ATSCALE, INC. SOFTWARE LICENSE AND SERVICES TERMS
THESE SOFTWARE LICENSE AND SERVICES TERMS (THE “TERMS”), ALONG WITH THE ORDER FORM, GOVERN THE SOFTWARE AND PROFESSIONAL SERVICES PROVIDED BY ATSCALE, INC. (“ATSCALE”) TO THE CUSTOMER SPECIFIED ON THE ORDER FORM (COLLECTIVELY “THE AGREEMENT”).
License. Subject to the terms of this Agreement and the Order Form, AtScale grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license during the Term (as defined below) to install and use the software identified on the Order Form (the “Software”), in object code format only, and the accompanying product documentation (the “Product Documentation”) solely for internal use as it relates to the operations of Customer. The Software and the Product Documentation are referred to collectively in this Agreement as the “Licensed Materials.”
Restrictions. Customer shall not, and shall not permit any third party to: (a) use the Licensed Materials except to the extent permitted herein; (b) modify or create any derivative work of any part of the Licensed Materials; (c) permit any parent, subsidiaries, affiliated entities or third parties to use the Licensed Materials; (d) process or permit to be processed the data of any other party unless in connection with Customer’s authorized use of the Software; (e) market, sell, license, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign or otherwise transfer to a third party the Licensed Materials or any copy thereof, in whole or in part; (f) use the Licensed Materials for third-party training, commercial time-sharing or service bureau use or (g) copy the Licensed Materials except for backup or archival purposes. Customer shall have no rights to any source code for the Software. Customer agrees that it shall not cause or permit the disassembly, decompilation or reverse engineering of the Software or otherwise attempt to gain access to the source code to the Software (or the underlying ideas, algorithms, structure or organization of the object code in the Software).
Audit Rights. Customer will keep true and accurate records with respect to the use of the Software. Customer agrees to provide compliance records upon AtScale’s request. Further, Customer agrees that AtScale may conduct periodic audits of Customer’s use of the Software related to the usage by Customer, and Customer agrees to reasonably cooperate with such audits which may (i) be electronic; and (ii) include requests that Customer runs certain programs and deliver the results to AtScale.
Support Services. Based on the support offering purchased by Customer as indicated in the Order Form, AtScale shall support the Software during the Term in accordance with AtScale’s Service Level Agreement found at https://www.atscale.com/service-level-agreement (“Support”).
Professional Services. AtScale shall perform for Customer those professional services specified on the Order Form and described in a Statement of Work (“SOW”) executed by AtScale and Customer (“Services”).
Fees; Taxes; Payment Terms. AtScale shall invoice Customer for all fees as set forth in the Order Form and a SOW, which are due and payable net thirty (30) days from the date of invoice. Customer shall pay or reimburse all federal, state and local taxes (exclusive of taxes on AtScale’s net income) and assessments on amounts payable to AtScale under this Agreement, or furnish AtScale with evidence acceptable to the taxing authority to sustain an exemption therefrom. Overdue amounts will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the highest interest rate permitted by applicable law, whichever is less.
Ownership. Customer acknowledges and agrees that AtScale or its licensors own and shall retain all proprietary rights, title and interest, including all patent, copyright, trade secret, know-how, design rights, trademark, and other intellectual property rights, in and to the Licensed Materials and any Services deliverables created under a SOW (“Deliverables”) and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto (collectively, “Modifications”), whether made by or on behalf of Customer, AtScale or any third party, and as between the parties all such rights shall vest in and be assigned to AtScale. AtScale hereby grants a non-exclusive, non-transferable, non-sublicensable license to Customer to use the Deliverables during the Term in connection with the Software and solely for Customer’s internal purposes. Notwithstanding the foregoing, Customer shall own all rights, title and interest in its Customer data and pre-existing intellectual property and all derivatives thereof.
Confidentiality. Either party may from time to time disclose (the “Disclosing Party”) to the other party (the “Receiving Party”) certain Confidential Information (as hereinafter defined) received from the Disclosing Party. For a period of seven (7) years from the termination of this Agreement, the Receiving Party shall protect the Confidential Information received from the Disclosing Party from unauthorized dissemination, using the same degree of care that the Receiving Party ordinarily uses with respect to its own proprietary information, but in no event with less than reasonable care. The Receiving Party shall use the Confidential Information received from the Disclosing Party only to accomplish the purpose of this Agreement, and shall limit the disclosure of the Confidential Information received from the Disclosing Party to the employees or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to the Confidential Information received from the Disclosing Party, bound in writing by confidentiality terms no less restrictive than those contained herein.
For purposes of this Agreement, the term “Confidential Information” means all information of either party that is not generally known to the public, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, strategic partners, customers, business plans, promotional and marketing activities, finances and other business affairs of such party), that is disclosed by one party to the other party or that is otherwise learned by the receiving party in the course of its discussions or business dealings with, or its physical or electronic access to the premises of, the disclosing party, and that has been identified as being proprietary and/or confidential or that the receiving party by the nature of the circumstances surrounding the disclosure or receipt ought to know should be treated as proprietary and confidential. Confidential Information of AtScale also includes the terms, conditions and pricing of this Agreement and any Statement of Work.
The obligations of either party pursuant to this Section 4 shall not extend to any information that the Receiving Party can demonstrate through written documentation was already known to the Receiving Party prior to its disclosure to the Receiving Party, was or becomes known or generally available to the public (other than by act of the Receiving Party), is disclosed or made available in writing to the Receiving Party by a third party having a bona fide right to do so, is independently developed by Receiving Party without the use of any Confidential Information, or is required to be disclosed by process of law, provided that the Receiving Party shall notify the Disclosing Party promptly upon any request or demand for such disclosure
The Receiving Party shall, upon completion or other termination of discussions with respect to the Confidential Information, or upon termination of this Agreement, or upon demand by the Disclosing Party, whichever is earlier, promptly: (a) return to the Disclosing Party any and all Confidential Information in tangible form together with all copies or reproductions thereof; and (b) destroy any notes, memoranda or other documents concerning the Confidential Information and provide a certificate from an officer of Receiving Party certifying to the Disclosing Party that such items have been destroyed.
Limited Warranty. AtScale warrants to Customer that for a period of ninety (90) days from the date of delivery of the Software and Deliverables, the Software, as delivered, will perform substantially in accordance with the Product Documentation and the Deliverables will conform to the requirements in the applicable SOW. AtScale’s liability and Customer’s exclusive remedies under the limited warranty set forth above shall be, at AtScale’s election, to promptly correct any failure of the Software or Deliverable to conform to the Product Documentation or SOW or to replace the non-conforming Software or Deliverable. The above remedies are available only if (a) discovery of the non-conformity occurs during the applicable warranty period, (b) AtScale is promptly notified in writing by Customer of such discovery, and (c) AtScale’s examination of Software or Deliverable discloses that such non-conformity exists. These limited warranties shall not apply if the Software or Deliverable has been: (i) altered or modified; (ii) subjected to negligence, computer or electrical malfunction; or (iii) used, adjusted, installed or operated (A) other than in accordance with this Agreement or the instructions furnished by AtScale or (B) with an application or in an environment other than that intended or recommended by AtScale.
DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THE PRECEDING PARAGRAPH, ATSCALE MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED MATERIALS, SERVICES OR DELIVERABLES. ATSCALE SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS.
Infringement. AtScale shall defend or settle, at its own expense, any third-party action against Customer or its officers, directors, employees, agents, successors and assigns to the extent based upon a claim that the Software infringes any copyright or trademark or misappropriates any trade secret, and will pay such damages or costs as are finally awarded against Customer attributable to such claim, provided that Customer: (a) notifies AtScale promptly in writing of any such action; (b) gives AtScale sole control of the defense and/or settlement of such action; and (c) gives AtScale all reasonable information and assistance. Should the Software become, or in the opinion of AtScale be likely to become, the subject of such an infringement claim, AtScale may, at its option: (i) procure for Customer the right to use the Software at no cost to Customer; (ii) replace or modify, in whole or in part, the Software to make it non-infringing; or (iii) accept return of the Software, or remove the allegedly offending module thereof, and, refund a pro rata portion of the License Fees paid for such Software or module by Customer for the then-current Term. AtScale assumes no liability hereunder for: (w) any method or process in which the Software may be used; (x) any compliance with Customer’s specifications; (y) use of software other than a current unaltered release of the Software; or (z) the combination, operation or use of the Software with non-AtScale programs or data other than those intended or recommended by AtScale, and Customer shall indemnify and hold harmless AtScale and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim that the Software infringes any copyright or trademark or misappropriates any trade secret due to any of the foregoing factors, and shall give AtScale all reasonable information and assistance regarding such claim. THIS SECTION SETS FORTH ATSCALE’S ENTIRE LIABILITY AND OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
LIMITATION OF LIABILITY. IN NO EVENT SHALL ATSCALE BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER OR IN RELATION TO THIS AGREEMENT, EVEN IF ATSCALE HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR IS NEGLIGENT. ATSCALE SHALL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION; LOST PROFITS OR REVENUE; LOSS OF GOODWILL; LOSS OF ECONOMIC ADVANTAGE; LOSS OF USE OF THE LICENSED SOFTWARE; LOSS OF DATA OR EQUIPMENT; THE COST OF SUBSTITUTE PROCUREMENT; CLAIMS BY THIRD PARTIES OR OTHER SIMILAR COSTS EXCEPT AS REQUIRED BY LAW. ATSCALE’S TOTAL LIABILITY UNDER OR IN RELATION TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID FOR THE SOFTWARE OR SERVICES GIVING RISE TO THE CLAIM .
Term and Termination. This Agreement is effective for the subscription term for the Software set forth on the Order Form (the “Term”). Thereafter, the Agreement shall automatically renew for additional periods of twelve (12) months at AtScale’s then-current pricing for the Software unless either party provides written notice of its intention not to renew to the other party at least sixty (60) days prior to expiration of the then current Term. The term of the license is NOT perpetual. Either party may terminate this Agreement only if (i) the other party breaches the terms of this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching party, or (ii) the other party ceases doing business, makes an assignment for the benefit of creditors of all or substantially all of a party’s assets or voluntarily or involuntarily enters bankruptcy. This Agreement and any Order Form may not be terminated for convenience. Upon termination for any reason, Customer will destroy all copies of the Software and Product Documentation (full or partial) in Customer’s possession or control or return all such copies to AtScale. All provisions of this Agreement which by their nature shall survive, including without limitation terms regarding limitations of liability, payment, disclaimers, confidentiality, ownership and restrictions, shall survive termination of this Agreement.
U.S. Government Restricted Rights. If Software is being licensed by the U.S. Government, the Licensed Materials are deemed to be “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
Export Compliance. Customer understands that the Licensed Materials are subject to U.S. export control laws and regulations (“Export Laws”), and Customer shall comply with all Export Laws and shall not export, re-export or provide access to the Licensed Materials in violation of the Export Laws.
Injunctive Relief. Customer acknowledges that any breach of this Agreement may cause immediate and irreparable injury to AtScale and that monetary damages may be inadequate to compensate the non-breaching party for such breach. In the event of such breach, AtScale shall be entitled to seek injunctive relief, in addition to all other remedies available to it at law or in equity.
General. Customer may not assign, delegate, sublicense or otherwise transfer its rights or obligations under this Agreement without AtScale’s prior written consent. A waiver of any breach(es) will not constitute a waiver of any future breach of a similar or different nature. If any provision of this Agreement is deemed illegal or unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. The headings used in this Agreement are for convenience only and will not create any rights or obligations or affect the meaning or interpretation of this Agreement. This Agreement and all matters arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding all choice of law provisions, and shall be subject to the exclusive jurisdiction of the federal and state courts located in the Commonwealth of Massachusetts. This Agreement supersedes all other agreements, proposals, representations and other understandings regarding the subject matter of this Agreement. The terms and conditions of any purchase order or other instrument issued by Customer or its agent in connection with this Agreement that are in addition to or inconsistent with the terms and conditions of this Agreement are null and void and will not be binding on AtScale. All notices permitted or required under this Agreement will be sent to the recipient party’s address stated in the Order Form (as may be modified in writing) by certified mail, return receipt requested, or receipted overnight carrier. Alterations or modifications of this Agreement will be valid only if made in a writing signed by both parties. AtScale shall be entitled to represent Customer as a customer of AtScale, and Customer will allow AtScale to use its name and logo in print and on its website. Except as otherwise provided herein, if the performance of any obligation hereunder (other than the making of payments hereunder) is prevented, restricted or interfered with by reason of any event, act or condition beyond the reasonable control of the affected party, the party so affected, upon written notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference.