IMPORTANT – PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS. THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SOFTWARE (AS THAT TERM IS DEFINED BELOW). IF YOU DO NOT AGREE TO THIS AGREEMENT, CLICK THE “DECLINE” BUTTON AT THE END OF THIS AGREEMENT. TO AGREE TO THIS AGREEMENT, PLEASE COMPLETE THE REQUESTED INFORMATION AND THEN CLICK THE “ACCEPT” BUTTON AT THE END OF THIS AGREEMENT. BY CLICKING THE ACCEPT BUTTON AT THE END OF THIS AGREEMENT, YOU REPRESENT THAT THE INFORMATION PROVIDED IS COMPLETE AND ACCURATE, THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER (AS THAT TERM IS DEFINED BELOW) AND THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT HAVE BEEN ACCEPTED. THE SOFTWARE MAY INCORPORATE OPEN SOURCE COMPONENTS THAT ARE OWNED BY THIRD PARTIES. SUCH OPEN SOURCE COMPONENTS, IF ANY, ARE SUBJECT TO SECTION 1.5 OF THIS AGREEMENT. ALL OTHER PORTIONS OF THE SOFTWARE ARE THE PROPERTY OF CODISCOPE, LLC, AND ITS LICENSORS.
This End-User License Agreement (the “Agreement”) is entered into effective as of the date that you click the “I Accept/Agree” at the end of this Agreement (“Effective Date”) and is a legal agreement between you (either as an individual or as the representative of the legal entity on whose behalf you are acting) (the “Customer”) and Codiscope, LLC, a Delaware limited liability company (“Codiscope”), governing Customer’s use of certain Codiscope-proprietary software, software documentation and any patches, fixes and updates to such software provided to Customer by Codiscope from time to time (collectively, the “Software”).
The terms of this Agreement govern Customer’s access and use of the Software, except to the extent: (a) there is a separate signed agreement between Customer and Codiscope governing Customer’s use of the Software; or (b) the Software includes a separate Order Form as part of the installation and/or download process. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence will be (1) the signed agreement, (2) the Order Form, and (3) this End User License Agreement. An “Order Form” will be a written agreement or electronic form for the licensing of the Software which includes the quantity, term and price of license(s) ordered by Customer.
1. License Grant, Rights and Restrictions
1.1. The Software is licensed, and not sold, to Customer under the following terms:
(a) If Customer is registering for an evaluation license to the Software then, subject to the terms and conditions in this Agreement, Codiscope grants Customer a restricted, personal, non-transferable, non-exclusive, internal-use license to (i) unless otherwise provided in a separate signed agreement between Customer and Codiscope or in an Order Form, install one (1) copy of the Software on one (1) computer or server that meets the requirements of the technical specifications set forth in Codiscope’s technical documentation for the Software provided with the Software as of the Effective Date, and (ii) use such copy of the Software for the sole purpose of internally evaluating the Software in compliance with the terms of this Agreement.
(b) If Customer is registering for a license to the Software other than an evaluation license then, subject to the terms and conditions of this Agreement (including without limitation, receipt by Codiscope of all fees owed by Customer), Codiscope grants Customer a limited, non-exclusive, non-transferable, revocable license to (i) unless otherwise provided in a separate signed agreement between Customer and Codiscope or in an Order Form, install one (1) copy of the Software on one (1) computer or server that meets the requirements of the technical specifications set forth in Codiscope’s technical documentation for the Software provided with the Software as of the Effective Date, and (ii) use such copy solely for Customer’s internal business purposes and in compliance with the terms of this Agreement.
1.2. Customer guarantees the performance of, and will be fully responsible for any failure by Customer or its employees, contractors or agents to comply with, the terms of this Agreement.
1.3. Customer will not directly or indirectly (a) copy, display, distribute, or otherwise use the Software in any manner or for any purpose not expressly authorized by this Agreement; (b) create derivative works of or otherwise adapt, modify, or translate the Software; (c) reverse engineer, decompile, translate or disassemble the Software; (d) alter, remove, obscure, erase, deface, or hide from view any copyright, trademark, or other proprietary rights notice contained in or incorporated into the Software; (e) use, rent, or lend the Software license in connection with a service bureau, time-sharing, ASP or similar arrangement; or (f) use the Software in any way that violates any individual’s privacy. Customer acquires no ownership rights in or title to the Software and will not at any time have physical access to any facility providing the Software. Except as expressly stated in Sections 1.1 and 1.5, Codiscope and its licensors (if any) retain all ownership rights in and title to the Software.
1.4. Codiscope may, but will not be required to, decide in its sole discretion to modify, enhance or otherwise change the Software. If Customer has purchased a license to the Software other than an evaluation license, Codiscope will use commercially reasonable efforts to provide Customer with notice (by email, posting on Codiscope’s website or other reasonable means), of any change that would have a material adverse effect on the functionality of the Software.
1.5. The Software may include certain open-source software and other freely available software and material (“Excluded Components”). The Excluded Components contained in the Software being licensed under this Agreement can be viewed at www.codiscope.com/secureassist/oss. Notwithstanding anything to the contrary in this Agreement, the Excluded Components are governed by the terms and conditions of the applicable license and/or notice provided by the third party authors, contributors and suppliers of the Excluded Components (the “Suppliers”), and Codiscope has no responsibility or liability of any kind related to such Excluded Components. The Suppliers’ licenses and other notices (including instructions for obtaining source code for certain Excluded Components), may be identified in the documentation accompanying the Software or in a README file accompanying the Software. Licensee agrees to comply with all such licenses and other notices. Further, and notwithstanding any of the terms of this Agreement or any other agreement Customer may have with Codiscope:
(a) the Suppliers provide the Excluded Components WITHOUT WARRANTIES OF ANY KIND AND SUCH SUPPLIERS DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE EXCLUDED COMPONENTS; and
(b) in no event are the Suppliers liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages, including, but not limited to lost data, lost savings and lost profits, with respect to the Excluded Components.
1.6. If Customer makes any suggestions, comments, enhancement requests, recommendations or provides any other feedback to Codiscope regarding the Software or any other matter, Codiscope has and will have the right, without any requirement to compensate Customer, to use and to permit others to use any such suggestions, enhancement requests, comments, recommendations or other feedback for any purpose including, but not limited to, incorporating them into the Software.
1.7. Except as for the license rights expressly granted in this Agreement, Codiscope retains all rights, title and interest in and to the Software and any services or materials provided under this Agreement.
1.8. The results of Customer’s use of the Software shall constitute the property and confidential information of the Customer. For the avoidance of doubt, Codiscope shall have no rights in or to such property and confidential information.
2. Term and Termination
2.1. This Agreement will commence on the Effective Date and will continue until the earlier of (a) the date indicated in the Order Form, or (b) termination pursuant to the terms of this Agreement.
2.2. Customer may terminate use of the Software at any time for any reason or no reason by ceasing to use the Software and complying with the other provisions of Section 2.5.
2.3. Codiscope may terminate this Agreement upon written notice to Customer if Customer breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days following such notice. Notwithstanding the above, Codiscope may terminate this Agreement immediately after providing written notice to Customer if Customer breaches an un-curable provision of this Agreement such as, but not limited to, the provisions regarding reverse engineering, disassembly, decompilation or confidentiality.
2.4. Termination of this Agreement will not prevent either party from pursuing all available legal remedies, nor will such termination relieve Customer’s obligation to pay any and all fees that are owed. The parties’ rights and obligations under Sections 1.2, 1.3, 1.5, 1.6, 2.3, 2.4, 3, 4, 5, 6, 7, 8, 9 and 10 of this Agreement will survive termination of this Agreement.
2.5. If the license granted under this Agreement is terminated, Customer will: (a) immediately cease using the Software, and (b) certify to Codiscope within thirty (30) days after termination or expiration that Customer has destroyed or has returned to Codiscope all copies of the Software in its possession and any Codiscope Confidential Information.
3. Payments and Audit
3.1. Customer agrees to pay Codiscope all amounts required to be paid (a) upon placing an electronic order for a license, or (b) under the terms of any signed agreement between Customer and Codiscope governing Customer’s use of the Software under any separate Order Form filled out by Customer as part of the installation and/or download process.
3.2. Any amounts due to Codiscope under this Agreement will be due and payable thirty (30) days after receipt of invoice for such amount. If Customer fails to pay any amount due within such thirty (30) day period, late charges in the amount of the lesser of one and one-half percent (1½%) per month or the maximum rate permitted under applicable law will be applied to the unpaid balance and will be payable by Customer. No failure by Codiscope to request any payment or to demand any performance will be deemed a waiver by Codiscope or a waiver of Codiscope’s right to terminate this Agreement in accordance with its terms.
3.3. Customer agrees to maintain accurate written records of the location and use of each copy of the Software in Customer’s possession. To ensure compliance with the terms of this Agreement, Codiscope will have the right, during the term of this Agreement and for six (6) months thereafter, exercisable upon reasonable notice, to conduct an inspection and audit of such records and to obtain true and correct photocopies of such records, during Customer’s regular business hours at Customer’s offices, and in such a manner as not to interfere unreasonably with Customer’s normal business.
4. Confidentiality
The Software contains certain information that Codiscope considers either proprietary, confidential, or both (collectively, “Confidential Information”). In addition, during the term of this Agreement Codiscope may also disclose to Customer certain other Confidential Information. Customer will hold Codiscope’s Confidential Information in confidence and will use its best efforts to protect it. Customer will use such Confidential Information for the sole purpose of performing its obligations under this Agreement. Customer will not disclose Confidential Information to any person other than, in the case of a Customer that is an entity, employees and independent contractors of Customer who need to know such Confidential Information in order to carry out the terms of this Agreement and who are bound by a written confidentiality agreement with Customer that is no less protective of such Confidential Information than this Agreement. Upon request of Codiscope, Customer will provide Codiscope with reasonable evidence of such written confidentiality agreement. Upon termination of this Agreement, Customer will either return to Codiscope all Confidential Information in its possession (including all copies) or will, at Codiscope’s direction, destroy all Confidential Information (including all copies) and Customer (or in the case of a Customer that is an entity, an officer of Customer) will certify its destruction to Codiscope. The foregoing obligations of confidentiality and non-use will not apply to any Confidential Information that Customer can show, by competent evidence: (a) is publicly known at the time of disclosure or enters the public domain following disclosure through no fault of Customer; or (b) Customer can demonstrate was already in its possession without restriction prior to disclosure under this Agreement. Customer may disclose Confidential Information upon the order of any competent court or government agency, provided that, prior to such disclosure Customer will, unless prohibited by law, inform Codiscope of such order and provide Codiscope with reasonable assistance to prevent or limit such disclosure. Customer agrees that its obligations under this Article are necessary and reasonable in order to protect Codiscope and its business, and that monetary damages would be inadequate to compensate Codiscope for any breach by Customer of such obligations. Accordingly, Customer agrees and acknowledges that any such breach or threatened breach will cause irreparable injury to Codiscope and that, in addition to any other remedies that may be available at law, in equity or otherwise, Codiscope will be entitled to seek injunctive relief against the continued breach or threatened breach of Customer’s obligations under this Article without the necessity of proving actual damages.
5. Advertising; Proprietary Markings
5.1. Codiscope may issue and disseminate press releases, announcements, and publications that state that Customer has purchased a license to use the Software, provided that all use by Codiscope of Customer’s insignia, logos, trademarks, trade names, or service marks will inure to the benefit of Customer. Codiscope may also list Customer as a client of Codiscope in all Codiscope marketing materials and may include Customer’s logo, a URL or hyperlink to Customer’s website on Codiscope’s website.
5.2. Neither party will take any action intended to appropriate or perfect rights in the intellectual property of the other, including, without limitation, the filing of patent, trademark, or service mark applications or copyright registrations.
6. Customer Representations and Warranties
Customer represents and warrants to Codiscope that:
6.1. Customer has full personal or corporate power and authority to execute and deliver this Agreement, to consummate the transactions contemplated under this Agreement, and that entering this agreement violates no contractual right of any third party; and
6.2. this Agreement has been duly and validly executed and delivered by Customer and constitutes the valid and binding agreement of Customer, enforceable against Customer in accordance with its terms.
7. Codiscope Representations and Warranties
7.1. If Customer is registering for a license to the Software other than an evaluation license then Codiscope represents and warrants to Customer that, for a period of sixty (60) days from the Effective Date, the Software will perform in substantial conformance with the technical specifications set forth in Codiscope’s technical documentation for the Software provided with the Software as of the Effective Date.
7.2. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 7.1, THE SOFTWARE AND ANY MATERIAL AND SERVICES PROVIDED BY OR ON BEHALF OF CODISCOPE ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CODISCOPE DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, WHETHER EXPRESS OR IMPLIED. NEITHER CODISCOPE NOR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR LICENSORS WARRANTS THAT THE SOFTWARE WILL MEET CUSTOMER’S NEEDS, THAT ALL ERRORS WILL BE CORRECTED OR THAT DATA WILL NOT BE LOST. CODISCOPE AND ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AND LICENSORS MAKE NO WARRANTY, GUARANTEE OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SOFTWARE, OR ANY SERVICES OR MATERIALS PROVIDED UNDER THIS AGREEMENT. CUSTOMER’S EXCLUSIVE REMEDY, AND CODISCOPE’S ENTIRE LIABILITY, FOR ANY BREACH OF THE EXPRESS WARRANTY CONTAINED IN SECTION 7.1, WILL BE: (A) AT CODISCOPE’S SOLE DISCRETION, (1) THE CORRECTION OF SOFTWARE ERRORS THAT CAUSED THE BREACH OF THE WARRANTY, (2) REPLACEMENT OF THE SOFTWARE, OR (3) RETURN OF FEES PAID TO CODISCOPE FOR THE AFFECTED SOFTWARE; AND (B) FOR MEDIA, REPLACEMENT OF THE DEFECTIVE MEDIA. Without limiting the generality of the foregoing, Customer is solely responsible for reviewing and evaluating the accuracy and relevance of any information stored on, generated by or received through the Software. Codiscope cannot guarantee and does not guarantee said accuracy.
8. Limits of Liability
8.1. THE CUMULATIVE AGGREGATE LIABILITY OF CODISCOPE TO CUSTOMER RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE FEES, IF ANY, PAID TO CODISCOPE FOR THE SOFTWARE THAT IS THE SUBJECT OF SUCH LIABILITY. IN NO EVENT WILL CODISCOPE BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING ANY DAMAGES FOR LOSS OF DATA, LOSS OF PROFITS, LOSS OF USE, OR INTERRUPTION OF BUSINESS), EVEN IF CODISCOPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN AGREED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON.
8.2. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION 8 WILL APPLY TO ALL CAUSES OF ACTION, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE, MIS-REPRESENTATION AND OTHER TORTS, AND LIABILITY BASED UPON THE PROVISIONS OF ANY PART OF THIS AGREEMENT AND ANY FEDERAL, STATE OR LOCAL LAW OR ORDINANCE. THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL TERMS OF THIS AGREEMENT, AND THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THEIR INCLUSION. NOTWITHSTANDING THE FOREGOING, SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, OR FRAUD, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THOSE LIMITATIONS WILL NOT APPLY TO YOU IN THOSE JURISDICTIONS.
9. Notice
Any notice required or permitted to be given under this Agreement will be in writing and deemed received by the party to whom it is addressed: (a) immediately, if delivered personally or by facsimile with proof of successful transmission; (b) one (1) business day after dispatch by nationally recognized overnight courier; or (c) five (5) business days after dispatch by certified U.S. mail, postage prepaid and return receipt requested. All notices will be sent to Customer at its address as set forth in the Order Form. Notices to Codiscope will be sent to:
Codiscope, LLC
20 Park Plaza, Suite 1400
Boston, MA 02116
Attn: Legal Notices
10. General
10.1. Except for any payment obligations of Customer under this Agreement, neither party will be liable to the other party for any delay or failure to perform its obligations under this Agreement due to causes beyond its reasonable control. Performance times will be considered extended for a period of time equivalent to the time lost because of such delay.
10.2. Customer will not assign or otherwise transfer its rights, duties or obligations under this Agreement to any other person, corporation or other entity without the express prior written approval of Codiscope. Any purported assignment or transfer that does not conform to the provisions hereof will be void.
10.3. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without regard to any conflicts-of-law principle that would require or permit the application of the substantive law of any other jurisdiction. Sole and exclusive jurisdiction and venue over any action, suit or proceeding arising out of or relating to this Agreement in any manner will lie in the United States District Court for the District of Massachusetts, Boston Division, or the Suffolk County Superior Court, Superior Court Department of the Trial Court of Massachusetts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Customer agrees to use the Software for the use identified in this Agreement and only for proper business purposes in accordance with all applicable federal, state, and local laws and regulations, including, without limitation, all laws and regulations respecting data privacy, international communications, foreign corrupt practices, the transfer of intellectual property, and the export and import of data and software and agrees to indemnify and hold harmless Codiscope for any violation thereof.
10.4. If any provision of this Agreement is or becomes illegal, unenforceable or invalid (in whole or in part, for any reason), the remainder of this Agreement will remain in full force and effect without being impaired or invalidated in any way.
10.5. The article and section titles and headings in this Agreement are intended solely for convenience of reference and are not intended to explain, modify or place any construction or limitation upon any provision of this Agreement.
10.6. No representations or statements of any kind made by either party that are not expressly stated in this Agreement or in any written amendment to this Agreement will be binding on such party. This Agreement constitutes the complete and exclusive statement of the agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous proposals, oral or written, and all other communications between the parties relating to such subject matter.
10.7. Nothing in this Agreement is intended to, or will, create any third-party beneficiaries, whether intended or incidental, and neither party will make any representations to the contrary.
10.8. Neither party will be deemed to have waived any term, condition, or other provision hereof or to have consented to any breach hereof by the other party unless such waiver or consent is in writing and executed by a duly authorized representative of such party. No consent by either party to, or waiver by either party of, a breach by the other party, whether such consent or waiver is express or implied, will constitute a consent to, waiver of or excuse for any different or subsequent breach.
10.9. Nothing in this Agreement will be construed to make the parties partners, joint venturers, representatives, or agents of each other, and neither party will represent to any third party that the parties have any such relationship. The parties under this Agreement are acting in performance of this Agreement as independent contractors engaged in the operation of their respective businesses. A party’s employees, agents, or representatives are not employees or agents of the other party and are not entitled to any benefits offered by the other party, including, without limitation, wages, stock options, or profit sharing. Neither party will be responsible for payment of workers’ compensation, disability benefits, or unemployment insurance, or for withholding or paying employment-related taxes, for or with respect to the other party or its employees.
10.10. This Agreement is in the English language only, which language will be controlling in all respects, and all versions of this Agreement in any other language will be for accommodation only and will not be binding on the parties to this Agreement. All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, will be in the English language.
10.11. The terms of this Agreement may be enforced by license registration and other software tools.