THIS COMMERCIAL CLICK-THROUGH LICENSE AGREEMENT (THIS “AGREEMENT”) IS BETWEEN BASE22 TECHNOLOGY GROUP, LLC, A TEXAS LIMITED LIABILITY COMPANY (“LICENSOR”) AND YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY). BY INSTALLING THIS PRODUCT, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, ACCEPT THE USE OF INFORMATION INCLUDING COOKIES, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, BASE22 IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST EXIT THE INSTALLATION OF THIS PRODUCT. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE UPON WHICH YOU INSTALL THIS PRODUCT. FOR THE PURPOSE OF THIS AGREEMENT, YOU AND, IF APPLICABLE, SUCH COMPANY (OR OTHER ENTITY) THAT YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF CONSTITUTES THE “LICENSEE”. LICENSOR AND LICENSEE MAY BE REFERRED TO HEREIN COLLECTIVELY AS THE “PARTIES” OR INDIVIDUALLY AS A “PARTY.”
WHEREAS, Licensor desires to license the Software to Licensee; and
WHEREAS, Licensee desires to obtain a license to use the Software for its internal business purposes, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Section 1. Definitions.
“Acceptance Criteria” means the specifications and Documentation provided by Licensor.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise/ownership of more than 50% of the voting securities of a Person.
“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by Law to be closed for business.
“Confidential Information” has the meaning set forth in Section 9.1.
“Disclosing Party” has the meaning set forth in Section 9.1.
“Documentation” means Licensor’s user manuals, handbooks, and installation guides relating to the Software/end user documentation relating to the Software available that Licensor provides or makes available to Licensee in any form or medium which describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.
“Effective Date” means the date upon which the Software is downloaded by the Licensee.
“Force Majeure Event” has the meaning set forth in Section 15.11.
“Indemnitee” has the meaning set forth in Section 12.3.
“Indemnitor” has the meaning set forth in Section 12.3.
“Initial Term” has the meaning set forth in Section 14.1.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Licensee” has the meaning set forth in the preamble.
“Licensee Indemnitee” has the meaning set forth in Section 12.1.
“Licensor Indemnitee” has the meaning set forth in Section 12.2.
“Loss” or “Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that Licensor may provide to Licensee from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Version.
“New Version” means any new version of the Software that Licensor may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Licensor’s designation of a new version number), and which Licensor may make available to Licensee at an additional cost under a separate written agreement.
“Open Source Components” means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative. Specific Open Source Components used in the Software are further set forth in Exhibit C.
“Open Source License” has the meaning set forth in Section 2.3.
“Parties” has the meaning set forth in the preamble.
“Party” has the meaning set forth in the preamble.
“Payment Failure” has the meaning set forth in Section 14.3(a).
“Permitted Use” means use of the Software by an Licensee for the benefit of Licensee in the ordinary course of its internal business operations.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Receiving Party” has the meaning set forth in Section 9.1.
“Renewal Term” has the meaning set forth in Section 14.2.
“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors, and legal advisors.
“Software” means the current executable, object code version of the Carbon LDP™ in effect as of the Effective Date, and any Maintenance Releases provided to Licensee pursuant to this Agreement.
“Term” has the meaning set forth in Section 14.1. and 14.2.
“Territory” means the mutually agreed-upon territory or territories where Licensee intends to use the Software.
“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Licensor, including any third-party: (a) documents, data, content or specifications; (b) Open Source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
“Warranty Period” has the meaning set forth in Section 11.1.
“Website” means Licensor’s official website, located at https://carbonldp.com
Section 2. License and Payment.
2.1 License Grant. Subject to and conditioned on Licensee’s payment of Fees and compliance with all other terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 15.8) license to use the Software and Documentation solely for the Permitted Use in the Territory during the Term.
2.2 Scope of Licensed Access and Use. During the term of the Licensee may install, use, and run the Software consistent with the License Tiers and Pricing set forth in Exhibit B and as modified by Licensor from time to time. Licensee agrees to pay the applicable license fees (if any) that correlate with the available license tier it opts to utilize.
2.3 Open Source Licenses. The Software includes Open Source Components set forth in Exhibit D, (each, an “Open Source License”). Any use of the Open Source Components by Licensee is governed by, and subject to, the terms and conditions of the Open Source License(s). Licensee represents and warrants that it understands Licensor is bound by the terms and conditions of such Open Source Licenses its uses as a part of the Software.
Section 3. License Restrictions.
Except as this Agreement expressly permits, and subject to Section 2.3 with respect to Open Source Components, Licensee shall not, and shall not permit any other Person to:
- copy the Software, in whole or in part;
- modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party;
- reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
- bypass or breach any security device or protection used for or contained in the Software or Documentation;
- remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software or Documentation;
- use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law;
- use the Software for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to Licensor’s detriment or commercial disadvantage;
- use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or
- use any Open Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open Source License.
Section 4. Delivery.
Software will be available for electronic download via links provided on Licensor’s Website.
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Section 6. Maintenance Releases.
During the Term, Licensor will provide Licensee with all Maintenance Releases (including updated Documentation) that Licensor may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases provided by Licensor to Licensee are deemed Software. Licensee will install all Maintenance Releases as soon as practicable after receipt. Standard Edition Licensee does not have any right hereunder to receive any New Versions of the Software that Licensor may, in its sole discretion, release from time to time.
Section 7. Fees and Payment.
7.1 License Fees. Should Licensee request a paid License from Licensor, it will be will be invoiced for the license fees for the first 12 months of the applicable Licensee Tier selected by it on or around the Effective Date. Thereafter, for subsequent years, Licensee will be invoiced for the applicable license fees on or around the anniversary of the Effective Date until the license for the Software is terminated. Licensee shall pay Licensor the license fees set forth in Exhibit B in accordance with that exhibit and the terms of this Section 7. If the Term is renewed for any Renewal Term(s) pursuant to Section 14.2, Licensee shall pay the then-current standard license fees that Licensee charges for the Software during the applicable Renewal Term.
7.2 Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.
7.3 Payment. Licensee shall pay all amounts due and owing under this Agreement within 30 days after the date of Licensor’s invoice therefor. Licensee shall make all payments hereunder in US dollars to the address or account specified in Exhibit B or such other address or account as Licensor may specify in writing from time to time.
7.4 Late Payment. If Licensee fails to make any payment when due then, in addition to all other remedies that may be available to Licensor:
- Licensor may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
- Licensee shall reimburse Licensor for all reasonable costs incurred by Licensor in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees; and
- if such failure continues for 90 days following written notice thereof, Licensor may: (i) disable Licensee’s use of the Software (including by means of a disabling code, technology or device); (ii) withhold, suspend or revoke its grant of a license hereunder; and/or (iii) terminate this Agreement under Section 14.3(a) or Section 14.3(b), as applicable.
7.5 No Deductions or Setoffs. All amounts payable to Licensor under this Agreement shall be paid by Licensee to Licensor in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
7.6 License Fee Variation. Licensor may increase the applicable license fees and otherwise change its fee structure at any time and from time to time by posting such revised fees on its Website. Licensee is advised to check the Website regularly for such changes. Licensor may also give email notice of such changes to the email address provided by Licensee during registration, as may be updated by it.
7.7 Payment Currency. All payments hereunder will be made in the currency stated on the Website at the time of the Order on in the invoice (as applicable).
Section 8. Audits.
8.1 Audit Procedure. Licensor or its nominee (including its accountants and auditors) may, in Licensor’s sole discretion, inspect and audit Licensee’s use of the Software under this Agreement at any time during the Term. All audits will be conducted during regular business hours in a manner that does not unreasonably interfere with Licensee’s business operations. Licensee shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Licensor with respect to such audit. Licensor shall only examine information directly related to Licensee’s use of the Software.
8.2 Cost and Results of Audit. If the audit determines that Licensee’s use of the Software exceeded the usage permitted by this Agreement, Licensee shall pay to Licensor all amounts due for such excess use of the Software, plus interest on such amounts, as calculated pursuant to Section 7.4(a). If the audit determines that such excess use equals or exceeds Licensee’s permitted level of use, Licensee shall also pay to Licensor all reasonable costs incurred by Licensor in conducting the audit. Licensee shall make all payments required under this Section 8.2 within 30 days of the date of written notification of the audit results. If no excess usage is found, Licensor shall reimburse Licensee for any reasonable costs incurred by Licensee in cooperating with the audit within 30 days of the date of written notification of the audit results.
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Section 10. Intellectual Property Rights.
10.1 Intellectual Property Ownership. Licensee acknowledges and agrees that:
- The Software and Documentation are licensed, not sold, to Licensee by Licensor and Licensee does not have under or in connection with this Agreement any ownership interest in the Software or Documentation, or in any related Intellectual Property Rights; and
- Licensor and its licensor(s) are the sole and exclusive owners of all right, title and interest in and to the Software and Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in Open Source Components and the limited license granted to Licensee under this Agreement.
Section 11. Representations and Warranties.
11.1 Limited Warranty. Subject to the limitations and conditions set forth in Section 11.2 and Section 11.3, Licensor warrants to Licensee that the Enterprise Edition of the Software will substantially conform in all material respects to the Documentation, when installed, operated and used as recommended in the Documentation and in accordance with this Agreement; and
11.2 Licensee Requirements. The limited warranties set forth in Section 11.1 apply only if Licensee: (a) notifies Licensor in writing of the warranty breach before the expiration of the Warranty Period; (b) has promptly installed all Maintenance Releases to the Software that Licensor previously made available to Licensee; and (c) as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all license fees then due and owing).
11.3 Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 11.1 does not apply to problems arising out of or relating to:
- The Standard Edition of the Software;
- Software, or the media on which it is provided, that is modified or damaged by Licensee or its Representatives;
- any operation or use of, or other activity relating to, the Software other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Licensee’s use in the Documentation, unless otherwise expressly permitted by Licensor in writing;
- Licensee’s or any third party’s negligence, abuse, misapplication or misuse of the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Licensor in writing;
- Licensee’s failure to promptly install all Maintenance Releases that Licensor has previously made available to Licensee;
- the operation of, or access to, Licensee’s or a third party’s system or network;
- any Open Source Components, beta software, software that Licensor makes available for testing or demonstration purposes, temporary software modules or software for which Licensor does not receive a license fee;
- Licensee’s material breach of any material provision of this Agreement; or
- any other circumstances or causes outside of the reasonable control of Licensor (including abnormal physical or electrical stress).
11.4 Remedial Efforts. If Licensor breaches, or is alleged to have breached, any of the warranties set forth in Section 11.1, Licensor may, at its sole option and expense, take any of the following steps to remedy such breach:
- replace any damaged or defective media on which Licensor supplied the Software;
- amend, supplement or replace any incomplete or inaccurate Documentation;
- repair the Software; and/or
- replace the Software with functionally equivalent software (which software will, on its replacement of the Software, constitute Software hereunder).
The remedies set forth in this Section 11.4 are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in Section 11.1.
11.5 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 11.1, ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS.” LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED 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, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
11.6 Licensee further accepts sole responsibility for its compliance with and obligations arising under all applicable law and regulation, including, without limitation, all laws governing Licensee’s use and management of personally identifiable information, health data privacy, financial transactions, security, encryption, or authentication requirements. Licensor disclaims any responsibility and makes no representation of any kind regarding Licensee’s compliance with any such law or regulation governing Licensee’s use of the Software.
Section 12. Indemnification
12.1 Licensor Indemnification. Licensor shall indemnify, defend, and hold harmless Licensee and Licensee’s employees, agents, successors and permitted assigns (each, a “Licensee Indemnitee”) from and against any and all Losses incurred by Licensee resulting from any Action by a third party that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s U.S. Intellectual Property Rights in the Territory. This Section 12.1 does not apply to the extent that the alleged infringement arises from:
- Open Source Components or other Third-Party Materials;
- combination, operation, or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by Licensor or specified for Licensee’s use in the Documentation;
- modification of the Software other than: (i) by Licensor or its contractor in connection with this Agreement; or (ii) with Licensor’s express written authorization and in strict accordance with Licensor’s written directions and specifications;
- use of any version of the Software other than the most current version or failure to timely implement any Maintenance Release, modification, update or replacement of the Software made available to Licensee by Licensor;
- use of the Software after Licensor’s notice to Licensee of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights;
- negligence, abuse, misapplication, or misuse of the Software or Documentation by or on behalf of Licensee, Licensee’s Representatives, or a third party;
- use of the Software or Documentation by or on behalf of Licensee that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Licensor’s instructions;
- events or circumstances outside of Licensor’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or
- Third-Party Claims or Losses for which Licensee is obligated to indemnify Licensor pursuant to Section 12.2.
12.2 Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and permitted assigns (each, a “Licensor Indemnitee”) from and against any and all Losses incurred by Licensor resulting from any Action by a third party:
- that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
- use or combination of the Software by or on behalf of Licensee or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Licensor nor authorized by Licensor in this Agreement and the Documentation or otherwise in writing; and
- information, materials, or technology directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated, or used with, as part of, or in connection with the Software or Documentation;
- relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant, or obligation under this Agreement;
- relating to gross negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to the Software or Documentation or otherwise in connection with this Agreement; or
- relating to use of the Software or Documentation by or on behalf of Licensee or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Licensor’s instructions.
12.3 Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate.
12.4 The Indemnitor’s failure to perform any obligations under this Section 12. will relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
12.5 Mitigation. If the Software, or any part of the Software, is, or in Licensor’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Licensee’s use of the Software is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense:
- obtain the right for Licensee to continue to use the Software materially as contemplated by this Agreement;
- modify or replace the Software, in whole or in part, to seek to make the Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Software under this Agreement; or
- if, after Licensor’s exercise of commercially reasonable efforts, none of the remedies set forth in the above Section 12.4(a) or Section 12.4(b) is reasonably available to Licensor, ]terminate this Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to Licensee, in which event:
- Licensee shall cease all use of the Software and Documentation immediately on receipt of Licensee’s notice; and
- provided that Licensee fully complies with its post-termination obligations set forth in Section 12.4, Licensor shall promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.
12.6 Sole Remedy. THIS SECTION 12 SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Section 13. Limitations of Liability.
13.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL LICENSOR, 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) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE 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.
13.2 CAP ON MONETARY LIABILITY. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF LICENSOR AND ITS LICENSORS, SUPPLIERS AND SERVICE PROVIDERS] 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 AMOUNTS PAID TO LICENSOR UNDER THIS AGREEMENT IN THE 1 YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.3 Exceptions. The exclusions and limitations in Section 13.1 do not apply to Licensor’s obligations under Section 12 (Indemnification) or liability for Licensor’s gross negligence or willful misconduct.
Section 14. Term and Termination.
14.1 Initial Term. The initial term of this Agreement commences as of the Effective Date and continues in effect until twelve months from such date unless terminated earlier pursuant to any of the Agreement’s express provisions (the “Initial Term”).
14.2 Renewal Term. This Agreement will automatically renew annually unless earlier terminated pursuant to any of the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 60 days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”). Licensee agrees to pay the applicable renewal term licensee fee within 30 days of each such renewal.
14.3 Termination. This Agreement may be terminated at any time:
- by Licensor, effective on written notice to Licensee, if Licensee fails to pay any amount when due under this Agreement, where such failure continues more than 60 days after Licensor’s delivery of written notice thereof (“Payment Failure”);
- by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach;
- by Licensor, effective immediately, if the Licensee: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
14.4 Effect of Termination or Expiration.
- On the expiration or earlier termination of this Agreement:
- all rights, licenses and authorizations granted to licensee hereunder will immediately terminate and Licensee will: (A) immediately cease all use of and other activities with respect to the Software and Documentation; (B) within 60 days deliver to Licensor, or at Licensor’s written request destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls, the Software, the Documentation and the Licensor’s Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (C) certify to Licensor in a signed written instrument that it has complied with the requirements of this Section 14.4; and
- all amounts payable by Licensee to Licensor of any kind under this Agreement are immediately payable and due no later than 30 days after the effective date of the expiration or 60 days after termination of this Agreement.
14.5 Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 14.5, Section 1, Section 7, Section 8, Section 9, Section 10, Section 12, Section 13, and Section 15.
Section 15. Miscellaneous.
15.1 Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute, and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
15.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
15.3 Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld, provided, however, that Licensor may, without Licensee’s consent, include Licensee’s name and other indicia in its lists of Licensor’s current or former customers of Licensor in promotional and marketing materials.
15.4 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communication under this Agreement have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section 15.4):
If to Licensor:
BASE22 TECHNOLOGY GROUP, LLC
Attention: Customer Service
If to Licensee:
Unless otherwise agreed to by the Parties, Licensor will use the email address provided by Licensee during its registration to use the Software to contact Licensee.
Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next Business Day, if sent after the addressee’s normal business hours; and (d) on the fifth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
15.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
15.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
15.7 Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein).
15.8 Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent shall not unreasonably be delayed or withheld. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.8 is void. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
15.9 Export Regulation. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. Licensee will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
15.10 [left intentionally blank]
15.11 Force Majeure.
- No Breach or Default. In no event will Licensor be liable or responsible to Licensee, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond Licensor’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
- Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Licensor will give prompt written notice to Licensee stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15.12 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, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15.13 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.14 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.15 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Texas and County of Tarrant, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
15.16 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
15.17 Equitable Relief. Licensee acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under Section 2.4, Section 7, Section 10, or Section 12 of this Agreement would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Licensorwill be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, 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.
15.18 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 or related to this Agreement, the prevailing Party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
15.19 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
EXHIBIT A – SUPPORT SERVICES
Support services for the Software are provided for the resolution of questions, problems, and defects determined to be related specifically to the Product or existing within the Product. The following is a high-level outline of support services to be provided as a part of the License during its Term:
- At least 1 Enterprise license must be purchased to receive support under this agreement.
- The following Services are covered by this Agreement;
- Manned telephone support
- Monitored email support
- Monitored issue tracking support through an online issue tracking system (currently GitHub)
- Remote assistance using Screen-sharing, Remote Desktop and/or a Virtual Private Network where available
- Planned or Emergency Onsite assistance (travel and living expenses will be invoiced to the Licensee)
- Coverage parameters specific to the service(s) covered in this Agreement are as follows:
- “Business Hours” are defined as 9:00 A.M. to 5:00 P.M. Monday – Friday (Central US Time / GMT -6)
- Telephone support during Business Hours
- Email support during Business Hours
- Emails received outside of office hours will be collected, however no action can be guaranteed until the next working day
- Onsite assistance guaranteed within 72 hours during the business week (additional costs apply)
- Response to service related incidents and/or requests covered by this agreement submitted by the Licensee will be provided on the following representative severity levels and associated time frames, subject to Licensor’s reasonable revision:
- Severity 1 – A “Sev 1” incident (or “issue”) is defined as any issue resulting in a production system being down or a project being impacted to the point of being delayed.
- The Service Provider will respond to the Customer regarding newly reported “Sev 1” issues within 0-8 hours (during Business Hours).
- The Service Provider will update the Customer daily regarding the status of the “Sev 1” issue’s resolution process.
- The Service Provider will work to resolve and/or close the “Sev 1” issue in 7 days or less.
- Severity 2 – A “Sev 2” issue represents the highest-level non-production system issue or a production system issue that does not affect availability.
- The Service Provider will respond to the Customer regarding newly reported “Sev 2” issues within 3 days or less.
- The Service Provider will work to resolve and/or close the “Sev 2” issue in 2 weeks or less.
- Severity 3 – A “Sev 3” issue is for low priority incidents which usually pertain to non-production systems.
- The Service Provider will respond to the Customer regarding newly reported “Sev 3” issues within 4 days or less.
- The Service Provider will work to resolve and/or close the “Sev 3” issue in 3 weeks or less.
- Severity 4 – A “Sev 4” issue is for questions or in cases where the Service Provider is waiting on a response from the Customer.
- The Service Provider will respond to the Customer regarding newly reported “Sev 4” issues within 4 days or less.
- The Service Provider will work to resolve and/or close the “Sev 4” issue in 3 weeks or less.
- Remote assistance will be provided in-line with the above timescales dependent on the priority of the support request.
- Severity 1 – A “Sev 1” incident (or “issue”) is defined as any issue resulting in a production system being down or a project being impacted to the point of being delayed.
EXHIBIT B – PAYMENTS AND FEES
License Tiers and Pricing
|Database type||Local file system||Stardog or GraphDBTM|
|First Year License Fee||$0||$20,000 USD|
|Annual Software Renewal||$0||$7,500 USD|
|Annual Support Limit||Community||Up to 125 hours|
Standard Edition Notes
- By default, the server runs in Standard mode and uses the local file system for a database. The Standard terms grant you to a royalty-free license to use (subject to the terms and conditions of the License Agreement).
- If you configure the server to use an enterprise-class database such as Stardog or GraphDBTM, the server will automatically switch to Enterprise Trial mode. In Enterprise Trial mode, the server works in 4 hour periods, shutting down automatically when each period has expired. An Enterprise license key removes this time restriction. To obtain one, please contact us.
- The Licensee will receive all software updates, patches and fixes for the term of the license.
- Community support is provided on a best-effort basis by Carbon LDP staff and by other users communicating through public channels and resources. By “best-effort” we mean that the community support license provides no service level guarantees. Example of community channels and resources (as per what they are currently) are:
- GitHub – A number of public repositories are available under: https://github.com/CarbonLDP. Users can post new issues and comment on existing issues. Carbon LDP staff monitor these issues and may respond as time permits.
- Gitter – A number of public chat rooms exist under: https://gitter.im/CarbonLDP/. Users can post new chat messages and reply to existing messages. Carbon LDP staff monitor these dialogs and may participate in them as time permits. Sometimes, Carbon staff also use these channels to broadcast important updates such as when a new version of the software is released.
- Stack Overflow – though we have little activity here to date, it is a common developer forum for discussing software products and solutions. Carbon staff will monitor and respond as time permits.
- carbonldp.com – the Carbon LDP product website, which contains learning resources and all the official product documentation.