BITSCOOP LICENSE AGREEMENT
PLEASE READ THIS LICENSE AGREEMENT BEFORE PURCHASING OR USING THE PRODUCTS, SERVICES, OR SUPPORT. BY USING OR PURCHASING THE PRODUCTS, SERVICES, OR SUPPORT, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT PURCHASE OR USE THE PRODUCTS, SERVICES, OR SUPPORT.
This License Agreement is between BitScoop Labs, Inc. ("BitScoop"), located at 30262 Crown Valley Parkway, Suite B360, Laguna Niguel, California, 92677, and the purchaser or user of BitScoop Products, Services, or Support who accepts the terms of this Agreement ("Customer"). The effective date of this Agreement ("Effective Date") is the date Customer uses BitScoop Products, Services, or Support or agrees to these terms by entering into an Order Form.
1. License Grant and Restrictions.
1.1 Subject to the terms and conditions of this Agreement, BitScoop grants to Customer, during the term of the applicable Subscription designated on the applicable Order Form, a limited,
non-exclusive and non-transferable license to use the Documentation and Products solely for the purpose of integrating the Products with Customer's applications and testing the Products with Customer's applications.
1.2 Except as otherwise expressly permitted in this Agreement, Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any Products or the Documentation to a third party; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Products; (c) allow access or permit use of the Products by any third party except authorized third-party contractors solely to provide services to Customer, provided that Customer shall be liable for all acts and omissions of such authorized third-party contractors; (d) circumvent the license keys (if any) embedded within the
Products; (e) modify or create derivative works based upon the Products or Documentation; (f) disclose the results of any benchmark test of the Products to any third party; or (g) change any proprietary rights notices which appear in the Products or Documentation.
1.4 Open Source Products. The Products may include individual open source software components, each of which has its own copyright and its own applicable license conditions. The open source software components are licensed to Customer under the terms of the applicable open source license conditions and/or copyright notices that can be found in the licenses file, the Documentation or other materials accompanying the Products.
2. Fees and Payment. Customer agrees to pay BitScoop the Fees as stated on the applicable Order Form. Customer will pay directly any taxes arising out of this Agreement or BitScoop's
performance under this Agreement, excluding taxes on BitScoop's net income. If any applicable law requires Customer to withhold amounts from any payments to BitScoop under this Agreement, (a) Customer shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish BitScoop with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, BitScoop receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount BitScoop would have received and retained absent the required deduction or withholding. Unless set forth in the applicable Order Form, Fees shall be: (i) invoiced in full upon the effective date of the applicable Order Form, (ii) paid in US dollars, and (iii) paid within thirty (30) days of the date of the invoice. Payments are nonrefundable and shall be made without right of set-off or chargeback. If Customer does not pay the invoices when due, BitScoop may charge interest at one percent (1%) per month on the unpaid balance, where legally allowed. If Customer fails to pay Fees in accordance with this Section, BitScoop may suspend fulfilling its obligations under this Agreement until such payment is received by BitScoop.
3. Support Services. BitScoop shall provide Support Services for the Products as described in Exhibit A during the period set forth in the applicable Order Form.
4. Ownership. Notwithstanding anything to the contrary, except for the limited license rights expressly provided in this Agreement, BitScoop has and will retain all rights, title and interest in and to the Products and Documentation (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. Customer acknowledges that it is obtaining only a limited license right to the Products and that, irrespective of any use of the words "purchase," "sale," or like terms hereunder, no ownership rights are being conveyed to Customer under this Agreement or otherwise.
5.1 Products. BitScoop warrants to Customer only that, for a period of thirty (30) days following the date the Products are initially licensed by Customer ("Warranty Period"), the Products shall
substantially conform to the description contained in the applicable Documentation. If during the Warranty Period the Products do not substantially conform to the description contained in the applicable Documentation, BitScoop shall perform the Support Services described in Exhibit A.
5.2 Support Services. BitScoop warrants to Customer only that the Support Services shall be performed in a workmanlike manner and shall conform to standards of the industry. If the Support Services are not performed as set forth above, BitScoop shall re-perform the applicable Support Services.
5.3 The remedies in Section 5.1 and 5.2 are Customer's sole and exclusive remedies for breach of warranty and BitScoop's sole and exclusive liability for breach of warranty.
5.4 The warranties in Sections 5.1 and 5.2 are made to and for the benefit of Customer only. The warranties shall apply only if: (i) the Products have been properly installed and used at all times in accordance with the instructions in the applicable Documentation; (ii) no modification, alteration or addition has been made to the Products; and (iii) BitScoop receives written notification of the breach, in the case of the warranty in Section 5.1, within thirty (30) days following the date the Products were initially licensed by Customer, and in the case of the warranty in Section 5.2, within ten (10) days following the performance of the relevant Support Services.
5.5 Disclaimer. EXCEPT FOR THE WARRANTIES IN THIS SECTION 5, THE PRODUCTS, SUPPORT SERVICES AND DOCUMENTATION ARE PROVIDED "AS-IS" AND BITSCOOP AND ITS SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, NON-INFRINGEMENT, TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, THE PRODUCTS, SUPPORT SERVICES AND DOCUMENTATION ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN THE PLANNING, CONSTRUCTION, MAINTENANCE, CONTROL, OR DIRECT OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, CONTROL OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, OR DIRECT LIFE SUPPORT SYSTEMS. CUSTOMER ACKNOWLEDGES THAT BITSCOOP HAS NO RESPONSIBILITY FOR ANY HARDWARE ON WHICH CUSTOMER INSTALLS OR EXECUTES THE PRODUCTS.
BitScoop shall defend Customer against any third party claim brought against Customer that the Products infringe such third party's patent, copyright or trademark, or makes intentional, unlawful use of such party's trade secret ("Claim"), and indemnify Customer from the resulting costs and damages awarded against Customer to the third party making such Claim, by a court of competent jurisdiction or agreed to in settlement; provided that Customer: (i) notifies BitScoop promptly in writing of such claim, (ii) grants BitScoop sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to a BitScoop request for assistance. BitScoop will have the exclusive right to defend any such Claim and make settlements thereof at its own discretion, and Customer may not settle or compromise such Claim, except with prior written consent of BitScoop. Should the Products become, or in BitScoop's opinion be likely to become, the subject of such a claim, BitScoop shall, at its option and expense: (a) procure for Customer the right to make continued use thereof, (b) replace or modify such so that it becomes non-infringing, or (c) request return of the applicable Products and, upon receipt thereof, the corresponding licenses are terminated and BitScoop shall refund the prepaid but unused fees paid for the infringing Products. BitScoop shall have no liability under this Section 6 if the alleged infringement is based on (1) combination with non-BitScoop products, data or business processes, (2) use for a purpose or in a manner for which the Products were not designed, (3) use of any older release of the Products when use of a newer BitScoop revision would have avoided the infringement, (4) any modification or alteration of the Products, (5) any intellectual property right owned or licensed by Customer, excluding the Products, (6) BitScoop's compliance with any materials, designs, specifications or instructions provided by Customer, (7) Customer using the Products after BitScoop notifies Customer to discontinue using due to such a claim, or (8) open source software. THIS SECTION STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND BITSCOOP'S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
7. Limitation of Liability.
IN NO EVENT WILL BITSCOOP OR ITS SUPPLIERS BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED. IN NO EVENT WILL BITSCOOP'S CUMULATIVE LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID TO BITSCOOP BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM. IN NO EVENT WILL BITSCOOP'S SUPPLIERS HAVE ANY LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 7 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER, BITSCOOP AND BITSCOOP'S SUPPLIERS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
8. Term and Termination.
8.1 This Agreement shall commence on the Effective Date and continue until terminated as set forth in this Agreement ("Term"). Either party may terminate this Agreement in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days of written notice. Each Subscription shall begin on the date Customer purchases the Subscription by entering into an applicable Order Form and shall continue during the time Customer has paid the initial Subscription Fees ("Initial Term"), unless terminated earlier in accordance with this Section 8.1. Subscriptions shall automatically renew at BitScoop's then-current rates for additional terms of one (1) year each (each a "Renewal Term") unless either party gives the other party written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The applicable licenses granted in Section 1 of this Agreement automatically terminate upon the termination of the underlying Subscription.
8.2 Sections 4-11 shall survive the expiration or termination of this Agreement.
8.3 During the Term and for one (1) year following termination or expiration (but no more than once in a calendar year), BitScoop and its auditors may inspect Customer's records relating to its reproduction and use of the Products for the purposes of verifying Customer's compliance with this Agreement. Customer shall cooperate fully with BitScoop and its auditors in conducting audits and provide reasonable assistance. If an underpayment is discovered, Customer shall promptly pay such amount. If an underpayment of more than ten percent (10%) for the period audited is discovered, Customer shall promptly reimburse BitScoop for the cost of the audit.
For a period of five (5) years from the date of disclosure of the applicable Confidential Information, the Receiving Party shall (i) hold the Confidential Information of the Disclosing
Party in trust and confidence and avoid the disclosure or release of such Confidential Information to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the Disclosing Party for any purpose whatsoever except as expressly contemplated under this Agreement; provided that, to the extent the Confidential Information constitutes a trade secret under law, the Receiving Party agrees to protect such information for so long as it qualifies as a trade secret under applicable law. The Receiving Party shall disclose the Confidential Information of the Disclosing Party only to those of its employees and contractors having a need to know such Confidential Information and shall be liable for all violations of this Section 9 by its employees and contractors. The obligations under this Section shall not apply to information that the Disclosing Party can demonstrate (a) was in its possession at the time of disclosure and without restriction as to confidentiality, (b) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of this Agreement or other wrongful act by the Receiving Party, (c) has been received from a third party without restriction on disclosure and without breach of this Agreement by the Receiving Party, or (d) is independently developed by the Receiving Party without regard to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it, provided that the Receiving Party gives the Disclosing Party reasonable written notice if legally permitted to do so. Notwithstanding anything to the contrary, Customer acknowledges and agrees that BitScoop, its employees and agents shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Subscriptions provided under this Agreement.
10.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. Purchase orders shall be for the sole purpose of defining quantities, prices and describing the Subscriptions to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter of this Agreement.
10.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable.
10.3 Waiver. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement.
10.4 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due).
10.5 No Third Party Beneficiaries. Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of BitScoop and Customer and do not create any right in favor of any third party.
10.6 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California, without reference to the principles of conflicts of law. The provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any litigation related to this Agreement shall be brought in the state or federal courts located in Orange County, California, and only in those courts and each party irrevocably waives any objections to such venue.
10.7 Notices. All notices must be in writing and shall be effective three (3) days after the date sent to the other party's headquarters, Attention Legal Department.
10.8 Government Regulation. Customer agrees to comply with all applicable laws and regulations with respect to its performance under this Agreement, including without limitation, all anti-corruption and export laws. The Products and accompanying Documentation are deemed to be "commercial computer software" and "commercial computer software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Products and Documentation by the U.S. Government shall be governed solely by the terms of this Agreement.
10.9 Marketing. Customer agrees that: (a) BitScoop may use Customer's logo on its website, (b) Customer may be asked to serve as a reference customer for the Products and (c) Customer may be asked to work together with BitScoop to prepare a case study based on Customer's use of the Products.
"Confidential Information" means any and all information or proprietary materials (in every form and media) which should reasonably be considered confidential and which has been or is hereafter disclosed or made available by one party to the other party under this Agreement in connection with the transactions contemplated under this Agreement.
"Disclosing Party" means the party to this Agreement disclosing Confidential Information to the other party.
"Documentation" means the electronic user and administrative manuals contained within the Products.
"End Users" mean the end user customers that subscribe to the Web Services.
"Fees" mean the fees set forth in the applicable Order Form for Subscriptions.
"Order Form" is an order form entered into by BitScoop and Customer for Subscriptions which incorporates this Agreement.
"Products" means the products licensed by BitScoop to Customer as listed on the applicable Order Form.
"Receiving Party" means the party to this Agreement receiving Confidential Information from the other party.
"Subscription" means the term license to the Products and Support Services for the Products as described in this Agreement and the applicable Order Form.
"Support Services" mean the maintenance and support services provided by BitScoop under this Agreement as further described in Exhibit A.
"Web Services" means Customer's online web service offerings. The Web Services must not allow End Users to access or use the Products directly and must not offer functionality which is competitive with or would serve as a replacement or substitute for the functionality of the Products on a stand-alone basis.
During the applicable Subscription term, BitScoop will provide Support Services for the Products licensed by Customer from BitScoop on the terms and conditions set forth below.
BitScoop will provide Support Services only for the Products licensed from BitScoop by Customer and later Updates of the same Products.
2. Support Services
BitScoop will provide the following Support Services:
2.1 Update Releases Provided. BitScoop shall make available to Customer (under the same terms as the license to the Products in Section 1 of the Agreement) all Updates made generally available to Subscription customers by BitScoop.
2.2 Proactive Security Notifications. BitScoop shall proactively make available to Customer security bulletins.
2.3 Update Distribution. Update information will be provided from the BitScoop customer support portal. Updated Documentation will be provided with such new Updates. Customer acknowledges and agrees that BitScoop shall have no responsibility to install or configure any Products as part of the Support Services.
2.4 Documentation or Configuration Issues Resolved. BitScoop will help Customer resolve doubts with Documentation where observed Product behavior is different from Documentation, Documentation isn't clear or consistent, or other minor Documentation issues occur.
2.5 BitScoop shall have no responsibility to directly participate in installation or configuration of any Products as part of the Support Services. BitScoop shall also not be responsible for resolving any other compatibility issues.
3. Support Obligations
3.1 Customer Support Operations. BitScoop will provide Support Services via e-mail, online support portal, and / or telephone help line during the term of the applicable Subscription to Named Contacts. Customer should first consult the online support portal as it provides a knowledge base and answers to frequently asked customer questions. The contact information for the BitScoop customer support team is:
3.2 Conditions for Providing Support Services. BitScoop's obligation to provide Support Services is conditioned upon the following:
(a) Customer makes reasonable efforts to correct the Error after consulting with BitScoop; (b) Customer provides BitScoop with sufficient information and resources to correct the Error either at BitScoop's customer support center or via remote access to Customer's site, as well as access to the personnel, hardware, and any additional software involved in discovering the Error; (c) Customer promptly installs all Updates; and (d) Customer procures, installs and maintains all equipment and other hardware necessary to operate the Products.
3.3 Exclusions. The following are excluded from BitScoop's Support Services obligations: (a) Products that are used on or in conjunction with hardware or software other than as specified in the Documentation; (b) altered or modified Products; (c) defects in the Products due to accident, hardware malfunction, abuse or improper use; (d) any version of the Products for which Support
Services have been discontinued by BitScoop; (e) any Error caused by third party software not licensed through BitScoop; (f) evaluation software or other software provided at no charge; (g) open source versions of BitScoop products; and (h) any products sold separately by BitScoop.
"Error" means a reproducible failure of the Products to comply in a material respect with its Documentation when used as authorized in the Agreement. "Named Contacts" means the engineering and support personnel who are knowledgeable and trained on the Products that are
authorized to contact BitScoop for Support Services. "Update" means a Major Version, Minor Version or Maintenance Version of the Products made available by BitScoop as part of the