This End User License Agreement (“Agreement”) is a legal agreement between you (either an individual or an entity) (“Customer”) and Conduktor Inc., a Delaware corporation (“Conduktor”), regarding proprietary software made available by Conduktor for download (“Conduktor Software”). This Agreement applies to Trial Licenses, Free Licenses and Professional Licenses of the Conduktor Software. BY CLICKING ON THE CHECKBOX THAT DEMONSTRATES ACCEPTANCE OF THIS AGREEMENT, OR BY USING THE CONDUKTOR SOFTWARE, CUSTOMER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE.
1.1 Evaluation License. Subject to the terms of this Agreement, Conduktor grants to Customer a limited, non- exclusive, non-transferable license solely during the Evaluation Term (as defined below) to use the Conduktor Software solely for evaluation use in development and testing environments, and not for production use. As used herein, “Evaluation Term” means [fifteen (15)] days from the date of download by Customer or such other period specified in writing by Conduktor.
1.2 License Terms. Following the Evaluation Term, subject to the terms of this Agreement, Conduktor grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license during the applicable Term (as defined below) to install and use the Conduktor Software solely for Customer’s internal business operations. Subject to the restrictions set forth in Section 1.5 below, Customer may permit its third-party service providers to install and use the Conduktor Software to provide outsourced services to Customer, and Customer will be solely responsible for such service provider’s compliance with this Agreement.
1.3 Additional Restrictions and Limitations. Customer shall not, and shall not permit or encourage any of Customer’s employees, contractors, or consultants who have agreed in writing to be bound by terms at least as protective of Licensor as those in this Agreement (each, an “Authorized User”) or any third party to:
(a) sublicense, sell, distribute or pledge the Conduktor Software or any of the rights herein;
(b) use the Conduktor Software other than as expressly permitted by this Agreement, or use the Conduktor Software for third-party training, software-as-a-service, time-sharing or service bureau use;
(c) provide access to the Conduktor Software to anyone other than an Authorized User;
(d) use any third party software, including any open source software, in conjunction with the Conduktor Software, unless Customer ensures that such use does not cause the Conduktor Software to become subject to any third party license applicable to such third party software or require the public disclosure or distribution of the Conduktor Software or the licensing of the Conduktor Software for the purpose of making derivative works; or
(e) modify, translate, decrypt, create derivative works based on, disassemble, decompile or reverse engineer any portions of the Conduktor Software, or otherwise attempt to gain access to the source code to such Conduktor Software (or the underlying ideas, algorithms, structure or organization of the object code in the Conduktor Software). The foregoing restriction is inapplicable to the extent prohibited by applicable law; provided that, in the event that Customer intends to disassemble, decompile or reverse engineer such Conduktor Software, Customer shall first provide Conduktor with written notice thereof.
1.4 Reservation of Rights. Conduktor reserves all rights not expressly granted in this Agreement. No rights are granted by implication.
1.5 Number of Users. No more than ten (10) Named Users (defined below) of the Customer may install or use the Conduktor Software pursuant to any single Trial License, Free License or Professional License. Installation and use of the Conduktor Software by more than ten (10) Named Users is available only under an Enterprise License, which is subject to the end user license agreement applicable for Enterprise Licenses. The right of a Named User to use the Conduktor Software may not be assigned to a new user of the Customer, except if an existing Named User’s relationship with the Customer has been severed. Any request to assign rights of an existing Named User to a new Named User in accordance with this Section should be sent by email to email@example.com. “Named User” means any unique licensed user of the Conduktor Software who is authorized by the Customer to access or use the Conduktor Software
1.6 Delivery of Materials. The Conduktor Software, and any versions, updates or maintenance releases of any component thereof, will be delivered only through an electronic transfer.
1.7 Support and Maintenance. Conduktor is not obligated to provide maintenance and support services for the Conduktor Software licensed under this Agreement. In the event that Conduktor, in its sole discretion, elects to make available to Customer any updates or maintenance releases of the Conduktor Software, such updates or maintenance releases shall be deemed Conduktor Software under this Agreement.
1.8 Preview Releases. Conduktor may make available for download a preview release or beta version of Conduktor Software, and Customer may elect to use such preview release at its sole discretion. Preview releases are intended for evaluation use in development and testing environments only, and not for production use. Conduktor may discontinue providing preview releases of the Conduktor Software at any time in Conduktor’s sole discretion. Conduktor is undertaking no obligation to release a generally available version of a preview release or any specific feature thereof.
2.USER AND PERFORMANCE DATA.
Customer acknowledges that Conduktor or its licensors retain all proprietary rights, title and interest, including all intellectual property rights, in and to the Conduktor Software and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto (collectively, “Modifications”), and as between the parties all such rights shall vest in Conduktor. Customer acknowledges that the licenses granted in Section 1 do not include the right to prepare any Modifications of the Conduktor Software.
4. FINANCIAL TERMS.
4.1 Customer shall pay Licensor any fees or payments net 30 days from Licensor’s invoice. Licensor may charge Customer an additional [1.5%] per month for all fees that are not paid on time.
4.2 Licensor may increase annual recurring fees upon providing written notice at least sixty (60) days before the end of the then current Term.
4.3 Fees payable to Licensor are exclusive of all applicable sales, use, value-added, goods and services, consumption, withholding, excise and any other similar taxes or government charges (“Taxes”). Customer shall pay Licensor such applicable Taxes listed on the relevant invoice, which may be in addition to the total fees due and listed on an applicable order form.
4.4 Except as otherwise provided herein, all fees paid by Customer are non-refundable and no right of setoff exists.
Customer is under no duty to provide any suggestions, enhancement requests, or other feedback regarding the Conduktor Software (“Feedback”). If Customer chooses to offer Feedback to Conduktor, Customer hereby grants Conduktor a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the Conduktor Software or otherwise use any Feedback Conduktor receives from Customer. Customer also irrevocably waives in favor of Conduktor any moral rights which Customer may have in such Feedback pursuant to applicable copyright law. Conduktor acknowledges that any Feedback is provided on an “as-is” basis with no warranties of any kind. Feedback shall constitute Confidential Information of Conduktor for purposes of Section 6.
6.1 Nondisclosure and Limited Use. Each party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). The Conduktor Software, Modifications, and the terms and conditions of this Agreement shall be Conduktor’s Confidential Information. Each party agrees to: (a) maintain the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except for the purpose of performing its obligations under this Agreement; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding written use and disclosure restrictions at least as protective as those set forth herein). Each party shall immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested by such other party. The foregoing obligations will not apply to Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
6.2 Remedies. Any breach or threatened breach of this Section may cause irreparable injury to the disclosing party and, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
7.1 Licensor shall, at its own expense, defend or at its option, settle, any claim or action brought against Customer to the extent it is based on a claim that the Conduktor Software, as may be updated, from time to time, by Licensor and used in accordance with this Agreement, infringes any patent, copyright, or any trade secret of a third party. Furthermore, Licensor will indemnify and hold Customer harmless from and against damages, costs, and fees reasonably incurred (including reasonable attorneys’ fees) that are attributable exclusively to such claim or action and which are assessed against Customer in a final judgment. Licensor’s obligations to defend, settle, or indemnify Customer are subject to (i) Customer promptly notifying Licensor in writing of such claim; (ii) Licensor having the exclusive right to control such defense and/or settlement; and (iii) Customer providing reasonable assistance (at Licensor’s expense) in the defense thereof. Customer shall not settle any claim, action or proceeding without Licensor’s prior written approval.
7.2 LICENSOR SHALL NOT DEFEND, INDEMNIFY, OR HOLD CUSTOMER HARMLESS FOR ANY CLAIM IF: (A) CUSTOMER MADE MODIFICATIONS TO THE CONDUKTOR SOFTWARE OR PORTIONS THEREOF; (B) SUCH CLAIM WOULD HAVE BEEN AVOIDED BY USE OF THE THEN CURRENT RELEASE OF THE CONDUKTOR SOFTWARE MADE AVAILABLE TO CUSTOMER; (C) CUSTOMER CONTINUED ITS ALLEGEDLY INFRINGING ACTIVITY AFTER BEING PROVIDED WITH MODIFICATIONS THAT WOULD HAVE AVOIDED THE ALLEGED INFRINGEMENT; OR (D) SUCH CLAIM IS BASED ON CUSTOMER’S OUTPUT.
7.3 IF LICENSOR DEFENDS OR SETTLES AN INFRINGEMENT CLAIM ARISING UNDER SECTION 7.1 ABOVE, LICENSOR’S LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY (IN ADDITION TO THE “INDEMNITY”) SHALL BE FOR LICENSOR AT ITS OWN EXPENSE, TO EITHER (A) REPAIR, REPLACE OR MODIFY THE AFFECTED CONDUKTOR SOFTWARE OR (B) ALTERNATIVELY, PROCURE FOR CUSTOMER THE RIGHT TO CONTINUE TO USE THE AFFECTED CONDUKTOR SOFTWARE. IF THE FOREGOING REMEDIES ARE NOT COMMERCIALLY FEASIBLE (IN THE REASONABLEOPINION OF LICENSOR), LICENSOR MAY CANCEL THE APPLICABLE ORDER AND, AS APPLICABLE, FOR THE AFFECTED CONDUKTOR SOFTWARE, REFUND THE LICENSE FEES PAID TO LICENSOR BY CUSTOMER FOR THE AFFECTED CONDUKTOR SOFTWARE.
8. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
8.1 Disclaimer of Any Warranties. CONDUKTOR MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE CONDUKTOR SOFTWARE OR ANY OTHER MATERIALS PROVIDED HEREUNDER. CONDUKTOR SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THE CONDUKTOR SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
8.2 Limitation of Liability. EXCEPT AS PROVIDED IN SECTION 7 ABOVE, IN NO EVENT SHALL CONDUKTOR’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED $500. CONDUKTOR WILL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF CONDUKTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. TERM AND TERMINATION
9.1 Term. Unless terminated earlier in accordance with Section 9.1 below, this Agreement and the license granted hereunder will be effective as of the date Customer purchases the Conduktor Software (the “Effective Date”) and shall continue for a term of one year from the Effective Date (together with each renewal term, the “Term”). Thereafter, the license shall automatically renew for successive one-year terms at the then current list price unless Customer notifies Conduktor in writing, such notice to be sent by email to firstname.lastname@example.org, at least fifteen (15) days prior to the end of the current term of Customer’s intention to terminate the license.
9.2 Termination. The license granted hereunder shall immediately terminate if Customer breaches Section 1 of this Agreement, regardless of whether Conduktor notifies Customer of such termination. In addition, Conduktor shall have the right to terminate this Agreement and the license granted herein upon written notice in the event the Customer fails to perform or observe any material term or condition of this Agreement and such default has not been cured no later than ten (10) days after written notice of such default to the Customer. Conduktor may also terminate this Agreement immediately if the Customer: (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.
9.3 Effect of Termination. The provisions of this Agreement that by their nature extend beyond the termination of this Agreement will survive termination. All of Customer’s rights in the Conduktor Software will terminate immediately upon termination of this Agreement. Customer shall not be entitled to any refund of fees paid. No later than five (5) days after termination of this Agreement, Customer shall return to Conduktor or, upon Conduktor’s request, destroy or render inaccessible, at Customer’s sole expense, all Confidential Information of Conduktor and materials containing any Confidential Information of Conduktor, and discontinue use of and uninstall the Conduktor Software, including all copies thereof. Nothing contained herein shall limit any other remedies that Conduktor may have for the default of Customer under this Agreement nor relieve Customer of any of its obligations incurred prior to such termination.
10.1 Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without Conduktor’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Conduktor shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
10.2 Entire Agreement; Modification; Waiver. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
10.3 Third Party Software. Conduktor also makes available certain third party open source software (“Third Party Software”). The Third Party Software shall be subject to the applicable open source license(s) and not this Agreement, and is provided by Conduktor at no charge. To the extent the terms of open source licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement, such restrictions will not apply to such Third Party Software. To the extent the terms of open source licenses applicable to Third Party Software require Conduktor to make an offer to provide source code or related information in connection with the Third Party Software, such offer is made.
10.4 Governing Law. This Agreement shall in all respects be governed by the laws of the State of New York without reference to its principles of conflicts of laws. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within the City and County of New York, New York. Customer hereby consents to the personal and exclusive jurisdiction and venue of these courts. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
10.5 Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
10.6 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
10.7 Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing.
10.8 U.S. Government Restricted Rights. If Conduktor Software is being licensed by the U.S. Government, the Conduktor Software is deemed to be “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
10.9 Export Law Assurances. Customer understands that the Conduktor Software is subject to export control laws and regulations. Customer may not download or otherwise export or re-export the Conduktor Software or any underlying information or technology except in full compliance with all applicable laws and regulations, in particular, but without limitation, United States export control laws. None of the Conduktor Software or any underlying information or technology may be downloaded or otherwise exported or re- exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Customer hereby agrees to the foregoing and represents and warrants that customer is not located in, under control of, or a national or resident of any such country or on any such list.
10.10 Construction. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.”