Software License Agreement
TERMS AND CONDITIONS OF USE
PROPOSED USERS (“YOU”, “YOUR”, OR “CUSTOMER”) ACCEPTANCE AND USE OF CODELOGIC’S PRODUCTS AND SERVICES OR CODELOGIC INC.’S (“CODELOGIC”, “US” OR “OUR”) ACCEPTANCE OF YOUR ORDER IS EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THE TERMS AND CONDITIONS PROVIDED BELOW. BY CONTINUING WITH THE DOWNLOAD AND/OR BY THE USE OF CODELOGIC’S PRODUCTS OR SERVICES YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS:
1. Access and Use.
a. Subject to and conditioned on Customer’s and its employees, consultants, contractors, and agents’ (“Authorized Users”) compliance with the terms and conditions of this Agreement and timely payment of any required and agreed upon fees, CodeLogic hereby grants Customer a non-exclusive, non-transferable right to access and use our services during the term of this agreement, solely for use by Authorized Users in accordance with the terms and conditions described below.
2. CodeLogic Software, Agents, and Documentation License.
a. CodeLogic hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the CodeLogic Software, Agents and Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
b. You have no rights in, or to, any CodeLogic intellectual property, product or support service other than the rights granted under this Agreement.
3. Free trials.
a. CodeLogic will make trial services available to You on a trial basis, free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by CodeLogic in its sole discretion.
b. This Agreement governs your initial free trial as well as any use pursuant to future purchases from CodeLogic of licenses made by You.
4. Security Measures.
a. CodeLogic’s software may contain technological measures designed to prevent unauthorized or illegal use of the Services. Customer acknowledges and agrees that: (a) CodeLogic may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce CodeLogic’s rights in and to the CodeLogic Materials; (b) CodeLogic, at its sole discretion, may deny any individual access to and/or use of the CodeLogic Materials.
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 agreement. For purposes of clarity and without limiting the foregoing, Customer shall not, and shall not permit any other person or entity to, copy, modify, or reverse engineer CodeLogic’s products.
6. 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.
7. Collection and Use of Information.
a. Customer acknowledges that CodeLogic may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Services and about equipment on which the Services are installed or through which it is accessed and used. Customer agrees that the CodeLogic may use such data for any purpose related to any use of the Services by Customer or on Customer’s equipment.
8. Customer’s Security Obligations.
a. CodeLogic materials may contain security features designed to prevent its unauthorized use. Customer shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such security features.
b. Customer acknowledges that CodeLogic’s products and services are not designed with security and access management for processing the following categories of information: (a) Personal Information; (b) data that is classified and/or used on the U.S. Munitions list, including software and technical data; (c) articles, services, and related technical data designated as defense articles or defense services; and (d) 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 Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the CodeLogic Systems, or any CodeLogic Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
c. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) 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”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; (e) all access to and use of the Services and other CodeLogic Materials directly or indirectly, by or through, the Customer Systems or its or its Authorized Users’ Access Credentials, whether with or without Customer’s knowledge or consent; and (f) all results obtained from, and all conclusions, decisions, and actions based of and on, Customer’s and its Authorized Users’ access or use.
d. Customer shall be responsible for the proper configuration of its access and use of the Services and other CodeLogic Materials. Customer shall employ all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
9. 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”). Subject to the Exclusions listed below in Section 9(b), “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including 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: all CodeLogic Materials are the Confidential Information of CodeLogic and the financial terms and existence of this Agreement are 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: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) 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 (d) 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 being provided with any disclosure of, or access to, Confidential Information, the Receiving Party shall:
i. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
ii. not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s confidentiality obligations hereunder; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this section 9;
iii. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care;
iv. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use its best efforts to prevent further unauthorized use or disclosure; and
v. ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this section 9.
d. Compelled Disclosures. If the Receiving Party or any of its respective Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) 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 (b) 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, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose 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, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
10. Intellectual Property Rights.
a. CodeLogic Materials. All right, title, and interest in and to the CodeLogic Materials are and will remain with CodeLogic and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the materials provided by CodeLogic except as expressly set forth in this agreement or the applicable third-party license.
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 Customer Data as are necessary or useful to CodeLogic, its Subcontractors and relevant third-party personnel to perform the required services and meet obligations under this Agreement.
11. Third-Party Materials.
a. CodeLogic materials and services may include services, software, content, data, or other materials, including related documentation, that are offered and/or owned by Persons other than CodeLogic and that are provided to Customer on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). The list of material Third-Party Licenses are as follows, with the applicable Third-Party Licenses accessible via included links: Amazon Web Services, https://aws.amazon.com/agreement/, and AUTH0, https://auth0.com/terms. Customer is bound by and shall comply with all Third-Party Licenses. Any breach by Customer or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
12. Customer Representations, Warranties, and Covenants.
Customer represents, warrants, and covenants to CodeLogic that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by CodeLogic and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law.
13. DISCLAIMER OF WARRANTIES.
a. EXCEPT FOR ANY EXPRESS LIMITED WARRANTIES SET FORTH HEREIN, ALL SERVICES AND OTHER CODELOGIC MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. CODELOGIC SPECIFICALLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, 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 MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR OTHER CODELOGIC MATERIALS, OR ANY CUSTOMER DATA, PRODUCTS OR RESULTS OF THE USE OF CODELOGIC MATERIALS, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’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 REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
15. 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, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OR DISCONTINUANCE OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, BROKEN CONNECTIONS OR CHANGES TO THIRD-PARTY APPLICATIONS, OR BREACH OF DATA OR SYSTEM SECURITY, (d) COST OF REPLACEMENT GOODS OR SERVICES, (e) LOSS OF GOODWILL OR REPUTATION, OR (f) 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, IN SUCH JURISDICTIONS CODELOGIC’S LIABILITY 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, 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 UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Term and Termination.
a. This agreement shall last so long as Customer utilizes CodeLogic products and services. CodeLogic may terminate this agreement at any time for any reason by giving Customer written or electronic notice, and all licenses, permissions and other rights granted to Customer hereunder shall immediately terminate.
17. 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.
a. 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.
b. 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.
c. 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.
d. No Third-Party Beneficiaries. 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.
e. 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.
f. 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.
g. 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 Mateo County, and each party irrevocably submits to the exclusive jurisdiction of such courts.
h. 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.
i. 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.
j. 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.