This Agreement is between the Client identified in the Order Form and Hedgehog SONiC Foundation, Inc. (a Delaware corporation, “Hedgehog”) and expresses the complete agreement of the parties regarding Hedgehog Products and Hedgehog. Capitalized terms are defined below. PLEASE REVIEW THIS AGREEMENT CAREFULLY BEFORE PURCHASING OR ACCESSING THE HEDGEHOG PRODUCTS. CLIENT AGREES TO THE TERMS OF THIS AGREEMENT AND CONFIRMS THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT. HEDGEHOG MAY REASONABLY RELY ON THIS ASSURANCE. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS. IF CLIENT DOES NOT ACCEPT THESE TERMS, THEN IT MAY USE HEDGEHOG PRODUCTS WITHOUT SUPPORT FROM HEDGEHOG. THE TERMS OF THIS AGREEMENT INCLUDE THE PROVISIONS OF ALL URL REFERENCES IN THIS AGREEMENT.
1.0 The Mechanics of the Agreement
1.1 Ordering. The Agreement applies to Hedgehog Products that Client purchases or for which Client acquires the right of access or use, including Subscriptions, Professional Services, Training Services, access to Hedgehog Online Properties and other Hedgehog offerings. Client may order Hedgehog Products directly from Hedgehog by submitting a signed Order Form through Hedgehog’s ordering facility. All orders are subject to acceptance by Hedgehog. Affiliates of either party may conduct business under this Agreement by signing an Order Form or other document that references this Agreement and may include additional or more specific terms relating to local requirements or other transaction details. All Hedgehog Products are provided on a non exclusive basis, Client recognizing that Hedgehog has numerous customers.
1.2 Structure. The Agreement consists of: (1) its general terms, including the definitions and third party open-source terms; (2) the Support Terms (which may include third-party end user license agreements) applicable to outstanding Order Forms; (3) the SONiC Open-Source License; (4) all accepted Order Forms; and all URL cross-references.
2.1 Agreement Term. The Agreement begins on the Effective Date and continues until it is terminated as set forth below.
2.2 Services Term. Unless otherwise agreed in writing, the Service procured will start at the earlier of (a) Client’s first access to or use of the Service, (b) the date the Order Form is submitted, or (c) the start date identified in the Order Form, and, in each case, will end at the expiration of the Services Term unless sooner terminated as set forth below. Subscriptions automatically renew for successive terms of the same duration as the original Services Term, unless either party gives written notice to the other party of its intention not to renew within at least thirty (30) days of the expiration of the applicable Services Term. Any Services ordered are available only during the applicable Services Term, and any unused Services will then expire.
3.0 Fees and Payment
3.1 Payment of Fees. Section 3.1 applies only to Hedgehog Products ordered directly from Hedgehog.
a) Unless otherwise set forth in an Order Form, Client will pay Fees for Subscriptions no later than 30 days after the date of Hedgehog’s electronic invoice. Any additional trade credit is subject to Hedgehog’s prior approval and adjustments from time to time.
b) Fees do not include reasonable out-of-pocket expenses, shipping costs, Taxes, or third-party service provider fees (such as payment processor or vendor management), and Client will pay such amounts or reimburse Hedgehog for such amounts paid or payable by Hedgehog. Client must pay the Fees and expenses without withholding, offset or deduction. If Client is required to withhold or deduct any Taxes from the Fees or expenses, then Client agrees to increase the amount payable to Hedgehog by the amount of such Taxes so that Hedgehog receives the full benefit of all Fees and expenses. All Fees, expenses and other amounts paid under the Agreement are non-refundable and payable in US dollars.
c) If Client is purchasing by credit card, then Client (1) authorizes Hedgehog to charge Client’s credit card for all amounts due, and (2) agree to provide updated credit card information to Hedgehog as needed to pay the Fees or other amounts owed, from time to time.
d) If the Order Form provides for payment by ACH or wire transfer, the parties will timely exchange necessary implementation information and cooperate to facilitate payment as provided above on a net thirty day basis.
3.2 Fee Formula. Fees are determined by counting the Units associated with the applicable Hedgehog Product. For example, Subscriptions may be priced based on the number of systems or nodes, as specified in the Order Form. Client will order and pay for the appropriate type and quantity of Hedgehog Products based on Units used or deployed. If during the term of the Agreement, the actual number of Units used or deployed exceeds the number of Units Client previously procured, Client must promptly advise Hedgehog of the adjustment and applicable start dates. Hedgehog will then invoice Client and Client will pay for the additional Units in accordance with the invoice and Order Form.
3.3 The parties will promptly advise each other of any perceived discrepancy in invoicing and amounts due and will use reasonable, good faith efforts to promptly resolve any payment dispute. Late payments bear interest at the rate of one percent per month or any lower legal maximum beginning with the notice of delinquency.
4.1 Termination for Cause. Either party may terminate this Agreement in whole or with respect to any Order Form or Hedgehog Product obtained from Hedgehog by notice to the other party if (a) the other party materially breaches this Agreement, and does not cure the breach within thirty days after written notice (except in the case of a breach of Section 9 in which case no cure period will apply), or (b) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In addition, Hedgehog may, at its option and without limiting its other remedies, suspend (rather than terminate) any Services, if Client breaches the Agreement (including with respect to payments due) until the breach is remedied without reducing the amount due.
4.2 Termination for Convenience. Either party may terminate the Agreement by notice to the other party at any time if all Services Terms have expired and there are no Order Forms outstanding. If, during the Service term, Hedgehog makes a good faith effort to support and fix a feature in the certified feature list, but Hedgehog finds that it can no longer support a feature, and it provides the Client an alternative solution, and the Client chooses not to adopt the alternative solution, then Hedgehog shall have the right to terminate for convenience with thirty days written notice.
4.3 Effect of Termination; Survival. The termination or suspension of an individual Order Form or any Hedgehog Products purchased from Hedgehog will not terminate or suspend any other Order Form, Hedgehog Product or the remainder of the Agreement unless specified in the notice of termination or suspension. If the Agreement is terminated in whole, all outstanding Order Form(s) and Services will terminate. If this Agreement or any Order Form is terminated, Client will pay for all Units used or deployed or made available by Hedgehog up to the effective date of termination. Sections 1.2, 3, 4.3, 5.2, 5.3, 9 (to the extent set forth therein), 10, 11 (to the extent set forth therein) and 12-15 will survive the termination of this Agreement.
5.0 Representations and Warranties
5.1 During the term of this Agreement or applicable Services Term, Hedgehog represents and warrants that (a) it has the authority to enter into this Agreement, (b) the Services will be performed in a professional and workmanlike manner by qualified personnel, (c) to its knowledge, the Software, when first made available to Client does not, at the time of delivery to Client, include malicious mechanisms or code, and (d) the Services will comply in all material respects with laws applicable to Hedgehog as the provider of the Services. Client represents and warrants that (a) it has the authority to enter into this Agreement, and (b) its use of Hedgehog Products will comply with all applicable laws, and it will not use the Hedgehog Products for any illegal activity, including the misappropriation or infringement of any third party rights.
5.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, THE HEDGEHOG PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, AND HEDGEHOG DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY THE COURSE OF DEALING OR USAGE OF TRADE. HEDGEHOG AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE HEDGEHOG PRODUCTS WILL BE UNINTERRUPTED, SECURE, ERROR FREE, ACCURATE OR COMPLETE OR COMPLY WITH REGULATORY REQUIREMENTS, OR THAT HEDGEHOG WILL CORRECT ALL ERRORS. IN THE EVENT OF A BREACH OF THE WARRANTIES SET FORTH IN SECTION 5.1, CLIENT’S EXCLUSIVE REMEDY, AND HEDGEHOG’S ENTIRE LIABILITY, WILL BE THE RE-PERFORMANCE OR RE- DELIVERY OF THE DEFICIENT HEDGEHOG PRODUCT, OR IF HEDGEHOG CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, TERMINATION OF THE RELEVANT HEDGEHOG PRODUCT, IN WHICH CASE CLIENT MAY RECEIVE A PRO RATA REFUND OF THE FEES PAID FOR THE DEFICIENT HEDGEHOG PRODUCT AS OF THE EFFECTIVE DATE OF TERMINATION.
5.3 The Hedgehog Products will not operate flawlessly and have not been tested in all situations under which they may be used. Hedgehog will not be liable for the results obtained through use of the Hedgehog Products and Client is solely responsible for determining appropriate uses for the Hedgehog Products and for all results of such use. In particular, Hedgehog Products are not specifically designed, manufactured or intended for use in (a) the design, planning, construction, maintenance, control, or direct operation of nuclear facilities, (b) aircraft control, navigation, or communication systems (c) weapons systems, (d) direct life support systems (e) or other similar hazardous environments.
6.0 Open Source Licenses
6.1 All Hedgehog contributions to the SONiC open-source project shall be governed by the license agreements specified in the SONiC Foundation Charter.
6.2 The Hedgehog Open Network Fabric open-source project shall be governed by the Apache License, Version 2.0, as well as any subsequent versions approved by Hedgehog.
7.0 Hedgehog Online Properties
Client may be required to create an Account to access Hedgehog Online Properties. Client will provide accurate information when creating an Account. Client may not access or create multiple accounts in a manner that is intended to avoid, or has the effect of avoiding, payment of Fees or circumventing thresholds or Unit limitations associated with Client Account or otherwise in a manner intended to violate the Agreement. Client is solely responsible for all activities in connection with Client’s Account and will notify Hedgehog promptly upon becoming aware of any unauthorized use of the Account. Use of and access to the Hedgehog Online Properties may also be subject to the Product Appendices applicable to the Hedgehog Product.
Hedgehog may offer Evaluation Subscriptions for evaluation and not for production purposes. Evaluation Subscriptions may be provided with limited or no support or subject to other limitations set forth in the Order Form and this Agreement.
9.1 “Recipient” is the party receiving Confidential Information under this Agreement. “Discloser” is a party disclosing Confidential Information under this Agreement. Recipient (a) may not disclose Confidential Information of a Discloser to any third party unless Discloser approves the disclosure in writing or the disclosure is otherwise permitted under this Section 9; (b) will use the same degree of care to protect Confidential Information of Discloser as it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care; and (c) may disclose Confidential Information of the Discloser only to its employees, Affiliates, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation (or other professional obligation) to keep such information confidential using standards of confidentiality no less restrictive than those required by this Section 9. These obligations will continue for the term of this Agreement and for a period of two years thereafter. A Recipient may disclose Confidential Information if it is required to do so by applicable law, regulation or court order but, where legally permissible, will provide advance notice to the Discloser to enable the Discloser to seek a protective order or other similar protection if feasible.
9.2 Information is not Confidential Information, if: (a) the information is or becomes publicly available other than as a result of the Recipient’s breach of this Agreement, (b) the Recipient, at the time of disclosure, knows or possesses the information without obligation of confidentiality or thereafter obtains the information from a third party not under an obligation of confidentiality; (c) the Recipient independently develops the information without use of the Discloser’s Confidential Information, (d) the information is generally known or easily developed by someone with ordinary skills in the business of the Recipient, or (e) the information is licensed under an Open Source License (as defined by the Open Source Initiative (https://opensource.org/)).
9.3 Confidential Information that is disclosed prior to termination of this Agreement will remain subject to this Agreement for the period set forth above. Upon written request of the Discloser, the Recipient will promptly return or destroy all Confidential Information and so certify in writing, except for Confidential Information stored in routine back-up media not accessible during the ordinary course of business.
10. Client Information, Feedback, Reservation of Rights, Review
10.1 Client Information. Hedgehog, its Affiliates, and Suppliers may use Client Information in connection with providing or improving the Hedgehog Products. Client’s provision (and Hedgehog’s use) of Client Information in connection with this Agreement does not require any additional consents or licenses, will be in compliance with applicable law, and will not violate any intellectual property, proprietary, privacy, or other right of any third party. As between the parties and subject to the foregoing, Client retains all its rights in Client Information.
10.2 Feedback. Hedgehog may use Feedback for any purpose, including incorporating the Feedback into, or using the Feedback to develop and improve Hedgehog Products and other Hedgehog offerings, without notice, attribution or compensation on a perpetual and irrevocable basis. Client will use reasonable efforts to ensure that its Feedback is lawful and does not violate the rights of third parties.
10.3 Reservation of Rights. Other than as expressly provided in this Agreement Hedgehog reserves all rights in and to the Hedgehog Products (including all intellectual property rights). Furthermore, Hedgehog may collect and use for any lawful purpose aggregate anonymous benchmark data related to Client’s use of the Hedgehog Products. Nothing in this Agreement will either limit Hedgehog from providing Hedgehog Products to itself or other clients, nor prohibit or restrict either party’s right to develop, use or market products or services similar to or competitive with the other party; provided, however, that neither party is relieved of its obligations under this Agreement, including with respect to Confidential Information.
10.4 Publicity. Hedgehog may publicly identify Client as a customer on its website, but neither party will issue any press releases or similar public statements without the prior approval of the other party, which will not be unreasonably withheld.
During the term of this Agreement and for two years thereafter, Hedgehog or its qualified designee can elect on thirty days’ notice to inspect Client’s facilities and records during regular office hours to verify compliance with this Agreement, subject to reasonable on-site and information system security limitations and minimizing disruption. In this regard, Client will (a) respond promptly to requests for information, documents and/or records, (b) grant appropriate access for on-site visits, and (c) reasonably cooperate in connection with any such review. In the event of noncompliance or underpayment, Hedgehog will notify Client and provide supporting information. If there has been a willful underpayment or breach, Client will also reimburse Hedgehog for the cost of the review, payable net thirty days after electronic invoicing.
12.1 DISCLAIMER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND ABSENT WILFUL MISCONDUCT, FRAUD, OR A MISAPPROPRIATION OF INTELLECTUAL PROPERTY, NEITHER PARTY, NOR ITS AFFILIATES, NOR SUPPLIER WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY DAMAGES FOR LOST OR DAMAGED DATA, LOST PROFITS, LOST SAVINGS OR BUSINESS OR SERVICE INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEDGEHOG’S, ITS AFFILIATES’ AND SUPPLIERS’ TOTAL AND AGGREGATE LIABILITY WITH RESPECT TO ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED BY HEDGEHOG WITH RESPECT TO THE PARTICULAR HEDGEHOG PRODUCT GIVING RISE TO LIABILITY UNDER THE MOST APPLICABLE ORDER FORM(S) DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM; PROVIDED THAT IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE FEES RECEIVED BY HEDGEHOG DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY UNDER THIS AGREEMENT. THIS LIMITATION APPLIES REGARDLESS OF THE NATURE OF THE CLAIM, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL THEORY. THESE LIMITATIONS DO NOT LIMIT CLAIMS OF BODILY INJURY (INCLUDING DEATH) AND DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENCE OF HEDGEHOG, ITS AFFILIATES AND SUPPLIERS.
12.3 Client will indemnify, defend and hold Hedgehog, its Affiliates and Suppliers harmless from all loss, liability and expense, including reasonable attorneys’ fees arising from any third party claims to the extent attributable to Client’s breach of this Agreement; provided that Hedgehog notifies Client of any such claim without unreasonable delay, reasonably cooperates in the defense of the claim at Client’s expense and allows Client to control the defense and settlement of the claim without creating any additional obligation on Hedgehog and without Hedgehog acknowledging any fault.
13. Governing Law and Claims
The Agreement, and any claim, controversy or dispute related to the Agreement, are governed by and construed in accordance with the laws of the State of Washington without giving effect to any conflicts of laws provisions. To the extent permissible, the United Nations Convention on Contracts for the International Sale of Goods will not apply, even if adopted as part of the laws of the State of Washington. Any claim, suit, action or proceeding arising out of or relating to this Agreement or its subject matter will be brought exclusively in the state or federal courts of King County, Washington, and each party irrevocably submits to the exclusive jurisdiction and venue. Despite the foregoing, either party may seek interim equitable relief in any court having jurisdiction. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the party first became aware of the basis for the claim. To the fullest extent permitted, each party waives the right to trial by jury in any legal proceeding arising out of this Agreement.
14.1 Export. The Hedgehog Products may include Controlled Materials, in which event, Client will comply with all applicable export and import laws or regulations, including any local laws in Client jurisdiction concerning import, export or use of Controlled Materials. Hedgehog is not responsible for Client compliance but upon request will reasonably cooperate in such compliance efforts. Without limiting the foregoing, Client will not export, disclose, re-export or transfer the Controlled Materials, directly or indirectly, to: (a) any U.S. embargoed destination; (b) any party who Client knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, or sounding rockets, unmanned air vehicle systems, or any other restricted end-use; or (c) anyone on (or controlled by a person or entity on) a U.S. government restricted persons list, including those who have been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. Client will not provide to Hedgehog any data or engage Hedgehog in any activity, in each case, that could constitute the development of a “defense article” or provision of a “defense service” to Client, as these terms are defined in Section 120 of the International Traffic in Arms Regulations (ITAR). In addition, Client will not, and will not allow third parties under Client’s control, (i) to provide Hedgehog with Client Information that requires an export license under applicable export control laws or (ii) to process or store any Client Information that is subject to the ITAR. If Client breaches these provisions or Hedgehog reasonably believes that Client has breached this provision or the export provisions of an end user license agreement for any Software, or if Hedgehog is prohibited by law or otherwise restricted from providing Hedgehog Products to Client, Hedgehog may terminate this Agreement and/or the applicable Order Form on notice and without liability to Client. Client acknowledges that to perform its obligations and exercise its rights, Client Information may be be transferred between Hedgehog, its Affiliates andSuppliers on a worldwide basis.
14.2 Notices. Notices must be in English, in writing, and will be deemed given upon receipt, after being sent using a method that provides for positive confirmation of delivery to the address(es) or email address provided by you, including through an automated receipt or by electronic log. Any notice from Client to Hedgehog must include a copy sent to: Hedgehog, Inc., Attention: General Counsel, 2212 Queen Anne Ave N, #348, Seattle, WA 98109 Email: firstname.lastname@example.org. Billing notices to Client will be addressed to the billing contact designated by Client.
14.3 Assignment. Either party may upon written notice: (a) assign this Agreement to an Affiliate if the Affiliate’s financial condition and creditworthiness are sufficient to satisfy the assigning party’s obligations under the Agreement and the assignment will not affect the non- assigning party’s obligations under the Agreement; and (b) assign this Agreement to a successor or acquirer pursuant to a bona fide merger or sale of all or substantially all of such party’s assets. Any other assignment will be deemed void and ineffective without the prior written consent of the other party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
14.4 Waiver. A waiver by a party under this Agreement is only valid if in writing and signed by an authorized representative of such party. A delay or failure of a party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights.
14.5 Independent Contractors. The parties are independent contractors and nothing in this Agreement creates an employment, partnership or agency relationship between the parties or any Affiliate. Each party is solely responsible for supervision, control and payment of its personnel. Hedgehog may subcontract Services to third parties or Affiliates in the ordinary course of business as long as (a) subcontractors agree to protect Confidential Information and (b) Hedgehog remains responsible to Client for performance of its obligations.
14.6 Third Party Beneficiaries. This Agreement is binding on the parties to this Agreement and, other than as expressly provided in the Agreement, nothing in this Agreement grants any other person or entity any right, benefit or remedy.
14.7 Force Majeure. Neither party is responsible for nonperformance or delay in performance of its obligations (other than payment of Fees) due to causes beyond its reasonable control; provided that the impacted party promptly so advises the other party and uses reasonable efforts to mitigate such impact.
14.8 Complete Agreement and Order of Precedence. The Agreement represents the complete agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and proposals, whether written or oral, with respect to such subject matter. Any terms contained in any other documentation provided to Hedgehog, including any purchase order or other order-related document (other than an Order Form), will not become part of the Agreement or otherwise bind Hedgehog, unless such document is a mutually agreed, authorized and executed formal amendment to this Agreement. If there is a conflict between the general terms, the Product Appendices and/or an Order Form, the general terms will control unless otherwise expressly provided in the Product Appendices and/or Order Form.
14.9 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same document. The parties may exchange signature pages by email or electronic signature process and such signatures will be effective to bind the parties to the Agreement.
14.10 Severable. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will remain in effect to the extent equitable and permitted by law.
14.11 United States Government End Users. The Products, including Software and its documentation are “Commercial items,” “Commercial computer software” and “Computer software documentation” as defined by the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplement (“DFARS”). Pursuant to FAR 12.211, FAR 12.212, DFARS, 227.7202-1 through 227.7202-4, and their successors, the U.S. Government acquires the Software and its documentation subject to the terms of this Agreement.
15.1 “Account” means an account that enables Client to access and use Hedgehog Online Properties and may include a username and password or other means of access designated by Hedgehog.
15.2 “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
15.3 “Client” means the person or entity acquiring the right to use or access the Hedgehog Products and which is a party to this Agreement.
15.4 “Client Information” means any data, information, software or other materials that Client provides to Hedgehog, its Affiliates and Suppliers under the Agreement and may include Client Confidential Information or Feedback.
15.5 “Confidential Information” means information disclosed by the Discloser to the Recipient during the term of the Agreement that (i) is marked confidential; (ii) if disclosed orally, is clearly described as confidential at the time of disclosure and is subsequently set forth in writing, marked confidential, and sent to the Recipient within thirty (30) days following the oral disclosure; or (iii) is of a nature that the Recipient knows is confidential to the Discloser or should reasonably be expected to know is confidential.
15.6 “Controlled Materials” mean software or technical information that is subject to the United States Export Administration Regulation or comparable regulation by foreign jurisdictions.
15.7 “Effective Date” means earliest of (a) the date of the last signature on this Agreement or an Order Form, (b) your online acceptance of the Agreement, and (c) Client’s initial access to a Hedgehog Product.
15.8 “Evaluation Subscriptions” means Hedgehog Products offered without charge solely for evaluation and not for production purposes, including offerings described as “evaluation”, “preview” or “beta”. Client may order Evaluation Subscriptions by signing up for the Design Partner Program at https://githedgehog.com/design-partner-program/
15.9 “Feedback” means any ideas, suggestions, proposals or other feedback Client may provide to Hedgehog, its Affiliates and Suppliers regarding Hedgehog Products.
15.10 “Fees” are the amounts payable by Client to Hedgehog for the Hedgehog Products.
15.12 “Online Subscriptions” means Subscriptions to one of the Hedgehog Online Properties.
15.13 “Order Form” is Hedgehog’s standard quotation form, ordering document or online purchasing form used to order Hedgehog Products and cross-references this Agreement.
15.14 “Product Appendices” means the Hedgehog Support Terms set forth here: https://githedgehog.com/support-terms/, or (b) for Professional Services or Training Services, that are incorporated into an applicable statement of work.
15.15 “Professional Services” means consulting services provided by Hedgehog, including device certifications or software integration.
15.16 “Hedgehog Online Properties” mean Hedgehog websites, portals and hosted Services included in, or provided in connection with, Hedgehog Products.
15.17 “Hedgehog Products” means Software, Services, Subscriptions, Evaluation Subscriptions and other Hedgehog branded offerings made available by Hedgehog.
15.18 “Service(s)” means Hedgehog branded services offered as Subscriptions, Professional Services, Training Services, access to Hedgehog Online Properties or other services offered by Hedgehog.
15.19 “Services Term” means the period during which Client is authorized by Hedgehog to use, receive access or consume a particular Hedgehog Product pursuant to an Order Form.
15.20 “Software” means Hedgehog branded software that is included in Hedgehog Product offerings.
15.22 “Subscription” means a time bound Hedgehog Services offering, other than Professional Services or Training Services.
15.23 “Supplier” means a third party that provides service(s) or materials to Hedgehog in order for Hedgehog to offer Services to its customers.
15.24 “Taxes” means any form of tax imposition of whatever nature and by whatever authority imposed, including any interest, surcharges or penalties, arising from or relating to this Agreement or any Hedgehog Products, other than taxes based on the net income of Hedgehog.
15.25 “Training Services” means access to Hedgehog training courses, including online courses or courses provided at a site as may be agreed by the parties.
15.26 “Unit” means the basis upon which Fees are determined for Hedgehog Products as set forth in Product Appendices or an Order Form.