User License AgreementLast Updated: 04/20/2017
- Definitions. “Licensed Software” means (a) the Talena proprietary software product that is the subject of a purchase order submitted by Customer and accepted by Talena; and (b) its associated printed or electronic documentation.
- License Grant. Subject to the terms and conditions of this Agreement, Talena grants to Customer a nontransferable, nonexclusive, revocable, worldwide license (without the right to sublicense) to permit those individuals authorized by Customer (“Users”) to install, use, execute, and display the Licensed Software, in executable object code format only, solely for Customer’s own internal business operations and only in the licensed configuration for which Customer has paid the applicable fees.
- Restrictions. The rights granted to Customer in this Agreement are subject to the following restrictions: (a) Customer shall not exceed the applicable usage limitations for the Licensed Software or otherwise use the Licensed Software in any configuration other than the licensed configuration for which Customer has paid the applicable fees; (b) Customer shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose, or otherwise commercially exploit the Licensed Software or make the Licensed Software available to any third party other than an authorized User; (c) Customer shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Licensed Software; (d) Customer shall not access the Licensed Software in order to build a similar or competitive product or service; (e) except as expressly stated herein, no part of the Licensed Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and (f) any future release, update, or other addition to functionality of the Licensed Software shall be subject to the terms of this Agreement, unless Talena expressly states otherwise. Neither Talena nor any of its suppliers is obligated to provide any services, updates, or upgrades to the Licensed Software. Customer shall preserve all copyright and other proprietary rights notices in the Licensed Software and all copies thereof.
- Ownership. All right, title, and interest, including all intellectual property rights, in and to the Licensed Software (including any and all copies thereof) shall be owned and retained by Talena or its suppliers. There are no implied licenses granted under this Agreement, and all rights not expressly granted by Talena in the Agreement are reserved. Customer acknowledges that it acquires no ownership interest in the Licensed Software.
- Third-Party Software. Certain items of independent, third-party code may be included in the Licensed Software that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). Such Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in this Agreement restricts Customer’s right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL. The Licensed Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are set forth in the text file entitled “LICENSE.TXT” that accompanies the Licensed Software. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein.
- Maintenance and Support Services. During the term of this Agreement, Talena will provide the maintenance and support services described in Exhibit A (“Support Services”) to Customer.
- Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” means, subject to Section 7.2 (Identification of Confidential Information), all non-public or proprietary information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in the course of activity pursuant to this Agreement, whether disclosed in oral, written, graphic, machine recognizable model or sample form, or any derivation thereof, except as otherwise provided in Section 7.4 (Exceptions). Confidential Information may include data, know-how, algorithms, computer programs, data bases, processes, improvements, designs, devices, systems, test results, sketches, photographs, plans, drawings, product concepts, specifications, reports, laboratory notebooks, business and financial plans, strategies, budgets, vendor, customer and distributor names, pricing information, production or manufacturing information, product sales information or forecasts, inventions and ideas.
- Identification of Confidential Information. The Licensed Software shall be deemed to be the Confidential Information of Talena. All other information as described in Section 7.1 (Definition of Confidential Information) will be deemed “Confidential Information” only if: (a) in the case of a written disclosure, there is affixed to the document an appropriate legend, such as “Proprietary” or “Confidential;” or (b) in the case of an oral or visual disclosure, the Disclosing Party makes a contemporaneous oral statement or delivers to the Receiving Party a written statement within thirty (30) days to the effect that such disclosure is confidential or the like.
- Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose such Confidential Information only to the employees and agents of the Receiving Party (a) who have a need to know such Confidential Information for purposes of this Agreement and (b) who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. The Receiving Party shall inform each such employee and consultant of its confidentiality obligations under this Agreement, and will be liable for any breach of confidentiality by any such employee or consultant. The obligations provided in this section will survive the termination of this Agreement.
- Exceptions. The Receiving Party’s obligations under Section 7.3 (Protection of Confidential Information) with respect to any Confidential Information will terminate if such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party, without any duty of confidentiality to the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Confidential Information. In addition, the Receiving Party will be allowed to use or disclose the Confidential Information to the extent that such use or disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement; (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure; or (iv) necessary to exercise any licenses granted to the Receiving Party under this Agreement.
- Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first, unless the Receiving Party has a continuing right to use such Confidential Information.
- Performance Warranty. For a period of thirty (30) days after the initial delivery of the Licensed Software (the “Warranty Period”), Talena warrants to Customer that the Licensed Software, when used as permitted under this Agreement and in accordance with its documentation, will operate substantially as described in such documentation. Talena will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Licensed Software reported to Talena by Customer in writing during the Warranty Period or, if Talena determines that it is unable to correct such error, Talena will refund to Customer the fees actually paid by Customer to Talena for the Licensed Software, in which case this Agreement and the rights licensed to Customer hereunder will terminate. Any error correction provided to Customer will not extend the original Warranty Period.
- DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 8.1 ABOVE, The Licensed Software AND ALL SUPPORT SERVICES ARE provided TO CUSTOMER ON AN “AS-IS” BASIS, AND Talena AND ITS SUPPLIERS disclaim all express, implied or statutory warranties relating to the Licensed Software AND SUPPORT SERVICES, including but not limited to, merchantability, fitness for a particular purpose, TITLE, and non-infringement. Talena does not warrant that use of the Licensed Software will be UNINTERRUPTED or error-free, OR that defects will be corrected.
- Indemnification. Talena will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Licensed Software infringes any of such third party’s patents or copyrights or misappropriates any of such third party’s trade secrets, and Talena will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying Talena promptly in writing of such action, Customer giving Talena sole control of the defense thereof and any related settlement negotiations, and Customer cooperating and, at Talena’s reasonable request and expense, assisting in such defense. If the Licensed Software becomes, or in Talena’s opinion is likely to become, the subject of an infringement claim, Talena may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, (b) replace or modify the Licensed Software so that it becomes non-infringing, or (c) refund to Customer any payments of license fees made by Customer to Talena, and terminate this Agreement by written notice to Customer. Notwithstanding the foregoing, Talena will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any unauthorized use, reproduction, or distribution of the Licensed Software by Customer; (ii) any use of the Licensed Software in combination with other products, equipment, software, or data not supplied by Talena; (iii) any use, reproduction, or distribution of any release of the Licensed Software other than the most current release made available to Customer; or (iv) any modification of the Licensed Software by any person other than Talena. This section states Talena’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
Limitation of Liability
EXCEPT FOR BREACHES OF SECTION 7 (CONFIDENTIALITY) AND FOR ANY INFRINGEMENT OF ONE PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY, in no event will either party be liable for any consequential, exemplary, special, or incidental damages, including any damages for lost data or lost profits, arising from or relating to this Agreement, even if such party knew or should have known of the possibility of such damages.
EXCEPT FOR BREACHES OF SECTION 7 (CONFIDENTIALITY) AND FOR ANY INFRINGEMENT OF ONE PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE SUM OF ALL FEES PAID UNDER THIS AGREEMENT BY CUSTOMER TO TALENA. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION 10 (LIMITATION OF LIABILITY) AND THE DISCLAIMERS OF WARRANTY REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.
- Term and Termination. This Agreement shall enter into effect on the Effective Date and shall continue unless and until this Agreement is terminated by either Party pursuant to this section. The initial term (“Initial Term”) of this Agreement shall commence on the Effective Date and shall continue for the duration of the “Subscription Term” (set forth on the applicable purchase order). At the end of the Initial Term, this Agreement shall be renewed automatically for consecutive renewal terms of twelve (12) months (each a “Renewal Term”) at Talena’s then-current price for the Licensed Software, unless terminated by either Party (effective as of the end of the current term) by providing the other Party at least sixty (60) days written notice of non-renewal prior to the expiration of the Initial Term or the applicable Renewal Term. Subscriptions are non-cancelable before the end of the then-current Subscription Term and fees are non-refundable, except as provided herein. However, Talena may terminate this Agreement immediately upon notice to Customer in the event that Customer materially breaches any of the terms hereof and fails to cure such breach within thirty (30) days after written notice of breach. Upon termination, the license granted hereunder shall terminate and Customer shall immediately destroy any copies of the Licensed Software in its possession, but the terms of this Agreement which are intended to survive termination will remain in effect.
- Export. The Licensed Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees not to export or transfer, directly or indirectly, any U.S. technical data acquired from Talena, or any products utilizing such data, in violation of the United States export laws or regulations. Customer will indemnify and hold Talena harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs, and expenses (including attorney’s fees) arising from or relating to any breach by Customer of its obligations under this section. Customer’s obligations under this section shall survive the expiration or termination of this Agreement.
- U.S. Government End Users. If the Licensed Software is acquired by or on behalf of a unit or agency of the United States Government, this provision applies. The Licensed Software consists of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.
- Miscellaneous. No joint venture, partnership, agency, or other relationship will be created or implied as a result of this Agreement. Neither the rights nor the obligations arising under this Agreement are assignable by Customer, and any such attempted assignment or transfer shall be void and without effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the United States without regard to conflict of laws provisions. Any action under or relating to this Agreement shall be brought solely in the state and federal courts located in California with sole venue in the courts located in the county in which Talena’s principal place of business is located and each Party hereby submits to the personal jurisdiction of such courts, except that Talena may seek relief in any court of competent jurisdiction to protect or enforce its intellectual property and proprietary rights. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. All notices or reports permitted or required under this Agreement will be in writing and will be delivered personal delivery or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, or five (5) days after deposit in the mail. Notices shall be sent to the addresses set forth in the preface to this Agreement. In the event that any provision of this Agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the Parties, with the other provisions remaining in full force and effect. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the Parties are expressly superseded. Except as otherwise expressly provided in this Agreement, any modifications of this Agreement must be in writing and agreed to by both Parties.