SUBSCRIPTION LICENSE AGREEMENT
BEFORE INSTALLING AND USING THE PRODUCT (AS DEFINED BELOW) YOU SHOULD CAREFULLY READ THE FOLLOWING SUBSCRIPTION LICENSE AGREEMENT (“AGREEMENT”) THAT APPLIES TO THE PRODUCT. CLICK “I AGREE” IF YOU (ALSO REFERRED TO AS “LICENSEE”) FULLY ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT. OTHERWISE, CLICK “CANCEL.” CLICKING “I AGREE” OR OTHERWISE DOWNLOADING, INSTALLING AND/OR USING THE PRODUCT ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AS THE PERSON LICENSING THE SOFTWARE, EITHER ON BEHALF OF YOURSELF OR ANY THIRD PARTY ENTITY (THE "LICENSEE") AND APPNETA, INC. (“APPNETA). IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, YOU SHALL HAVE NO RIGHT TO DOWNLOAD, INSTALL AND/OR USE THE PRODUCT AND MUST DELETE THE PRODUCT AND ASSOCIATED FILES IMMEDIATELY. THE RIGHT TO USE THE PRODUCT IS SOLD ONLY ON THE CONDITION THAT YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS.
BY INSTALLING AND/OR BY USING THE PRODUCT, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO ENTER INTO A BINDING AGREEMENT TO ADHERE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND THAT THE PRODUCT WILL BE USED ONLY IN ACCORDANCE WITH THESE TERMS AND CONDITIONS AND WITH ALL APPLICABLE LAWS. IF AN INDIVIDUAL IS REGISTERING OR USING THE PRODUCT ON BEHALF OF AN ENTITY OR ORGANIZATION, THAT INDIVIDUAL WARRANTS, REPRESENTS, AND COVENANTS TO APPNETA THAT SUCH INDIVIDUAL IS DULY AUTHORIZED TO AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF THE ORGANIZATION AND TO BIND THE ORGANIZATION TO THEM. WHERE APPLICABLE, THIS AGREEMENT APPLIES TO ALL PRODUCTS PROVIDED BY APPNETA, INCLUDING ANY EVALUATION LICENSE.
1. Definitions.
1.1 “Documentation” shall refer to the user manuals and other materials, including report templates and screen layouts, made available in any form by AppNeta to Licensee in connection with or as a component of Licensee’s use of the Product.
1.2 “Licensee Data” shall refer to any data, information or other material provided to AppNeta by Licensee or loaded into the Product.
1.3 “Product” shall refer to the Software (as defined in Section 2.3) and hardware licensed by Licensee pursuant to the on-line order submitted by Licensee.
1.4 “Services” shall refer, individually and collectively, to the system configuration, training, user support and consulting services which may be provided to Licensee by AppNeta from time to time, subject to the provisions set forth herein.
1.5 “Term” shall refer to the period of time during which this Agreement is in full force and effect, including all Subscription Terms (as defined in Section 7.1) and Evergreen Usage Terms (as defined in Section 7.2).
2. License Grant.
2.1 Internal Use License. Subject to the terms and conditions of this Agreement, including payment of the Subscription Fee, AppNeta hereby grants to Licensee a limited, nonexclusive, non-transferable license to access and use the Product, without the right to grant sublicenses, during the Term solely for Licensee’s internal business purposes. Licensee may permit the Licensee’s individual employees, contractors or agents (“Authorized Users”) to access and use the Product on behalf of and for the benefit of the Licensee; (c) to use the Product for Licensee’s internal business purposes to monitor and assess the number of Paths licensed to Licensee as set forth in Licensee’s on-line order. For the purposes of this Agreement, “Path” means a network path leading to one or more user devices, such as a single computer, a server, a handset, a mobile device, a WAN or LAN, or such other IP device determined by the Licensee.
2.2 Documentation. Licensee shall be entitled to (a) use the Documentation internally solely to support its authorized use of the Product, and (b) make that number of copies of the Documentation as are reasonably required for it to exercise its rights under clause (a). Any such copies shall include all trademarks or other proprietary legends where and as set forth in the original. Licensee agrees not to provide access to the Documentation to any third party except Authorized Users.
2.4 Licensee Compliance with Laws. Licensee acknowledges and agrees that it is Licensee’s obligation to comply with all applicable laws and regulations in its use of the Product and Licensee Data, including those laws and regulations relating to personal data protection and privacy.
3. Proprietary Rights.
3.1 AppNeta Technology. Licensee acknowledges and agrees that subject to the limited rights expressly granted to Licensee under Section 2, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Product and the Documentation, and in the technology embodied in or reflected by such Product and Documentation, (in each case including any upgrades, modifications, extensions, derivatives, translations, reformulations or developments of the foregoing), are and at all times shall remain the exclusive property of AppNeta. AppNeta’s suppliers are the intended third party beneficiaries of the Agreement and have the express right to rely upon and directly enforce the terms set forth herein. 3.2 Licensee Data. AppNeta acknowledges and agrees that Licensee shall own all title to and ownership of the Licensee Data and that AppNeta shall have no rights thereto except the limited right to use the same on an ‘as needed’ basis in connection with the ongoing operation and maintenance of the Product and AppNeta’s performance of Services.
4. Services. Licensee shall receive maintenance and support services for the Product as set forth in the Maintenance Services
Description posted, from time to time, on the AppNeta’s web site (http://www.AppNeta.com). The cost of maintenance and support services is included in the Subscription Fee. If AppNeta is asked to provide any professional services to Licensee, the terms for such professional services shall be mutually agreed upon and specified in a written and signed Statement of Work attached to this Agreement. The cost of professional services is not included in the Subscription Fee. Travel and living expenses incurred by AppNeta in connection with maintenance, support, and professional services are not included in the Subscription Fee. Licensee shall pay all reasonable travel and living expenses, including transportation, lodging, meals and other direct expenses incurred, which will be billed at actual cost.
5. Warranty; Disclaimer. Subject to the limitations and exceptions set forth in this Agreement, AppNeta warrants that for a
period of sixty (60) days from the delivery of the Product, that when properly used for the purpose and in the manner authorized by this Agreement, the Product will perform substantially in accordance with the specifications set forth in the Documentation. Licensee’s sole and exclusive remedy and AppNeta’s sole and exclusive obligation under this warranty shall be, at AppNeta’s sole discretion, (i) for AppNeta to correct any failure of the affected Product to perform as warranted, (ii) for AppNeta to replace the affected Product with a new copy or update, or (iii) termination of this Agreement and the licenses granted herein, and a refund of that portion of the prepaid Subscription Fee associated with the unused prepaid portion of the then current Subscription Term. LICENSEE’S USE OF THE PRODUCT AND SERVICES IS AT ITS OWN RISK. EXCEPT FOR THE EXPRESS WARRANTY STATED ABOVE, THE PRODUCT IS PROVIDED “AS IS” AND THE LICENSEE ACCEPTS THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND RESULTS OF USE OF THE PRODUCT. EXCEPT AS OTHERWISE RESTRICTED BY LAW, APPNETA AND ITS SUPPLIERS AND DISTRIBUTORS DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCT AND ANY SERVICES FURNISHED IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS: (A) OF MERCHANTABILITY; (B) OF SATISFACTORY OR MERCHANTABLE QUALITY; (C) OF FITNESS FOR A PARTICULAR PURPOSE; (D) OF NONINFRINGEMENT; OR (E) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO THE LICENSEE, AND THE LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
6. Fees; Payment Terms. The Subscription Fee shall be invoiced in annually in advance. Invoices will be stated in United
States dollars and shall be due and payable within thirty (30) days following invoice date unless otherwise specified herein or agreed upon in writing by the parties. Late payments shall be subject to a service charge equal to the lesser of 1% per month or the maximum amount allowed by law, with respect to the overdue amount. License fees are non-refundable except as expressly provided for herein. All fees are exclusive of all applicable taxes, duties or other governmental assessments. Licensee shall be liable for the payment of all such assessments (other than taxes based on AppNeta’s income) and shall indemnify and hold harmless AppNeta with respect to any claims, losses, damages, penalties or other liabilities incurred by AppNeta as a result of Licensee’s failure to timely pay such assessments.
7. Term; Termination. All licenses shall be one of two forms; Term Subscription with explicitly defined start and end dates
as described in 7.1 or Evergreen Usage Terms as described in 7.2.
Subscription Fee by no more than 6% for each renewal term, provided notice of any such increase is provided to Licensee no later than forty-five (45) days prior to the expiration of the then-current term.
7.2 Evergreen Usage Term. The initial subscription period of this Agreement shall commence on the Effective Date, shall continue for the term specified in the on-line order, and shall be renewed automatically for successive one (1) month terms thereafter unless either party gives the other party written notice of its intent not to renew the term at least thirty (30) days prior to the expiration of the then-current term (each subscription period, a “Subscription Term”). AppNeta will monitor the usage of the service by the Licensee and the Licensee agrees to be billed according to the terms of the original Evergreen Usage purchase. AppNeta reserves the right to increase the Subscription Fee by no more than 6% for each renewal term, provided notice of any such increase is provided to Licensee no later than forty-five (45) days prior to the expiration of the then-current term.
7.3 Termination. Either party may terminate this Agreement (a) upon thirty (30) days prior written notice if the other party has materially breached this Agreement and has not cured the same within the thirty (30) day notice period, or (b) immediately upon written notice in the event of (i) the bankruptcy, insolvency, or placing of the assets or the business of the other party in the hands of a receiver or trustee, (ii) the filing of a petition for bankruptcy or reorganization by or against the other party, or (iii) the dissolution or liquidation of the other party. A termination of this Agreement shall result in the automatic contemporaneous termination of the then current Subscription Term.
7.4 Effect of Termination. Upon any termination of this Agreement, (a) Licensee shall promptly: (i) discontinue all use of the Product and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Documentation destroy any tangible copies or partial copies of the Documentation, in its possession or control; and (iii) certify in writing to AppNeta that Licensee has complied with these requirements; (b) AppNeta shall terminate Licensee’s access to any hosted Software; and (c) both parties shall promptly return to the other or destroy the other party’s Confidential Information. Upon request by Licensee made within thirty (30) days after the effective date of termination of this Agreement, AppNeta will make available to Licensee for download a file of Licensee’s Data in comma separated value (.csv) format along with attachments in their native format. After such thirty (30) day period, AppNeta shall have no obligation to maintain or provide any of Licensee’s Data and shall thereafter, unless legally prohibited, delete all of Licensee’s Data in AppNeta’s systems or otherwise in AppNeta’s possession or under control. Any additional services provided by AppNeta related to the return of Licensee’s data shall be billed at the then-current professional services rates. Termination of this Agreement will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Licensee’s obligation to pay all fees that have accrued or are otherwise owed by Licensee for the balance of the then-current term. Any provisions providing for limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall so survive.
8. Indemnification. AppNeta shall (a) defend Licensee from and against any third party claim that the Product infringes a
United States patent, copyright, trademark, or other intellectual property right of such third party, and (b) pay the resulting cost and damages finally awarded against Licensee by a court of competent jurisdiction or the amount stated in a written settlement signed by AppNeta. The foregoing obligations are contingent upon Licensee providing AppNeta with: (i) prompt notice of such claim (and in any event notice in sufficient time for AppNeta to respond without prejudice); (ii) the exclusive right to control, direct, and perform the investigation, defense, or settlement of such claim; and (iii) such assistance as may be reasonably requested by AppNeta at AppNeta’s expense. If Licensee’s use of the Product is, or in AppNeta’s opinion is likely to be, enjoined, or if required by settlement, or if commercially advisable, AppNeta may: (x) substitute for the infringing element of the Product functionally similar technology; (y) procure for Licensee the right to continue using the Product; or, (z) terminate this Agreement and refund to Licensee that portion of the subscription license fee prepaid for the then-current Subscription Term which reflects the unused prepaid portion of such term. The foregoing defense and indemnification obligations of AppNeta shall not apply to the extent the alleged infringement arises out of the use or combination of the Product with other non-AppNeta Product, services, or processes, or any unauthorized use of the Product. THIS SECTION STATES LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND APPNETA’S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS
9. Limitation of Damages. IN NO EVENT SHALL APPNETA BE LIABLE TO OR THROUGH LICENSEE, BASED ON
10. Confidentiality. Each party acknowledges that by reason of the relationship created between the parties by this
Agreement, it may have access to certain non-public information of substantial value concerning the other party's business, operations, strategic plans, customers, suppliers, technology, competition and employees (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt the terms of this Agreement, and any performance, warranty and like information relating to the Product (by whomsoever generated or communicated) will be considered the Confidential Information of AppNeta. Accordingly, each party agrees (a) to maintain all Confidential Information received from the other, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party, and (c) not to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of its rights hereunder. The foregoing obligations shall not apply to Confidential Information of a disclosing party that, as can be reasonably demonstrated with admissible evidence by the receiving party: (i) is or becomes a matter of public knowledge though no action or omission of the receiving party; (ii) was rightfully in the receiving party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing party; (iii) is rightfully obtained by the receiving party without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing party; (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement to the disclosing party. Upon the written request of the disclosing party (subject to each party’s rights, during the Term, to retain a copy of the other’s Confidential Information solely for purposes of performing its obligations and exercising its rights hereunder) or upon any termination of this Agreement, the receiving party shall (a) immediately return to the disclosing party or destroy all copies and partial copies of the disclosing party’s Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide the disclosing party with written certification of its compliance with the terms of this section. Each party acknowledges that any breach of any of its obligations with respect to the other party's Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity.
11. General
