SOFTWARE LICENSE AGREEMENT
PLEASE CAREFULLY READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE AGREEMENT”) BEFORE DOWNLOADING, INSTALLING, OR USING THE DIVVYCLOUD SOFTWARE PRODUCT (THE “SOFTWARE”) OR ANY RELATED DOCUMENTATION (“DOCUMENTATION”).
THE LICENSE AGREEMENT IS ENTERED INTO BY AND BETWEEN DIVVY CLOUD CORPORATION, A DELAWARE CORPORATION, WITH OFFICES AT 1400 KEY BOULEVARD, SUITE A-6, ARLINGTON, VIRGINIA 22209 (“LICENSOR” OR “DIVVY”) AND THE SUBSCRIBER NAMED IN THE ORDER FORM EXECUTED IN CONNECTION WITH THE LICENSE GRANTED HEREIN (“SUBSCRIBER”). THIS LICENSE AGREEMENT IS EFFECTIVE AS OF THE DATE OF THE ORDER FORM. SUBSCRIBER IS RESPONSIBLE FOR ENSURING THAT ALL INDIVIDUALS WHO ACCESS THE SOFTWARE UNDER THE ORDER FORM AND THIS LICENSE AGREEMENT COMPLY WITH THE PROVISIONS OF THIS DOCUMENT AND WITH ALL OF THE ADDITIONAL SUBSCRIPTION TERMS PROVIDED WITH THE ORDER FORM. AS USED HEREIN, “SUBSCRIBER” SHALL INCLUDE ALL INDIVIDUALS HAVING SUCH ACCESS. IF SUBSCRIBER EXECUTED THE ORDER FORM ON BEHALF OF SUSCRIBER’S EMPLOYER OR ANOTHER ENTITY, SUBSCRIBER REPRESENTS AND WARRANTS THAT: (I) SUBSCRIBER HAS FULL LEGAL AUTHORITY TO BIND THE EMPLOYER, OR ENTITY TO THE LICENSE AGREEMENT; (II) SUBSCRIBER HAS READ AND UNDERSTAND THIS LICENSE AGREEMENT; AND (III) SUCH EMPLOYER OR ENTITY HAS AGREED TO THE TERMS HEREOF. ACCEPTANCE OF THIS LICENSE AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH THE ACCESS, DOWNLOAD, INSTALLATION AND/OR USE OF THE SOFTWARE. THIS LICENSE AGREEMENT GOVERNS ALL USE OF THE SOFTWARE AND DOCUMENTATION.
- License Grant
- Subject to the terms and conditions of this License Agreement, Licensor hereby grants the Subscriber a limited personal, non-assignable, non-transferable and non- exclusive license during the Subscription Term stated in the Order Form to (a) access the Software (either via Divvy’s service or via download and installation on one or more physical or virtual servers under Subscriber’s control) solely (i) for the Subscriber’s personal, non-commercial use or internal business purposes, (ii) as intended through the normal functionality of the Software and (iii) in accordance and compliance with the terms of this License Agreement and (b) make only a reasonable number of copies of the Software solely as needed for non-production development, testing and/or backup and recovery purposes, provided that Licensor’s copyright and other proprietary notices are included in such copy. The Software and any Documentation provided to Subscriber under this License Agreement is licensed, not sold, to Subscriber by Licensor. All rights relating to the Software and Documentation that are not expressly licensed in this License Agreement, whether now existing or which may hereafter come into existence, are reserved for Licensor. Subscriber shall not remove, obscure, or alter any proprietary rights notices (including without limitation copyright and trademark notices) which may be affixed to or contained within the Software.
- Subscriber expressly acknowledges and agrees that Licensor, through the Software, may collect, receive and store certain personally non-identifiable information. Such information, which is collected passively using various technologies, shall be owned by Licensor and includes among other things metrics on usage analytics required for licensing and billing and for identification of software failures. This information may be used by Divvy to improve and enhance the Software and (in an aggregated and anonymous format) to advise Divvy’s subscribers of best practices. Licensor may store such information itself or such information may be included in databases owned and maintained by Licensor affiliates, agents or service providers. In addition, Subscriber agrees that Divvy, may use and reference Subscriber’s name and/or logo on Divvy’s website to promote and market the Software
Subscriber hereby represents, warrants and covenants that, except as otherwise expressly permitted in this License Agreement, Subscriber will not and will not knowingly permit others to:
- Install, use or copy the Software or Documentation in any manner or for any purpose, except in accordance with Section 1.a.;
- Resell, distribute, publicly display or publicly perform the Software or Documentation, or any copy thereof, by transfer, lease, loan or any other means, or make it available for use by others in any time-sharing, service bureau or similar arrangement;
- Disassemble, decrypt, extract, reverse engineer or reverse compile the Software, or otherwise attempt to discover the source code, confidential algorithms or techniques incorporated in the Software, or disclose or use any confidential information of Licensor in any manner except as permitted by applicable law, and then only to the extent that (i) Licensor is not legally entitled to exclude or limit such rights by contract and (ii) Subscriber notifies Licensor of its requirements with respect to interoperability or functional compatibility before engaging in reverse engineering, and gives Licensor the opportunity to provide to Subscriber the information necessary to achieve such interoperability or compatibility without reverse engineering;
- Use the Software for any illegal purpose, in any manner that is inconsistent with the terms of this License Agreement, or to engage in any illegal activity;
- Export the Software in violation of any applicable laws or regulations;
- Modify, translate, adapt, or create derivative works from the Software or the Documentation related thereto; or
- Circumvent, disable or otherwise interfere with security-related features of the Software;
- Claim any sponsorship by, endorsement by, or affiliation with Licensor;
- Use the Software in any manner that interferes with or damages the operation of the services of Licensor or third parties by overburdening/disabling network resources through automated queries, excessive usage or similar conduct that exceeds the permitted personal, non-commercial use contemplated herein;
- Use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to monitor, distort, delete, damage or disassemble the Software or its ability to communicate and function with other computers running the Software;
- With the exception of those actions permitted by the user interface or standard API provided as part of the Software, take any action, including without limitation downloading and/or using third party software, that (i) modifies the settings of the Software as it functions with Subscriber’s computer, or (ii) otherwise modifies, alters, blocks or interferes with the functioning of the Software;
- Attempt to hack the Software or any communication initiated by the Software or to defeat or overcome any encryption and/or other technical protection methods implemented by Licensor with respect to the Software and/or data and/or content or programming transmitted, processed or stored by Licensor or other users of the Software;
- Limited Warranty: Disclaimers
- If the Subscriber is unable to completely download the Software due to transmission error or failure, the Subscriber will notify the Licensor at the address above within ten (10) days of the date of the initial download. Upon such notification, Licensor will permit the Subscriber to repeat the download or access without additional charge. This warranty does not apply if the Software (i) has been altered, except by Licensor, (ii) has not been installed, operated, repaired or maintained in accordance with instructions supplied by Licensor, (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, or (iv) is used in ultra hazardous activities. Further, the warranties contained herein shall not apply to Subscriber’s use of any Add-Ons (whether or not created by Subscriber) or during any free evaluation period. This is Licensor’s entire liability and the Subscriber’s sole and exclusive remedy in connection with any breach of this Agreement, including, but not limited to, any breach of warranty. By accepting this Agreement, the Subscriber acknowledges and agrees that Licensor cannot and does not guarantee or warrant that files available for downloading through the Internet will be free of infection or viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. The Subscriber downloads all files at the Subscriber’s own risk.
- EXCEPT AS EXPRESSLY SET FORTH IN THIS LICENSE AGREEMENT, THE SOFTWARE AND DOCUMENTATION WAS PROVIDED “AS IS” AND LICENSOR MAKES NO AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTIES’ INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS. NEITHER THIS LICENSE AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT THE SOFTWARE MAY HAVE DEFECTS OR DEFICIENCIES WHICH CANNOT OR MAY NOT BE CORRECTED BY DIVVY.
- Indemnity: Limitation of Liability
- So long as Subscriber is in compliance with all monetary obligations relating to the Software and is otherwise compliant with all material, non-monetary obligations set forth in the Order Form and its terms, and in this License Agreement (which, for the avoidance of doubt, will include compliance with all use restrictions and confidentiality obligations), Licensor shall defend, indemnify, and hold harmless Subscriber from and against any loss, liability, cost, or expense, including reasonable attorneys’ fees, which may be incurred by Subscriber based upon any claims, actions, or demands by a third party alleging that the Software or Documentation, when used in compliance with the Documentation infringes a registered U.S. patent or copyright or any patent or copyright protected under U. S. law provided that:
(i) Subscriber promptly notifies Licensor in writing of the claim thereof; (ii) Licensor has sole control of the defense of any actions and negotiations related to the defense or settlement of any claim; and (iii) Subscriber cooperates fully in the defense of the claim. Licensor will pay all costs and damages finally awarded against Subscriber but will not be responsible f o r any costs, expenses or compromise incurred or made by Subscriber without L i c e n s o r ’ s prior written consent.
- If Licensor believes that the Software or Documentation is or will become the subject of an infringement claim, or in the event that use of the Software or Documentation is enjoined, Licensor, at its own expense and in its sole discretion, may either (a) obtain the right for Subscriber to continue using the Software or Documentation or (b) modify the Software or Documentation to make it noninfringing while maintaining substantially similar functionality. If neither of such alternatives is commercially practical in Licensor’s sole discretion, then Licensor may terminate this Agreement as to the infringing portion of the Software or Documentation and, upon Subscriber’s return of the infringing portion to Licensor, refund license fees paid by Subscriber for the unused portion of the license term. This Section states Licensor’s entire liability and Subscriber’s sole remedy for infringement.
- Licensor shall have no indemnification obligation or liability for any infringement claim based in whole or in part on Subscriber’s (a) use of the Software or Documentation in combination with any items not supplied by Licensor or otherwise approved by Licensor, in writing; (b) material alteration of the Software, Data, or Documentation by anyone other than Licensor, its agents, or its contractors; (c) continuation of allegedly infringing activity after it has been notified of the possible infringement; or (d) use or continued use of a superseded, discontinued or altered version or release of the Software if the infringement could have been avoided by Subscriber’s use of the current, updated or modified version provided by Licensor. Subscriber hereby indemnifies Licensor and its licensors to the extent an infringement claim is based in whole or in part on any of the foregoing. THE FOREGOING STATES THE ENTIRE OBLIGATION OF LICENSOR WITH RESPECT TO INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES INCLUDING WITHOUT LIMITATION LOST PROFITS, CONSEQUENTIAL DAMAGES, REVENUE OR DATA, OR OTHER INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATED TO THE SOFTWARE OR DOCUMENTATION OR THE USE (OR INABILITY TO USE) THEREOF. IN NO EVENT SHALL LICENSOR’S LIABILITY TO SUBSCRIBER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE LICENSE FEES PAID BY SUBSCRIBER. LICENSOR HAS NO LIABILITY WHATSOEVER IN CONNECTION WITH THE USE OF ANY ADD-ONS THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF LICENSOR HAS BEEN ADVISED, OR IS OTHERWISE AWARE, OF THE POSSIBILITY OF DAMAGES IN EXCESS OF SUCH LIMITATIONS AND EVEN IF THE WARRANTY REMEDY OF SECTION 3 FAILS OF ITS ESSENTIAL PURPOSE. The Subscriber and Licensor agree that the Limited Warranty Disclaimers of Section 3 and the Limitation of Liability provisions of this Section 4 are reasonable in light of the licenses fees paid to Licensor.
SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS OF SECTIONS 3 AND 5 OF THIS LICENSE AGREEMENT MAY NOT APPLY TO THE SUBSCRIBER. IN SUCH STATES, THE LIABILITY OF LICENSOR SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Survival of Obligations. The provisions of the License Agreement which, by their terms are intended to survive expiration of the Order Form Subscription Term and/or termination of the Subscription or of the license granted hereunder shall so survive.
- This License Agreement is binding upon DivvyCloud and Subscriber and their successors and permitted assigns. Subscriber may not assign or otherwise transfer this License Agreement or any rights granted hereunder without the express written consent of DivvyCloud, and any attempted assignment or other transfer in violation of the foregoing will be void and of no effect.
- Relationship of the Parties. DivvyCloud and Subscriber are independent contractors, and nothing in this License Agreement will be construed as making them partners or as creating any agency relationship between them. Neither party will make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf.
- Add-Ons. Subscriber may develop enhancements to the Software, such as “Plug-ins”, “bots” and “add-ins”, using the Software and related code elements (collectively “Add- Ons”). Subscriber may, at its option, offer Add-Ons to the Divvy subscriber community. Notwithstanding the foregoing, Divvy retains the right to utilize ideas, concepts and information pertaining to Add-Ons and may develop similar features, products and applications for commercial use, without compensation to Subscriber. Any such products and applications developed by Divvy shall be part of the Software.
- Entire Agreement; Modifications. This License Agreement contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or other communications between the parties. This License Agreement may be modified by Divvy by notice to Licensee, which notice may be via electronic mail or posting on the Divvy website.
- In the event that any provision of this License Agreement is for any reason void or unenforceable in any respect, such provision will be interpreted, construed, or reformed to the extent reasonably required to render it valid, enforceable, and consistent with the original intent of such provision and the remainder of this License Agreement shall remain in full force and effect.
- Limitation of Actions. No action, regardless of form, arising out of this License Agreement (other than an action for nonpayment) may be brought by either party more than one year after the cause of action has been or reasonably should have been discovered.
- Governing Law. The License Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia excluding any conflict of law provisions thereof. Exclusive jurisdiction for litigation of any dispute arising out of or in connection with the license or this License Agreement shall be only in the Federal or State courts of Virginia, provided that DivvyCloud may at any time seek equitable or injunctive relief, where applicable, in any court of competent jurisdiction. The parties consent to the exercise of personal jurisdiction by such courts in any such action. The prevailing party in such action shall be entitled to an award of its reasonable attorneys’ fees and costs of such suit, including expert witness fees. THE PARTIES HERETO HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN MATTERS ARISING OUT OF THIS AGREEMENT.
- No Waiver; Headings. The failure of DivvyCloud to exercise or enforce any right or provision of this License Agreement does not constitute a waiver of such right or provision. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such clause.
- Export Regulations. Subscriber agrees that it will not knowingly, in conjunction with this License Agreement or its performance (i) export or re-export, from the United States directly or indirectly, any technical data (as defined by the U.S. Export Administration Regulations); or (ii) disclose such technical data for use in, or export or re-export directly or indirectly, any direct product of such technical data, including software, to any destination to which such export or re-export is restricted or prohibited by U.S. or non-U.S. law, including but not limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan, or Syria, or to any person on the Table of Denial Orders, the Entity List or the List of Specially Designated Nationals, without obtaining prior authorization from the U.S. State Department, U.S. Department of Commerce and/or other competent government authorities to the extent required by those laws. Subscriber shall cooperate with Licensor in the evaluation and securing of all necessary export authorizations and licenses.
- Restriction On Government Use. The Software and Documentation are “Commercial Items”, as that term is defined at 48 CFR §2.101, and may consist of “Commercial Computer software” and “Commercial Computer Software Documentation” as such terms are used in 48 CFR §12.212 or 48 CFR §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, use, duplication or disclosure by the U.S. Government or any person or entity acting on its behalf is subject to restrictions as set forth in the Rights in Technical Data and Computer software Clause at DFARS (48 CFR 252.227-7013) for Department of Defense contracts, in paragraphs (c)(1) and (2) of the Commercial Computer software- Restricted Rights clause in the FAR (48 CFR 52.227-19) for civilian agencies, or in other comparable agency clauses.
- Entire Agreement. This License Agreement (and the Order Form, including Subscription of which this License Agreement is a part) constitutes the entire agreement between the parties.