SUBSCRIPTION LICENSE AND SERVICES AGREEMENT

SUBSCRIPTION LICENSE AND SERVICES AGREEMENT

IMPORTANT – READ CAREFULLY

This Subscription License and Services Agreement (the “Agreement”) contains the terms and conditions upon which Starfish ETL, LLC (“Starfish ETL”) provides data migration and integration services to Licensee as of the Effective Date.

IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE OF YOUR EMPLOYMENT OR IN CONNECTION WITH YOUR ENGAGEMENT AS AN INDEPENDENT CONTRACTOR, THEN THE TERM “LlCENSEE” INCLUDES YOUR EMPLOYER OR PRINCIPAL CONTRACTOR, AS APPLICABLE, AND YOU WARRANT AND REPRESENT TO STARFISH ETL, THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON SUCH EMPLOYER’S OR PRINCIPAL CONTRACTOR’S BEHALF.

  1. Definitions.
    1. “Addendum” means any written modification to this Agreement executed by Licensee and specifying additional services to be provided by Starfish ETL to Licensee beyond those selected by Licensee on the Order Form.
    2. “Affiliate” means any entity, directly or indirectly, controlling, controlled by, or under common control with, Starfish ETL.
    3. “Authorized Users” means: (i) Licensee’s employees; and (ii) contractors authorized by Licensee to access the Subscription Software who, prior to obtaining access to the Subscription Software, have registered in the database with a unique User ID and a unique password.
    4. “Beta Services” means services in a testing mode that may be offered to Licensee for evaluation purposes as described in Section 4.
    5. “Confidential Information” means non-public information that is identified as or would be reasonably understood to be confidential and/or proprietary. Confidential Information of Starfish ETL includes, without limitation, the Documentation and the Subscription Software, including any software code and all algorithms, methods, techniques, and processes revealed or utilized therein. Confidential Information of Licensee includes Licensee Data. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the Recipient; (ii) the Discloser regularly discloses to third parties without restriction on disclosure; (iii) the Recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation known to Recipient; or (iv) is independently developed by the Recipient without use of Confidential Information.
    6. “Discloser” means the party providing Confidential Information to the Recipient.
    7. “Documentation” means the then-current Starfish ETL-provided documentation relating to the features, functions, and use of the Subscription Software.
    8. “Effective Date” for the “Free Trial Period” means the date on which the Licensee clicks on the “I AGREE” button for this Agreement, and “Effective Date” for all other data migration Subscription Services means the date on which payment is received for the level of service selected on the Order Form.
    9. “Free Trial” refers to the option on the Starfish ETL websites, or websites of other entities offering the Starfish data migration services, for the Licensee to evaluate the data migration Subscription Software at no charge to Licensee by applying it to a sample of Licensee’s data.
    10. “Free Trial Period” means the 15-day period during which the Free Trial option may be used by Licensee.
    11. “Intellectual Property Rights” means any and all rights in patents, copyrights, trademarks and service marks.
    12. “Licensee Data” means information provided, entered or uploaded for use by or with the Subscription Software by the Licensee or its Authorized Users.
    13. “Licensee Metadata” means the mapping rules, connectors, or jobs developed by Starfish ETL that are unique to Licensee and that are used to accomplish the data migration Subscription Services.
    14. “License Restriction” means any limitation on the use of the Subscription Software identified in any Addendum to this agreement executed by Licensee and Starfish ETL, such as the number of Authorized Users, locations, or connections.
    15. “Order Form” means the selection form contained on the Starfish ETL websites, or websites of other entities offering the Starfish data migration services, whereby Licensee selects the level of data migration services.
    16. “Personal Information” means information provided to Starfish ETL by or at the direction of Licensee, or to which access was provided to Starfish ETL in the course of Starfish ETL’s performance under this Agreement that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to security questions, and other personal identifiers). Personal Information shall include any non-public personal information regarding any individual that is subject to applicable national, state, regional, and/or local laws and regulations governing the privacy, security, confidentiality and protection of non-public personal information.
    17. “Recipient” means the party receiving Confidential Information of the Discloser.
    18. “Residual Knowledge” shall mean ideas, concepts, know-how or techniques related to the Discloser's technology and Confidential Information that are retained in the unaided memories of the Recipient who had rightful access to Confidential Information.
    19. “Service Level Description” means the Service Level Description document included as part of any Addendum that describes additional Subscription Services beyond the level of service selected by Licensee on the Order Form.
    20. “Subscription Fees” means the fees for the Subscription Services referenced in Section 3(a) of this Agreement.
    21. “Subscription Services” means the Subscription Software-related data migration services and Support (as defined in Section 3(b)) that Starfish ETL provides Licensee under this Agreement.
    22. “Subscription Software” means collectively or individually the computer software programs for which Starfish ETL is providing the data migration Subscription Services.
    23. “Subscription Term” means the 30-day period following the Effective Date for the Subscription Services.
    24. “Third Party Licensor” means a third party whose software products have been made available to Starfish ETL for distribution and/or licensing under the terms of its agreement with Starfish ETL (a “Third Party Agreement”).
    25. “Updates” means generally available updates, enhancements or modifications to the then-current, general release version of the Subscription Software that are not separately priced or licensed as new products.
    26. “User ID” means a unique user identification credential used in combination with a unique password to access the Subscription Services.
  2. License. Subject to the terms and conditions of this Agreement, Starfish ETL hereby grants to Licensee a non-exclusive, non-transferable, limited license (without the right to sublease or sublicense) to access and use the Subscription Software and the Subscription Services, during the Subscription Term, in an operating environment hosted by Starfish ETL, for Licensee’s own internal use for the purpose of migrating Licensee Data from one customer data source to another customer data source. If Licensee has selected on the Order Form only the Free Trial as its level of service, Starfish ETL grants to such Licensee a non-exclusive, non-transferable, limited license (without the right to sublease or sublicense) to access and use the Subscription Software and the Subscription Services, during the Free Trial Period only, for Licensee’s own internal use for the purpose of migrating a sample of Licensee Data from one data source to another data source. Licensee grants Starfish ETL, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Licensee Data, and any Non-Starfish ETL applications and program code created by or for Licensee using a Service or for use by Licensee with the Services, as reasonably necessary for Starfish ETL to provide the Subscription Services in accordance with this Agreement. Subject to the limited licenses granted herein, Starfish ETL acquires no right, title or interest from Licensee or its licensors under this Agreement in or to any Licensee Data, Non-Starfish ETL application or such program code. Licensee grants to Starfish ETL and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Starfish ETL’s and its Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by Licensee or users relating to the operation of such services.
  3. Any rights not expressly granted in this Agreement are expressly reserved.
    1. Documentation. Licensee may make a reasonable number of copies of the Documentation for the Subscription Software for its internal use in accordance with the terms of this Agreement.
    2. License Restriction. Licensee’s use of the Subscription Software and Subscription Services is subject to any License Restriction specified in any Addendum.
    3. Additional Restrictions on Use of the Subscription Software and Subscription Services. Licensee is prohibited from causing or permitting the reverse engineering, disassembly or de-compilation of the Subscription Software. Except as expressly provided by this Agreement, Licensee is prohibited from using the Subscription Software to provide service bureau services to third parties. Licensee will not allow the Subscription Software to be used by, or disclose all or any part of the Subscription Software to, any person except Authorized Users. Licensee acknowledges and agrees that U.S. export control laws and other applicable export and import laws govern its use of the Subscription Software, and Licensee will neither export or re-export, directly or indirectly, the Subscription Software, nor any direct product thereof in violation of such laws, or use the Subscription Software for any purpose prohibited by such laws.
    4. Intellectual Property Rights Notices. Licensee is prohibited from removing or altering any of the Intellectual Property Rights notice(s) embedded in the Subscription Software or that Starfish ETL otherwise provides with the Subscription Services. Licensee must reproduce the unaltered Intellectual Property Rights notice(s) in any full or partial copies that Licensee makes of the Documentation.
    5. Ownership. Use of the Subscription Software and Subscription Services does not grant any ownership rights in or to the Subscription Software, the Subscription Services, the Documentation, or Metadata. Licensee Data shall be the sole property of Licensee; however, Starfish ETL may aggregate anonymous statistical data regarding use and functioning of its system by its various licensees, and all such data (none of which shall be considered Licensee Data), will be the sole property of Starfish ETL.
  4. Subscription Services.
    1. Hosted Environment. Starfish ETL will provide the data migration hosting environment, including the hardware, equipment, and systems software configuration on which Starfish ETL supports use of the Subscription Software and Subscription Services, on servers located at a facility selected by Starfish ETL.
    2. Support. Starfish ETL shall (a) provide Licensee with access (via the internet, telephone or other means established by Starfish ETL) to Starfish ETL’s support helpline, (b) install, when and if generally available, Updates; and (c) use reasonable efforts to correct or circumvent any material deviation between the then-current, general release version of the Subscription Software and its Documentation (the foregoing referred to collectively as “Support”). Support is included in the Subscription Fee.
    3. User Accounts. Licensee is responsible for maintaining its own Authorized User User IDs and passwords. Licensee is responsible for maintaining the confidentiality of Licensee’s User IDs and passwords and shall cause its Authorized Users to maintain the confidentiality of their User IDs and Passwords. Licensee is responsible for all uses of and activities undertaken with User IDs registered on Licensee’s account. Licensee agrees to immediately notify Starfish ETL of any unauthorized use of Licensee’s User IDs of which Licensee becomes aware.
    4. Connectivity. Starfish ETL will be responsible for maintaining connectivity from its network to the Internet that is capable of servicing the relevant Internet traffic to and from the Licensee’s environment. Licensee is responsible for providing connectivity to the Internet for itself, its Authorized Users, and the data sources from which and to which Licensee’s data is being migrated. Licensee shall also be responsible for ensuring that latency and available bandwidth from the user’s desktop to Starfish ETL’s hosted routers is adequate to meet Licensee’s desired level of performance. If Licensee requires a VPN or private network connection to the Subscription Services, Licensee is responsible for all costs associated with any specialized network connectivity required by Licensee.
    5. Restrictions. Starfish ETL shall have no obligation to correct a problem caused by Licensee’s negligence, Licensee’s equipment malfunction or other causes beyond the control of Starfish ETL.
    6. Usage Limits. Subscription Services are subject to usage limits, including, for example, the quantities specified in Order Forms and any applicable Addendum as to the number of users and the quantity of data to be migrated. With regard to users, a User’s password may not be shared with any other individual, and except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer access the Subscription Software. With regard to the Free Trial, Licensee is bound by the scope of the sample of data to be migrated as defined on the Order Form. If Licensee exceeds a contractual usage limit, Starfish ETL may work with Licensee to seek to reduce usage so that it conforms to that limit. If, notwithstanding such efforts, Licensee is unable or unwilling to abide by a contractual usage limit, Licensee will execute an Order Form for additional quantities of the applicable number of users or the amount of data promptly upon Starfish ETL’s request, and/or pay any invoice for excess usage.
    7. >Starfish Personnel. Starfish ETL will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Starfish ETL’s obligations under this Agreement, except as otherwise specified herein.
  5. Beta Services. Starfish ETL in its sole discretion may make Beta Services available to Licensee at no charge. Licensee may choose in its sole discretion to try such Beta Services. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Subscription Services” under this Agreement. Nevertheless, all restrictions, and Licensee’s obligations concerning the Services other than the Payment obligations in Section 5, shall apply equally to Licensee’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire when the trial ends. Starfish ETL may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Starfish will have no liability for any harm or damage arising out of or in connection with any Beta Service.
  6. Payment and Taxes.
    1. Payment. Licensee shall pay Starfish ETL Subscription Fees in the full amount specified for the level of service chosen by Licensee on the Order Form. Except as otherwise set forth in this Agreement, Subscription Fees are non-refundable.
    2. Taxes. Starfish ETL’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Licensee is responsible for paying all Taxes associated with Licensee’s purchases hereunder. If Starfish ETL has the legal obligation to pay or collect Taxes for which Licensee is responsible under this Section 6b, Starfish ETL will specify the amount of such Taxes and will require payment of such Taxes at the same time that the Subscription Fees are paid unless Licensee provides Starfish with a tax exemption certificate authorized by the appropriate taxing authority. Starfish ETL is solely responsible for taxes assessable against it based on its income, property and employees.
  7. Limited Warranties, Disclaimer of Warranties, and Remedies.
    1. Right to Grant License. Starfish ETL warrants that that it owns all right, title and interest in and to the Subscription Software or has obtained rights in such Subscription Software sufficient to grant the licenses granted to Licensee under this Agreement. Licensee’s exclusive remedy, and Starfish ETL’s exclusive obligation, for a breach of this warranty is set forth in Section 8 (Indemnification).
    2. Limited Services Warranty and Remedy for Breach. Starfish ETL warrants to Licensee that Starfish ETL will render the Subscription Services with commercially reasonable care and skill. Starfish ETL further warrants that for a period of 15 days from the Free Trial Effective Date for Free Trial Licensees and for a period of 30 days from the Effective Date for all other Licensees (i) the media on which the Licensed Software is furnished shall be free from defects in materials and workmanship under normal use; and (ii) the Licensed Software will perform substantially in accordance with Starfish ETL’s Documentation accompanying the Licensed Software. Starfish ETL’s sole obligation with respect to a breach of the foregoing warranty shall be to repair or replace the Subscription Software giving rise to the breach of warranty. The remedies in this Section 6(b) are exclusive and in lieu of all other remedies, and represent Starfish ETL’s sole obligations for a breach of the foregoing warranties. Licensee must provide notice to Starfish ETL of any warranty claim within the warranty period.
    3. Malicious Code. Starfish ETL represents that is has used commercially reasonable best efforts utilizing generally accepted industry tools and practices to provide Subscription Software that does not contain any “time bombs,” “worms,” “viruses,” “Trojan horses,” “protect codes,” “data destruct keys,” or other programming devices that are intended to access, modify, delete, damage, deactivate or disable the Subscription Services (“Malicious Code”). As Licensee’s sole remedy for breach of this representation, Starfish ETL shall take action immediately to investigate, identify and remove such Malicious Code from the Subscription Software.
    4. Disclaimer of Warranties. The limited warranties in this Section 6 are made to Licensee exclusively and are in lieu of all other warranties. STARFISH ETL MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE SUBSCRIPTION SOFTWARE AND SUBSCRIPTION SERVICES PROVIDED UNDER THIS AGREEMENT IN WHOLE OR IN PART. STARFISH ETL EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. STARFISH ETL EXPRESSLY DOES NOT WARRANT THAT THE SUBSCRIPTION SOFTWARE OR SUBSCRIPTION SERVICES, IN WHOLE OR IN PART, WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR MEET LICENSEE’S REQUIREMENTS.
    5. Abrogation of Limited Warranty. Starfish ETL will have no obligation under this Section 6 to the extent that any alleged breach of warranty is caused by any modification of the Subscription Software not performed by or on behalf of Starfish ETL. To the extent that an alleged breach of warranty concerns a Third Party Product that is subject to a more limited warranty under a Third Party Agreement than specified in this Section 6, Starfish ETL’s obligations hereunder will be further limited accordingly.
    6. FAILURE OF ESSENTIAL PURPOSE. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN SECTIONS 6 AND 16 WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER LICENSEE HAS ACCEPTED ANY SUBSCRIPTION SOFTWARE OR SUBSCRIPTION SERVICE UNDER THIS AGREEMENT.
    7. FAULT-TOLERANT SOLUTIONS. THE SUSBSCRIPTION SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE AS A FAULT-TOLERANT SOLUTION. ACCORDINGLY, STARFISH ETL DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH SOLUTIONS. LICENSEE AGREES THAT STARFISH ETL SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO THE USE OF THE SUBSCRIPTION SOFTWARE IN SUCH APPLICATIONS.
  8. Confidential Information.
    1. Confidentiality. The Confidential Information disclosed under this Agreement may be used, disclosed or reproduced only to the extent necessary to further and fulfill the purposes of this Agreement. Except as otherwise permitted under this Agreement, the Recipient will not knowingly disclose to any third party, or make any use of the Discloser’s Confidential Information. The Recipient will use at least the same standard of care to maintain the confidentiality of the Discloser’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but in no event less than reasonable care. The non-disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of ten (10) years after Recipient’s receipt of that item; provided, however, that Licensee’s obligations to maintain the Subscription Software and Documentation as confidential will survive in perpetuity. Each of Licensee and Starfish ETL shall be shall be responsible for the breach of the confidentiality terms contained in this Section 7 by any of its directors, officers, employees, Authorized Users, agents, accountants and advisors. Notwithstanding the foregoing, this Section is not intended to prevent (a) a Recipient from using Residual Knowledge, subject to any Intellectual Property Rights of the Discloser, or (b) Starfish ETL from using aggregated data regarding the use of the Subscription Services to provide reports or analytics to Licensee or to improve the performance of Starfish ETL’s products, provided such data does not contain any Personal Information regarding Licensee, its employees, customers or Authorized Users. If the Recipient should receive any legal request or process in any form seeking disclosure of Discloser’s Confidential Information, including User IDs or passwords, or if the Recipient should be advised by counsel of any obligation to disclose such Confidential Information, the Recipient shall (if allowed by law) provide the Discloser with prompt notice of such request or advice so that the Discloser, at the Discloser’s sole expense, may seek a protective order or pursue other appropriate assurance of the confidential treatment of the Confidential Information. Regardless of whether a protective order or other assurance is obtained, the Recipient shall furnish only that portion of the Discloser’s Confidential Information which is legally required to be furnished and to cooperate with any reasonable efforts by the Discloser to assure that the information is maintained in confidence by the party to whom it is furnished. Starfish ETL may use Licensee’s name and logo for marketing purposes in a list of customers using the Subscription Services.
    2. Security Incident Response. In the event that Starfish ETL becomes aware that the security of any Licensee Data or Personal Information has been compromised, or that such Licensee Data or Personal Information has been or is reasonably expected to be subject to a use or disclosure not authorized by this Agreement (an “Information Security Incident”), Starfish ETL shall: (i) promptly (and in any event within 24 hours of becoming aware of such Information Security Incident), notify Licensee, via the email address of the person whose email address was used in connection with purchasing Subscription Services, of the occurrence of such Information Security Incident; (ii) investigate such Information Security Incident and conduct a reasonable analysis of the cause(s) of such Information Security Incident; (iii) provide periodic updates of any ongoing investigation to Licensee; (iv) develop and implement an appropriate plan to remediate the cause of such Information Security Incident to the extent such cause is within Starfish ETL’s control; and (v) cooperate with Licensee’s reasonable investigation or Licensee’s efforts to comply with any notification or other regulatory requirements applicable to such Information Security Incident.
    3. Indemnification. Starfish ETL represents that it has the right to grant to Licensee the license to use the Subscription Software as set forth in this Agreement without violating any rights of any third party and that there is no actual or threatened suit by any third party based on an alleged violation of such right by Starfish ETL Starfish ETL will defend, indemnify and hold Licensee harmless from any third party claim that the Subscription Software infringes any copyright, trademark or trade secret owned or controlled by the third party; provided, however, that (i) Starfish ETL shall be notified promptly in writing by Licensee of any such claim; (ii) Starfish ETL shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; (iii) Licensee shall cooperate with Starfish ETL, at Starfish ETL’s expense, in a reasonable way to facilitate the settlement or defense of such claim; (iv) such claim does not arise from Licensee’s modifications not authorized by Starfish ETL; and (v) should the Subscription Software become, or in Starfish ETL’s opinion likely to become, subject to such claim of infringement, then Licensee shall permit Starfish ETL, at Starfish ETL’s option and expense, either (a) to procure for Licensee the right to continue using the Subscription Software, or (b) to replace or modify the Subscription Software so that it becomes noninfringing and performs in a substantially similar manner to the original product, or (c) upon failure of (a) or (b), despite the reasonable efforts of Starfish ETL, to terminate this Agreement and return the fee paid by Licensee for the Subscription Services. THE FOREGOING SETS FORTH STARFISH ETL’S EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
  9. Term and Termination.
    1. Term. The Subscription Term for the Subscription Services other than the Free Trial shall be 30 days from the Effective Date for data migration Subscription Services. The Subscription Term for the Free Trial shall be 15 days from the Effective Date of the Free Trial Period. The Subscription Term for data migration Subscription Services other than the Free Trial may be extended for additional 30-day periods upon payment of renewal fees as specified on the Starfish ETL websites or the websites of other entities offering the Starfish ETL data migration services. Unless the Subscription Term is extended by payment of a renewal fee, the Subscription Services shall terminate upon the expiration of the Subscription Term. The Subscription Term cannot be terminated prior to its expiration date.
    2. Effect of Termination. Upon termination of the Subscription Services, Licensee’s license to access and use the Subscription Software and Subscription Services shall immediately terminate. Termination of this Agreement will be without prejudice to the parties’ other rights and remedies pursuant to this Agreement, unless otherwise expressly stated herein.
    3. Retention of Licensee Metadata. Metadata shall be the sole property of Starfish ETL. Upon termination or expiration of this Agreement, Starfish ETL shall retain Licensee Metadata for a period of two years.
    4. Survival of Obligations. All obligations relating to non-use and non-disclosure of Confidential Information, limitation of liability, and such other terms which by their nature survive termination, will survive termination or expiration of this Agreement.
  10. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when: delivered personally; sent by registered or certified mail, return receipt requested; transmitted by facsimile confirmed by first class mail; by email: or sent by overnight courier.
  11. Support. Starfish ETL provides technical support for the Subscription Software under the terms specified at the Starfish ETL technical support webpage (http://starfishetl.com/supportpricing).
  12. Force Majeure. Except with respect to the payment of fees hereunder, neither party will be liable to the other for any failure or delay in performance under this Agreement if such failure or delay is the result of circumstances beyond its reasonable control, including, without limitation, an act of God, such as earthquake, hurricane, tornado, flooding, or other natural disaster, or in the case of war, action of foreign enemies, terrorist activities, labor dispute or strike, government sanction, blockage, embargo, failure of electrical service, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance, or the threat of any of the foregoing.
  13. Assignment. This Agreement shall inure to the benefit of, and is freely assignable to, Starfish ETL’s successors and assignees of rights in the Subscription Software. Licensee may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Starfish ETL, whether by operation of law or otherwise, including in connection with a change in control, merger, acquisition, consolidation, asset sale or other reorganization, and any attempt at such assignment or transfer will be void.
  14. No Waiver. The waiver or failure of Starfish ETL to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further or future right under this Agreement.
  15. Jurisdiction. This Agreement and all disputes and causes of action arising from or related to this Agreement will be exclusively governed by and construed in accordance with the laws of the State of Illinois (exclusive of its conflicts of law principles). This Agreement shall be deemed made in Cook County, Illinois, and Licensee and Starfish ETL agree that any suit, action or proceeding brought by either party against the other in connection with or arising from this Agreement shall be brought solely in the state or federal courts situated in Cook County, Illinois, and each party expressly consents to the jurisdiction and venue of each such court.
  16. LIMITATIONS OF LIABILITY.
    1. LIMITED LIABILITY OF STARFISH ETL. EXCEPT WITH RESPECT TO INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, THE TOTAL LIABILITY OF STARFISH ETL, ITS AFFILIATES AND THIRD PARTY LICENSORS IN CONNECTION WITH OR RELATED TO THE SUBSCRIPTION SOFTWARE, THE SUBSCRIPTION SERVICES, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT (WHATEVER THE BASIS FOR THE CAUSE OF ACTION) WILL NOT EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE TO STARFISH ETL HEREUNDER.
    2. EXCLUSION OF DAMAGES. IN NO EVENT WILL STARFISH ETL, ITS AFFILIATES OR THIRD PARTY LICENSORS BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER STARFISH ETL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
  17. Severability. If any of the terms, or portions thereof, of this Agreement are invalid or unenforceable under any applicable statute or rule of law, the court shall reform the contract to include an enforceable term as close to the intent of the original term as possible; all other terms shall remain unchanged.
  18. Compliance with Laws. Licensee will comply with all laws, rules and regulations applicable to the use of the Subscription Software and the Subscription Services including, without limitation, by not migrating any Licensee Data that is illegal, defamatory, or that infringes any third party proprietary rights.
  19. Whole Agreement. This Agreement and any applicable Order Form and Addendum constitutes the entire agreement between Licensee and Starfish ETL relating to the subject matter hereof, and supersede and extinguish all prior oral and written communications between the parties about this Agreement’s subject matter. Any Order Form or Addendum which may be executed in connection with this Agreement or the Subscription Services does not modify, supplement or add terms to this Agreement. Any additions to, or modifications of, this Agreement shall be binding upon the parties only if the same shall be in writing and duly executed by Licensee and by a duly authorized representative of Starfish ETL. Licensee agrees that its purchases pursuant to this Agreement are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Starfish ETL regarding future functionality or features.