Updated May 2023
This Master Software and Services License Agreement (the “Terms” or the “Agreement”) is a legally binding agreement between Perceptif, Inc. (“Perceptif” or “Licensor”) and the Licensee indicated on the applicable Order (the “Licensee”).
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A BINDING AND MANDATORY CUSTOMER ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
This Agreement describes the legal framework under which Licensee may license Licensed Software and Support from Licensor.
Licensor and Licensee are sometimes referred to herein individually as a “Party” and collectively as the “Parties”. All references in this Agreement to the “sale” or “purchase” (or other similar terms) of any Subscription or Licensed Software shall mean the sale or purchase of a license to the Licensed Software.
Certain Definitions“Cloud Edition” means a Subscription hosted by Licensor or its outsourced provider.
“Customer” means a customer of Licensee who uses the Licensed Software in connection with Licensee’s Products and Services.
“Delivery” or “Delivered” means the availability of the Licensed Software by Licensor to the Licensee via electronic or other means, without regard to when Licensee installs or uses such Licensed Software.
“Documentation” means the instruction manuals, user guides, and other information made available from time to time by Licensor to Licensee (in either printed or electronic form) in connection with Licensee’s purchase of a Subscription.
“Licensed Software” means the software (including Updates) and corresponding Documentation licensed by Licensee pursuant to Licensee’s purchase of a Subscription pursuant to this Agreement.
“Licensee Data” means all information, content and data (including, without limitation, schema and other implementation details, telemetry, IP and Geo-location data, service usage data and any personally identifiable information) provided by or on behalf of Licensee, stored by Licensee or at Licensee’s direction as part of Cloud Edition Subscription, and/or made available, collected or otherwise distributed through use of the Licensed Software and/or the Licensor Cloud Platform/Services.
“Licensee’s Products and Services” means the products, solutions, systems, software and services that Licensee sells or otherwise provides to its Customers.
“Licensor Cloud Platform/Services” means a cloud-based computing platform (including computing, storage, networking, and other hardware and software infrastructure) and the services that Licensor provides on this platform in connection with Licensee’s purchase of a Cloud Edition Subscription.
“Licensor Proprietary Software” means components included in the Licensed Software on which Licensor claims the copyright to the source code and which is not provided under an Open-Source Software License.
“On-Premise” means a Subscription hosted by Licensee on its own premises or on the premises of a third-party with which Licensee contracts directly.
“Open-Source Software License” means any license that provides open-source software, including, but not limited to the MIT license, the Apache license, the BSD license, the GPL license or other similar licenses.
“Order” means any document agreed to between the parties which sets forth the Subscription purchased by Licensee and any relevant pricing and any other terms and conditions which apply to the purchase of the applicable Subscription. Multiple Orders may be entered into under this Agreement. Orders may be submitted by Licensee and accepted by Licensor online.
“Specifications” means the functional, performance, operational, compatibility, and other specifications or characteristics of the Licensed Software described in applicable Documentation.
“Subscription” means licenses to the Licensed Software Licensed Software and Support, if any.
“Support” shall mean the support services, if any, provided by Licensor to Licensee in connection with Licensee’s purchase of a Subscription. The Support (including additional terms and conditions) provided in connection with each type of Subscription offered by Licensor can be found at www.perceptif.ai
“Update” means such bug fixes, security patches or other modifications to the Licensed Software, Licensed Software as may be made available from time to time by Licensor to Licensee.
General Terms and Conditions
1. Orders; Subscriptions; Delivery.
1.1 Orders; Subscriptions. The Licensed Software are licensed pursuant to Subscriptions. A Subscription includes access to currently supported versions of the Licensed Software for the term of the Subscription. Subject to Licensee’s compliance with the terms and conditions hereof, including the payment of the applicable fees, Licensee may purchase Subscriptions by the parties agreeing to Orders that reference this Agreement. Subscriptions will be for the term agreed to in an applicable Order. The Subscription models (whether Cloud Edition or On-Premise) and the various types of Subscription offered by Licensor may be found at https://www.Perceptif.ai and https://Perceptif.ai/pricing/.
Additional terms and conditions applicable to Cloud Edition Subscriptions are set out in Exhibit A attached thereto. For any fee-based Subscription, Licensee will be required to provide billing information.
1.2 Delivery. Unless otherwise agreed to, all Licensed Software licensed by Licensee pursuant to this Agreement will be delivered electronically to Licensee (by giving Licensee access to such Licensed Software). In the case of a renewal of a Subscription, Licensee acknowledges and agrees that there is no delivery requirement for such renewal. Such renewals shall be deemed Delivered on the first day of the then-current renewal term of the applicable Subscription.
Term and Termination.
2.1 Term of Agreement. Unless terminated earlier pursuant to this Section 2, this Agreement shall continue in force for the term of the Subscription as set forth in the applicable Order (“the Term”).
2.2 Term of Orders. Orders issued under this Agreement shall begin and end as specified in each such Order. Thereafter, each Order shall automatically renew for additional one-year periods (or such other period as may be agreed to in an Order) unless either party notifies the other in writing of its intent not to renew at least thirty days prior to the end of the then-current term.
2.3 Termination. This Agreement and any Order may be terminated by either party upon notice if the other party (a) breaches any material term or condition of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof, or (b) ceases to function as a going concern or to conduct operations in the normal course of business, or (c) has a petition filed by or against it under any bankruptcy or insolvency laws which petition has not been dismissed or set aside within sixty (60) days of filing.
In addition, this Agreement and any Order may be terminated by Licensor: (a) upon Licensors reasonable determination that Licensee’s use of the Licensed Software violates any applicable law or regulation; or (b) in the case of Cloud Edition Subscription, upon Licensor’s reasonable determination that Licensee’s use of the Licensed Software poses a threat to the secure or reliable provision of services to other customers, or to the Licensor Cloud Platform/Services, or to the data contained therein.
2.4 Effect of Termination. Upon termination of this Agreement or any Order, Licensee shall immediately uninstall or destroy (or at the sole option of Licensor, return) all copies of the Licensed Software in its possession or control, and a duly authorized officer of the Licensee shall certify in writing to Licensor that the Licensee has complied with such obligation. Any termination of this Agreement pursuant to this Section shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
2.5 Survival. Sections 2.4-2.6, 3, 4.2, 4.4, 9, 10, 11, 12, 14 and 15, all associated definitions, and all accrued rights to payment shall survive after termination or expiration of this Agreement.
2.6 Termination Not Exclusive Remedy. Termination is not an exclusive remedy for breach of this Agreement by either party. All other remedies will be available to the non-breaching party whether the non-breaching party terminates this Agreement for breach by the other party.
Ownership of Intellectual Property.
3.1 Ownership by Licensor. The Licensed Software contain proprietary and confidential information of Licensor and its licensors. Except to the extent licenses are expressly granted hereunder, each party and each party’s licensors, respectively, retains all right, title and interest in and to all patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets in and to that party’s respective products and services. Licensor retains all right, title and interest in and to any intellectual property created by Licensor while providing the Licensed Software and/or any Licensor Cloud Platform/Services under this Agreement, and to all suggestions, ideas, enhancement requests, feedback, code, recommendations or other information provided by Licensee or any third party relating to the Licensed Software, which are hereby assigned to Licensor. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to Licensor’s website are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, use or publication by Licensee of any such parts of the website, Licensed Software, except as expressly authorized by this Agreement, is prohibited.
3.2 Ownership by Licensee. Except to the extent licenses are expressly granted hereunder, Licensee retains all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to: (a) Licensee Products and Services; and (b) the Licensee Data.
License Grants; Restrictions.
4.1 License Grant to Licensor Proprietary Code. Subject to and in consideration of Licensee’s compliance with the terms and conditions of this Agreement:(a) In the case of an On-Premise Subscription, Licensor hereby grants to the Licensee, solely during the applicable term of the Subscription specified in an Order, a royalty-free, limited, non-exclusive, non-transferable (except as otherwise expressly set forth in this Agreement) and non-sublicensable license to: (i) install, copy, configure and use the Licensor Proprietary Code in connection with Licensee Products and Services provided by Licensee to Licensee’s Customers; and(ii) sell, resell, license, or sub-license the software generated by the Licensor Proprietary Code to Licensee’s Customers as part of Licensee Products and Services provided by Licensee to Licensee’s Customers.(b) In the case of a Cloud Edition Subscription, Licensor hereby grants to the Licensee, solely during the applicable term of the Subscription specified in an Order, a royalty-free, limited, non-exclusive, non-transferable (except as otherwise expressly set forth in this Agreement) and non-sublicensable license to:(i) use the Licensor Proprietary Code solely via the Licensor Cloud Platform/Services provided to Licensee by Licensor; and (ii) use the Documentation, training materials or other materials supplied by Licensor to enable such licensed rights.
4.2 License Grant to Components of the Licensed Software Licensed Under an Open-Source Software License. Any software code contained in the Licensed Software which is licensed under an Open-Source Software License will be licensed to Licensee under the terms and conditions of the license applicable to such software code, including license terms or conditions included in source code headers, “license” or “copying” file, or the like that may be associated with the software code. In each such case, Licensee’s licensed rights to such software code are determined by the applicable Open-Source Software License, not this Agreement. Licensor does not seek to restrict, or receive compensation for, the act of copying or redistributing publicly licensed code which is otherwise freely redistributable to third parties (and not otherwise restricted by federal trademark or other laws). To the extent the terms of the licenses applicable to components subject to an Open-Source Software License require Licensor to make an offer to provide source code or related information in connection with such components, such offer is hereby made. Any request for source code or related information should be directed only to support@Perceptif.ai.
4.3 Copies. In the case of On-Premise Subscriptions, Licensee shall be entitled to make such back-up copies (“Backup Copies”) of the Licensed Software as shall be consistent with its usual policies for backup of its internal data. Any such Backup Copies shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the License Materials. Backup Copies shall at no time be stored in a manner enabling them to be directly executed.
4.4 Restrictions. Licensee shall not remove, alter or obscure any of Licensor’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Licensor’s (or its licensors’) ownership or contribution from the Licensed Software. Additionally, Licensee agrees to reproduce and include Licensor’s (and its licensors’) proprietary and copyright notices on any copies of the Licensed Software, or on any portion thereof, including reproduction of the copyright notice. Licensee further agrees that it (and its Customers) will not without express written permission of Licensor: (a) reverse compile, disassemble, decompile or engineer, copy, modify or adapt the whole or any part of the Licensed Software; (b) make the Licensed Software available to, or use the Licensed Software for the benefit of, anyone other than Licensee or Licensee’s Customers; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Licensed Software, or include any Licensed Software in a service bureau or outsourcing offering; (d) permit direct or indirect access to or use of the Licensed Software in a way that circumvents a contractual usage limit; (e) copy the Licensed Software or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement; (f) frame or mirror any part of the services, other than framing on Licensee’s own intranets or otherwise for its own internal business purpose; or (g) access or use any Licensed Software in order to build a competitive product or service. Licensee further agrees to not exceed any usage allotment (whether compute or data usage, restrictions on the number of permitted databases or other similar restriction) paid for by Licensee in connection with the types of Subscription purchased by Licensee, and Licensee acknowledges that exceeding such allotment could result in Licensee being responsible for additional fees and could cause service disruption. Licensee agrees to pay the additional fees related to any such additional usage. In addition, with respect to Cloud Edition Subscriptions, Licensee agrees that it (and its Customers) will not (a) access the services for or upload to the Licensor Cloud Platform/Services anything unlawful, misleading, malicious or discriminatory; (b) work around any technical limitations in the Licensor Cloud Platform/Services, use any tool to enable features or functionality that are otherwise disabled in the Licensor Cloud Platform/Services; (c) perform or attempt to perform any actions that would interfere with the proper working of the Licensor Cloud Platform/Services, prevent access to or use of the Licensor Cloud Platform/Services by Licensor’s other licensees or customers (including but not limited to any form of dedicated denial-of-service scheme or over-burdening a targeted server with ping requests); (d) upload or transmit to the Licensor Cloud Platform/Services any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, or intercept the normal operation of the Licensor Cloud Platform/Services; (e) access or attempt to access any accounts or data on the Licensor Cloud Platform/Services, other than those explicitly belonging to Licensee or provided by Licensor for Licensee’s use or (f) use the Licensor Cloud Platform/Services to “mine” bitcoins or other cryptocurrencies.
4.5 License Grant by Licensee. Licensee grants to Licensor a non-exclusive, transferable and sublicensable (solely as set forth herein), worldwide, royalty-free license to use, copy, license to store, record, transmit, maintain, reproduce, modify, adapt and perform Licensee Data solely as reasonably required to operate and provide the Licensed Software and the Licensor Cloud Platform/Services pursuant to this Agreement (including, without limitation, Support). In addition, and despite anything to the contrary in this Agreement, Licensor shall have the right to collect and analyze Licensee Data and other information relating to the provision, use and performance of various aspects of the Licensed Software, the Licensor Cloud Platform/Services and related systems and technologies, and Licensor shall have the right to store and use such information and data (solely in aggregated and anonymized form in connection such that neither Licensee nor any individual may be identified from such data) for the purpose of analytics and to improve and enhance the Licensed Software and related services
Registration; Accessing the Licensed Software; Licensee Responsibilities.
5.1 Access and Credentials. To access the Licensed Software, Licensee may be asked to register and provide Licensor with certain information (such as identification or contact details) as part of the registration process. Licensee shall provide accurate, current and complete information required to enable access to the Licensed Software. Once registered, if applicable, Licensee will be issued certain access credentials to access the Licensor Cloud Platform/Services. Licensee will maintain the accuracy of such information during the use of the Licensed Software.
5.2 Licensee Responsibilities. Licensee shall maintain proper password security, and to maintain the confidentiality of Licensee’s account. Without limiting any other responsibilities Licensee has under this Agreement, Licensee is responsible for the actions of (i) any person acting on Licensee’s behalf, (ii) anybody accessing the Licensor Cloud Platform/Services using the credentials of any Licensee, to the extent that such other individual did not gain access to the credentials due to an action or inaction of Licensor. In addition, in connection with Licensee’s purchase of a On-Premise Subscription, in the event that Licensee disables or otherwise restricts the automatic telemetry reporting function of the Licensed Software which collects and reports telemetry information to Licensor, Licensee agrees to manually provide such telemetry reports (via email to the email provided by Licensor for such purpose) to Licensor on a calendar monthly basis (no later than seven (7) days of the end of the applicable month) utilizing the Licensed Software reporting function.
Fees; Payments.6.1 Accrual of Payment Rights. Licensor’s right to payment for the Licensed Software licensed by Licensee shall accrue on the date the Licensed Software are Delivered to Licensee. Except as set forth under “Warranties; Disclaimer”, all payments accrued or made under this Agreement are non-cancelable and nonrefundable.6.2 Invoicing and Payment; Discrepancies. Licensor will invoice Licensee in accordance with the relevant Order. Unless otherwise indicated, payment of the Subscription fee is due within 30 days of Licensor’s date of the appliable invoice. In the case of non-payment of any undisputed fees, Licensor may, at its sole discretion: (a) suspend Licensee’s access to the Licensed Software; (b) terminate this Agreement; or (c) continue to provide the Licensed Software, for a period solely determined by Licensor, in anticipation of full and prompt payment by Licensee. Any amount which is unpaid when due may be subject to interest equal to the lower of 1.5% per month or the highest applicable legal rate. Licensor shall be entitled to reimbursement for any costs actually incurred by Licensor for the collection of any past-due balance.6.3 Taxes. Unless otherwise stated with respect to terms and conditions for a specific Subscription type, all stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Any taxes related to the Licensed Software or Support licensed pursuant to this Agreement including, but not limited to, withholding taxes, will be paid by Licensee, or Licensee will present an exemption certificate acceptable to the taxing authorities. Licensee will not be liable for taxes imposed on Licensor based on Licensor’s income.7.
7.1 Licensor’s Warranty. Subject to each of the other provisions of this Agreement, Licensor warrants, solely to Licensee, that: (a) it will not knowingly include in the Licensed Software Delivered to Licensee hereunder any computer code or other computer instructions, devices or techniques (including without limitation those known as disabling devices, Trojans, or time bombs) that are intentionally designed to disrupt, disable, or damage the operation of a network, computer program or computer system or any component thereof, and (b) for a period of 60 days after the Licensed Software is initially Delivered to Licensee (the “Warranty Period”), the Licensed Software, when installed properly, will be capable of functioning substantially in accordance with the Specifications.
7.2 Warranty Limitations. The warranty provided in Section 7.1 will not apply if: (i) Licensee fails to notify Licensor in writing during the Warranty Period of any such breach; or (ii) Licensee fails to implement all Updates to the Licensed Software made available at no charge to Licensee during the Warranty Period.
7.3 Warranty Remedies. If Licensor breaches the warranty set forth in Section 7.1, Licensee’s sole and exclusive remedy, and Licensor’s sole obligation, shall be to remedy such breach as set forth in this Section. At the sole discretion of Licensor, Licensor will, at its expense, either: (a) repair or replace the defective Licensed Software to enable it to perform substantially in accordance with the Specifications; or (b) terminate this Agreement and refund to Licensee any fees prepaid by Licensee to Licensor for the defective Licensed Software for any period after the effective date of any such termination.
7.4 Licensee’s Warranties. Licensee represents and warrants that Licensee owns all Licensee Data or Licensee has all rights that are necessary to grant Licensor the licensed rights in Licensee Data under this Agreement. Licensee also represents and warrants that neither Licensee Data, nor the inclusion of Licensee Data in the Licensed Software, will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
7.5 DISCLAIMER. EXCEPT AS MAY OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, SERVICES, DOCUMENTATION, DATA OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS WARRANTIES, AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE LICENSED SOFTWARE AND/OR THE SERVICES PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT SUCH LICENSED SOFTWARE AND/OR THE LICENSOR CLOUD PLATFORM/SERVICES WILL SUCCEED IN RESOLVING ANY PROBLEM.8
8.1 Indemnification by Licensor. Subject to each of the other provisions of this Agreement, Licensor (at its expense) shall (i) defend or (at its option) settle, any claim brought against Licensee by a third party alleging that the Licensor Proprietary Software infringes as of the date of Delivery the copyright, trademark, or US or EU patent of said third party (a “Claim”) and (ii) indemnify Licensee against damages and costs finally awarded against and payable by Licensee in any such Claim.
8.2 Exceptions. Licensor shall have no liability to Licensee under this Section:(a) to the extent any Claim is based on or arises from any Licensed Software or any portion or component thereof, that is: (i) not provided directly to Licensee by Licensor; (ii) modified by a party other than Licensor and not at Licensor’s direction, if the alleged infringement would not have occurred in the absence of such modification; or (iii) combined with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination;(b) to the extent Licensee continues allegedly infringing activity after: (1) being notified thereof; and (2) being provided, at no additional charge, modifications that would have avoided the alleged infringement without significant loss of performance, compatibility or functionality; or(c) from any breach of the Licensee’s obligations under this Agreement.
8.3 Indemnification by Licensee. Licensee will defend and indemnify Licensor from and against any losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable attorneys' fees) incurred in any claim, demand, litigation, suit, proceeding, judgment or other legal or regulatory action arising out of or relating to (a) the intellectual property rights or privacy rights in any of the Licensee Data; (b) the violation by Licensee in connection with the Licensed Software of any consumer protection or privacy laws; and (c) Licensee’ use of the Licensed Software (other than claims for infringement under Section 8.1).
8.4 Indemnification Requirements. Despite any of the foregoing, each party’s obligations under Section 8 shall be valid only if the party requesting indemnification: (a) gives notice to the indemnifying party of any Claim promptly upon becoming aware of the same; (b) gives the indemnifying party the sole control of the defense and settlement of any Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the indemnifying party; and (c) acts in accordance with the reasonable instructions of the indemnifying party and gives to the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense.
8.5 Additional Remedies. In the event of any alleged Intellectual Property infringement, Licensor shall be entitled at its own expense and in its sole discretion to: (a) procure the right for the Licensee to continue using the Licensed Software; (b) make such alterations, modifications, or adjustments to the Licensed Software so that it becomes non-infringing without incurring a material diminution in performance or function; or (c) replace the Licensed Software with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
8.6 Sole and Exclusive Remedies. This Section 8 sets forth Licensee’s sole and exclusive remedy, and Licensor’s sole obligation, for a third-party claim that the Licensed Software, Documentation or Licensor Cloud Platform/Services provided hereunder infringe or misappropriate a third party’s intellectual property rights.
Limitation of Liability.
9.1 Limitation on Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS (A) BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER OR (B) LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, AND SUBJECT TO SECTION 9.2, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Prohibition on Certain Damages. EXCEPT WITH RESPECT TO CLAIMS (A) BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER OR (B) LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, IN NO EVENT WILL EITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL OR PUNITIVE DAMAGES, FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR (EXCEPT WITH RESPECT TO CLAIMS BASED UPON LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER) FOR ANY LOST PROFITS OR LOST REVENUE, IN EACH WHETHER SUCH DAMAGES ARE CHARACTERIZED AS INDIRECT OR OTHER, AND WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Maximum Liability. DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT WITH RESPECT TO CLAIMS (A) BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER OR (B) LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, IN NO EVENT SHALL EITHER PARYT’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING ANY CLAIM MADE HEREUNDER.
10.1 Confidentiality Agreement. Each of the parties hereto undertakes to the other to keep confidential all Confidential Information concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement. To qualify as Confidential Information, the disclosing party must conspicuously mark the Confidential Information in tangible form as “confidential,” “proprietary” or similar words generally understood to communicate the confidential nature of the information. Where it is not possible to use such marking, or when the information is disclosed orally or visually, the disclosing party must state at the time of disclosure that the information is Confidential Information, and when requested by the receiving party, summarize in writing the Confidential Information within a reasonable time of such request, describing the disclosure in sufficient detail. Despite the foregoing, the Licensed Software and each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be such party’s Confidential Information whether or not so marked.
10.2 Exceptions. Despite all of the foregoing, Confidential Information will not include any information which: (a) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is disclosed by the receiving party with the disclosing party’s approval; or (e) is independently developed by the receiving party without any use of the other party’s Confidential Information.
10.3 Required Disclosures. If a party is ordered to disclose Confidential Information by judicial or governmental authorities, then the receiving Party shall use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor.10.4 Injunctive Relief. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the disclosing party’s remedies at law for a breach by the receiving party of its obligations hereunder may be inadequate and that the disclosing party shall be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance).
Import and Export Regulations; U.S Government Provisions.
The Licensed Software may be subject to U.S. export controls, specifically the Export Administration Regulations. Both parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Licensee may not remove or export from the United States or allow the export or re-export of Licensed Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation”. Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Privacy and Security. Each party agrees to abide by all applicable local, state, national, and international laws and regulations in connection with this Agreement, including, without limitation, all laws regarding the transmission of technical data exported from the United States and all applicable privacy laws. Licensor will, taking into account the nature of the personal data and the risks involved in the processing of any such personal data, maintain reasonable and appropriate security measures, including technical and organizational safeguards designed to ensure the security and confidentiality of personal data. Despite the foregoing, in connection with Cloud Edition Subscriptions, Licensee acknowledges that the storage and processing of data, and the assurances published by Amazon (including Amazon Web Services), Google Cloud Platform and other of Licensor’s processor platforms meet the requirements of this Section.13.
Certain Terms Applicable to Free/Non-Paid Subscriptions.
13.1 No Warranties or Indemnities. Despite any other provision of this Agreement, including but not limited to Sections 7.1 and 8.1, any Software provided to Licensee pursuant to a free/non-paid Subscription is licensed as-is, with no warranties or indemnities of any kind.
13.2 Right to Terminate. In addition to the other provisions of Section 2.3, in the case of a free/non-paid Subscription, either party may terminate this Agreement, or any license granted under this Agreement, at any time by giving the other party written notice of termination.
13.3 Limitation of Liability. Despite any other provision of this Agreement, including but limited to Section 9, in the case of a free/non-paid Subscription, Licensor’s aggregate liability for damages under this Agreement shall not exceed U.S. $100.00
14.1 Negotiation. In the event a dispute arises between Licensee and Licensor regarding the application or interpretation of any provision of this Agreement, the aggrieved Party shall promptly notify the other Party of the dispute. If the Parties fail to resolve the dispute within ten (10) business days after receipt of such notice, each Party shall, within five (5) business days thereafter, escalate such dispute to a member of its senior management team.
14.2 Mediation. If a settlement is not achieved within ten (10) business days after a meeting between senior management representatives, then the Parties agree to attempt to resolve the dispute through mediation by submitting the dispute to mediation in accordance with the then current rules for mediation promulgated by the American Arbitration Association (“AAA”), including the Optional Rules for Emergency Measures of Protections which provide for injunctive relief and measures for the protection or conservation of property and disposition of perishable goods. The mediation proceedings shall be held in Palo Alto, California. and each Party shall bear its own expenses and an equal share of the expenses of the mediator and the fees of AAA. Such mediation will be held within thirty (30) business days of submission to AAA.
14.3 Binding Arbitration. If the dispute is not resolved by mediation, then the Parties agree to resolve the dispute by binding arbitration before one arbitrator administered in accordance with the Commercial Arbitration Rules of the AAA including the Optional Rules for Emergency Measures of Protections, which provide for injunctive relief and measures for the protection or conservation of property and disposition of perishable goods. Arbitration shall be held in Palo Alto, California or such other place as the Parties may agree and shall include an award of attorneys’ fees (and the amount of such fees) to the prevailing Party. The Parties shall agree on the selection of the arbitrator. Discovery shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents. In allowing discovery, the arbitrator shall be governed by the Federal Rules of Civil Procedure then in effect in defining the scope and direction of such discovery and the admissibility of evidence. The arbitrator shall be required to make written findings of fact and render written opinions of law. Subject to the limitations set forth in Section 9 above, any award of damages pursuant to such arbitration shall be included in a written decision signed by the arbitrator which shall state the reasons upon which the award was based, including all the elements involved in the calculation of any award of damages. The arbitrator’s award shall be final and binding, and judgment thereon may be entered in any court having jurisdiction over the Party against which enforcement is sought; provided that any such award rendered by the arbitrator shall be strictly in conformance to and in accordance with the terms and conditions of this Agreement including, without limitation, the limitation of liability provisions contained herein. Other than those matters involving injunctive relief as a remedy or any action necessary to enforce the award of the arbitrator, the Parties agree that the provisions of this Section 14.3 are a complete defense to any suit, action or other proceedings instituted in any court or before any administrative tribunal with respect to any dispute or controversy arising under or relating to this Master Agreement. Nothing in this Section 14.3 shall prevent either Party from exercising its rights to terminate this Master Agreement as specified herein. The Parties undertake and agree that all arbitral proceedings conducted under this Section 14.3 shall be kept confidential, and all information, documentation, and materials in whatever form disclosed in the course of such arbitral proceeding shall be used solely for the purpose of those proceedings.15.
15.1 Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
15.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the signature box to this Agreement (or such other address as to which the other party has been notified), or sent by email to the email address as may be provided by one party to the other from time to time.
15.3. Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
15.4 Assignment and Sublicensing. Either may assign this Agreement without such consent to an entity that acquires all or substantially all of the shares of the assigning party, or all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale, or otherwise. Despite the foregoing, Licensee may not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder to any competitor of Licensor as determined in Licensor’s reasonable discretion. In all other cases, neither party shall assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party.
15.5 Headings. Headings to paragraphs or sections in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.15.6 Governing Law; Venue. This Agreement will be governed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California for any actions not subject to Dispute Resolution provisions as set forth in Section 14. The rights and obligations of the Parties under this Agreement shall not be governed by the provisions of the 1980 United Nations Convention on purchase orders for the international sale of goods.
15.7 Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.
15.8 Independent Contractors. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.
15.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original, but all of which together will constitute one and the same instrument.
15.10 Amendments. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.
15.11 Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement, or to enjoy any of its benefits, because of an event wholly beyond its control, including without limitation an electronic incident, fire, pandemic or epidemic illness, natural disaster, and an action or decree of a governmental body, to the extent that such events, or the results or consequences thereof, could not reasonably have been foreseen, prevented, avoided, or mitigated by such Party through the use of technology or practices common and prevalent in the industry (each, a “Force Majeure Event”), the Party who has been so affected shall immediately give written notice to the other Party and use reasonable efforts to resume performance. Upon receipt of such notice, performance of the affected obligations under this Agreement, to the extent affected by the Force Majeure Event, shall be temporarily suspended for the duration of the Force Majeure Event. If the period of nonperformance exceeds ninety (90) days from the receipt of such notice, the Party whose ability to perform has not been so affected may, by giving written notice, terminate this Master Agreement. A delay in delivery due to a Force Majeure Event shall automatically extend the delivery date for a period equal to the duration of such Force Majeure Event. Any warranty period affected by a Force Majeure Event shall likewise be extended for a period equal to the duration of such Force Majeure Event.
15.12 U.S. Government Rights. The Licensed Software are commercial products that were developed at private expense by Licensor. The Licensed Software are “commercial items” as that term is defined at FAR 2.101. If Customer or a Registered Authorized User is a U.S. Federal Government (Government) Executive Agency (as defined in FAR 2.101), Licensor provides the Licensed Software, including any related software, technology, technical data, and/or services, in accordance with this Section 15.12. If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, except under any GSA schedule contract, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section 15.12, it must negotiate with Licensor to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights clause in this Section 15.7 is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
15.13 Audit Rights. For the Term of the Agreement and for a period of two (2) years after termination or expiration of the Agreement, Licensor will have the right, once per calendar month and with reasonable notice to Licensee, to have Licensee’s records inspected and audited to verify compliance with the license restrictions and payment terms of this Agreement. Any such audit will take place during normal business hours and will be conducted in accordance with applicable government requirements, if any. Licensor will pay for the audit, unless the audit discovers an underpayment of five percent (5%) or greater, in which case Licensee will pay for the audit. Licensee agrees to pay any underpayment to Licensor within thirty (30) days of receiving notice of the underpayment.
Either party to this Agreement may publicize the existence of the business relationship established by this Agreement in connection with its products, promotions, or publications. Licensee grants Licensor permission to use Licensee’s name and logo(s) in connection with promotion of Licensor’s products and services. All representations of Licensee’s logo shall be exact copies of those used by Licensee in design, color and other details. Except as expressly set forth in this Section, nothing in this Agreement gives either party any right, title or interest in the other party’s logos, trademarks, service marks or trade names. Despite anything to the contrary, neither party may disclose the specific terms of this Agreement, except as required by applicable law.
THIS AGREEMENT, INCLUDING ALL ATTACHMENTS, SCHEDULES, EXHIBITS AND ALL APPLICABLE LICENSE AGREEMENTS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF ORDERS AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE PARTIES AGREE THAT ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED ON, REFERENCED BY OR INCORPORATED INTO LICENSEE’S ORDER OR ANY OTHER DOCUMENT ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS AGREEMENT.
EXHIBIT AADDITIONAL TERMS AND CONDITIONS FOR CLOUD EDITION
In addition to the terms and conditions of the Agreement applicable to the Licensee’s purchase of a Cloud Edition Subscription, the terms and conditions of this Exhibit A shall apply to such purchase and use of a Cloud Edition Subscription by Licensee. Capitalized terms used in this Exhibit A but not defined herein shall have the meanings given such terms in the main body of the Agreement.
In the event of any inconsistency between the terms set forth in this Exhibit A and the main body of the Agreement, the terms of this Exhibit A shall take precedence with regard to the purchase and use of a Cloud Edition Subscription by Licensee. Additional Definitions
“Account” means the specific account created by Licensee with Licensor to access and use the Licensor Cloud Platform/Services.
“Database” means any information including any software code, data files, written text, graphics, message, audio file, video file, or such information stored or arranged in any format whatsoever that are uploaded or entered into or connected with any Project in your Account, including a database which is created via a Platform integration using your Platform Account.
“Licensor Hosting Server” means the servers on which Licensor Cloud Platform is hosted and the servers on which Projects created on the Licensor Cloud Platform will be hosted.“Platform” is a third-party platform that enables Users to create, run, and operate databases in the cloud, and that Perceptif Cloud offers an integration with.
“Platform Account” means the specific User account created by you on the applicable Platform to create a Database using the Platform’s terms and conditions.
“User Hosting Server” means the server on which Licensee stores Licensee’s hardware and software resources including the Database. If Licensee creates and connects the Database via a Platform integration, User Hosting Server shall be that Platform.“Project” means the project created by Licensee through Licensee’s Account for accessing and using Licensor Cloud Platform/Services.“Use”, “Using” or “Used” means to directly or indirectly activate the processing capabilities of the Licensor Cloud Platform/Services.“User” means any person that uses the Licensor Cloud Platform/Services.
Licensee must provide accurate and complete registration information at the time of Account set up.Licensee is solely responsible for the security of passwords and for any use of Licensee’s Account.
If Licensee becomes aware of any unauthorized use of your password or of Licensee’s Account, Licensee agrees to notify Licensor immediately by sending an email to support@Perceptif.ai.
Project Creation: After the establishment of an Account, Licensor will be required to create a Project or Projects based on the different Project types available to Licensee as per Licensee’s Subscription.
After creating a Project, Licensee can follow the documentation maintained by the Licensor to make use of the functionality provided as part of the Licensor Cloud Platform/Services. The documentation includes instructions on how, if needed, Licensee can use a Platform integration to create a database and connect it with their Project. Licensee agrees to provide Licensor with the necessary permits and access rights to Licensee’s Database, whether a database Licensee creates via a Platform integration, or a database that Licensee otherwise owns, so as to be able to use Licensor Cloud Platform/Services.
Third-Party Materials License GrantLicensor Cloud Platform/Services may contain third party materials that are subject to separate licensing terms. By using the Licensor Cloud Platform/Services, Licensee agree to be bound by those separate licensing terms. It is Licensee’s responsibility to comply with the terms governing the access and use of such third-party materials.
A list of such licenses can be obtained by emailing support@Perceptif.ai.
Further, Licensor Cloud Platform/Services may contain links to third party websites including one or more Platform (s). The presence of these links should not be considered as an endorsement of any such content. If Licensee choses to access these hyperlinks, Licensee do so at its own risk and any database created on such a third-party Platform shall be created following such third party’s terms and conditions.
Licensor Cloud Platform/Services
As part of the Licensor Cloud Platform/Services, Licensee will be able to access and use a layer of computing infrastructure that helps in the setting up and building of process analytical solutions
The specific details of these services can be found in the product description which is available at https://www.Perceptif.ai and https://www.Perceptif.ai/pricing/.
You acknowledge that Licensor is in no manner responsible for any disruptions or delay caused to the Licensor Cloud Platform/Services due to use of any User-Developed Software. Licensee is solely responsible for ensuring that any User-Developed Software perform as desired by Licensee when used in conjunction with the Licensor Platform/Services and Licensor is not responsible in any manner if Licensee’s User-Developed Software do not achieve the desired results or function in a desired manner.
Licensee’s use of Licensor Cloud Platform/Services is dependent on the proper functioning of the Licensor Hosting Servers and User Hosting Servers. Licensor takes no responsibility towards any defect, discrepancy, down time, bug, error or other inaccuracy in rendering of the Licensor Cloud Platform/Services that is not directly, proximately and solely attributable to the improper functioning of the Licensor Cloud Platform/Services when properly set up and used in a Licensor-defined and approved computing environment.
In particular, Licensee acknowledges that the Licensor Hosting Server and User Hosting Server are governed by terms set out by the respective third party that owns and/or manages the Licensor Hosting Server and User Hosting Server and that Licensor has no control over the functionalities, speed, uptime or accuracy of the Licensor Hosting Server or User Hosting Server. Licensor shall not be responsible for rectifying any problems and issues (a) relating to Licensee’s use of the Licensor Cloud Platform/Services; or (b) with the functioning of the software application that Licensee has developed using the Licensor Cloud Platform/Services, and which are attributable or related to (a) the improper functioning of the Licensor Hosting Server and User Hosting Server; or (b) any bug, error, discrepancy or down-time in the open source software components Licensor uses.
Licensee further agrees and acknowledges that Licensor will not be responsible for any bug, error, discrepancy, down-time or inaccuracy caused to the Licensor Cloud Platform/Services on account of Licensee’s use of a User-Developed Software or any Database.Proprietary Rights and Non-ExclusivityLicensee acknowledges and agrees that Licensor (or its licensors as the case may be) own all legal right, title and interest in Licensor Cloud Platform/Services including but not limited to any concepts, inventions, systems, platforms, interfaces, tools, utilities, user interface, algorithms, logic, formulae, scripts, work flows, processes, software, methodologies, databases know-how, trade secrets and other technology and information including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist.Licensor collects and maintains a record of the usage of the Licensor Cloud Platform/Services by Licensee and/or the Licensee Customers to store, analyze and use any data relating to their use of the Licensor Cloud Platform/Services.
This Agreement is a non-exclusive arrangement. For the avoidance of doubt, there is no prohibition or restriction on Licensor to provide the same or substantially similar rights as set out in this Agreement to any other person.Licensee owns all rights and title in the Database and the User-Developed Software that Licensee creates. Therefore, Licensee is solely responsible for the Database and User-Developed Software that are generated, accessed, stored in, or connected to any Project in Licensee’s Account.
Licensee’s responsibilities include, but are not limited to:ensuring protection of intellectual property rights residing in such Database and User-Developed Software.ensuring that Licensee’s Database or User-Developed Software does not violate any law or regulation, or any right (including intellectual property right) of any person.ensuring that any personal data of Licensee’s Customer is collected, stored, or processed in accordance with the applicable laws and only shared with Licensor upon written consent of the Customer and Licensor, or if required by law.By storing, accessing or using the Database on or through the Licensor Cloud Platform/Services Licensee gives Licensor a worldwide, royalty-free, non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Database for the sole purpose of enabling Licensor to render Licensor Cloud Platform/Services.
Despite any other provision of the Agreement, the storage functionality for Database and User-Developed Software is provided to Licensee on an “as-is where-is basis” and Licensor does not take any responsibility for the security of such Database or any User-Developed Software or any other content or information which are stored on the Licensor Hosting Servers or User Hosting Servers.
If Licensor receives a take-down notice for any Database or content or information stored or uploaded on the Licensor Hosting Server by Licensee, it shall take reasonable steps to determine the basis for such notice. If Licensor concludes that it is legally obligated to comply with such request or that it is appropriate for Licensor to comply with such request, it may, in its sole and absolute discretion, remove such Database or content or information and provide written intimation to Licensee. Licensee will not be entitled to challenge Licensor’s determination in this regard and Licensor will not have any liability to Licensee as result of taking down the Database or other content or information in accordance with this Section. The same principle also applies if Licensor receives any injunction order from a competent authority or court that requires that the use of any User-Developed Software cease either temporarily or permanently. Licensor reserves right to take any action, including terminating Licensee’s access to Licensor Cloud Platform/Services if Licensee uploads or stores a Database or other content or information on the Licensor Hosting Server that violates a third-party’s intellectual property rights.
If you have any questions about this EULA, You can contact us:
By email: email@example.com
By visiting this page on our website: www.perceptif.ai
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