of such change at least thirty (30) days before implementing such change. Use of the Tessell Service beyond such date will be deemed as acceptance of the new fees. 

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4.4. Taxes. All fees quoted are exclusive of sales, value added, or other applicable tax.

5.    Proprietary Rights

5.1. Customer Data. As between Tessell and Customer, Customer owns Customer Data. Customer grants to Tessell, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Customer Data, as reasonably necessary for Tessell to provide the Tessell Service in accordance with this Agreement. Subject to the limited licenses granted herein, Tessell acquires no right, title or interest in or to any Customer Data. Customer shall be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data.

5.2. Tessell Service. As between Tessell and Customer, Tessell and its licensors retain all rights, title, and interest in and to the Tessell Service, Documentation, support services and professional Services, including all copies, modifications, and derivative works thereof and all intellectual property rights therein. Tessell grants to Customer a worldwide, nonexclusive, non-transferable, non-sublicensable right to use the support services and/or professional services solely for Customer's use with the Tessell Service during the applicable subscription period. This Agreement does not grant Customer any rights not expressly set forth herein. Customer may elect to provide suggestions, requests for enhancements or functionality, or other feedback to Tessell relating to the operation of the Tessell Service ("Feedback"). If Customer, in its sole discretion, provides Feedback, Customer hereby grants Tessell a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into its products and services any Feedback as it sees fit without obligation or restriction of any kind.

5.3. Open Source Software. Customer can access any notice and attribution files for any applicable open-source software distributed with, hosted with, provided with or otherwise made use of with the Tessell Service upon request.

6.    Audit

6.1. Standard Audits. During the Term and for a period of one (1) year thereafter, Tessell (or its independent third-party auditors) has the right, upon reasonable notice, to reasonably audit Customer's relevant systems and records to confirm Customer's compliance with this Agreement. Tessell may conduct no more than one (1) audit per twelve (12) month period and Customer shall reasonably cooperate with Tessell (or its independent third-party auditors) for such audit. Tessell shall conduct such audit during Customer's regular business hours and in a way designed to minimize business disruption. If an audit discloses Customer has installed, accessed, used, or otherwise permitted use of or access to the Tessell Service in a manner that is not expressly permitted by this Agreement, Customer agrees to promptly pay Tessell for any unpaid fees for such use or access to the Tessell Service, in addition to the cost of such audit.

6.2. Additional Audits. In addition to the above, Tessell may conduct one additional audit if Customer is in breach of any obligations under this Agreement.

7.    Free Trials

7.1. Free Trial Use. Tessell may provide the Tessell Service to Customer at no charge specifically for trial purposes, or a free trial. Subject to Customer's compliance with this section, Tessell grants Customer a limited, personal, non-exclusive, non-transferable, non-assignable, revocable right to use the free trial solely for internal, non commercial evaluation purposes for thirty (30) days from Customer's access to the free trial, unless otherwise specified by Tessell in writing in its sole discretion ("Trial Term"). In the event the free trial is not yet generally available and is provided to Customer in beta or other pre-release format, Customer acknowledges, as a condition of its use: (i) such free trial is under development and not at the level of performance or compatibility of generally available products; (ii) may not operate correctly, may contain errors, bugs, and design flaws; (iii) may be modified by Tessell prior to being made generally available; (iv) may not be made available for general release; and (v) Customer agrees to use reasonable efforts to notify Tessell of any bugs or problems it encounters during the free trial.

7.2. Restrictions. Customer assumes all risk in uploading or storing any Customer Data into a free trial, and Tessell shall have no liability with regard thereto, including for any loss or corruption of Customer Data. Upon expiration or termination of the Trial Term, Customer shall have no right to access or use the free trial. Customer shall securely delete all Customer Data from the free trial upon termination or expiry of the Trial Term. In relation to any free trials, Tessell shall have no liability under this Agreement (or any legal or equitable theory).

8.    Confidentiality

8.1.  Confidential Information. Customer and Tessell may disclose Confidential Information to each other during the Term. "Confidential Information" means all nonpublic proprietary business and technical information disclosed by one Party ("Disclosing Party") to the other Party ("Receiving Party") which is in tangible form and labeled "confidential" or the like, or that reasonably should be understood to be confidential given the circumstances of disclosure and the nature of the information. Confidential Information includes, but is not limited to, the Tessell Service, Documentation, free trial software or services, strategic roadmaps, product plans, product designs and architecture, technology and technical information, security processes, security audit reviews and business and marketing plans. Confidential Information will not include information that: (i) was already in Receiving Party's possession without confidentiality obligations; (ii) is rightfully received by Receiving Party without confidentiality obligations; (iii) is independently developed by the ReceivingParty without use of or reference to the Disclosing Party's Confidential Information as supported by documents and other competent evidence; or (iv) is in the public domain without breach of a confidentiality obligation by the Receiving Party as supported by documents and other competent evidence.

8.2. Use and Obligations. The Receiving Party will protect Confidential Information received from the Disclosing Party using the same degree of care as it uses to protect its own similar confidential materials, but in no event using less than reasonable care. The Receiving Party will disclose Confidential Information only to its employees, Affiliates, alliance partners or contractors who have a need to know for purposes of this Agreement and who are under a written obligation of confidentiality no less protective than this Agreement. Each Party may also disclose Confidential Information, including the terms and conditions of this Agreement, in confidence to its legal counsel, accountants, auditors, banks and financing sources, and their advisors. Confidential Information may be disclosed in response to a subpoena or order of a court or governmental agency, provided however, that if not otherwise prohibited, the Receiving Party will notify the Disclosing Party promptly of such disclosure to enable the Disclosing Party to seek an appropriate protective order.

8.3. Security and Protection of Personal Data. Tessell will implement and maintain commercially reasonable administrative, physical and technical safeguards and measures designed to address the security, confidentiality and availability of Customer Data in the Tessell Service.

8.4. Return or Destruction. Upon expiration or termination of this Agreement for any reason, the Receiving Party will, upon request, return or destroy the Disclosing Party's Confidential Information. Notwithstanding the foregoing, the Receiving Party may retain copies of Disclosing Party's Confidential Information stored electronically on data archives or back-up systems or to comply with the laws or regulations applicable to the Receiving Party, provided that such copies shall at all times be subject to the terms of this Agreement while in Receiving Party's possession or control.

9.    Warranty

9.1. Tessell Service Warranty. Tessell warrants to Customer during the applicable subscription period ("Warranty Period") that the Tessell Service will conform in all material respects to the applicable Documentation and the SLA ("Tessell Service Warranty"). For clarity, the SLA service commitments do not include scheduled downtime.

9.2.  Professional Services Warranty. Professional services, if any, may be performed by Tessell or subcontractors acting on Tessell's behalf. Tessell warrants that: (i) it and its personnel have the necessary knowledge, skills, experience, qualifications and resources to provide and perform the professional services; and (ii) the professional services will be performed in a professional and workmanlike manner in accordance with industry standards. As a condition to Tessell providing professional services hereunder, Customer shall: (a) provide good faith cooperation and access to such information, facilities, and equipment as may be reasonably required in order to provide the professional services; and (b) provide such personnel assistance as may be reasonably requested from time to time. If, through no fault or delay by Customer, or any failure by Customer or Customer's representatives to perform in accordance with this section, the professional services do not conform to the foregoing warranty, and Customer notifies Tessell within ten (10) days of Tessell's completion of the professional services, Tessell will re-perform the non-conforming portion(s) of the professional services at no additional cost to Customer.

9.3. Remedy and Exclusions. Tessell's sole obligation under the Tessell Service Warranty, and Customer's exclusive remedy, is to use commercially reasonable efforts to correct the non-conformity during the Warranty Period. If Tessell is not able to correct the non-conformity in the Tessell Service such that it complies with the Tessell Service Warranty, Tessell will process a refund of the unused, prepaid fees for such non-conforming Tessell Service, and Customer's right to use the Tessell Service for which the refund was processed terminates. Customer shall provide all information reasonably requested to enable Tessell to cure any such deficiencies. The foregoing warranties do not apply to the Tessell Service: (i)that is installed, operated, maintained, stored or used improperly, or in any manner not in accordance with the Documentation, this Agreement or Tessell's written instructions; (ii) that is repaired, altered or modified other than by Tessell; or (iii) where the issue is caused by any failure of third-party software or cloud services not supplied by Tessell.

9.4. Disclaimer of Warranties. EXCEPT AS PROVIDED UNDER THIS SECTION, AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, TESSELL AND ITS LICENSORS DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. TESSELL DOES NOT WARRANT AGAINST LOSS OR INACCURACY OF DATA, THAT THE OPERATION OF THE TESSELL SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE TESSELL SERVICE WILL BE COMPATIBLE WITH ANY THIRD-PARTY SOFTWARE OR HARDWARE. TESSELL, ITS SUPPLIERS AND LICENSORS ARE NOT LIABLE OR RESPONSIBLE FOR ANY WARRANTIES, EXPRESS OR IMPLIED, PROVIDED BY A THIRD PARTY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, FREE TRIALS ARE PROVIDED AND LICENSED TO CUSTOMER ON AN "ASIS" BASIS, AND ALL WARRANTIES AND INDEMNITIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.

10. Indemnification

10.1.  Indemnification by Tessell. Tessell agrees to defend or settle, at Tessell's expense, a third-party claim or cause of action against Customer alleging with specificity that, standing alone, the Tessell Service or its use: (i) infringes a copyright or patent of such third party; or(ii) infringes all inventive aspects of a patent of such third party ("Claim")and to pay damages finally awarded against Customer by a court of competent jurisdiction or as agreed to in a settlement. Tessell's obligations here under do not apply with respect to any Claim that arises out of: (a) any unauthorized use, reproduction or distribution of the Tessell Service; (b) providing industry standard functionality; (c) the Tessell Service being modified after delivery without Tessell's prior written authorization; or (d) Customer's continued use of the allegedly infringing Tessell Service after Tessell modified the Tessell Service to be non-infringing. If any Claim arises, Tessell may, at its sole option and expense: (A) replace or modify the affected Tessell Service to make it non infringing; (B) procure a license for Customer's continued use of the affected Tessell Service; or if Tessell determines (in its sole discretion) that (A) and (B) are not commercially viable, terminate Customer's rights thereto, in which case Tessell will process a pro-rated refund for the applicable prepaid unused fees for such Tessell Service covering the remainder of the applicable subscription period. This section statesCustomer's sole and exclusive remedy, and Tessell's sole liability, with respect to infringement of third party intellectual property rights

10.2.  Customer Indemnity. Customer agrees to defend and indemnify Tessell from and against any loss, damage, or cost arising from a third-party claim that Customer's provision or use of Customer Data violates a third party's rights.

10.3.  Indemnification Process. As a condition of receiving indemnity as described in this section, the party seeking the indemnity will provide the other party with: (i) prompt written notice of the claim, provided, however, that the failure to give such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is prejudiced by such failure; (ii) complete control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim without the other party's prior written permission if the settlement fails to unconditionally release the indemnified party from all liability pertaining to the claim (such permission not to be unreasonably withheld, delayed or conditioned); and (iii) reasonable assistance in connection with the defense and settlement of the claim.

11. Limitation of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA OR THE COST OF COVER, HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE, INDEMNITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION WILL NOT APPLY TO THE EXTENT THE EXCLUSION IS PROHIBITED BY LAW. EXCEPT FOR INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL TESSELL'S, ITS AFFILIATES' AND ITS LICENSORS'TOTAL, CUMULATIVE AND ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER FOR THE TESSELL SERVICE GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY OR ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN BUT WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

12. Termination

12.1. Termination for Cause. Any Orders placed pursuant to this Agreement are non-cancellable and non-refundable, except as provided for herein or otherwise stated in the Order. A party may terminate this Agreement if the other Party: (i) materially breaches this Agreement and such breach is not cured within thirty (30) days of such Party's receipt of written notice describing the breach; or (ii) becomes insolvent, admits in writing of its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding.

12.2. Post-Termination Obligations. Upon expiration or termination of this Agreement, Customer will no longer have access to the Tessell Service, except as set out herein. Upon expiration or termination, Customer will destroy the Documentation. For a period of thirty (30) days after such termination or expiration, upon Customer's prior written request, Tessell will allow Customer limited access to retrieve any Customer Data remaining on the Tessell Service, subject to Customer's compliance with the terms of this Agreement. After such thirty (30) day grace period, Customer will have no further rights or access to the Tessell Service, and Customer's Tessell Service instance, including any Customer Data, will be permanently deleted by Tessell. The terms of this Agreement shall remain in full force and effect for the period of any post-termination access to the Tessell Service by Customer.

12.3.  Surviving Provisions. The following sections shall survive termination or expiration of this Agreement: Section 1, Section 4, Section 5, Section 6, Section 7.2, Section 8, Section9.4, Section 10, Section 11, Section 12.3, and Section 13.

13. General

13.1. Independent Contractors. The parties are independent contractors under this Agreement, and nothing herein shall authorize one party to have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other party.

13.2. Assignment. Neither party will assign any of its rights or delegate any of its obligations under this Agreement, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed; except that either party may, upon written notice to the other party, assign this Agreement and its rights and obligations to any successor by way of merger, consolidation, or the acquisition of all or substantially all of its assets or voting securities. Any purported assignment in violation of the foregoing is void and of no force or effect. Subject to the foregoing restrictions, this Agreement will bind and inure to the benefit of each party's permitted successors and assigns.

13.3. Export Controls and Trade Laws. Each party will comply with all applicable export laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. Without limiting the foregoing, each agrees that it will not export, re-export, download, or otherwise transmit Confidential Information or the Tessell Service: (i) to any country or region subject to aU.S. embargo or comprehensive trade sanctions; (ii) to any individual or entity identified on any U.S. Government restricted party lists (including the Consolidated Sanctions, Specially Designated Nationals, Denied Persons, Entity, or Unverified Lists); or (iii) to any end user with knowledge or reason to know that the Tessell Service or such Confidential Information will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes.

13.4. Customer Reference. During the Term of the Agreement, Tessell may use Customer's name and logo for sales and marketing purposes.

13.5. Severability. In the event that any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, void or unenforceable, such provision will be limited or eliminated to the extent necessary so that the remainder of this Agreement shall continue in full force and effect.

13.6. Non waiver. The failure of a party to enforce any provision of this Agreement will not be construed as a waiver of such provision or of any other provision of this Agreement.

13.7. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement to the extent caused by circumstances beyond the reasonable control of the party including (without limitation) pandemics, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, internet service provider failures or delays, denial of services attacks or other similar causes, war, terrorism, governmental action, labor conditions, earthquakes, volcanic eruptions or material shortages.

13.8. Integration; Order of Precedence. This Agreement constitutes the entire agreement between Customer and Tessell and supersedes any and all prior agreements or communications between the parties with regard to the subject matter here of. This Agreement may not be amended or modified except by a writing that specifically refers to this Agreement and is signed by an authorized representative of both parties. Unless otherwise explicitly stated herein, the terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any Order, purchase order acknowledgement, confirmation or other document issued by or on behalf of Customer, and terms and conditions in such documents are of no force or effect.

13.9. Governing Law; Dispute Resolution. The United Nations Convention of Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement. Nothing in this section will limit or restrict either party from seeking injunctive or other equitable relief from a court of competent jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without applying conflict of law principles. With respect to all disputes and actions arising from or related to this Agreement, the Parties irrevocably consent to exclusive jurisdiction and venue in the state and federal courts located in Santa Clara County.