APPNETA, INC. SUBSCRIPTION LICENSE AGREEMENT
Last revised on March 3, 2016
1. IMPORTANT NOTICE
PLEASE READ THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE PROCEEDING TO USE THE APPNETA, INC. (“APPNETA”) LICENSED SOFTWARE, SERVICES AND THE ASSOCIATED DOCUMENTATION.
APPNETA DEVELOPS, MARKETS AND LICENSES CERTAIN SOFTWARE PROGRAMS OR INDIVIDUAL SOFTWARE PROGRAMS MODULES TO ITS END USER CUSTOMERS (“YOU” OR “LICENSEE”). SUCH SOFTWARE PROGRAMS AND INDIVIDUAL SOFTWARE PROGRAMS MODULES SHALL BE COLLECTIVELY REFERRED TO AS THE “LICENSED SOFTWARE”. APPNETA ALSO GRANTS TO LICENSEE THE RIGHT TO ACCESS SUCH LICENSED SOFTWARE PURSUANT TO A SOFTWARE AS A SERVICE METHODOLOGY (THE “SERVICES”) AND USE ANY ASSOCIATED DOCUMENTATION WHICH 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 SERVICES (THE “DOCUMENTATION”).
BY USING THE LICENSED SOFTWARE OR SERVICES OR ACKNOWLEDGING “I ACCEPT”, LICENSEE ACCEPTS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT USE THE LICENSED SOFTWARE OR SERVICES.
2. LICENSE GRANT
2.1. License of Services. Subject to the terms and conditions of this Agreement, AppNeta hereby grants to Licensee the non-exclusive and non-transferable right during the applicable Subscription Term to access the Licensed Software via the Services and to use such Services solely for its internal business purposes and for the purposes set forth in this Agreement. All right, title and interest to the Services, the Licensed Software and the Documentation and copies thereof remains exclusively with AppNeta. Any corrections, updates and/or other software provided to Licensee by AppNeta shall be deemed Licensed Software or Services under this Agreement.
2.2. Documentation. Licensee shall be entitled to (a) use the Documentation internally solely to support its authorized use of the Services, 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.
2.3. License Restrictions. Licensee shall not, and shall not attempt to (and shall not authorize or allow any third party to attempt to) download or otherwise obtain a copy of any Licensed Software installed in or accessible through the hardware provided by AppNeta in any form. Licensee will not: (i) disassemble, reverse engineer, decompile, or otherwise attempt to derive source code from the Licensed Software; (ii) modify, adapt, create derivative works based upon, or translate the Licensed Software; (iii) copy, install or use the Licensed Software on any of its computer systems, servers, or networks; (iv) assign, re-license or sublicense the Services or the use of the Services; or (v) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in the Services in any form to any other party, including commercial time-sharing, rental, or service bureau use. Licensee shall not use the Services or the Documentation on behalf of any third party, or for any purpose other than monitoring, collecting, analyzing and using Licensee Data for Licensee’s internal business purposes.
2.4. Authorized Users. The Services as set forth in the applicable quote or order form (“Order”) shall be used solely by employees and contractors of Licensee (“Authorized Users”). Such Services may only be used by Authorized Users and any other use shall be subject to the imposition of additional fees by AppNeta. Licensee shall cause all Authorized Users to comply with Licensee's obligations under this Agreement.
2.5. 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 Licensed Software, Services and Licensee Data, including those laws and regulations relating to personal data protection and privacy.
3. PROPRIETARY RIGHTS
Each party shall retain all right, title to and interest in its intellectual property rights.
Licensee Data means any (i) personal information and (ii) any data, information, or material that is (a) provided, submitted and/or otherwise inputted by Authorized Users into the Services in the course of utilizing the Services or Professional Services, (b) generated by Licensee or any Authorized User in the course of utilizing the Services or Professional Services, such as, but not limited to information, data, reports, text, graphics, charts, files, or other output; (c) pertains to Licensee or an Authorized User and is stored by the Services or Professional Services, (d) is otherwise provided to AppNeta in connection with Licensee’s or an Authorized User’s use of the Services or Professional Services, or (e) all derivatives and transformations of the foregoing.
As between Licensee and AppNeta, Licensee has and shall retain sole and exclusive title and ownership of all Licensee Data and all intellectual property rights therein.
Subject to the terms and conditions of this Agreement, Licensee grants to AppNeta a non-exclusive license to use, copy, store, transmit and display Licensee Data during the Term solely for the purpose of providing the Services to Licensee in accordance with this Agreement and for no other purpose whatsoever.
AppNeta shall have the right to accumulate on an anonymous basis, and subject to the terms and conditions of this Agreement, Licensee Data solely to improve the features and functionality of its Services.
If AppNeta receives, stores, maintains, processes, disposes or otherwise has access to personal information, AppNeta shall use, store, handle, dispose of and protect personal information in accordance with applicable law.
4. SUPPORT SERVICES
AppNeta shall perform maintenance and support Services (the “Support Services”) for You at no additional charge. Applicable Support Services are included in the Services fees.
5. PROFESSIONAL SERVICES
AppNeta may provide certain consulting, implementation and/or other professional services (the “Professional Services”) to Licensee from time to time, pursuant to a mutually agreed upon Statement of Work at AppNeta’s then-current Professional Services fees.
6. LIMITED WARRANTY AND DISCLAIMER
6.1. Limited Warranty. AppNeta warrants that during the Subscription Term, the Services will substantially conform to the specifications contained in the Documentation. AppNeta’s sole responsibility under this limited warranty shall be to correct or replace the portion of the Services which fail to conform to such limited warranty, provided, however, that Licensee has reported in writing to AppNeta any defect or error claimed to be a breach of such warranty. AppNeta shall have no liability under the foregoing limited warranty if (i) Licensee modifies the Services without AppNeta’s prior written consent; (ii) Licensee fails to give AppNeta written notice of the claimed breach of warranty; (iii) the failure to conform is caused in whole or part by persons other than AppNeta, or by products, equipment or computer programs not furnished by AppNeta; or (iv) Licensee fails to implement any correction, update, enhancement, improvement, expansion or revision thereto which AppNeta has provided to Licensee without additional cost. Licensee shall be exclusively responsible for the supervision, management and control of Licensee’s use of the Services and for the application of the Services to Licensee’s business.
6.2. Disclaimers. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES GIVEN BY APPNETA WITH RESPECT TO THE SERVICES AND DOCUMENTATION. APPNETA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. SERVICES FEES AND PAYMENT TERMS
Services fees shall be due and payable annually in advance unless otherwise stated on the Order, net thirty (30) days after Licensee’s receipt of AppNeta’s invoice. AppNeta will invoice You upon commencement of the Subscription Term as defined in Section 8.1. All fees and charges hereunder are exclusive of all federal, state, municipal, and other governmental excise, sales, use, customs, value added, and other taxes, fees, shipping fees or duties now in force or enacted in the future. Licensee agrees to pay on or before their due date all such taxes, fees, duties and charges which arise out of or in connection with this Agreement or any license granted herein, but excluding taxes based on AppNeta’s net income.
Any amount payable to AppNeta and not paid when due shall bear interest from the due date at the lesser of the rate of one (1%) per month or the maximum rate permitted by law. All costs of collection, including reasonable attorneys’ fees, shall be paid by Licensee. Unless otherwise specifically provided in this Agreement, all Services fees are non-refundable.
8. SUBSCRIPTION TERM AND TERMINATION
8.1. Subscription Term. The initial subscription term of the Services shall be as specified in the applicable order and shall commence (i) in cases where the Licensed Software is loaded onto an AppNeta appliance, on the earlier of delivery of the first appliance to You or 30 days from the date on which Your Order is accepted by AppNeta (the “Order Date”); or (ii) in all other cases, the date on which the Licensed Software is made available to You. If valid ship-to address is not provided by You within 30 days of Order signature, AppNeta shall ship appliances to the bill-to address on the Order. Unless otherwise mutually agreed by the parties, subscriptions shall be automatically renewed for additional terms equal to the expiring subscription term 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 reserves the right to increase the Subscription fee by no more than six (6%) percent per year for each renewal Term, provided notice of any such increase is provided to Licensee no later than thirty (30) days prior to the expiration of the then-current Term.
8.2. Termination. Either party may, at its option and without further notice, immediately terminate this Agreement and the licenses granted hereunder if the other party (i) breaches any material obligations under this Agreement and such breach is not cured within thirty (30) days after the receipt of written notice of the alleged breach; (ii) admits in writing its inability to pay its debts generally as they become due; (iii) makes a general assignment for the benefit of creditors; (iv) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it; (v) is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (vi) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization; or (vii) ceases to do business as itself or through a successor.
Upon the effective date of termination of this Agreement, Licensee shall immediately cease any and all use of the Services and Documentation, return to AppNeta all copies of the Services and Documentation, and delete the Services and Documentation from any electronic media containing them. Upon AppNeta’s request, Licensee shall provide AppNeta with a statement signed by Licensee confirming that Licensee has no copies of the Services or Documentation in Licensee’s possession and has ceased all use of the Services and Documentation.
The rights and obligations of the parties with respect to Confidential Information shall survive termination or expiration of this Agreement in accordance with the provisions of this Agreement.
AppNeta shall indemnify, defend and hold harmless Licensee, or settle at its expense, against any action brought or allegation made against Licensee to the extent that it is based upon a claim that the Services infringe any United States patent, trademark or copyright and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Licensee by a court of competent jurisdiction as a result of Licensee’s use of the Services (i) under the terms and conditions of this Agreement; (ii) under normal use; (iii) not in combination with third party products; and (iv) provided AppNeta is promptly notified in writing of any such suit or claim and Licensee gives AppNeta all available information, assistance and authority to enable AppNeta to do so.
AppNeta may defend or settle any such claim, at its sole option and expense. If, as the result of any claim of infringement of any United States patent, trademark or copyright, AppNeta or Licensee is enjoined from licensing or using the Services, or if AppNeta believes that the Services are likely to become the subject of a claim of infringement, AppNeta, at its sole option and expense, may (i) procure the right for Licensee to continue to use the Services; (ii) replace or modify the Services so as to make them non-infringing; or (iii) if, using reasonable efforts, AppNeta is not able to accomplish either of the foregoing alternatives on commercially reasonable terms, to terminate Licensee’s license to the allegedly infringing Services 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 indemnity shall not apply to any claim to the extent arising from (i) Services that have been modified by anyone other than AppNeta or its subcontractors without AppNeta’s consent; (ii) Licensee’s use of the Services with other software or hardware without AppNeta’s consent; (iii) use of other than the most current, unaltered corrections and updates to the Services if such claim would have been avoided by the use of such corrections and updates; or (iv) compliance by AppNeta with designs, plans or specifications furnished by or on Licensee’s behalf. AppNeta shall not be liable hereunder for any settlement made by Licensee without AppNeta’s advance written approval.
THE FOREGOING STATES THE ENTIRE LIABILITY OF APPNETA WITH RESPECT TO ANY THIRD PARTY INFRINGEMENT CLAIMS.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO APPNETA BY LICENSEE DURING THE MOST RECENT TWELVE (12) MONTHS WITH RESPECT TO THE PARTICULAR SERVICES OUT OF WHICH SUCH CLAIM ARISES.
11. CONFIDENTIAL INFORMATION
Each party agrees that the Services, the Documentation, the statistical performance results of any evaluation or benchmark tests run on the Services by or on behalf of either Licensee or AppNeta, and any information or data, including without limitation, customers, prices, fees, algorithms, computer program listings, documentation, drawings, processes, techniques, technical and marketing information which may be supplied by AppNeta to Licensee in connection with this Agreement (the “Confidential Information”) is confidential and constitutes a valuable asset of the disclosing party.
Confidential Information does not include: (a) information which is or becomes publicly available other than through disclosure in breach of this Agreement; (b) information disclosed or made available at any time by a third party without restriction and without breach of any relationship of confidentiality; (c) information independently developed as evidenced by applicable documentation ; (d) information which was already known at the time of disclosure; or (e) Confidential Information that a party is legally required to produce by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process; provided that the party provides prompt written notice to the other party and produces only that portion of the Confidential Information legally required under such request.
Each party agrees to use the Confidential Information only for the purposes specifically authorized in this Agreement, to hold such Confidential Information in strict confidence, and to not disclose any of the Confidential Information to any third party except as otherwise contemplated under this Agreement. Each party agrees to limit access to Confidential Information to those employees and contractors whose use of or access thereto is necessary for the authorized use of the Confidential Information. Licensee agrees not to use, or allow any third party to use, any Confidential Information to aid in the development or marketing of any product similar to or competitive with the Services. Each party shall not duplicate, copy or reproduce any of the Confidential Information, except with the prior written consent of the other party or as otherwise permitted under this Agreement. Upon written notice from the disclosing party, the receiving party shall return the Confidential Information and all copies thereof, or certify its destruction in writing.
12.1. Marketing Usage. AppNeta may use Licensee’s name in its marketing materials and on its website pursuant to Licensee’s guidelines and trademark usage policies.
12.2. Commercial Computer Software. If any Services or Documentation are acquired by or on behalf of an agency or instrumentality of the United States government, Licensee acknowledges and agrees that such Services or Documentation are "commercial computer software" or "commercial computer software documentation" developed at private expense and that, absent a written agreement to the contrary, the government's rights with respect to such Services or Documentation shall be as set forth in this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as amended and as applicable.
12.3. Force Majeure. Notwithstanding anything in this Agreement to the contrary, no default, delay or failure to perform on the part of either party, excluding Licensee’s payment obligations, shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due entirely to causes beyond the reasonable control of the party charged with a default, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inaction of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters or default of a common carrier.
12.4. Choice of Law. This Agreement and all claims related to it, its execution or the performance of the parties under it, shall be construed and governed in all respects according to the laws of the Commonwealth of Massachusetts, without regard to any conflict of law provisions thereof that would require the application of the laws of any other jurisdiction. The parties hereby submit to the exclusive jurisdiction of the courts located in the Commonwealth of Massachusetts, both federal and state, and agree that any legal proceeding arising out of this Agreement shall be conducted solely in such courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
12.5. Export Laws. Neither party shall commit any act or request the other party to commit any act which would violate either the export control laws or regulations of the United States or other export control laws, rules or regulations, as applicable.
12.6. Waiver. No waiver or failure to exercise any option, right or privilege under the terms of this Agreement by either of the parties hereto on any occasion or occasions shall be construed to be a waiver of the same on any other occasion or of any other option, right or privilege.
12.7. Assignment. Licensee may not assign this Agreement without the prior written consent of AppNeta. AppNeta may, without Licensee’s consent, assign the right to monies due or becoming due. AppNeta may also, without Licensee’s consent, assign this Agreement to an affiliate or assign this Agreement in the event of a sale of all or substantially all of AppNeta’s assets or stock. In such event, any assignee shall comply with all of the terms and conditions of this Agreement.
12.8. Independent Contractors. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.
12.9. Entire Agreement. This Agreement, together with any mutually executed Master Software as a Service Agreement (“MSSA”) contains the entire understandings and agreements between Licensee and AppNeta and supersedes all prior agreements or understandings, oral or written, relating to the subject matter hereof. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Orders) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) MSSA and (3) this Agreement.