SOFTWARE SUBSCRIPTION AGREEMENT¶
This Software Subscription Agreement (the “Agreement”) is made and entered into as of the date of the last signature below (the “Effective Date”) between Continuum Analytics, Inc. (“Continuum”), located at 221 W. 6th Street, Suite 1550, Austin, TX 78701, and _______________, located at ____________________ (the “Subscriber”), collectively (the “Parties”).
The Parties agree as follows:
1.1. “Documentation” means the most current version of any documentation, in all forms, that formally describes the use, function, or technical details of the Licensed Software (e.g., reference manuals, user manuals, on-line help files, and training manuals) provided to Subscriber for use with the Licensed Software in accordance with this Agreement.
1.2. “Licensed Software” means the most current executable object code Release of the software described in Exhibit A, attached and incorporated herein.
1.3. “Release” means the version of the Licensed Software that is provided to Subscriber as part of the Support Services.
1.4. “Scope Limitations” means the limitations on the scope of licenses granted to Subscriber under this Agreement that are described in Exhibit A.
1.5. “Indemnified Third-Party Vendor Tools” means the third-party tools offered and made available by Continuum under this Agreement, as described in Continuum’s Indemnified Proprietary and Dependency List, attached and incorporated herein as Exhibit B.
1.6. “Support Services” means the support and maintenance services described in Continuum’s Enterprise Software Technical Support SLA, attached and incorporated herein as Exhibit C.
1.7. “Unauthorized Use” means any use, possession, knowledge, viewing, inspections, examination, copying, disclosure, or other activity involving any part of the Licensed Software or Documentation that is not expressly authorized under this Agreement or otherwise in writing by Continuum.
- LICENSE GRANTS
2.1. License to the Licensed Software. Subject to the terms and conditions of this Agreement, Continuum grants to Subscriber a limited, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement in accordance with Section 10.6) license, without right of sublicense, during the term of this Agreement to internally install and internally use the Licensed Software as described in the Scope Limitations. Each of the rights granted in this Section 2.1 is subject to the Scope Limitations and contingent upon Subscriber’s compliance with the Scope Limitations.
2.2. License to the Documentation. Subject to the terms and conditions of this Agreement, Continuum grants to Subscriber, a limited, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement in accordance with Section 10.6) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with the use of the Licensed Software in accordance with this Agreement.
2.3. Reservation of Rights. The Licensed Software and Documentation are licensed, not sold, by Continuum to Subscriber, and nothing in this Agreement will be interpreted or construed as a sale or purchase of the Licensed Software or Documentation. Subscriber will not have any rights in or to the Licensed Software or Documentation not expressly granted to Subscriber in accordance with this Agreement. Continuum retains all copyright, patent and other intellectual property rights in and to the Licensed Software and Documentation. Subscriber acknowledges that the Licensed Software and Documentation, all copies of the Licensed Software and Documentation, any derivative works, compilations, and collective works of the Licensed Software and Documentation, and any know-how and trade secrets related to the Licensed
Software and Documentation are the sole and exclusive property of Continuum and contain Continuum’s confidential and proprietary materials. Subscriber will maintain the confidentiality of and not disclose to any third-party Continuum’s confidential or proprietary information.
2.4. Third-Party Tools. Any third-party tools that are provided or made available by Continuum, including the Indemnified Third-Party Vendor Tools are provided “as is” and “with all faults” pursuant to the terms of the applicable third-party agreement, including software licensed under open source terms. Except for Continuum’s express warranties under Section 7.2 and indemnification obligations for the Licensed Software and Indemnified Third-Party Vendor Tools under Section 8.2, Continuum assumes no responsibility for, and specifically disclaims any liability or obligation with respect to third-party tools.
- DELIVERY, DEPLOYMENT, AND SUPPORT SERVICES
3.1. Delivery. Continuum has delivered, or will deliver to Subscriber within a reasonable time after the Effective Date, the Licensed Software and Documentation.
3.2. Deployment Services. Subscriber is solely responsible for the deployment of the Licensed Software for operation, including installation, configuration, integration, and testing except for a limited number of hours specifically included and described in Exhibit A.
3.3. Support Services. For so long as Subscriber is current with its payment of the Subscription Fees specified in Exhibit A, Continuum will provide Subscriber with Support Services for the Licensed Software and Indemnified Third-Party Vendor Tools during the term of this Agreement.
- SUBSCRIBER OBLIGATIONS
4.1. General Restrictions. Except as otherwise explicitly provided in this Agreement, or as may be expressly permitted by applicable law, Subscriber will not, and will not permit, encourage, or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or attempt to derive the source code of the Licensed Software; (b) rent, lease, or sublicense the Licensed Software; (c) use the Licensed Software on a service bureau or application service provider basis; (d) provide, divulge, disclose, or make available to, or permit the use of the Licensed Software by any third party; nor (e) circumvent or disable any technological features or measures in the Licensed Software.
4.2. Proprietary Rights Notices. Subscriber will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on any part of the Licensed Software or Documentation. Subscriber must include all copyright and other proprietary rights notices as are currently contained on each part of the Licensed Software or Documentation when reproducing any part of the Licensed Software or Documentation in accordance with this Agreement.
4.3. Compliance with Laws. Subscriber will at all times comply with all applicable laws, statutes, ordinances, and regulations in connection with its use of the Licensed Software.
4.4. Protection under Unauthorized Use. Subscriber acknowledges that the License Software and Documentation furnished to Subscriber by Continuum involve valuable proprietary rights of Continuum. Subscriber will take appropriate steps and precautions for the protection of the Licensed Software and Documentation. Without limiting the generality of the foregoing, Subscriber will use its best efforts to prevent any Unauthorized Use and immediately notify Continuum in writing of any Unauthorized Use that comes to Subscriber’s attention. If anyone who obtained access to the Licensed Software or Documentation directly or indirectly through Subscriber or any of its employees, agents, representatives, or contractors engages in Unauthorized Use, Subscriber will take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the applicable Licensed Software or Documentation in the possession or control of the person or entity engaging in such Unauthorized Use. Subscriber will provide to Continuum such cooperation and assistance related to any such Unauthorized Use as Continuum may reasonably request.
4.5. Publicity. Continuum may list Subscriber as a customer of Continuum and use Subscriber’s name and logo for marketing or promotional purposes and in other communication with existing or potential Continuum customers.
- FEES AND PAYMENT
5.1. Fees and Payment Terms. Subscriber will pay Continuum the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in Exhibit A. Unless otherwise specified in Exhibit A, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Continuum to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against any amounts due to Subscriber for any reason. All amounts in this Agreement are denominated in United States dollars, and Subscriber must pay all amounts in United States dollars.
5.2. Taxes. Other than federal and state net income taxes imposed on Continuum, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Continuum after all such taxes are paid are equal to the amounts that Continuum would have been entitled to in accordance with this Agreement as if the taxes did not exist.
5.3. Usage Logs. Subscriber agrees to provide Continuum access to usage logs of the Licensed Software upon request no more than once a year, or in conjunction with any event covered under Section 8.2 herein.
- TERM AND TERMINATION
6.1. Term. This Agreement will commence upon the Effective Date and continue for the initial term specified in Exhibit A unless this Agreement is terminated earlier in accordance with the terms of this Agreement. At the end of the initial term, this Agreement will automatically renew for additional 1 year terms unless a Party notifies the other Party in writing of its intent not to renew this Agreement at least sixty (60) days before the end of the initial term or then-current renewal term. Should this Agreement auto-renew, the renewal term shall be subject to Continuum’s current fees at the time of renewal, providing Subscriber’s licensing requirements remain unchanged from the initial term or then-current renewal term. Subscriber will communicate any and all licensing requirement changes to Continuum within thirty (30) days of auto-renewal from term to term and Continuum will communicate any corresponding fee increases resulting from the changes, if any.
6.2. Notice of Material Breach or Default. If either Party commits a material breach of any of its obligations under this Agreement, then the other Party may give the defaulting Party written notice of the material breach and of the non-defaulting Party’s intention to terminate this Agreement if the material breach is not cured within thirty (30) days (or such later date as may be specified in such notice). Without the limiting the foregoing, any failure by Subscriber to timely pay to Continuum any amounts owing under this Agreement will constitute a material breach of this Agreement.
6.3. Notice of Termination. If the defaulting Party fails to cure a material breach specified in any notice under Section 6.2 within thirty (30) days (or such later date as may be specified in such notice), then the non-defaulting Party may terminate this Agreement by giving the defaulting Party written notice of termination. If Subscriber fails to timely pay any fees, Continuum may, without limitation to any of it others rights or remedies, suspend performance or Support Services until it receives all amounts due.
6.4. Immediate Termination. Notwithstanding anything to the contrary in Sections 6.2 and 6.3 above, if Subscriber breaches its obligations under Sections 2, 4.1, or 4.4, Continuum may immediately terminate this Agreement upon notice to Subscriber.
6.5. Post-Termination Obligations. If this Agreement or any licenses in this Agreement are terminated for any reason, (a) Subscriber will immediately pay to Continuum any fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Subscriber will destroy all copies of the Licensed Software and Documentation within five (5) days of such termination, and immediately thereafter, provide Continuum with a written certification signed by an authorized Subscriber representative certifying that all copies of such Licensed Software and Documentation have been destroyed and all use of such Licensed Software and Documentation has been discontinued.
6.6. Survival. Sections, 1, 2.3, 4, 5, 6.5, 6.6, 7.2, 8.1, 9 and 10 will survive any expiration or termination of this Agreement.
- WARRANTIES AND DISCLAIMER
7.1. Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms: and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
7.2. Continuum warrants that Continuum’s use of third-party tools, including the Indemnified Third-Party Vendor Tools, is in compliance with the respective third-party licenses.
7.3. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, CONTINUUM MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. CONTINUUM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. CONTINUUM DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE LICENSED SOFTWARE OR DOCUMENTATION. CONTINUUM DOES NOT WARRANT THAT THE LICENSED SOFTWARE OR DOCUMENTATION IS ERROR-FREE OR THAT OPERATION OF THE LICENSED SOFTWARE WILL BE SECURE OR UNINTERRUPTED. CONTINUUM DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE LICENSED SOFTWARE IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE LICENSED SOFTWARE WILL ALWAYS BE AVAILABLE. CONTINUUM EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE LICENSED SOFTWARE OR DOCUMENTATION.
8.1. Subscriber Indemnification.
(a) Defense. Subscriber will defend Continuum from any actual or threatened third-party claim arising out of or based upon Subscriber’s use of the Licensed Software or Indemnified Third-Party Vendor Tools or Subscriber’s breach of any of the provisions of this Agreement, if (i) Continuum gives Subscriber prompt written notice of the claim, (ii) Continuum grants Subscriber full and complete control over the defense and settlement of the claim; (iii) Continuum provides assistance in connection with the defense and settlement of the claim as Subscriber may reasonably request; and (iv) Continuum complies with any settlement or court order made in connection with the claim. Continuum will have the right to participate in the defense of the claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the claim.
(b) Indemnification. Subscriber will indemnify Continuum from and pay: (i) all damages, costs, and attorneys’ fees finally awarded against Continuum in any claim under Section 8.1(a); (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Continuum in connection with the defense of a claim under Section 8.1(a) (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the claim); and (iii) all amounts that Subscriber agrees to pay to any third party to settle any claim under Section 8.1(a).
8.2. Continuum Indemnification.
(a) Defense. Continuum will defend Subscriber from any actual or threatened third-party claim that the Licensed Software or Indemnified Third-Party Vendor Tools infringe any U.S. patent issued as of the Effective Date or any copyright of any third party during the term of this Agreement if: (i) Subscriber gives Continuum prompt written notice of the claim; (ii) Continuum has full and complete control over the defense and settlement of the claim; (iii) Subscriber provides assistance in connection with the defense and settlement of the claim as Continuum may reasonably request including any requests for usage logs and installation records; and (iv) Subscriber complies with any settlement or court order made in connection with the claim.
(b) Indemnification. Subject to Section 9.2, Continuum will indemnify Subscriber against: (i) damages, costs, and attorneys’ fees finally awarded against Subscriber in any proceeding under Section 8.2(a); (ii) out-of-pocket (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Continuum’s consent after Continuum has accepted defense of such claim); and (iii) if any proceeding arising under Section 8.2(a) is settled, amounts paid to any third party as agreed to by Continuum in settlement of any such claims.
(c) Mitigation of Infringement Action. If Subscriber’s use of the Licensed Software or Indemnified Third-Party Vendor Tools is, or in Continuum’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 8.2(a), then Continuum may either (i) procure the continuing right of Subscriber to use the Licensed Software or Indemnified Third-Party Tools; (ii) replace or modify the Licensed Software or Indemnified Third-Party Tools in a functionally equivalent manner so that it no longer infringes; or if Continuum elects not to do either (i) or (ii), Continuum may (iii) terminate the licenses with respect to the Licensed Software or Indemnified Third-Party Vendor Tools subject to the infringement claim and solely, if the license to the Licensed Software or Indemnified Third-Party Vendor Tools is so terminated, refund to Subscriber all unused subscription fees pre-paid by Subscriber for the terminated Licensed Software or Indemnified Third-Party Vendor Tools.
(d) Exclusions. Continuum will have no obligation under this Section 8.2 for any infringement that arises out of or is based upon: (i) the combination, operation, or use of the Licensed Software or Indemnified Third-Party Tools with an application, software platform, or hardware not provided by Continuum; (ii) designs, requirements, or specifications for the Licensed Software or Indemnified Third-Party Tools required by or provided by Subscriber; (iii) use of the Licensed Software or Indemnified Third-Party Tools outside of the scope of the license granted to the Subscriber or in breach of this Agreement; (iv) Subscriber’s failure to use the latest Release of the Licensed Software or Indemnified Third-Party Tools or to comply with instructions provided by Continuum; (vi) Unauthorized Use of the Licensed Software or Indemnified Third-Party Tools. Subscriber will reimburse, indemnify, and hold harmless Continuum for any costs or damages that result from these actions. Continuum’s indemnification obligations are contingent upon Subscriber’s compliance with the terms of this Agreement, including the payment of all amounts due.
(e) Exclusive Remedy. THIS SECTION 8.2 STATES CONTINUUM’S SOLE AND EXCLUSIVE LIABILITY, AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY, FOR THE ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT BY THE LICENSED SOFTWARE OR INDEMNIFIED THIRD-PARTY TOOLS.
- LIMITATIONS OF LIABILITY
9.1. Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, CONTINUUM WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER OR ANY OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF CONTINUUM IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL CONTINUUM’S TOTAL LIABILITY FOR ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED 300% OF THE TOTAL AMOUNT PAID OR PAYABLE BY SUBSCRIBER TO CONTINUUM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
9.3. Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties or exclusion of damages is to allocate the risks of this Agreement between the Parties. This allocation is reflected in the pricing offered by Continuum to Subscriber and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 9 will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
10.1. Independent Contractors. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as agent or (b) direct or control the day-to-day activities of the other. All financial and other obligations associated with each Party’s business are the sole responsibility of that Party.
10.2. Export. The Licensed Software may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Subscriber must comply strictly with all such regulations in other countries. Subscriber must comply strictly with all such regulations that are now or later in effect and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Licensed Software or Documentation, as needed.
10.3. Subcontractors. Continuum may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Continuum remains responsible for all of its obligations under this Agreement.
10.4. Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act, Subscriber and its employees and agents will not directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision (including a decision not to act) of an official of any government, including the United States Government, or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Continuum in obtaining, retaining, or directing any business.
10.5. Force Majeure. Continuum will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Continuum’s reasonable control, so long as Continuum uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
10.6. Assignability. Subscriber may not assign its rights, duties, or obligations under this Agreement without Continuum’s prior consent. Any attempt by Subscriber to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void. Continuum may freely assign its rights, duties, or obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
10.7. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier.
10.8. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Texas, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consent to the exclusive jurisdiction and venue of the federal, state, and local courts in Travis County, Texas, in connection with any action arising out of or in connection with this Agreement.
10.9. Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach.
10.10. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to Subscriber under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
10.11. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which will be considered an original and all of which together will be construed as and constitute the same agreement.
10.12. Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the Agreement between the Parties regarding the licensing of the Licensed Software. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior non-disclosure or comparable agreement between the Parties relating to professional services relating to the Licensed Software that Continuum may provide. No employee, agent, or other representative of Continuum has any authority to bind Continuum with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of the Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. Continuum will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise.
Continuum Analytics, Inc.