TERMS AND CONDITIONS OF USE

DOWNLOAD, USE, OR INSTALLATION OF CODELOGIC’S PRODUCTS AND SERVICES AND CODELOGIC INC.’S (“CODELOGIC”, “US” OR “OUR”) ACCEPTANCE OF YOUR (“YOU”, “YOUR”, OR “CUSTOMER”) ORDER FORM IS EXPRESSLY CONDITIONED ON YOUR ASSENT TO THESE TERMS AND CONDITIONS OF USE (THE “AGREEMENT”).  BY CONTINUING WITH THE DOWNLOAD AND/OR USE OF CODELOGIC’S PRODUCTS OR SERVICES YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT START THE INSTALLATION PROCESS OR USE THE PRODUCTS AND SERVICES.

1. Definitions.

In addition to any other capitalized terms set forth elsewhere in this Agreement, the following capitalized terms shall have the following meanings when used in this Agreement:

a.     “Access Credentials” means user credentials for the Services that are issued and/or administered by CodeLogic, or to the extent permitted by CodeLogic, issued and/or administered by Customer. 

b.     “Authorized User(s)” means any person or user authorized or permitted by Customer to access and use the Services, including: (i) Customer’s officers and employees; and (ii) contractors working on Customer’s behalf and under Customer’s supervision, provided that such contractors are not direct and material competitors of CodeLogic.

c.     “CodeLogic Agents” means CodeLogic’s proprietary computer software that collects data about Customer’s systems.

d.     “CodeLogic Materials” means the CodeLogic Software, the CodeLogic Agents, CodeLogic’s Confidential Information, and all other CodeLogic materials, content and technology that are made available or otherwise provided or disclosed by CodeLogic to Customer hereunder. 

e.     “CodeLogic Software” means CodeLogic’s proprietary computer software that enables end users to access and use the Services, and all associated documentation published and made available by CodeLogic for use by its customers generally.

f.      “CodeLogic Systems” means the information technology infrastructure used by or on behalf of CodeLogic in providing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by CodeLogic or through the use of third party services.

g.     “Customer Data” means data obtained from Customer and processed by CodeLogic through the Services that does not constitute Usage Data. For more information on how CodeLogic collects and processes Customer Data, please review our privacy policy located at https://codelogic.com/privacy-policy/. 

h.     “Effective Date” means the date on which Customer’s license rights commence, as specified in the applicable Order Form. 

i.      “Law(s)” means all applicable national, state, regional and local laws and regulations.  

j.      “Order Form” has the meaning provided in Section 10.a. below.

k.     “Personal Information” means any information that: (i) relates to or is about any identified or identifiable individual or device; (ii) is a combination of information, or can be combined with other information in the recipient’s possession, where the combination may identify an individual or device, even if particular elements in the data combination alone do not; or (iii) is, in the form in which it is disclosed, protected under Laws governing the processing or use of “personal data.” 

l.      “Malicious Software” means any virus, Trojan horse, worm, software lock, drop dead device, or any other limiting routine or harmful code.  

m.    “Services” means CodeLogic’s proprietary software product that enables end users to map code-level dependencies and relationships across platforms, applications, databases, and APIs in real time.

n.     “Services Outputs” means any outputs documentation, reports or results generated by the Services and/or by Customer as a result of its use of the Services.

o.     “Usage Data” means any data, content and information relating to Customer’s use of the Services that has been sufficiently de-identified or aggregated with other data, content and information such that it can no longer be identified or associated with Customer and/or any Authorized User. “Usage Data” includes, without limitation, systems administrative data, statistical and demographical data, operational information, data derived from or based on the Customer Data, and other data generated by or characterizing the use by Customer or an Authorized User of the Services. 

2. Grant of Rights.

a.     Access and Use.  Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, including without limitation, the timely payment of any required and agreed upon Fees, CodeLogic hereby grants to Customer, during the Term, a personal, limited, revocable, non-exclusive, non-sublicensable, non-transferable right to access and use the Services, by and through its Authorized Users only, solely for Customer’s internal business purposes in accordance with the terms and conditions of this Agreement.

b.     CodeLogic Software and CodeLogic Agents.  Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, including without limitation, entering into an Order Form and the timely payment of any required and agreed upon Fees, CodeLogic hereby grants to Customer, during the Term, a personal, limited, revocable, non-exclusive, non-sublicensable, non-transferable license to download, install and use the CodeLogic Software and CodeLogic Agents solely for Customer’s internal business purposes in connection with its use of the Services.

c.      Reservation of Rights.  You have no rights in, or to, any CodeLogic intellectual property, product or service other than the rights granted under this Agreement. You acknowledge and agree that: (i) the rights granted herein are limited to the right to access and use those components of the CodeLogic Software and CodeLogic Agents as may be provided by CodeLogic to access and use the Services and You are not granted any rights in and shall not have the right to use any other background software, systems components and other technology used by CodeLogic to provide the Services; and (ii) the rights granted herein are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by CodeLogic regarding future functionality or features.  CodeLogic is free to determine, in its sole and absolute discretion, the manner and methods by which it provides the Services, which may include, without limitation, the provision of the Services or features or functions thereof by and through third party providers. 

3. Restrictions and Limitations.

a.     Customer shall not, and shall not permit others to, access or use CodeLogic’s products or services except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable Third Party License.  For purposes of clarity and without limiting the foregoing, Customer shall not: (i) sublicense or otherwise permit access to or use of the Services or the CodeLogic Software or CodeLogic Agents on a commercial time-sharing or service bureau basis; (ii) reassign or otherwise transfer its rights to access and use the Services or the CodeLogic Software or CodeLogic Agents; (iii) make, or permit or allow a third party to make, any modifications, alterations, changes, or derivative works of or to the Services or the CodeLogic Software or CodeLogic Agents; or (iv) reverse engineer, decompile, disassemble or derive any source code, underlying ideas, algorithms, structure or organizational form from the Services or the CodeLogic Software or CodeLogic Agents. 

b.     CodeLogic Materials may contain technological measures and features designed to maintain the security of the Services and the CodeLogic Systems and to prevent unauthorized or illegal use of the Services and the CodeLogic Systems (“Security Features”). Customer acknowledges and agrees that: (i) CodeLogic may use the Security Features and other lawful measures to verify Customer’s compliance with the terms and conditions of this Agreement and to enforce CodeLogic’s intellectual property rights and other proprietary rights; and (ii) CodeLogic, in its sole discretion, may deny any individual access to and/or use of the Services and/or the CodeLogic Materials.  Customer shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, the Security Features.

c.     In order to protect CodeLogic’s and/or its licensors’ copyright rights and other intellectual property rights in and to the CodeLogic Software and the CodeLogic Agents, Customer shall not remove, conceal, alter, cover-up or obscure any proprietary rights notices displayed on the CodeLogic Software and/or the CodeLogic Agents.

d.     Customer acknowledges and agrees that CodeLogic may, during the Term, change, alter or modify the Services or any party thereof (“Modifications”).  To the extent that any Modifications materially reduce the then current features or functionalities of the Services (and provided that such Modifications are not reasonably required for CodeLogic and/or the Services to comply with Laws or to address any security vulnerabilities in the Services) (a “Material Modification”), CodeLogic shall provide not less than thirty (30) days’ prior written notice of any such Material Modification.  In the event that Customer objects to a Material Modification, then Customer’s sole and exclusive remedy shall be to terminate this Agreement by providing written notice to CodeLogic prior to the expiration of the foregoing thirty (30) day period.  Such termination shall be without fault or penalty to CodeLogic, and CodeLogic shall have no obligation to refund or reimburse to Customer any amounts paid under this Agreement, provided that, CodeLogic shall refund to Customer any amounts prepaid by Customer but unearned by CodeLogic as of the effective date of termination.  Except as otherwise set forth in this subsection (d), CodeLogic shall have no liability of any kind to Customer with respect to any Modifications or any adverse effects resulting from any such Modifications.

e.     CodeLogic may, at any time, suspend and/or discontinue the Services as is reasonably necessary in order for CodeLogic and/or the Services to comply with Laws and/or to address an exigent circumstance such as a security breach or other unauthorized access to or use of the Services (“Security Breach”).  In the event of any suspension due to a Security Breach, CodeLogic shall use commercially reasonable efforts to restore the availability of the Services as soon as reasonably practicable under the circumstances.  Any such suspension shall not relieve Customer of its obligation to make payments to CodeLogic pursuant to this Agreement.

f.      Customer must comply with all restrictions set forth in this Agreement and/or any API or other usage guidelines (the “Guidelines”) that CodeLogic may publish, make available, and/or modify or amend from time to time with respect to the Services.  If CodeLogic believes, in its reasonable, good faith discretion, that Customer has breached or violated, or has attempted to breach or violate, this Agreement and/or any Guidelines, the rights granted to Customer in this Agreement may be temporarily or permanently suspended or revoked, with or without notice to Customer. In addition, CodeLogic may, in its discretion, terminate this Agreement pursuant to Section 15 below, and seek all available remedies against Customer, including damages, injunctive relief, and specific performance.

g.     CodeLogic shall use commercially reasonable efforts to ensure that any APIs are available for use and/or access by Authorized Users on an uninterrupted basis. However, such APIs will not always be available, as a result of, among other things, scheduled maintenance, system downtime, failures of the Internet generally, and other causes. In the event of any such unavailability, Customer’s sole and exclusive remedy, and CodeLogic’s sole and exclusive liability, shall be for CodeLogic to use commercially reasonable efforts to restore the availability of the APIs as soon as reasonably practicable under the circumstances.

h.     Customer will not, and will not authorize or permit any of its employees, agents or representatives, or any third party to: (i) upload, transmit, or otherwise publish any communication or content to or through the Services of the CodeLogic Systems that contains Malicious Software; or (ii) use the Services in any manner that violates, infringes, or misappropriates the intellectual property rights, publicity or privacy rights, or other rights of any third party. 

i.      Customer will not, and will not authorize or permit any of its employees, agents, representatives, or any third party to: (i) access or use the Services for benchmarking or competitive use or analysis of the Services; or (ii) access or use the Services in order to build any product or service that is competitive with the Services, or that copies or emulates any features, functions or graphics of the Services, in each case, without the express written permission of CodeLogic. In the event that Customer is developing any such product or service during the Term, Customer will: (1) notify CodeLogic of such development in writing; and (2) upon request by CodeLogic, demonstrate to CodeLogic’s satisfaction that all such product and service development has occurred independently of Customer’s access to or use of the Services or other exercise or performance of its rights, obligations and responsibilities under this Agreement. Such proof will be through written evidence of Customer’s internal and external development procedures, certified in writing and under penalty of perjury by a senior executive of Customer.  CodeLogic’s rights under this subsection (i) are in addition to any other rights, claims or remedies that CodeLogic may have under this Agreement or otherwise at law or in equity.        

4. Trial Services.

a.     CodeLogic may make trial Services available to You on a trial basis, free of charge until the earlier of: (i) the expiration of the free trial period for which You registered to use the applicable Service(s); (ii) the start date of any period of time for which you have purchased the right to use the Services pursuant to an Order Form; or (iii) the termination of Your free trial by CodeLogic, for any reason in CodeLogic’s sole discretion (“Trial Term”). During the applicable Trial Term, CodeLogic grants to You a non-exclusive, worldwide, non-transferable, non-sublicensable license to install and use CodeLogic Software or CodeLogic Agents to access the Services solely at the location identified in writing by Customer and solely for Customer’s internal evaluation of the Services. You may only grant access to CodeLogic Software or CodeLogic Agents to employees, contractors, agents or consultants who are bound to confidentiality and non-use obligations no less protective of our proprietary rights in this Agreement. Notwithstanding anything to the contrary as stated in this Agreement, all worldwide right, title and interest to CodeLogic Software and CodeLogic Agents, and all intellectual property rights in and to them, are and will remain the exclusive property of CodeLogic.

b.     This Agreement governs Your use of the CodeLogic Software or CodeLogic Agents during Your Trial Term, as well as any use of the CodeLogic Software or CodeLogic Agents pursuant to any usage rights purchased by You thereafter. For any use by You of the CodeLogic Software or CodeLogic Agents during any Trial Term, You acknowledge and agree that CodeLogic Software and CodeLogic Agents is provided “AS-IS” and CodeLogic makes no representations or warranties of any kind in connection with such use of CodeLogic Software or CodeLogic Agents, including, without limitation, any implied warranties of merchantability, title, fitness for a particular purpose, informational content, system integration, enjoyment, non-infringement or any other warranties arising out of course of dealing, usage or trade shall arise with respect to CodeLogic Software or CodeLogic Agents. Rather, all risk associated with the use of the CodeLogic Software or CodeLogic Agents during any Trial Term is solely with You. Upon the expiration or termination of the Trial Term, (i) all licenses granted under this Section 4(b) for evaluation of CodeLogic Software or CodeLogic Agents will cease, and (ii) You will immediately return the CodeLogic Materials to Us, destroy or erase any intangible copies of the CodeLogic Software or CodeLogic Agents, and upon written request certify in a writing signed by an officer of Customer and delivered to CodeLogic that all such copies of have been returned, destroyed or erased.

5. Data Backup; Risk of Loss.

a.     The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. CODELOGIC HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

6. Collection and Use of Information.

a.     Customer acknowledges that CodeLogic may, directly or indirectly through the Services, collect and store Usage Data.  Customer acknowledges and agrees that any and all such Usage Data is and shall remain the sole and exclusive property of CodeLogic, and that CodeLogic may use such Usage Data for any purpose as determined by CodeLogic in its sole and absolute discretion.

7. Customer Obligations and Responsibilities.

a.     Customer acknowledges that the Services are not designed with security and access management for processing the following categories of data and information: (i) Personal Information; (ii) data that is classified and/or used on the U.S. Munitions list, including software and technical data; (iii) articles, services, and related technical data designated as defense articles or defense services; and (iv) ITAR (International Traffic in Arms Regulations) related data (each of the foregoing is “Prohibited Data”).  Customer shall not, and shall not permit any Authorized User or other third party to, provide any Prohibited Data to, or otherwise process any Prohibited Data through, the Services or the CodeLogic Systems.  Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.

b.     Customer has and will retain sole responsibility for: (i) all Customer Data, including its collection, maintenance, content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (iii) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third party services (“Customer Systems”); (iv) the security and use of any and all Access Credentials; (v) all access to and use of the Services by or through, the Customer Systems or using Customer’s or its Authorized Users’ Access Credentials, whether with or without Customer’s knowledge or consent; and (vi) all results obtained from, and all conclusions, decisions, and actions based on, Customer’s and its Authorized Users’ access or use of the Services.

c.     Customer shall be responsible for the proper configuration of the Customer Systems for purposes of Customer’s access to and use of the Services, the CodeLogic Software, and the Code Logic Agents. Customer shall employ all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of any and all Access Credentials and protect against any unauthorized access to or use of the Services; and (ii) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by and through the Services. Customer shall promptly inform CodeLogic in writing of: (1) an unauthorized access to or use of the Services; or (2) any unauthorized use or disclosure of any Access Credentials.

d.     Customer shall be responsible for the acts and/or omissions of its Authorized Users hereunder.  Customer acknowledges and agrees that any act or omission of an Authorized User that would be deemed a breach or violation of this Agreement if taken (or failed to be taken) by Customer hereunder shall be deemed a breach or violation of this Agreement by Customer.

e.     Customer shall reasonably cooperate with CodeLogic in its provision of the Services, as and when requested by CodeLogic.  By way of illustration and not by way of limitation, Customer shall, as reasonably requested by CodeLogic: (i) promptly respond to any requests for comments or feedback by CodeLogic; and (ii) promptly provide to CodeLogic access to all facilities and information, including Customer Data, so as to review and assess the integrity and security of the Services and the CodeLogic Systems.

f.      Customer shall conduct its activities under this Agreement in strict compliance with any and all Laws.      

8. Mutual Confidentiality and Non-Disclosure.

a.     Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”).  “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) marked by the party as “Confidential,” “Proprietary” or with similar legend, or that based on the nature of the information or the circumstances regarding its disclosure, the Receiving Party knows or reasonably should know the Disclosing Party considers confidential or proprietary, including without limitation, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations.  Without limiting the foregoing, Customer acknowledges and agrees that all CodeLogic Materials and the financial terms of this Agreement shall automatically be deemed the Confidential Information of CodeLogic.

b.     Exclusions.  Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than as a result of the Receiving Party’s or any of its employees’, agents’ or representatives’ (“Representatives”) noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

c.     Protection of Confidential Information. As a condition to the Disclosing Party disclosing or providing access to the Disclosing Party’s Confidential Information hereunder, the Receiving Party shall:

d.     Compelled Disclosures. If the Receiving Party or any of its respective Representatives is compelled by Law to disclose any Confidential Information then, to the extent permitted by  Law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights; and (ii) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure.  If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8, the Receiving Party remains required by Law to disclose such Confidential Information, the Receiving Party shall be permitted to disclose such Confidential Information, provided that the Receiving Party discloses only that portion of the Confidential Information that, on the advice of the Receiving Party’s outside legal counsel, the Receiving Party is legally required to disclose and, if requested by the Disclosing Party, the Receiving Party uses commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

9. Intellectual Property Rights.

a.     CodeLogic Materials. All right, title, and interest in and to the Services and the CodeLogic Materials, and all intellectual property rights associated therewith or embodied therein, are and will remain the sole and exclusive property of CodeLogic.  Customer has no right, license, or authorization with respect to the Services and/or the CodeLogic Materials except as expressly set forth in this Agreement.

b.     Consent to Use Customer Data. Customer hereby irrevocably grants to CodeLogic such non-exclusive, non-transferrable, and non-sublicensable rights and permissions in or relating to the Customer Data as are necessary or useful for CodeLogic to: (i) provide, operate, promote, or improve the Services; (ii) support Customer’s use of the Services; (iii) communicate and respond to Customer’s requests and inquiries; (iv) enforce the terms of this Agreement; and (v) otherwise meet its obligations and responsibilities under this Agreement, either directly or indirectly through its third party providers.

10. Payments.

a.     In consideration of the rights granted by CodeLogic to Customer hereunder, Customer shall pay fees (the “Fee(s)”) to CodeLogic as set forth in and pursuant to the terms and conditions of the order forms or other order documentation to which this Agreement is attached or which otherwise references this Agreement (the “Order Form”). 

b.     Notwithstanding subsection (a) above, CodeLogic reserves the right, on an annual basis during the Term, to increase or decrease the Fees, as determined by CodeLogic in its sole and absolute discretion. CodeLogic shall provide Customer not less than thirty (30) days’ prior written notice of any increase to the Fees becoming effective. In the event that any such Fee increase results in an increase in the Fees previously paid by Customer of more than ten percent (10%), Customer shall have the right to terminate this Agreement by providing CodeLogic written notice of such termination prior to the expiration of such thirty (30) day period.  In the event that Customer fails to terminate this Agreement pursuant to the preceding sentence, such increased Fees shall be become effective immediately.

c.     In the event that Customer disputes any amounts invoiced by CodeLogic hereunder, it must inform CodeLogic in writing within thirty (30) days of its receipt of the applicable invoice.  In the event Customer fails to inform CodeLogic that it disputes the invoice within such thirty (30) day period, Customer shall be deemed to have irrevocably accepted the invoice and the invoice shall be due and owing.  In the event that Customer timely disputes the amounts invoiced by CodeLogic pursuant to this Section 10, it shall: (i) timely pay the undisputed amount, if any; (ii) use good faith efforts to promptly resolve the dispute; and (iii) promptly pay to CodeLogic the disputed amounts once the dispute has been resolved.  

d.     All amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on CodeLogic’s income. 

e.     If Customer fails to make any undisputed payment when due then, in addition to all other remedies that may be available, CodeLogic may charge interest on the past due amount at the rate of one and a half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted pursuant to Laws.

f.      All amounts payable to CodeLogic under this Agreement shall be paid by Customer to CodeLogic in full and without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.

11. Third Party Materials.

a.     The Third Party Materials are and will remain the sole and exclusive property of the applicable third party providers of such Third-Party Materials.

b.     CodeLogic materials and services may include services, software, content, data, or other materials, including related documentation that are offered and/or owned by third parties (“Third Party Materials”). Third Party Materials are provided to Customer on license terms that are in addition to and/or different from those contained in this Agreement (“Third Party Licenses”).  Customer is bound by and shall comply with all Third Party Licenses, and shall not take (or fail to take) or engage in any conduct that would cause CodeLogic to breach or violate any Third Party License to which CodeLogic is a party.  Any breach by Customer or any of its Authorized Users of any Third Party License is also a breach of this Agreement by Customer.

12. Representations, Warranties, and Covenants; Disclaimer.

a.     Customer represents, warrants, and covenants to CodeLogic that Customer owns or otherwise has, and during the Term will continue to have, the necessary rights or consents in and relating to the Customer Data so that, as received by CodeLogic and processed in accordance with this Agreement, the Customer Data does not and will not: (i) infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party; or (ii) violate any Law.

b.     EXCEPT FOR ANY EXPRESS LIMITED WARRANTIES SET FORTH HEREIN, THE SERVICES AND OTHER CODELOGIC MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE”.  CODELOGIC, ITS SUPPLIERS, AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THE LIMITED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CODELOGIC, ITS SUPPLIERS, AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND THAT THE SERVICES OR THE CODELOGIC MATERIALS WILL MEET CUSTOMER’S OR ANY THIRD PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, CUSTOMER SYSTEM, THIRD PARTY SYSTEM, TECHNOLOGIES, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ANY REPRESENTATIONS OR WARRANTIES OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.

c.     CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES OUTPUTS ARE INFORMATIONAL ONLY. WHILE CODELOGIC USES COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE SERVICES OUTPUTS ARE ACCURATE, RELIABLE AND COMPLETE, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE USE OF THE SERVICES IS AT COMPANY’S OWN RISK, AND THAT CODELOGIC DOES NOT AND CANNOT GUARANTEE THAT THE SERVICES OUTPUTS ARE ACCURATE, RELIABLE OR COMPLETE, OR OTHERWISE FREE FROM ERRORS OR DEFECTS.

13. Indemnification.

a.     You agree to defend, indemnify and hold CodeLogic, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers harmless from and against any and all claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees and other costs of defense) resulting from Your breach or violation of this Agreement or your misuse or unauthorized use of the Services or CodeLogic Materials.

14. Limitations of Liability.

a.     EXCLUSION OF DAMAGES. IN NO EVENT WILL CODELOGIC OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OR DISCONTINUANCE OF THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, BROKEN CONNECTIONS OR CHANGES TO THIRD PARTY APPLICATIONS, OR BREACH OF DATA OR SYSTEM SECURITY; (iv) COST OF REPLACEMENT GOODS OR SERVICES; (v) LOSS OF GOODWILL OR REPUTATION; OR (vi) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.  BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR NEGLIGENCE, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, CODELOGIC’S LIABILITY IN SUCH JURISDICTIONS IS LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

b.     CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF CODELOGIC AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, NO MATTER THE CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID TO CODELOGIC BY YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

15. Term and Termination.

a.     Term. 

b.     Termination.  This Agreement and/or any Order Form(s) may be terminated as follows:

c.     Post Termination/Expiration Rights and Responsibilities.  The parties shall have the following rights and responsibilities following the termination or expiration of this Agreement and/or the applicable Order Form:

16. Surviving Terms.

a.     The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement, including all terms that address issues of intellectual property ownership and rights, privacy and confidentiality, legal obligations, indemnification, limitation of liability, and any representations, warranties and covenants of the parties.

17. Miscellaneous.

a.     Audit. Customer shall keep and maintain accurate and complete books and records relating to its use of the Services and its other activities hereunder (“Records”).  During the Term and for a period of two (2) years thereafter, CodeLogic (or a third party auditor selected by CodeLogic to act on its behalf) shall have the right, at its cost and expense and upon reasonable prior written notice to Customer, to audit and inspect Customer’s Records and the Customer Systems (and any of Customer’s facilities associated therewith) for purposes of assessing Customer’s compliance with the terms and conditions of this Agreement. Customer shall reasonably cooperate with CodeLogic in connection with any such audit. 

b.     Public Announcements.  CodeLogic may, without Customer’s consent, include Customer’s name and other indicia in its lists of CodeLogic’s current or former customers of CodeLogic in promotional and marketing materials.

c.     Assignment.  Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement without CodeLogic’s prior written consent, which CodeLogic may refuse, withhold, condition or delay, in its sole and absolute discretion.

d.     Export Regulation. CodeLogic Software and CodeLogic Agents may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release CodeLogic Software or CodeLogic Agents to, or make CodeLogic Software or CodeLogic Agents accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making CodeLogic Software or CodeLogic Agents available outside the U.S.

e.     Government Rights. The Services, the CodeLogic Software, and the CodeLogic Agents consists of “commercial items,” as defined at FAR 2.101 and “commercial computer software,” as defined in DFARS 252.227-7014(a)(1).  In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services, the CodeLogic Software, and the CodeLogic Agents shall be as provided in this Agreement. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights. 

f.      Force Majeure.  CodeLogic will not be liable for inadequate performance to the extent caused by a circumstance beyond its reasonable control, including, without limitation, failure of the Internet, labor strikes or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages and other acts not caused by CodeLogic.

g.     No Third Party Beneficiaries. Except as set forth in Section 11 above, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy.

h.     Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each party.  No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.

i.      Notices.  All notices, demands, or other written communications required or permitted to be given under this Agreement will be in writing and will be considered given when delivered (or when delivery thereof is refused) via personal service; Certified Mail, Return Receipt Requested; or email, provided that the sender does not know or have reason to know that the recipient did not receive the email, addressed: (i) if to CodeLogic, at the address set forth in this subsection (i) (or at such other address as CodeLogic may specify by notice to Customer); or (ii) if to Customer, at the address set forth in the Order Form (or at such other address as Customer may specify by notice to CodeLogic). Notices, demands, or other written communications that are sent in any manner other than as described in this subsection (i) will be void and not binding on the party sending or receiving the communication.

If to CodeLogic:

CodeLogic, Inc.
4667 Mission St.
San Francisco, CA 94112
notices@codelogic.com

j.      Severability.  If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

k.     Governing Law; Submission to Jurisdiction.  This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule.  Any legal suit, action, or proceeding arising out of or related to this Agreement will be venued exclusively in the federal courts of the United States, in the Northern District of California, or the courts of the State of California, San Francisco County, and each party irrevocably submits to the exclusive jurisdiction of such courts.

l.      Waiver of Jury Trial.  Each party irrevocably and unconditionally waives any right it may have to a trial by jury with respect to any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

m.    Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its confidentiality, privacy, security and intellectual property obligations to the other party may cause irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

n.     Attorneys’ Fees.  In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.