Quarry End User License Agreement
SOFTWARE LICENSE TERMS
1. Grant of License and Restrictions. Subject to the terms hereof, payment of all fees, and any applicable user/use limitations, DockOn grants Licensee a personal, nonsublicensable, nonexclusive, right to (a) use a licensed product in object code form only (“Product”) and (b) use and access DockOn’s cloud-based data storage services associated with the Product (the “Services”), in each case only in accordance with DockOn’s applicable user documentation and price list. Except for one copy solely for back-up purposes, Licensee may possess only the number of copies of any Product as has been expressly authorized by DockOn; DockOn retains ownership of all copies and Licensee will maintain the copyright notice and any other notices that appear on the Product on any copies and any media. Licensee will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Product or the Services (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, any Product or the Services (except as expressly and specifically authorized by DockOn), (iii) possess or use any Product or the Services, or allow the transfer, transmission, export, or re-export of any Product or the Services or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency, (iv) disclose to any third party any benchmarking or comparative study involving any Product or the Services or (v) modify any Product or the Services. Prior to disposing of any media or apparatus containing any part of the Product, Licensee shall completely destroy any Product contained therein. All the limitations and restrictions on Products in this Agreement also apply to documentation and screens. Further, a Product licensed without charge or for a nominal charge will be deemed a free evaluation license and may be used for purposes of evaluation for a paid license only, and not for any productive use. LICENSEE ACKNOWLEDGES THAT THE PRODUCT AND SERVICES MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE LICENSE PERIOD AND/OR USE INCONSISTENT HEREWITH. Licensee acknowledges that Product may be distributed alongside or contain or use certain third party software (“Third Party Software”). THIRD PARTY SOFTWARE IS (IN ADDITION TO THE TERMS AND CONDITIONS OF THIS AGREEMENT), SUBJECT TO AND GOVERNED BY (AND LICENSEE AGREES TO, AND WILL INDEMNIFY DOCKON FOR NONCOMPLIANCE WITH) THE RESPECTIVE LICENSES FOR THE THIRD PARTY SOFTWARE AVAILABLE AT http://webstage.dockon.com/development-tools/terms-and-conditions.
2. Support and Maintenance. While the license (other than a free evaluation license) for a Product has not been terminated and all applicable fees have been timely paid, DockOn will use reasonable commercial efforts to provide the support and maintenance services for that Product as and to the extent described in DockOn’s then applicable standard Support and Maintenance Terms (Attached hereto as Exhibit A) (“Support Services”), except with respect to Third Party Sofware.
3. Product Fees and Payment. Licensee shall pay any applicable Professional Service Fees within thirty days after first receipt of the Product or the date(s) otherwise expressly agreed by DockOn. If Licensee is on an annual subscription, within thirty days after first receipt of the Product and, for any renewal of an annual subscription, within thirty days of the anniversary of the date the Product was first received or the date(s) otherwise expressly agreed by DockOn, Licensee shall pay the Annual License Fee to DockOn. If Licensee is on a pay-as-you-go subscription, then at the end of each monthly billing cycle, Licensee shall pay DockOn an amount equal to the Pay-as-you-go Charge for such month. In addition, without limiting DockOn’s remedies, if Licensee makes or uses copies, or has users/uses, that are not authorized hereunder, it will so report to DockOn and will pay additional license fees equal to DockOn’s then current standard fees for the license and maintenance and support of such extra copies and users/uses (from time to time upon request, DockOn will be entitled to audit or have audited all systems and records relevant to assure compliance with the foregoing; any audit showing noncompliance will be at Licensee’s expense). All payments shall be made in the currency of, and within the borders of the United States. Any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. In addition, Licensee will pay all taxes, shipping, duties, withholdings, backup withholding and the like; when DockOn has the legal obligation to pay or collect such taxes, the appropriate amount shall paid by Licensee directly to DockOn. Licensee will reimburse DockOn for all reasonable travel and other related expenses incurred by DockOn in its performance hereunder; provided, however, that such expenses shall have been pre-approved by Licensee.
4. Service Fees and Payment. Licensee shall pay all unpaid Accrued Data Charges upon each Semiannual Payment Date; provided, however, that if the aggregate amount of unpaid Accrued Data Charges exceeds $1,000, then all unpaid Accrued Data Charges shall be paid upon the first day of the next calendar month. “Semiannual Payment Date” shall mean the first day of the first calendar month beginning after the date that is one hundred and eighty (180) days after the date the Licensee first receives the Product and the first day of the month for each sixth month thereafter. “Accrued Data Charges” shall mean the applicable amount of data stored and used by Licensee through the Services multiplied by the applicable Data Charge Rates then in effect.
5. Termination; Breach. All licenses and access will terminate thirty days (ten in the case of non-payment and immediately in the case of a breach of Section 1) after notice of any breach by Licensee remaining uncured at the end of such notice period. Annual subscriptions will automatically renew for additional yearly periods in the absence of notice of non-renewal from either party given at least 30 days prior to end of the then current subscription period), provided that in any case a free evaluation license will have a license period of not more than thirty (30) days. Either party may terminate a pay-as-you-go subscription upon thirty (30) days written notice. Upon any termination, Licensee shall immediately cease all use of all affected Products and return or destroy all copies of all affected Products and all portions thereof and so certify to DockOn. Except as otherwise expressly provided herein, the terms hereof shall survive any termination. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs. THE PRODUCT AND SERVICES MAY CONTAIN DISABLING CODE THAT (EITHER AUTOMATICALLY OR UPON INPUT FROM DOCKON) WILL MAKE THE PRODUCT OR SERVICES (AND RELATED DATA) UNUSABLE UPON TERMINATION OF THE LICENSE OR UPON BREACH. Unless Licensee provides DockOn with written instructions to the contrary at the time of termination, DockOn shall store Licensee’s data in storage over the Cloud Services for thirty (30) days after termination of this Agreement after which such data shall be destroyed. Licensee shall be charged the Data Charge Rate for storage multiplied by the amount of such data stored by DockOn during such period.
6. Indemnification. Except in the case of a free evaluation license, DockOn shall hold Licensee harmless from liability to third parties resulting from infringement by a Product of any United States patent issued sixty (60) days or more before delivery of such Product or any copyright or misappropriation of any trade secret, provided DockOn is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; DockOn will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to a Product or portions or components thereof (i) not created by DockOn, (ii) made in whole or in part in accordance to Licensee specifications, (iii) that are modified after delivery by DockOn, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Licensee’s use of such Product is not strictly in accordance herewith. Licensee will indemnify DockOn from all damages, costs, settlements, attorneys’ fees and expenses related to (I) any claim of infringement or misappropriation excluded from DockOn’s indemnity obligation by the preceding sentence, or (II) any other claim in connection with the Product or the use or distribution thereof.
7. Limited Warranty and Disclaimer. Except in the case of a free evaluation license, DockOn warrants for a period of thirty (30) days from delivery of a Product that such Product will materially conform to DockOn’s then current user documentation for such Product. This warranty covers only problems reported to DockOn during the warranty period. ANY LIABILITY OF DOCKON WITH RESPECT TO A PRODUCT OR SERVICES OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN DOCKON’S OPINION, IMPRACTICAL, TO REFUND OF AN APPROPRIATE PORTION THE REMAINING UNAMORTIZED ANNUAL LICENSE FEE PAID BY LICENSEE. EXCEPT FOR THE FOREGOING WARRANTY BY DOCKON, ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND FROM ANYONE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, DOCKON DOES NOT WARRANT RESULTS OF USE OR THAT THE PRODUCTS AND SERVICES ARE BUG FREE OR THAT THE PRODUCT’S AND SERVICES USE WILL BE UNINTERRUPTED.
8. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE HEREIN OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, NEITHER DOCKON NOR ANY LICENSOR SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER HEREOF OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT HERE¬UNDER WITH RESPECT TO THE APPLICABLE PRODUCT OR SERVICES DURING THE SIX MONTH PERIOD PRIOR TO THE CAUSE OF ACTION OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE PRODUCT OR SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE PRODUCT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). USE OF THE PRODUCT OR SERVICES IN HIGH RISK ACTIVITIES IS NOT AUTHORIZED. THE PARTIES AGREE THAT THIS SECTION 7 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT LICENSOR WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.
9. Identification. DockOn may use Licensee’s name and logo in client listings. DockOn may issue a press release announcing the relationship contemplated hereby, subject to Licensee’s approval which shall not be unreasonably withheld or delayed.
10. Miscellaneous. Neither this arrangement nor the licenses granted hereunder are assignable or transferable (and any attempt to do so shall be void); provided that either party may assign and transfer the foregoing to a successor to substantially all of DockOn’s Product business or assets or Licensee’s business for which Products and Services are licensed (but if the authorized copies or users are not limited, the assignee is not licensed to expand use beyond Licensee’s bona fide pre-assignment use plus reasonably expected growth assuming the assignment and related transactions had not occurred). The provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable. This agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. This is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof and any waivers or amendments shall be effective only if made in writing; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the parties after the effectiveness hereof, shall have no force or effect. The substantially prevailing party in any action to enforce this agreement will be entitled to recover its attorney’s fees and costs in connection with such action. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Products, Services and accompanying documentation provided by DockOn are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms. All prices in this Agreement are in United States Dollars.
11. Embedded Reporting / Compliance Routine; Data Access and Use. Licensee acknowledges that Products and Services may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Products, Services and/or the systems on which they are installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith), and provide e-mail and other reports to DockOn; this includes, without limitation, information on usage that DockOn uses for billing purposes. DockOn will be entitled to inspect the installation and configuration of such Products, Services, and systems from time to time on reasonable notice. Provided it does not identify Licensee, DockOn will be free to use for development, diagnostic and corrective purposes any data and information it so collects relating to diagnosis, problems, systems, performance, use or functionality, and may allow others to do so.
EXHIBIT A
SUPPORT AND MAINTENANCE SERVICES TERMS AND CONDITIONS
To the extent DockOn has become obligated for support and maintenance, the following will apply with respect to software Products so long as they remain DockOn’s standard terms and the Licensee is in full compliance with the Agreement. Capitalized terms not defined in Section 5 below have the same meaning as in DockOn’s standard Software License Terms.
1. SUPPORT AND MAINTENANCE SERVICES. Support and Maintenance Services consist of (a) Error Correction and Telephone Support provided to a single consistent technical support contact concerning the installation and use of the then current release of a Product and the Previous Sequential Release, (b) E-mail Support, (c) Web Support, and (d) Product updates that DockOn in its discretion makes generally available to its support and maintenance customers without additional charge.
2. ERROR PRIORITY LEVELS. DockOn shall exercise commercially reasonable efforts (up to 16 hours per month) to correct any Error reported by Licensee in the current unmodified release of Product in accordance with the priority level reasonably assigned to such Error by DockOn.
• Priority A Errors – DockOn shall respond within one business day and promptly commence the following procedures: (i) assign DockOn engineers to correct the Error; (ii) notify DockOn management that such Errors have been reported and of steps being taken to correct such Error(s); (iii) provide Licensee with periodic reports on the status of the corrections; and (iv) initiate work to provide Licensee with a Workaround or Fix.
• Priority B Errors – DockOn shall exercise commercially reasonable efforts to include the Fix for the Error in the next regular Product maintenance release.
• Priority C Errors – DockOn may include the Fix for the Error in the next major release of the Product.
If DockOn believes that a problem reported by Licensee may not be due to an Error in a Product, DockOn will so notify Licensee. At that time, Licensee may (1) instruct DockOn to proceed with problem determination at its possible expense as set forth below, or (2) instruct DockOn that Licensee does not wish the problem pursued at its possible expense. If Licensee requests that DockOn proceed with problem determination at its possible expense and DockOn determines that the error was not due to an Error in the Product, Licensee shall pay DockOn, at DockOn’s then-current and standard consulting rates, for all work performed in connection with such determination, plus reasonable related expenses incurred therewith. Licensee shall not be liable for (i) problem determination or repair to the extent problems are due to Errors in the Product; or (ii) work performed under this paragraph in excess of its instructions; or (iii) work performed after Licensee has notified DockOn that it no longer wishes work on the problem determination to be continued at its possible expense (such notice shall be deemed given when actually received by DockOn). If Licensee instructs DockOn that it does not wish the problem pursued at its possible expense or if such determination requires effort in excess of Licensee’s instructions, DockOn may, at its sole discretion, elect not to investigate the error with no liability therefor.
3. EXCLUSIONS. DockOn shall have no obligation to support: (i) altered or damaged Products or any portion of a Product incorporated with or into other software; (ii) any Product that is not the then current release or immediately Previous Sequential Release; (iii) Product problems caused by Licensee’s negligence, abuse or misapplication, use of Products other than as specified in the DockOn’s user manual or other causes beyond the control of DockOn; or (iv) Products installed on any hardware that is not supported by DockOn. DockOn shall have no liability for any changes in Licensee’s hardware which may be necessary to use Products due to a Workaround or maintenance release.
4. DEFINITIONS.
• “E-mail support” means ability to make requests for technical support assistance by e-mail at any time (with reasonable efforts by DockOn to respond within one business day) concerning the installation and use of the then current release of a Product and the Previous Sequential Release.
• “Error” means an error in a Product which significantly degrades such Product as compared to the DockOn’s published performance specifications.
• “Error Correction” means the use of reasonable commercial efforts to correct Errors.
• “Fix” means the repair or replacement of object or executable code versions of a Product or documentation to remedy an Error.
• “Previous Sequential Release” means the release of a Product which has been replaced by a subsequent release of the same Product. Notwithstanding anything else, a Previous Sequential Release will be supported by DockOn only for a period of twelve (12) months after release of the subsequent release.
• “Priority A Error” means an Error which renders a Product inoperative.
• “Priority B Error” means an Error which substantially degrades the performance of a Product or materially restricts Licensee’s use of such Product.
• “Priority C Error” means an Error which causes only a minor impact on the Licensee’s use of a Product.
• “Telephone Support” means technical support telephone assistance between 9:00AM and 9:00PM Pacific Time on DockOn’s regular business days concerning the installation and use of the then current release of a Product and the Previous Sequential Release. Telephone Support shall only be provided to registered users of the Product.
• “Web Support” means information available on the World Wide Web, including frequently asked questions, product documentation and bug reporting.
• “Workaround” means a change in the procedures followed or data supplied by Licensee to avoid an Error without substantially impairing Licensee’s use of a Product.
THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT AND NOT A PRODUCT WARRANTY. ALL PRODUCTS AND MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE AGREEMENT. THIS ATTACHMENT IS AN ADDITIONAL PART OF THE AGREEMENT AND DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT EXCEPT TO THE EXTENT UNAMBIGUOUSLY CONTRARY THERETO.