Developer Edition License Agreement
This Software Term License & Agreement (the Agreement), effective as of the date of Licensee’s downloading of the Software (the Effective Date), is entered into between Volt Active Data, Inc., a Delaware corporation, with a principal place of business at 54 Middlesex Turnpike, Suite 203, Bedford, MA 01730, USA (Licensor) and the licensee identified in the license request form that pertains to this Software (Licensee). The parties agree as follows:
1. DEFINITIONS.
Documentation means the user guide, help information and/or other documentation generally provided by Licensor to licensees of the Software.
Software means Volt Active Data Code and, if any, Third Party Code (as such term is defined herein).
Subscription Term means the one hundred (100) day period from the date Licensee downloads the Software or such longer period as agreed by Licensor.
Volt Active Data Code means Volt Active Data’s proprietary computer programs (in object code) that are delivered to Licensee under this Agreement and any updates thereto.
2. LICENSE.
2.1 Software. Subject to all terms and conditions in this Agreement, Licensor grants to Licensee a nonexclusive, nontransferable, nonsublicenseable right and license to use the Software and the Documentation for internal evaluation, development, testing, and proof-of-concept activities for the Subscription Term. The Software may not be used in a commercial or production environment or be resold by Licensee.
2.2 Limitations. The Software is licensed as a single product and Licensee may not separate or use its component parts beyond that which is expressly authorized herein.
2.3 License Control. Licensee acknowledges that the Software may contain code or require license keys or that detect or prevent unauthorized use of, or disable, the Software.
2.4 No Support. Licensor shall have no obligation to provide support for the Software. Licensor technical engineers shall use commercially reasonable efforts to monitor a Slack channel and email (Dev-ed-support@voltactivedata.com) for product related issues and may provide feedback.
3. FEES.
3.1 No Charge License. No fees are due for this license. Should Licensee license the Software for commercial, production use, the parties shall enter into a separate license agreement and Licensee shall pay the fees for such Software use.
3.2 Audit. Upon reasonable advance written notice, Licensor shall have the right to have a quarterly audit of Licensee’s use of the Software to verify Licensee’s compliance with this Agreement. Licensee shall make its systems and all applicable books, records and transaction logs available for such inspection during normal business hours at Licensee’s principal place of business. Any audit shall be at Licensor’s expense, unless it discloses a breach by Licensee of this Agreement, in which case Licensee shall reimburse Licensor for such expenses.
4. CONFIDENTIALITY.
4.1 Scope. The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information of Licensor (or any of its licensors or customers) that is disclosed by or for Licensor or that is otherwise learned or accessed by Licensee, but not including any information that Licensee can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any separate obligation to Licensor, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information.
4.2 Confidentiality. Except for the specific rights granted by this Agreement, Licensee shall not possess, use or disclose any Confidential Information without Licensor’s prior written consent, and shall use reasonable care to protect the Confidential Information. Licensee may only disclose Confidential Information to its employees and contractors who have a need to know for the purposes of this Agreement and who are bound by confidentiality obligations that are at least as protective as the provisions herein. Licensee shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at Licensor’s request at any other time), Licensee shall return all tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom.
5. PROPRIETARY RIGHTS.
5.1 Restrictions. Except as specifically permitted in this Agreement, Licensee shall not directly or indirectly: (a) use any Confidential Information to create any software or documentation that is similar to any Software or Documentation; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of the Software (except and only to the extent that these restrictions are expressly prohibited by applicable statutory law); (c) encumber, loan, lease, rent, sublicense, transfer or distribute any Software, or use the Software for the benefit of any third party (e.g., service bureau arrangement); (d) copy, create derivative works of or otherwise modify any Software or Documentation; (e) use or allow the transfer, transmission, export or re-export of all or any part of the Software (or any product thereof) in violation of any export control laws or regulations of the United States or any other relevant jurisdiction; or (f) permit any third party to do any of the foregoing. Licensee will promptly notify Licensor in writing of any unauthorized use, reproduction or distribution of any Software.
5.2 No Implied Licenses. Except for the limited rights and licenses expressly granted hereunder, no other license is granted (by implication, estoppel or otherwise), no other use is permitted and Licensor (and its licensors) shall retain all rights, title and interests (including all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights) in and to the Software and Documentation. Licensee agrees not to take any action inconsistent with such ownership.
5.3 Markings. Licensee shall not (and shall not permit any third party to) alter, obscure or remove any patent, trademark or other proprietary or legal notice deployed by or contained on any Software, Documentation or packaging.
5.4 Third Party Code. The Volt Active Data Code may operate, interface or be delivered with software or other technology that is identified in the Documentation (“Third Party Code”) and licensed from and owned by third parties (“Third Party Licensors”). Licensee agrees that (a) it will use Third Party Code in accordance with this Agreement (unless different or additional terms are specified in the applicable license set forth or referenced in the Documentation, in which case Licensee agrees that it will use such Third Party Code in accordance with such terms specified in the applicable license), (b) no Third Party Licensor makes any representation or warranty to Licensee concerning the Software, and (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Agreement or Licensee’s use of the Software. Upon Licensee’s specific written request received during the term of this Agreement, Licensor will make available the source code for Third Party Code, but only if such source code was made available to Volt Active Data and doing so is required by the applicable license.
6. WARRANTY DISCLAIMER.
6.1 Disclaimers. THE SOFTWARE, DOCUMENTATION AND VOLUNTARY FEEDBACK ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY LICENSEE APPLICATION OR ENVIRONMENT OR OTHERWISE MEET LICENSEE’S REQUIREMENTS, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITSELF AND ITS LICENSORS, LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.
7. LIMITATION OF LIABILITY.
LICENSOR (AND ITS LICENSORS) SHALL NOT BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF [NUMBER], EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
8. TERM AND TERMINATION.
8.1 Term. This Agreement shall commence on the Effective Date and continue in effect for the Subscription Term.
8.2 Termination. This Agreement may be terminated (a) by either party if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days after receiving written notice of such breach from the non-breaching party; or (b) by either party immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 60 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
8.3 Effects of Termination. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination and any remedies for breach of this Agreement shall survive any termination, (b) Licensee shall promptly return or destroy all Software and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media, and (c) the provisions of Sections 4 (Confidentiality), 5 (Proprietary Rights), 6 (Warranty Disclaimer), 7 (Limitation of Liability), 9 (General Provisions) and this Section 8.3 shall also survive.
9. GENERAL PROVISIONS.
9.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Terms set forth in any Licensee’s document that are in addition to or at variance with the terms of this Agreement are specifically waived by Licensee. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought, except the terms of this Agreement may be modified by Licensor from time to time so long as they do not result in a diminution of the rights granted hereunder. By downloading updates, Licensee agrees to be bound by the terms of the Agreement then in effect. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect.
9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, rules and regulations, U.S. laws, rules and regulations shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
9.3 Remedies. Unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Licensee agrees that, in the event of any breach or threatened breach of Section 4 or 5, Licensor will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
9.4 Notices. Any notice or communication hereunder shall be in writing and either personally delivered, or sent via confirmed electronic mail, or sent via recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at the registered email on the license request form, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
9.5 Assignment. This Agreement and the rights and obligations hereunder are personal to Licensee, and may not be assigned or otherwise transferred, in whole or in part, without Licensor’s prior written consent. Any attempt to do otherwise shall be void and of no effect. Without Licensee’s consent, Licensor may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
9.6 Government License. If any user of the Software or Documentation is a department, agency or other entity of the US Government, then use, duplication, reproduction, modification, release, disclosure or transfer of the Software and Documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227. 7202 for military agencies. The Software is commercial computer software and the Documentation is commercial computer software documentation, and their use is further restricted in accordance with the terms of this Agreement.
9.7 Acknowledgment. Licensee acknowledges that (a) it has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement, (d) Licensor requires identification of the Licensee before issuing this license, and (e) issuance of this license does not constitute general publication of the Software, Documentation or Confidential Information.e’s nothing to stop you from replacing it with something you write yourself.