Please select your country:

Name Region Last revision
Terms & Conditions – Javlin Inc. North&South America 18 Sep 2015
Terms & Conditions – Javlin Ltd. Europe, Asia, Africa 21 Aug 2015
Terms & Conditions – Javlin, a.s. Czech Republic 21 Aug 2015

CloverETL®
Terms & Conditions – Javlin, a.s.

This Commercial Terms Agreement is entered into by and between Javlin a.s., a registered Czech Republic company, having its principal place of business at 174 Vinohradska, Prague 130 00, Czech Republic (“Javlin”) and you (“Customer”), for Products and Services.

1.0 DEFINITIONS

1.1 “Affiliate” means any corporation, firm, partnership or other entity that directly or indirectly controls, or is controlled by, or is under common control with Javlin or Customer.

1.2 “Javlin Branded” means a Product or a Service bearing a trademark or service mark of Javlin a.s. or any Javlin Affiliate.

1.3 “Documentation” means user manuals, training materials, Product descriptions and specifications, technical manuals, license agreements, supporting materials and other information relating to Products or Services offered by Javlin, whether distributed in print, electronic, CD-ROM or video format.

1.4 “Effective Date” is the date this Commercial Terms Agreement is electronically accepted, referenced by a signed Customer Purchase order; or if signed, in hard copy by Customer, the date of last signature.

1.5 “”EULA” is the End User License Agreement, a separate and binding complementary agreement outlining the use and license of the licensed software. The EULA is supplied with the software, is available at any time upon request and should be understood by the Customer as a part of this agreement.

1.6 “Price List” is the price list provided by Javlin or Javlin’s Affiliate, to which Javlin commercial quotations and customer Purchase Orders are based on. The price list is maintained by Javlin and can be shared under commercial confidence with the Customer.

1.7 “Product(s)” means individually or collectively as appropriate, Software and Documentation listed on the then current Price List.

1.8 “Purchase Order” is a commercial commitment and order issued by Customer to Javlin for Products or Services to be purchased, licensed or provided under this Commercial Terms Agreement.

1.9 “Services” are any software maintenance, technical support, or any other services performed by Javlin, including consultancy services for which Javlin may require a separate statement of work to be executed between the parties.

1.10 “Software” is the machine readable (object code) version of the computer programs listed from time to time on the Price List and made available by Javlin for license to Customer, and any copies made, bug fixes for, updates to, or upgrades thereof. The Software does not include any computer programs listed on the Price List in the name of a third party.

1.11 “Territory” is any country or countries in which Customer has been granted Javlin resale or licensing rights, or in the absence of any such rights, the country in which Customer’s principal place of business is located.

2.0 SCOPE

2.1 This Commercial Terms Agreement sets forth the terms and conditions for Customer’s license and purchase of Products and Services solely for (i) Customer’s internal business use, (ii) providing data consultant services if Customer’s primary business is data services, or (iii) resale of licensing rights only if and where Customer has been granted appropriate reseller or distribution rights by Javlin for the specific Products or Services to be distributed. Customer shall not resell to, make available for use by, or otherwise transfer title to any Product to, any end user or other third party, including any Javlin Partner, without such reseller or distribution rights or agreement with Javlin. All end users or third parties will be bound by the terms of the EULA.

2.2. These terms take precedence over any additional or different terms and conditions, to which notice of objection is hereby given. JAVLIN SHALL NOT BE BOUND BY CUSTOMER’S TERMS AND CONDITIONS. The failure to object to Javlin’s terms and conditions in writing within five (5) business days of receipt, or the acceptance of Products purchased, shall constitute an acceptance of these terms and conditions. Javlin has priced all of its Products upon the provisions in this document.

3.0 PRICES

3.1 Prices for Products and Services shall be those specified in Javlin’s then current Price List, less any applicable discount at the time of acceptance of the Purchase Order by Javlin, or in accordance with an applicable, valid written price quotation, if any, submitted by Javlin to Customer for such Products or Services. Javlin accepts currencies that are listed on the quotation to the Customer.

3.2 All prices are exclusive of any freight, handling and shipping insurance charges, taxes, fees and duties or other similar amounts, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Commercial Terms Agreement. Customer shall pay applicable taxes related to Products and Services provided pursuant to this Commercial Terms Agreement (except for taxes based on Javlin’s revenue income) or shall present an exemption certificate acceptable to all relevant taxing authorities.

4.0 ORDERS

4.1 Customer shall license or purchase Products or Services by issuing a Purchase Order, signed, if requested by Javlin, or (in the case of electronic transmission) sent by its authorized representative, indicating specific Products and Services, Javlin Product numbers, quantity, unit price, total purchase price, bill-to and administrative addresses, tax exempt certifications, if applicable, contract reference, and identity of the end user for each Product and Service. No contingency contained on any Purchase Order shall be binding upon Javlin, unless agreed to in writing by Javlin. The terms of this Commercial Terms Agreement shall apply, regardless of any additional or conflicting terms on any Purchase Order or other correspondence or documentation submitted by Customer to Javlin, and any such additional or conflicting terms are deemed rejected by Javlin.

4.2 Upon and subject to credit approval by Javlin following Javlin’s receipt of any Purchase Order, Javlin will review and accept or decline any or all Purchase Orders for Javlin or Javlin Affiliate that will supply the Products or Services; no other person is authorized to accept Purchase Orders on behalf of Javlin. Javlin may accept a Purchase Order even if some of the information required by Section 4.1 above is missing or incomplete.

5.0 DELIVERY

5.1 Delivery of Javlin Products will be made available by electronic download in the case of software license; and by an agreed upon date of delivery and Statement of Work for Services.

5.2 Where Customer places orders on any Javlin Affiliate other than Javlin, Customer shall pay invoices issued by such entity with respect to such orders and the delivery terms agreed with such entity shall apply. Different delivery terms may apply to such Purchase Orders.

5.3 Customer shall assume responsibility for compliance with applicable export laws and regulations. Customer accepts any additional delays caused by the export licensing process as well as delays to comply with conditions of the individual export license.

5.4 JAVLIN SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR PENALTY FOR DELAY IN DELIVERY OR FOR FAILURE TO GIVE NOTICE OF ANY DELAY. EXCEPT IN ACCORDANCE WITH THE APPLICABLE DELIVERY TERMS IN THIS COMMERCIAL TERMS AGREEMENT, JAVLIN SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH DELIVERY.

5.5 All sales are final. Except as provided in Javlin’s warranty in the EULA, Javlin does not accept returns unless Javlin delivered a product other than as specified in the Purchase Order.

6.0 PAYMENT

6.1 Upon and subject to credit approval by Javlin, payment terms shall be thirty (30) days from Purchase Order date. Payments shall be made in currency on the Javlin commercial quotation applicable to the Purchase Order.

6.2 If at any time Customer is delinquent in the payment of any invoice, or is otherwise in breach of this Commercial Terms Agreement, Javlin may, in its discretion, and without prejudice to its other rights, withhold delivery of any order, require Customer to prepay for further software, and/or withhold the provision of Services, until complete payment has been received. Any sum not paid by Customer when due shall bear interest from the due date until paid at a rate of ten per cent per annum or the maximum rate permitted by law, whichever is less. Customer grants Javlin a security interest in Products purchased under this Commercial Terms Agreement to secure payment for such Products. If requested by Javlin, Customer agrees to execute financing statements to protect this security interest.

7.0 SOFTWARE LICENSING AND PROPRIETARY RIGHTS

7.1 Javlin grants to Customer a non-exclusive, non-transferable license to use the Software and Documentation for Customer’s internal use under the terms contained in Javlin’s End User License Agreement (“EULA”); or where Customer is a certified Javlin reseller or authorized distributor, to resell and license the Software and related Documentation during the term of this Commercial Terms Agreement, solely as permitted by Section 2.0 (Scope) and this Section 7.0 (Software Licensing and Proprietary Rights) of this Commercial Terms Agreement. The EULA is available at time of product purchase and install; or can be made available at any time upon a customer’s request, and is an integral part of this agreement. Any resale of a Software license or Documentation to any person or entity other than as expressly permitted by Section 2.0 (Scope) is expressly prohibited. Customer may not sublicense, to any person or entity, any rights to distribute the Software License or Documentation, without prior agreement of Javlin.

7.2 Javlin maintains current versions of its software and provides a schedule for end of life support for previous versions. Customer can check the cloveretl.com website or ask Javlin directly about the status of supported versions.

7.3 For non-Javlin Branded Software and Documentation delivered in connection with this Agreement which is separately licensed by a third party, Customer’s rights and responsibilities with respect to such Software or Documentation shall be governed in accordance with the third party’s applicable software license. Customer may, on request, enter into one or more separate “click-accept” license agreements or third party license agreements as part of the installation and/or download process which shall supersede this Agreement with respect to the non-Javlin Branded Software or Documentation covered by such license.

7.4 Customer acknowledges that Javlin owns all proprietary rights, including all copyrights, trademarks, and trade secrets, in and to the Products. Customer may use and disclose the Products only as specifically authorized in this Agreement. NOTE: all Javlin software products, as well as software included with the Products, are licensed and are not sold. Nothing contained in this Agreement shall be construed to convey any Intellectual Property Rights in or to the Software to Customer (or to any party claiming through Customer) other than the rights expressly set forth herein or in the applicable software EULA.

7.5 If a Product provided under this Agreement becomes, or if Javlin believes the Product is likely to become, the subject of a claim of infringement, Javlin at its option and expense may procure for Customer the right to continue to use the Product, or may replace or modify the Product so as to make it non-infringing, provided that the replacement or modified Product gives Customer substantially the same functionality as the original Product (as determined by Javlin in good faith). If none of these options is reasonably practicable, Javlin may terminate the license on thirty (30) days written notice and refund the license fee (if any) paid under this Agreement. Customer shall defend and hold Javlin harmless against any claimed infringement of patents, trademarks or other intellectual property rights arising out of compliance by Javlin with Customer’s designs, specifications or instructions.

7.6 Where Customer is a certified Javlin Reseller or Partner, Customer shall provide a copy of the Javlin EULA and applicable third party license agreement to each end user with delivery of the Product or prior to installation of the Software. Customer shall notify Javlin promptly of any breach or suspected breach of the Javlin EULA or third party license and further agrees that it will, at Javlin’s request, assist Javlin in efforts to protect and preserve Javlin’s or its supplier’s intellectual property rights including pursuing an action against any breaching third parties.

8.0 LIMITED WARRANTY

8.1 Javlin’s EULA outlines the warranty conditions and is an integral part of this agreement.

8.2 Services. Services provided hereunder shall be performed in a timely, professional, workmanlike manner consistent with industry standards. Customer must notify Javlin promptly, but in no event more than thirty (30) days after completion of the Services, of any claimed breach of this warranty. Customer’s sole and exclusive remedy for breach of this warranty shall be, at Javlin’s option, re-performance of the Services, or termination of this Commercial Terms Agreement or the applicable Service and return of the portion of the Service fees paid to Javlin by Customer for such non-conforming Services. The provision of Services under this Commercial Terms Agreement shall not extend the warranties provided with any Software licensed by Customer.

8.3 Restrictions. The limited warranties referenced in this Section 8 do not apply if the Javlin Branded Product (a) has been altered, except by Javlin, (b) has not been installed, operated, repaired, used or maintained in accordance with instructions made available by Javlin, (c) has been subjected to abnormal or unusual physical or electrical stress or environmental conditions, misused, or negligently handled or operated; (d) is acquired by Customer for beta, evaluation, testing, demonstration purposes or other circumstances for which Javlin does not receive a payment of a purchase price, license fee or otherwise agreed to in writing.

8.4 Unless otherwise specified in writing by Javlin, the limited warranties referenced in this Section 8 do not apply to any non-Javlin Branded Software. Non-Javlin Branded Software is warranted solely by the applicable manufacturer or licensor. Javlin will pass through, to the extent permitted, the manufacturer’s and/or licensor’s warranties and Customer shall look solely to such manufacturer and/or licensor for warranty claims.

8.5 DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, JAVLIN HEREBY DISCLAIMS AND CUSTOMER WAIVES ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES (WHETHER EXPRESS, IMPLIED, OR STATUTORY), INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, SATISFACTORY QUALITY, QUIET ENJOYMENT, ACCURACY, OR SYSTEM INTEGRATION, OR (B) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. TO THE EXTENT AN IMPLIED WARRANTY OR CONDITION CANNOT BE DISCLAIMED, SUCH WARRANTY OR CONDITION IS LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD. IN ADDITION, THE EXPRESS LIMITATION OF LIABILITY FOR THE LICENCED SOFTWARE IS FURTHER OUTLINED IN THE EULA.

9.0 CONFIDENTIAL INFORMATION

9.1 Confidential Information” to be disclosed by Javlin under this Commercial Terms Agreement is information regarding Javlin’s Products and Services, software roadmaps, technical, financial, and marketing data, and information relating to future product and service development.

9.2 The receiving party ("Receiving Party") may use the Confidential Information solely for the purpose of furtherance of the business relationship between the parties, as provided in this Commercial Terms Agreement and shall not disclose the Confidential Information to any third party, other than to employees of the Receiving Party who have a need to have access to and knowledge of the Confidential Information, solely for the purpose authorized above. Each party shall take appropriate measures by instruction and agreement prior to disclosure to such employees to assure against unauthorized use or disclosure. Information (other than on the website, cloveretl.com) disclosed by the disclosing party (“Disclosing Party”) in written or other tangible form will be considered Confidential Information only if such information is conspicuously designated as “Confidential,” “Proprietary” or bears a similar legend. Information disclosed orally shall be considered Confidential Information only if: (i) identified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed as confidential, proprietary or the like in writing within thirty (30) days of disclosure. Confidential Information disclosed to the Receiving Party by any Affiliate or agent of the Disclosing Party is subject to this Commercial Terms Agreement.

9.3 The Receiving Party shall have no obligation with respect to information that (i) was rightfully in possession of the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently becomes, legally and publicly available without breach of this Commercial Terms Agreement; (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence; or (v) is disclosed by the Receiving Party pursuant to and in accordance with a valid order issued by a court or government agency, provided that the Receiving Party provides (a) prior written notice to the Disclosing Party of such order and (b) the Disclosing Party prior opportunity to oppose or restrict such disclosure.

9.4 Upon written demand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within fourteen (14) days of receipt of demand, and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with the obligations set forth in this paragraph.

9.5 Each party shall retain all right, title and interest to such party’s Confidential Information. No license to any intellectual property (or application for intellectual property protection) is either granted or implied by the conveying of Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software disclosed to it and shall not remove, overprint or deface any notice of copyright or confidentiality, trademark, logo, legend, or other notices of ownership from any originals or copies of Confidential Information it obtains from the Disclosing Party or from any copies the Disclosing Party is authorized to make.

9.6 Any press release, publication, advertisement or public disclosure regarding this Commercial Terms Agreement is subject to both the prior review and the written approval of both parties.

10.0 TERM AND TERMINATION

10.1 This Commercial Terms Agreement shall commence on the Effective Date, unless sooner terminated, as set forth below. This Commercial Terms Agreement shall be automatically renewed thereafter, for successive one (1) year periods, unless at least forty-five (45) days prior to the date of any such renewal, either party shall have given written notice to the other of its intention that this Commercial Terms Agreement not be renewed. This Commercial Terms Agreement shall automatically terminate at the end of the annual period during which such notice is given.

10.2 A party may terminate this Commercial Terms Agreement immediately by written notice if (i) the other party ceases or threatens to cease to carry on business as a going concern; or (ii) the other party becomes or is reasonably likely to become subject to voluntary or involuntary proceedings in bankruptcy or liquidation; or (iii) a receiver or similar officer is appointed with respect to the whole or a substantial part of the other party’s assets; or (iv) an event similar to any of the foregoing occurs under any applicable law.

10.3 If a party breaches any of the provisions of this Commercial Terms Agreement, the non-breaching party may terminate these Commercial Terms Agreement as follows: (a) immediately upon providing written notice to the breaching party if the breach is not capable of being cured, and (b) thirty (30) days after providing written notice to the breaching party if the breaching party fails to cure such breach within such thirty (30) day period.

10.4 Javlin may terminate this Commercial Terms Agreement upon thirty (30) days written notice in the event it becomes known that (i) Customer or an Affiliate, or Customer's direct or indirect parent has acquired or intends to acquire a controlling interest in a competing third party, or (ii) Customer or its direct or indirect parent is to be acquired by a third party, or (iii) a controlling interest in Customer or its direct or indirect parent is to be transferred to a third party.

10.5 Javlin may terminate this Commercial Terms Agreement immediately upon written notice in the event that Customer is in breach of Sections 7.0 (Software Licensing and Proprietary Rights), Section 9.0 (Confidential Information), or Section 13.0 (Export, Re-Export, Transfer & Use Controls), or Section 14.0 (Compliance with Laws, Including Anti-Corruption Laws).

10.6 Either party may terminate this Commercial Terms Agreement at any time by providing the other party with at least forty-five (45) days prior written notice of termination, under the above mentioned terms in Section 10.

10.7 Upon termination or expiration of this Commercial Terms Agreement, (a) Javlin reserves the right to cease all further delivery of Product or Services, (b) all outstanding invoices immediately become due and payable by certified or cashier’s check, and (c) all rights and licenses of Customer under this Commercial Terms Agreement shall terminate, subject to the terms of the last sentence of this paragraph. If Javlin agrees to complete delivery of any further Products or Services due against any existing Purchase Orders then Customer shall pay for such Products or Services in advance by certified or cashier’s check. Except for a termination of this Commercial Terms Agreement resulting from Customer's breach of Section 7.0 (Proprietary Rights and Software Licensing), Section 9.0 (Confidential Information), or Section 13.0 (Export, Re-Export, Transfer & Use Controls), upon termination or expiration of this Commercial Terms Agreement, Customer may continue to use, in accordance with this Commercial Terms Agreement, Products provided to it by Javlin prior to the date of termination or expiration.

10.8 Upon termination or expiration of this Commercial Terms Agreement, Customer shall immediately return to Javlin all Confidential Information (including all copies thereof) then in Customer's possession, custody or control; provided, that except for a termination resulting from Customer's breach of Section 7.0 (Proprietary Rights and Software Licensing), or Section 14.0 (Export, Re-Export, Transfer & Use Controls), Customer may retain a sufficient amount of such Confidential Information and material to operate its installed base of Products.

11.0 SERVICES

11.1 Customer may place Purchase Orders for the various Services offered by Javlin. Such Services, if accepted by Javlin, shall be subject to this Commercial Terms Agreement, as well as the additional terms and conditions set forth in Javlin’s then-current applicable Service descriptions that describe the deliverables and other terms applicable to such Services unless an Existing Agreement is in effect in which case the terms of the Existing Agreement shall govern any such Services.

11.2 Javlin’s Services descriptions may be found at www.cloveretl.com/services; or can be provided by Javlin to Customer at any time. Javlin reserves the right to subcontract Services to a third party organization to provide Services to Customer.

11.3 Support and Software Maintenance. Javlin provides a comprehensive software support and software maintenance program. This agreement is provided at the time of product purchase and install; or can be made available at any time upon a customer’s request.

12.0 RECORDS

12.1 Customer shall keep full, true, and accurate records and accounts, in accordance with generally-accepted accounting principles, of each Product, Service and Software license purchased, and/or deployed, including information regarding Software usage and export or transfer. Customer shall make such records available for review by or on behalf of Javlin upon thirty (30) days prior written notice, during regular business hours, at Customer’s principal place of business and shall provide Javlin with reasonable assistance in order to review and secure copies of such records. In the event such review discloses non-compliance with this Commercial Terms Agreement, Customer shall promptly pay to Javlin the appropriate license fees, plus the reasonable cost of conducting the review.

12.2 Inventory Review. From time-to-time Javlin may perform an inventory review of Customer’s installed base of Products and review records (upon reasonable advance notice) to validate Product licenses. Javlin requires that Customer take all necessary action (for example, disabling passwords) to ensure that any former employees or contractors do not access or use the Products outside the scope of a Javlin software license.

13.0 EXPORT, RE-EXPORT, TRANSFER & USE CONTROLS

13.1 Javlin products, technology and Services are subject to certain control laws and regulations. Customer shall comply with such laws and regulations governing use, export, re-export, and transfer of products, technology and services and will obtain all required local authorizations, permits or licenses.

13.2 The EULA further outlines the requirements of the software export and controls and should be reviewed and understood as part of this agreement.

14.0 COMPLIANCE WITH LAWS

14.1 Javlin expects and requires that all of its suppliers, subcontractors, channel partners, consultants, agents and other parties with whom Javlin does business (“Javlin Partners”), act at all times in a professional and ethical manner in carrying out their services and contractual obligations to Javlin, or on Javlin’s behalf to a Javlin customer or other third party. To that end, all Javlin Partners shall: (a) Comply with applicable country, federal, state and local laws, ordinances, codes, regulations, rules, policies and procedures; (b) Not take any action or permit the taking of any action by a supplier or third party which may render Javlin liable for a violation of Applicable Laws. Javlin retains the right to suspend or terminate any Javlin Partner agreement immediately upon written notice if Javlin believes, in good faith, that such Javlin Partner has breached any elements of this policy, or if the Partner makes a false or fraudulent statement, representation or warranty while carrying out their contractual obligations. Customer shall use its best efforts to regularly inform Javlin of any requirements under any applicable laws that directly or indirectly affect this Commercial Terms Agreement, the sale, use and distribution of Products or Services, or Javlin’s trade name, trademarks or other commercial, industrial or intellectual property interests, including, but not limited to, certification or type approval of the Products.

14.2 Customer shall comply, and notify end users of their obligations to comply, with all applicable Javlin published policies, as published by Javlin and as amended from time to time. Customer shall promptly notify Javlin of any failure by any end user to comply with any of the foregoing policies that comes to Customer’s attention.

15.0 LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT EXCEED THE AMOUNTS PAID OR DUE TO JAVLIN HEREUNDER DURING A FULL YEAR IMMEDIATELY PRECEDING SUCH EVENT. IF SUCH LIABILITY RELATES TO PARTICULAR ITEMS OF SOFTWARE PROGRAM OR SERVICES PROVIDED BY JAVLIN, SUCH LIABILITY SHALL BE LIMITED TO THE FEES PAID FOR THE RELEVANT SOFTWARE PROGRAM OR SERVICES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION MAY BE BROUGHT AGAINST JAVLIN LATER THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION OCCURRED. IN NO EVENT SHALL JAVLIN BE LIABLE FOR ANY CLAIMS, DEMANDS OR ACTIONS OF ANY NATURE BROUGHT BY ANY THIRD PARTY AGAINST CUSTOMER OR SOFTWARE LICENSEE. JAVLIN EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

16.0 GENERAL

16.1 Choice of Law. The validity, interpretation, and performance of this Commercial Terms Agreement shall be controlled by and construed under the laws of the Czech Republic. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights.

16.2 Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labor disputes, industry-wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.

16.3 No Waiver. The waiver by either party of any right provided under this Commercial Terms Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Commercial Terms Agreement.

16.4 Assignment. Neither this Commercial Terms Agreement nor any rights or obligations under this Commercial Terms Agreement shall be assigned by a party without the other’s prior written consent, which will not be unreasonably withheld or delayed. Any attempted assignment shall be void and of no effect. Notwithstanding the foregoing, the parties may assign this Commercial Terms Agreement and any right or obligation under it without the other’s approval, to any Affiliate. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all amounts due under this Commercial Terms Agreement.

16.5 Severability. In the event that part of or one or more terms of this Commercial Terms Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such part or term shall be null and void and shall be deemed deleted from this Commercial Terms Agreement. All remaining terms of this Commercial Terms Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of this Commercial Terms Agreement is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this Commercial Terms Agreement by written notice with immediate effect to the other.

16.6 Attorneys’ Fees. In any suit or proceeding relating to this Commercial Terms Agreement the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Commercial Terms Agreement, and shall survive expiration or termination and shall not be merged into any such judgment.

16.7 No Agency. This Commercial Terms Agreement does not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of this Commercial Terms Agreement. Each party hereto is an independent contractor. Neither party shall assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.

16.8 Entire Agreement. This Commercial Terms Agreement, including any applicable EULA in the case where software is purchased and licensed, constitutes the entire agreement between the JAVLIN and the CUSTOMER concerning the subject matter of this Commercial Terms Agreement and replaces any prior oral or written communications between the parties, all of which are excluded. There are no conditions, understandings, agreements, representations or warranties, expressed or implied, that are not specified herein. This Commercial Terms Agreement may be modified only by a written document executed by the parties hereto.

16.9 Future Products and Services. Javlin reserves the right, during the term of this Commercial Terms Agreement, to license and distribute additional items of Software. Such items of Software may be licensed under additional or different license terms which will be made available to Customer at the time such items of Software are ordered by or provided to Customer.

16.10 Notices. All notices required or permitted under this Commercial Terms Agreement will be in writing and will be deemed given one (1) day after deposit with a commercial express courier specifying next day delivery (or three (3) days for international courier), with written verification of receipt. All communications will be sent to the addresses set forth on the first page of this Commercial Terms Agreement, or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph, or, in the absence of such an address from customer, to the address to which the last invoice under this Commercial Terms Agreement was sent before notice is served. Notwithstanding the foregoing, notices regarding changes in pricing, Software license terms, policies or programs may be by posting on www.cloveretl.com or by e-mail or fax.

16.11 Survival. The following sections shall survive the expiration or earlier termination of this Commercial Terms Agreement: Sections 2.0 (Scope), 6.0 (Payment), 7.0, (Software Licensing and Proprietary Rights), 8.0 (Limited Warranty), 9.0 (Confidential Information), 11.0 (Term and Termination), 12.0 (Records), 13.0 (Export, Re-Export, Transfer and Use Controls), 16.0 (Limitation and Exclusion of Liability), 16.0 (General), and the license to use the Software set out in the End User License Agreement, subject to the termination provisions set forth in Section 10.0 (Term and Termination).

*** END OF COMMERCIAL TERMS AGREEMENT ***