ThreatModeler’s obligations with respect to products or services supplied by ThreatModeler and procured by an end-user customer (hereinafter “Customer”) from authorized ThreatModeler’s Business Partners are limited to the terms and conditions in these ThreatModeler’s CUSTOMER PASS THROUGH TERMS (“Terms”) and the specific Supporting Material included with the ThreatModeler supplied products and services. ThreatModeler is not responsible for the acts or omissions of ThreatModeler Business Partners, for any obligations undertaken by them or representations that they may make, or for any other products or services that they supply to Customer.
1.1. “Licensed Software” means the: ThreatModeler proprietary computer programs identified as being licensed by Customer in the Service Schedule;
1.2. “Licensed Software Documentation” means the user manual and other written material relating to the Licensed Software that ThreatModeler makes available (directly or through its Certified Solution Providers) to users of that same Licensed Software.
1.3. “Certified Solution Provider“ means a reseller of the Licensed Software that has been authorized by ThreatModeler to, and has met and maintained ThreatModeler’s requirements for, selling and supporting the Licensed Software. Customer can confirm whether any entity is a Certified Solution Provider of ThreatModeler by contacting firstname.lastname@example.org.
1.4. “Contract Year” means each 12-month period commencing on the Effective Date and on each anniversary thereafter.
1.5. “Designated Technical Support Contact” means an individual designated by Customer in writing to ThreatModeler to represent Customer and be the primary contact point in respect of Maintenance provided by ThreatModeler or its designee. Such individuals, restricted to three of Customer employees, must be sufficiently technically competent to communicate, receive and implement instructions relating to the Licensed Software and the hardware upon which it is configured. Customer may change the person so designated to another person by providing written notice to ThreatModeler.
1.6. “Effective Date” means (a) if Customer purchase the license to the Licensed Software directly from ThreatModeler, then the date on which Customer accept and sign the Service Schedule provided to Customer by ThreatModeler; or (b) if Customer purchase the license to the Licensed Software from a Certified Solution Provider, then the date on which ThreatModeler delivers the Licensed Software to Customer. Whether or not stated as being subject to ThreatModeler’s acceptance in the Service Schedule, and whether or not provided directly to ThreatModeler or a Certified Solution Provider, ThreatModeler reserves the right to reject any order that Customer may place before delivery to Customer of the Licensed Software or Supplemental Licenses that is the subject of the Service Schedule.
1.7. “Error” means a situation where the Licensed Software does not substantially conform to the Warranty set out in Section 11 of this Agreement in a material respect under circumstances in which Customer are using the Licensed Software in accordance with the terms of this Agreement and the Licensed Software Documentation for applications of the such Licensed Software as are stated in the applicable Licensed Software Documentation, and with hardware and network configurations which are stated in the Licensed Software Documentation to be required for the proper use or functioning of, or are compatible with, the Licensed Software.
1.8. “Maintenance” means the ThreatModeler Software Maintenance or ThreatModeler Content Maintenance, as applicable, and as further described in Section 8.
1.9. “Service Release” means a non-scheduled release of the Licensed Software that modifies the Licensed Software as a result of revisions to the current release, or corrections and/or fixes to the current release of the Licensed Software that ThreatModeler generally makes available at no additional cost to its licensees of such Licensed Software.
1.10. “Technical Support” means (a) telephone, e-mail and/or other forms of support at the discretion of ThreatModeler to Designated Technical Support Contacts to provide a reasonable level of guidance to Customer respecting the use of the Licensed Software; and (b) responding to reports of Errors in the Licensed Software and determining if the reported Error is a result of a problem in the Licensed Software or an environmental, configuration, installation or other problem not included in Maintenance. Technical Support does not include remote or on-site implementation; database administration; system, network or network security configuration; web server or web server security configuration; software customization; or training.
1.11. “Third Party Software” means online, Web-based applications and offline software products that are provided by third parties but interoperate with the Licensed Software.
1.12. “Version Release” means a scheduled release of the Licensed Software provided by ThreatModeler that adds and/or enables a new feature, an innovation, performance improvement, or a major enhancement to the previous release of the same Licensed Software that ThreatModeler generally makes available at no additional cost to its licensees of such Licensed Software.
1.13. “Workaround” means a change in the procedures followed by Customer to avoid an Error without substantially impairing the use of the Licensed Software.
1.14. “Customer” refers to the Licensee. ThreatModeler and Customer are collectively the “Parties” to this Agreement, and are individually a “Party”.
1.15. “Professional Services” means ThreatModeler’s product(s) or other services provided by ThreatModeler including but not limited to training and consulting.
2. LICENSE GRANT: As of the Effective Date and until expiry of the Term or the last Renewal Term (if any) if not extended pursuant to Section 4, ThreatModeler grants to Customer a non-exclusive, limited right to use the Licensed Software identified as being licensed or sublicensed to Customer on the Service Schedule and the corresponding Licensed Software Documentation solely for Customer business operations, subject always to the terms of this Agreement and restricted to the number of Licenses. Any Version Releases or Service Releases of the Licensed Software that may be delivered to Customer by ThreatModeler or its Certified Solution Provider will be considered Licensed Software under the terms of this Agreement, except they are not covered by the Limited Warranty applicable to the Licensed Software, to the extent permitted by applicable law. As provided in Section 7, Supplemental Licenses may be obtained from ThreatModeler by Customer and will be subject to the terms of this Agreement.
3. Term: The term of this Agreement will begin on the Effective Date and expire at the end of the first Contract Year (the “Initial Term”) unless renewed pursuant to Section 4 or terminated in accordance with this Agreement.
4. Option to Renew
4.1. Renewal: Customer may extend the term of this Agreement for additional periods of one year each (each, a “Renewal Term”) subject to payment of the License Fee, in advance. If Customer desire to renew the term of this Agreement Customer will provide ThreatModeler with notice of Customer intent renew at least 60 days (or such other shorter period of time as agreed by the Parties) prior to the expiry of the Initial Term or Renewal Term, as applicable.
4.2. Adjustments for Renewal Terms: Customer must notify ThreatModeler in writing of any adjustments to the number of Licenses of the Licensed Software at least 30 days prior to the expiry of the Initial Term or Renewal Term, as otherwise the number of Licenses of Licensed Software will remain unchanged for the following Renewal Term, and the amounts owing by Customer to ThreatModeler for the following Renewal Term will remain unchanged, from that of the Initial Term or Renewal Term, as applicable. Customer will be entitled to order additional Supplemental Licenses pursuant to the terms of Section 7 and the other terms of this Agreement applicable thereto.
5. OWNERSHIP: ThreatModeler retains all ownership and intellectual property rights to the Licensed Software, the Licensed Software Documentation and any software and documentation provided to Customer by ThreatModeler pursuant to, or in connection with, this Agreement. Customer may copy the Licensed Software and Licensed Software Documentation only for backup purposes and further provided Customer use of any is subject to the terms of this Agreement.
6. RESTRICTIONS: Customer may not, without the prior express written authorization of ThreatModeler: sub-license, re-license, rent, lease, assign, or copy the Licensed Software except as authorized under this Agreement; allow access to, or use of, the Licensed Software or Licensed Software Documentation by more than the number of Licenses; use the Licensed Software or Licensed Software Documentation for any use other than for Customer internal business purposes; directly or indirectly disassemble, de-compile, reverse-engineer, transcribe, translate, adapt, modify or in any manner change the Licensed Software; or, remove or modify any Licensed Software or Licensed Software Documentation markings or any notice of proprietary rights, allow any third parties to access, use, or support the Licensed Software except employees, contractors, consultants or other third parties engaged by Customer to do any of the foregoing on behalf of or for Customer’s benefit
7. SUPPLEMENTAL LICENSES: If, after the Effective Date, and subject to the other terms and conditions set out in this Agreement, Customer subsequently enter into additional Service Schedules to purchase additional licenses (“Supplemental Licenses”) of the Licensed Software (which may include adding additional Licenses, additional or new Licensed Software or upgrades), those Supplemental Licenses will be included under this Agreement. Supplemental Licenses will be valid for the same Term and Renewal terms (if any) of the Licensed Software and will be subject to payment of an annual License Fee as provided in Section 9. In order to be eligible to purchase Supplemental Licenses, Customer must be current with Customer Fee Payments and in full compliance with Customer other obligations under this Agreement.
8. MAINTENANCE: ThreatModeler will provide the Maintenance described in the Service Schedule only during the Initial Term and any Renewal Term, subject to termination in accordance with the terms of this Agreement.
9.1. License Fees: Customer will pay to ThreatModeler or, if so designated in the Service Schedule, the Certified Solution Provider, the annual license fee for the Licensed Software (and any Supplemental Licenses) as set out in the applicable Service Schedule(s), subscription renewal form, or as otherwise specified by ThreatModeler at the time of each annual renewal (the “License Fee”), for each Contract Year including annual fees based on the number of named Licenses for the Licensed Software. Prior to the commencement of any Contract Year, ThreatModeler may increase the License Fee, the User Fees and applicable shipping and handling charges, as ThreatModeler, in its sole discretion, considers appropriate.
9.2. General Payment Terms: Customer will pay ThreatModeler all fees and other amounts due under this Agreement in US Dollars within 30 days of the respective invoice due date. Customer will pay interest on overdue amounts at the rate of 1½% per month or 18% per annum. Customer will also be liable for all reasonable costs, including legal fees and expenses, collection fees and court costs, incurred by ThreatModeler in respect of legal proceedings or other third party actions initiated to collect any unpaid amounts owing under this Agreement.
9.3. Taxes: All payments, fees and other charges payable by Customer under this Agreement are exclusive of all taxes, levies and assessments of any jurisdiction. Customer agrees to bear and be responsible for the payment of all such taxes (including without limitation sales, use, excise, import or export, value added taxes, governmental permit fees or license fees), levies and assessments imposed on either party arising out of this Agreement, excluding any tax based on ThreatModeler’s net income and will provide to ThreatModeler evidence of such payment. If any taxes are required to be withheld by Customer, Customer will pay to ThreatModeler such grossed-up amount as would be necessary to provide ThreatModeler the full amount of the payments, fees and other charges that would have been otherwise payable under this Agreement.
9.4. ThreatModeler’s Right to Direct Payment to be made to ThreatModeler Instead of a Certified Solution Provider: If at any time ThreatModeler notifies Customer in writing that the Certified Solution Provider from whom Customer purchased a license to the Licensed Software is not (or is no longer) a “Certified Solution Provider” for the Licensed Software or is no longer authorized to collect License Fees, Supplemental License fees or Maintenance Fees, then notwithstanding the terms of the Service Schedule or this Agreement, all future amounts owing by Customer under this Agreement (as License Fees, Supplemental License fees, Maintenance Fees or otherwise) will be paid directly to ThreatModeler.
10. TERMINATION OR EXPIRY: If Customer or ThreatModeler breach the terms of this Agreement and fail to correct the breach within 30 days of written notification from the other Party, the non-breaching Party may, at its discretion, terminate this Agreement and Customer right to use of the Licensed Software and Licensed Software Documentation by providing written notice of termination to the other Party. Upon termination of this Agreement for any reason or the expiry of this Agreement at the end of the Initial Term or any Renewal Term if not renewed pursuant to Section 4, Customer will immediately cease use of the Licensed Software and Licensed Software Documentation and Customer must pay all accrued fees or other amounts due under this Agreement within 30 days of the date of termination and, at ThreatModeler’s election, either return to ThreatModeler all copies of the Licensed Software and Licensed Software Documentation or provide ThreatModeler with a signed “Certificate of Destruction” signed by Customer president confirming the destruction of all copies of the Licensed Software and Licensed Software Documentation. Except as otherwise expressly agreed in this Agreement or required under applicable laws, in the event that this Agreement or Customer license to the Licensed Software is terminated or expires, Customer will not be entitled to a refund of any fees or other amounts paid. Customer may not terminate this SOW for convenience.
11. WARRANTY: As long as Customer is complying with the terms and conditions of this Agreement, subject to the disclaimers and limitations of ThreatModeler’s liability in Sections 13 and 14 of this Agreement, during the Initial Term and any Renewal Terms, ThreatModeler warrants that the Licensed Software will substantially conform with all material operational features and material performance characteristics as described in the Licensed Software Documentation provided to Customer concurrent with the delivery to Customer of such Licensed Software (the “Performance Warranty”). ThreatModeler further warrants that the Licensed Software: (i) will not contain any software routine (e.g., back door, time bomb, Trojan horse, worm) that will disable, lock, erase or otherwise harm Customer software, hardware or data; and (ii) will not contain any other “lockout”, self-help code or other disabling code or device that will otherwise prevent or restrict use of the Licensed Software (e.g., password, CPU or time restrictions or “dongle”) – collectively the “No Disabling Software Warranty”. The Performance Warranty and the No Disabling Software Warranty are collectively referred to herein as the “Warranty”. THE WARRANTY WILL IMMEDIATELY END UPON THE EXPIRY OF THE INITIAL TERM OR RENEWAL TERM (IF NOT RENEWED IN ACCORDANCE WITH THIS AGREEMENT) OR THE EARLIER TERMINATION OF THIS AGREEMENT. The Warranty does not cover problems caused by accident, abuse or use of the Licensed Software in a manner inconsistent with this Agreement or the Licensed Software Documentation.
12. INDEMNIFICATION: If a person makes a claim against Customer stating that ThreatModeler’s Licensed Software infringes their copyright, patent or trade-secret rights in Canada or the United States of America, ThreatModeler will indemnify Customer in respect of all direct damages arising from a claim, suit or proceeding made against Customer which is based on such a claim, provided that Customer: (i) provide written notification to ThreatModeler within 30 days of receiving notice of the claim; (ii) give ThreatModeler sole control of the defense and any settlement negotiations; and (iii) give ThreatModeler the information, authority, and assistance that it may reasonably require to defend against or settle the claim. Following notice of such an infringement claim, or if ThreatModeler believes such a claim is likely, ThreatModeler may fulfill its obligations under this indemnity by, at ThreatModeler’s sole expense and option by: (i) procuring the right to continue using the Licensed Software; (ii) replacing or modifying all or part of the Licensed Software to make it non-infringing; or (iii) terminating Customer license to the Licensed Software that is the subject of such infringement claim and refunding to Customer a portion of the License Fees paid by Customer for such Licensed Software (based on a two year straight-line amortization from the Effective Date) for such Licensed Software in the Contract Year in which ThreatModeler terminates Customer license to the Licensed Software (based on a 365 day Contract Year). ThreatModeler will not be liable to Customer under the provisions of this indemnity for any claim based upon or arising out of: (a) the use of the Licensed Software in combination with other software or hardware not approved by ThreatModeler, to the extent that such use is the subject matter of such claim; (b) the use of the Licensed Software in a manner or for a purpose other than that described in the Licensed Software Documentation to the extent that such use is the subject matter of such claim; (c) the use of the Licensed Software in a modified condition, to the extent that such modification is the subject matter of such claim; or (d) a claim in which the alleged infringing element arose as a result of, or is based on either: (i) the disclosure by Customer to ThreatModeler of any confidential or proprietary information of a third party, or (ii) the specification by Customer of modifications to the Licensed Software requested by Customer, to the extent that such confidential or proprietary information or specification is the subject matter of such claim. THE FOREGOING STATES CUSTOMER EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM.
13. DISCLAIMER: THREATMODELER PROVIDES THE THREATMODELER LICENSED SOFTWARE “AS IS” AND MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE THREATMODELER LICENSED SOFTWARE, REPORTS OR ANY OTHER RELATED DATA, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF AVAILABILITY, RELIABILITY, USEFULNESS, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THREATMODELER DOES NOT WARRANT THAT THREAT MODELS WILL BE FREE FROM VULNERABILITY TO INTRUSION OR ATTACK OR THAT THE THREATMODELER LICENSED SOFTWARE WILL FIND ALL THREATS IN THE THREAT MODELS. THREATMODELER’S LICENSED SOFTWARE IS PREDICTIVE ONLY AND THE DELIVERY OF THREAT RELATED INFORMATION IDENTIFIED TO THE CUSTOMER TO MITIGATE THREATS ARE DEPENDENT ON THE VALIDITY OF CURRENT AND KNOWN THREAT DATA. WHILE THREATMODELER MAKES EVERY COMMERCIALLY REASONABLE EFFORT TO INCLUDE THE MOST ACCURATE AND UP-TO-DATE INFORMATION REGARDING THREATS AND RELATED INFORMATION, THREATMODELER DOES NOT WARRANT THAT THE INFORMATION MADE AVAILABLE THROUGH ITS LICENSED SOFTWARE IS ALL INCLUSIVE AND ACCEPTS NO LIABILITY AS IT RELATES TO THIS INFORMATION. THE CUSTOMER IS RESPONSIBLE FOR VALIDATING THAT POTENTIAL THREATS IDENTIFIED BY THE LICENSED SOFTWARE ARE ACTUAL THREATS TO THE CUSTOMER. IN ADDITION, THE CUSTOMER IS RESPONSIBLE FOR VALIDATING THAT SECURITY CONTROLS RECOMMENDED BY THREATMODELER’S LICENSED SOFTWARE TO MITIGATE THREATS ARE APPLICABLE TO THE CUSTOMER’S APPLICATION(S), DEVICE(S), OR SYSTEM(S) AND FOR VERIFYING THAT THREAT(S) HAVE BEEN MITIGATED. MOREOVER, AS A FUNCTION OF ITS LICENSED SOFTWARE, THREATMODELER ALSO PROVIDES INFORMATION TO THE CUSTOMER THAT CORRELATES THREATS TO REAL WORLD BREACH DATA SUPPLIED BY THIRD-PARTIES, AND SINCE THREATMODELER HAS NO CONTROL OVER THE DATA THAT IS MADE AVAILABLE BY SAID THIRD-PARTIES, IT SHALL NOT WARRANT THAT THIS INFORMATION IS COMPLETE AND ACCURATE.
14. LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THIS AGREEMENT, ANY SERVICE SCHEDULE OR ANY EXHIBITS OR ADDENDUM THERETO, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR OTHER TORT), WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE OF ACTION OR THEORY OF LIABILITY EXCEED THE AMOUNTS PAID BY CUSTOMER TO THREATMODELER HEREUNDER DURING THE PRECEDING TWELVE MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE OR SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY CUSTOMER FOR THE LICENSED SOFTWARE.
15. NON-SOLICITATION OF THREATMODELER’S EMPLOYEES: During the term of this Agreement, and for a period of one year thereafter, Customer will not hire or offer to hire or allow Customer affiliates to hire or offer to hire any employee of ThreatModeler, or any person who was an employee of ThreatModeler during the six months prior to Customer hiring or offering to hire such person, unless otherwise agreed to by ThreatModeler in writing.
16. Changes to the Licensed Software, The Maintenance and The License Fee: Notwithstanding anything else to the contrary in this Agreement, Customer acknowledge and agree that ThreatModeler reserves the right at any time: (a) not to release or to discontinue release of any Licensed Software, (b) to change its list price for the Licensed Software (including Supplemental Licenses), (c) to change any of the services that it currently offers in connection with the Maintenance, and (d) to alter features, specifications, capabilities, functions, release dates, general availability or other characteristics of the Licensed Software or Maintenance.
17. ACKNOWLEDGEMENT REGARDING NEW OR DIFFERENT PRODUCTS, VERSION RELEASES AND SERVICE RELEASES: Customer acknowledge that ThreatModeler may develop and market new or different computer programs or editions of the Licensed Software that use portions of the Licensed Software or that perform all or part of the functions performed by the Licensed Software. Nothing contained in this Agreement will give Customer any rights with respect to such new or different computer programs or editions.
18. EXPORT CONTROL: Canadian and United States of America export control laws and other applicable export and import laws govern Customer use of the Licensed Software, including technical data. Customer will not: (a) export, directly or indirectly, the Licensed Software or any direct product thereof in violation of these laws, or (b) use the Licensed Software for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
19. U.S. GOVERNMENT END USERS: If Customer are a U.S. Government agency, in accordance with section 12.212 of the Federal Acquisition Regulation (48 CFR 12.212 (October 1995)) and sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (48 CFR 227.7202-1, 227.7202-3 (June 1995)), Customer hereby acknowledge that the Licensed Software constitutes “Commercial Computer Software” and that the use, duplication, and disclosure of the Licensed Software by the U.S. Government or any of its agencies is governed by, and is subject to, all of the terms, conditions, restrictions, and limitations set forth in this standard commercial license Agreement. In the event that, for any reason, sections 12.212, 227.7202-1 or 227.7202-3 are deemed not applicable, Customer hereby acknowledge that the Government’s right to use, duplicate, or disclose the Licensed Software are “Restricted Rights” as defined in 48 CFR section 52.227-19(c)(1) and (2) (June 1987), or DFARS 252.227-7014(a)(14) (June 1995), as applicable. Contractor/manufacturer is ThreatModeler.
20. NO MODIFICATIONS TO THIS AGREEMENT BY CERTIFIED SOLUTIONS PROVIDERS: ThreatModeler’s Certified Solutions Providers (or any other authorized distributors or resellers) do not have the right to make modifications to this Agreement or to make any additional representations, commitments or warranties binding on ThreatModeler.
21.1. Relationship: Customer and ThreatModeler are independent contractors and are not agents, joint ventures, partners or employees of one another, and ThreatModeler will not be obligated by any agreements or representations made by Customer to any person, nor with respect to any other action by Customer, nor will ThreatModeler be obligated for any damages to any person whether caused by Customer actions, failure to act, negligence or willful conduct. If Customer entered into the Service Schedule with, or provided an Service Schedule to, an authorized Certified Solution Provider, Customer acknowledge that ThreatModeler is an intended third party beneficiary of Customer obligations to the Certified Solution Provider set out in that Service Schedule and that ThreatModeler may enforce directly against Customer the terms of the Service Schedule and this Agreement as if ThreatModeler was a direct party thereto.
21.2. Use of Name: Customer acknowledges that ThreatModeler may make reference to Customer and Customer relationship to ThreatModeler in press releases, advertising and promotional materials and Customer consent to any such reference.
21.3. Waiver of Jury Trial: Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
21.4. Audit: During the Term and any Renewal Term and for a period of five years thereafter, ThreatModeler and its agents and service providers may at all reasonable times audit and investigate Customer use of the Licensed Software and Customer compliance with the terms and conditions of this Agreement. Customer will cooperate and provide ThreatModeler with reasonable assistance and access to information and Customer premises and systems, so long as ThreatModeler gives Customer 45 days advance written notice. In addition to all other remedies of ThreatModeler in respect of any failure by Customer to comply with the terms and conditions of this Agreement (including the rights of ThreatModeler under Section 10, Customer will pay any deficiencies in License Fees or other amounts which are discovered by ThreatModeler’s audit and investigation of Customer within 10 days of discovery. This Section 21.4 will survive the termination of this Agreement.
21.5. Notice: Except as otherwise specified in this Agreement, all notices, permissions and approvals will be in writing and will be deemed to have been given upon: (i) personal delivery, (ii) the fifth business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (i) in the case only of a notice by ThreatModeler to Customer, the first business day after sending by email to the email address set out in the Service Schedule. Notice to Customer will be addressed to the system administrator designated by Customer under the Service Schedule, and in the case of billing notices, to the relevant billing contact designated by Customer. The address and contact person for any notices by Customer to ThreatModeler will be to ThreatModeler Inc. 101 Hudson St., Suite 21102, Jersey City, NJ 07302
21.6. Entire Agreement; Waiver: This Agreement and the applicable Service Schedule constitute the entire agreement between the parties relating to the subject matter of this Agreement and supersede or replace all prior or contemporaneous agreements or representations. If any terms of this Agreement are found to be invalid or unenforceable, the remaining provisions will remain effective. No failure or delay by a party in exercising any right or power under this Agreement will operate as a waiver of that right or power, and the single or partial exercise of a right or power under this Agreement will not preclude any other or future exercise of that or any other right or power.
21.7. Assignment: This Agreement may not be assigned or sublicensed by Customer without the prior written approval of ThreatModeler. ThreatModeler may subcontract or delegate the provision of any or all of the Licensed Software or otherwise assign its rights in this Agreement at any time without Customer consent.
21.8. Amendments: This Agreement may be amended at any time by mutual agreement of the parties in writing. ThreatModeler further reserves the right to make changes to other parts of this Agreement to reflect changes in or required by law or to reflect changes in business practices, provided that any amendments will only have prospective effect and will not materially adversely affect the license granted to Customer under this Agreement, by providing Customer with notice and, unless required by law, will not materially adversely impair the license granted to Customer under this Agreement prior to the date such amendment becomes effective. Notice of such amendments may either be provided to Customer in accordance with Section 21.5. If Customer does not accept such amendments, Customer may terminate this Agreement at any time within the 60 day period following notice by ThreatModeler, by delivering written notice to ThreatModeler of Customer intention to terminate. If Customer does not deliver notice to ThreatModeler terminating this Agreement within the 60-day time period, Customer will be deemed to have accepted the amendment.
21.9. Governing Jurisdiction This Agreement in all respects will be governed and interpreted in accordance with only the laws of the state of New Jersey. This Agreement will not be governed by the conflict of law rules of any other jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
21.10. Survival: Sections 9.5, 10, 13, 14, 15, 19, 21.1, 21.2, 21.3, 21.4, 21.5, 21.6, 21.7, 21.8, and 21.9 will survive the termination or expiry of this Agreement for any reason whatsoever.