THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) CONTAINS THE TERMS FOR USE OF THE SOFTWARE AND IS BETWEEN ELECTRIC CLOUD, INC. (“ELECTRIC CLOUD”), A DELAWARE CORPORATION HAVING A PLACE OF BUSINESS AT 35 S. MARKET STREET, SUITE 100, SAN JOSE, CA 95113 AND THE PARTY AGREEING TO THE TERMS OF THIS AGREEMENT (“LICENSEE” OR “CUSTOMER”). BY ISSUING AN ORDER THAT REFERENCES THIS AGREEMENT, CLICKING AN “ACCEPT” OR SIMILAR BUTTON, OR OTHERWISE DOWNLOADING OR USING THE SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. LICENSEE MAY NOT USE THE SOFTWARE WITHOUT AGREEING TO THIS AGREEMENT FIRST. IF A WRITTEN AGREEMENT REGARDING LICENSEE’S USE OF THE SOFTWARE EXISTS BETWEEN AND HAS BEEN EXECUTED BY BOTH ELECTRIC CLOUD AND LICENSEE, THE TERMS OF THAT WRITTEN AGREEMENT SHALL TAKE PRECEDENCE OVER THIS AGREEMENT.
“Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
“Confidential Information” has the meaning set forth in Section 10.
“Control” means ownership or control, directly or indirectly, of more than 50 of the voting interests of the subject entity.
“Documentation” means the description of the Software and Professional Services purchased by Customer contained in the Software specification sheet(s) found at http://docs.electric-cloud.com
“Effective Date” means the effective date referenced on the initial Order or if no effective date is referenced the date of the initial Order.
“Order” means an order for the Software and/or Professional Services in a form acceptable to Electric Cloud.
“Professional Services” means the installation, implementation, training, or other professional services listed in Section 4 and further identified in an Order.
“Software” means any Electric Cloud software programs (in object code format) licensed by Electric Cloud to Customer together with all Updates, as further described in the Documentation and in an Order.
“Support” has the meaning set forth in Section 7.
“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
“Term” shall initially mean twelve (12) months, commencing on the Effective Date, which may be extended pursuant to Section 12.
“Updates” means all Software updates and enhancements that Electric Cloud generally makes available at no additional charge to its customers of the Software licensed hereunder who are current in payment of applicable fees.
“Users” means Customer’s and its Affiliates’ employees, agents, contractors, and consultants who are authorized by Customer to use the Software.
2. TERMS OF THE SOFTWARE
Subject to the terms of the Agreement, Electric Cloud grants Customer and its Affiliates a non-exclusive, non-transferable (except to a successor in interest as permitted hereunder) perpetual license to use the Software listed under an Order. Customer’s right to use the Software is further limited to the other restrictions contained in an Order and the Documentation.
3. CUSTOMER RESPONSIBILITIES RELATING TO USE OF THE SOFTWARE
3.1 As between the parties, Customer is responsible for, (i) all activities conducted under its User logins, and (ii) obtaining and maintaining any Customer equipment and any ancillary software and/or services needed to connect to, access or otherwise use the Software.
3.2 Customer shall use the Software solely for its internal business purposes, in compliance with applicable law, and shall not: (a) resell, sublicense, lease, time-share or otherwise make the Software available to any third party; (b) process, send, or store infringing or unlawful material using the Software; (c) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Software or the data contained therein; (d) modify, copy or create derivative works based on the Software; (e) reverse engineer the Software; or (f) use the Software, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Electric Cloud’s prior written consent.
3.3 Notwithstanding the grant in Sections 2, 3.1, and 3.2, Customer and its Affiliates acknowledge that the Software includes or may include some software components that are licensed to Customer and its Affiliates under “free software” or “open source” licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and/or have access to the source code for such components (“Free Software Licenses”). Electric Cloud shall provide a list of open source components for a particular version of the Software upon Customer’s request. To the extent stated in any applicable Free Software License, the terms of such licenses will apply in lieu of the terms of Sections 2, 3.1, and 3.2 of this Agreement. To the extent the terms of any Free Software License prohibit any of the restrictions in this Agreement with respect to such components, such restrictions will not apply to such components.
3.4 Customer acknowledges and agrees that Electric Cloud may gather information regarding Customer’s use of the Software for license compliance and Support purposes. Customer agrees not to interfere with and will provide reasonable assistance to Electric Cloud in its gathering of such information.
4. PROFESSIONAL SERVICES
Electric Cloud will provide Professional Services identified and described under and at the rates set forth in an Order. Professional Services may also be as stated in a mutually agreed upon statement of work that specifically incorporates this Agreement by reference (“SOW”).
5.1 Customer shall retain all ownership rights in and to all Customer data passing though or generated by the Software and Customer Confidential Information. Electric Cloud shall have and retain all ownership rights in the Software and all work developed or created by Electric Cloud during the course of providing Support or Professional Services to Customer (if any). Electric Cloud hereby grants Customer a royalty-free, fully paid-up, nonexclusive, license to use the foregoing on the same terms and conditions as the Software.
5.2 Electric Cloud shall own any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the operation of the Software.
5.3 No license, right or interest in any Electric Cloud or Customer trademark, copyright, trade name or service mark is granted hereunder.
6.1 The Fees for the Software are as stated in an Order. Unless Customer has been granted credit terms by Electric Cloud, Fees are due and payable upon the Effective Date and are payable to Electric Cloud. Fees for any extension or renewal Support Terms are due on the effective date of the extension or renewal.
6.2 Upon the acceptance of an Order by Electric Cloud, payment obligations are non-cancelable and, except as expressly provided in this Agreement, upon payment, all payments made by Customer are non-refundable. If customer has been granted credit terms by Electric Cloud, any payment not received from Customer by the due date may accrue (except for amounts then under reasonable and good faith dispute) late charges at the rate of 1.5 of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Failure to make payments in accordance with this Section may result in suspension of Customer’s ability to access the Software and/or receive Support until payment is made.
6.3 Customer is responsible for monitoring Customer’s use of the Software. If Customer is aware that its use of the Software is found to be greater than the amounts licensed hereunder, Customer shall notify Electric Cloud of such excess use. Electric Cloud may invoice Customer for the additional Fees, and the unpaid Fees shall be payable in accordance with Section 6.1.
6.4 Unless otherwise provided, the fees do not include any Taxes. Customer is responsible for paying all Taxes, including, but not limited to sales, use, GST, and VAT taxes, associated with its purchases hereunder, excluding Taxes based on Electric Cloud’s net income or property. If an invoice includes Taxes, Customer is responsible for such Taxes, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority upon execution of this Agreement. Taxes not included on an invoice shall be the responsibility of the Customer to remit to the appropriate tax authorities as necessary.
Electric Cloud shall provide Support provided Customer is current on payment of Fees. Support shall be provided in accordance with the terms and conditions described in Electric Cloud’s technical support policy available at http://electric-cloud.com.cn/downloads/support-terms-and-conditions/.
8.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all other applicable laws in its performance hereunder.
8.2 Electric Cloud warrants (i) it will provide the Professional Services in a professional and workmanlike manner consistent with good industry standards and practices; and (ii) that for a period of thirty (30) days after completion, the Professional Services will conform to the representations in Section 4. As Customer’s sole and exclusive remedy and Electric Cloud’s entire liability for any breach of the foregoing warranty, Electric Cloud will re-perform the Professional Services, or, if Electric Cloud is unable to do so, return the fees paid to Electric Cloud for such deficient Professional Services.
8.3 Electric Cloud warrants to Customer that for a period of three (3) months from delivery, the Software will substantially conform in all material respects to the Documentation (“Software Warranty”). The Software Warranty does not apply to: (a) Software that has been modified by any party other than Electric Cloud; or (b) Software that has been improperly installed or used in a manner other than as authorized under the Agreement to the extent such modification(s) or improper installation cause the Software to be nonconforming. As Customer’s sole and exclusive remedy and Electric Cloud’s entire liability for any breach of the foregoing warranty, Electric Cloud will repair or replace any nonconforming Software so that it operates as warranted or, if Electric Cloud is unable to do so, terminate the license for such Software and return the unused license fees paid to Electric Cloud for the nonconforming Software. Any claim submitted under this Section 8.3 must be submitted in writing to Electric Cloud within the specified warranty period.
8.4 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ELECTRIC CLOUD DOES NOT WARRANT THE OPERATION OF THE SOFTWARE AND RESULTS OF THE PROFESSIONAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
9. PATENT AND COPYRIGHT INDEMNITY
9.1 Electric Cloud shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Software as contemplated hereunder infringes the U.S. intellectual property rights of such third party, provided that Customer (a) promptly gives written notice of the Claim to Electric Cloud; (b) gives Electric Cloud sole control of the defense and settlement of the Claim (provided that Electric Cloud may not settle any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Electric Cloud, at Electric Cloud’ cost, all reasonable assistance.
9.2 Electric Cloud may, at its sole option and expense: (i) procure for Customer the right to continue using the Software under the terms of this Agreement; (ii) replace or modify the Software to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the license for the infringing Software and refund Customer the license fees pro-rated over a three (3) year period and any prepaid Support fees for the remainder of the then-current Term after the date of termination.
9.3 Electric Cloud shall have no liability for any Claim to the extent the Claim is based upon (i) the use of the Software in combination with any other product, service or device not furnished, recommended or approved by Electric Cloud, if such Claim would have been avoided by the use of the Software, without such product, service or device; or (ii) Customer’s use of the Software other than in accordance with this Agreement.
9.4 The provisions of this Section 9 set forth Electric Cloud’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
10.1 As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected under this Agreement), the Software, Documentation, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
10.2 Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Notwithstanding the foregoing, Electric Cloud may use, for its business purposes, usage data generated by the use of the Software in anonymized format. Each party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
10.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
11. LIMITATION OF LIABILITY
11.1 EXCEPT (i) FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS; (ii) FOR CUSTOMER’S FAILURE TO PAY ANY FEES DUE UNDER THIS AGREEMENT; (iii) IN THE EVENT OF EITHER PARTY’S UNAUTHORIZED USE, DISTRIBUTION OR DISCLOSURE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY; OR (iv) EITHER PARTY’S MATERIAL BREACH OF SECTION 10 (“CONFIDENTIALITY”), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID TO ELECTRIC CLOUD DURING TWELVE MONTHS PRIOR TO WHEN THE CLAIM ACCRUED.
11.2 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. TERM AND TERMINATION
12.1 This Agreement commences on the Effective Date and continues until all licenses granted in accordance with this Agreement have expired or have been terminated. This Agreement shall renew for extension Support Terms at Electric Cloud’s then current fees (which shall be the same as the fees for the expiring term unless Electric Cloud provides Customer update fees with at least sixty (60) days’ notice prior to the end of the then-current Term), unless either party provides the other party with thirty (30) days’ notice of its desire to not renew prior to the end of the initial Support Term or then-current extension Term.
12.2 A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; and (iii) as otherwise provided herein.
12.3 The parties’ rights and obligations under Sections 5, 6, 8.4, 9, 10, 11, 12.3, 12.4, and 13 shall survive termination of this Agreement.
12.4 Within thirty (30) days after termination of this Agreement, Customer shall remove and destroy all copies of the Software, Updates, and Documentation in any form.
13.1 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
13.2 Notices shall be in writing with email permitted.
13.3 Each party, with prior approval which shall not be unreasonably withheld, may include the other’s name in its customer or vendor lists.
13.4 No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and Electric Cloud. To the extent of any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than a statement of work, or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement, which includes all documents referenced herein, statements of work and attachments hereto, represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
13.5 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
13.6 Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, actions or decrees of governmental bodies or communications line failure which (i) hinders, delays or prevents a party in performing any of its obligations, and (ii) is beyond the control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against (“Force Majeure Event).
13.7 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party (“Approved Assignment Event”). Upon the occurrence of an Approved Assignment Event by Customer, Customer’s use of the Software is limited to its actual usage of the Software just prior to the Approved Assignment Event. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.8 Each party agrees to comply fully with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Software.
13.9 This Agreement shall be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, for resolution of any disputes arising out of this Agreement.