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<br />22.8 Savings Clause
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<br />22.9 Attorneys' Fees
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<br />22.10 Governmental
<br />Immunity
<br />
<br />22.11 U.S. Government
<br />transactions
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<br />22.12 Language
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<br />22.13 Examples
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<br />22.14 Exclusive
<br />Agreement;
<br />Amendments
<br />
<br />',' f-
<br />
<br />GENERAL PROVISIONS
<br />
<br />If any provision of this Agreement is held to be invalid, void, unenforceable. or othef\vise de-
<br />fective by a court or other tribunal of competent jurisdiction, then (ij all other prOvisions will
<br />remain enforceable, and (iij such provision will be deemed modified to the minimum extent
<br />necessary to cure the defect.
<br />
<br />If either party brings an action in respect of any dispute arising out of or relating to this Agree.
<br />ment or its interpretation, validity, enforceability, or subject matter, then the prevailing party in
<br />the action itself and the prevailing party in any separate contested proceeding of the action (for
<br />example, any motion in the action) shall be entitled to recover, in addition to any other relief,
<br />reasonable attorneys' fees and expenses and costs of the action or proceeding.
<br />
<br />If you are a government entity or otherwise entitled to assert sovereign immunity or immunity
<br />under the Eleventh Amendment, you acknowledge that your obligations under this Agreement
<br />are of a commercial, non-governmental nature and you accordingly waive any applicable such
<br />immunity.
<br />
<br />The Software and its accompanying documentation are "commercial computer software" and
<br />"commercial computer software documentation," respectively, pursuant to the applicable pro-
<br />visions of the FARs (e.g., 47 CFR 12.211 and/or 12.212) and DFARS (e.g., 48 CFR 252.227-
<br />7015 and/or 227.7202). or any equivalent agency regulation or contract clause, whichever is
<br />applicable. Any use, modification, reproduction, release, perfonnance, display or disclosure of
<br />the Software and accompanying Documentation by the United States Government shall be
<br />governed solely by, and is prohibited except to the extent expressly permitted by, the tenns of
<br />this Agreement. The Manufacturer / Contractor is BindView Development Corporation,
<br />5151 San Felipe, 25th Floor, Houston, Texas 77056.
<br />
<br />This Agreement and its appendixes, exhibits, and attachments, if any, are written in and shall
<br />be interpreted for all purposes in accordance with the English language as used in the United
<br />States of America. (French translation Les parties conviennent expresssement que Ie present
<br />Accord ainsi que toutes ses annexes seront rediges en langue Anglaise et interprites par
<br />nijerence a la terminologie utilisee aux Etats-Unis.)
<br />
<br />Any example provided in this Agreement is used by way of illustration and not of limitation;
<br />the fact that one or more examples are given to illustrate a point shall be deemed to mean that
<br />other examples or instances are also possible unless expressly stated otherwise in this
<br />Agreement.
<br />
<br />a) Each Order Form and each Statement of Work (by definition incorporating this Agreement
<br />and its appendices, exhibits and attachments, ifany, by reference) constitutes the exclusive
<br />agreement between you and BindView relating to its respective subject matter. It supersedes
<br />any and all prior oral or written agreements, representations, negotiations, or other dealings be~
<br />tween you and BindView concerning that subject matter. Neither party is relying on any rep.
<br />resentation by the other, express or implied, except as specifically set forth in such Order Form
<br />or Statement of Work or in a document expressly referenced by or incorporated by reference
<br />therein.
<br />
<br />b) Neither this Agreement nor any Order Fonn or Statement of Work may be amended except
<br />by a writing signed by the parties (and in BindView's case, by an officer of Bind View) that
<br />specifically identifies the amended document and expressly states that it "amends" such docu-
<br />ment. Any purported oral or other non~written amendment shall be null and void. Neither (i)
<br />endorsement, by a party's clerical or accounting personnel, of a check or similar instrument
<br />that contains amendatory language, nor (ii) any printed, typed, or handwritten language in any
<br />purchase order or other form provided by you, shall be effective as an amendment unless the
<br />conditions of the first sentence of this subparagraph (b) are satisfied.
<br />
<br />BINDVIEW CUSTOMER AGREEMENT 95-3172
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<br />PAGE 29
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