SOFTWARE SUBSCRIPTION AGREEMENT
PLEASE READ THIS SOFTWARE SUBSCRIPTION AGREEMENT BEFORE PURCHASING OR USING THE SERVICES. BY USING OR PURCHASING THE PRODUCT, YOU SIGNIFY YOUR ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY ("COMPANY"). IF COMPANY DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT PURCHASE OR USE THE PRODUCTS OR SERVICES.
THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT, AND OF ANY ORDER FORMS ENTERED INTO BY CodeTheProject ("CodeTheProject") ARE COLLECTIVELY REFERRED TO AS THE "AGREEMENT." UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS SHALL HAVE THE MEANINGS SET FORTH IN SECTION 12.
UNLESS AND UNTIL COMPANY HAS AGREED TO BE BOUND BY ALL OF THE TERMS OF THE AGREEMENT, COMPANY HAS NOT BECOME A LICENSEE OF, AND IS NOT AUTHORIZED TO USE, THE CodeTheProject PRODUCT ("SOFTWARE").
1.1. License Grant. CodeTheProject shall make the Software available to Company for use by the Subscription Users, pursuant to the terms of this Agreement and grants Company a limited, non-exclusive, non-transferable, and revocable right to install, use and modify the Software solely for Company’s own internal business purposes. Company acknowledges and agrees that the terms and conditions listed herein will govern Company’s use of the Software for the Subscription Term, unless explicitly stated otherwise in a written agreement between the parties.
1.2. Third-Party Software. The Software may utilize or include certain Third Party Software. Company’s use of the Software is governed by the applicable Third-Party Software terms and conditions where applicable. Company may use Third-Party Plug-Ins to add functionality to the Software, provided that such use is limited to internal use by Company in a manner that does not violate any provisions of Section 1.3 of this Agreement.
1.3. Restrictions.Company will not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to: (i) the Software, (ii) any modified version or derivative work of the Software created by the Company or for the Company, for any purpose including timesharing or service bureau purposes; (b) remove or alter any copyright, trademark or proprietary notice in the Software; (c) use any of the Services for the CodeTheProject Community Software or for any installed software for which Services have not been purchased; or (d) reverse engineer, decompile or modify any encrypted or encoded portion of the Software; (e) develop Forked Software; (f) copy any features, functions, processes, design elements, or graphics of the Software for any purpose other than what is expressly authorized in this Agreement; (g) use the Software, or allow it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without CodeTheProject’s prior written authorization; (h) modify, remove, circumvent, or disable any portion of the License Control Mechanism; (i) use or modify the Software in any way that would subject the Software, in whole in or in part, to a Copyleft License; (j) access the Software for the purpose of building a competitive product or service or copying its features, processes or user interface or (k) send, store, or authorize a third party to send or store spam, unlawful, infringing, obscene or libelous material, or Malicious Code..
2.1. Proprietary Rights. CodeTheProject shall own all right, title, and interest to the Software, technology, information, code or software provided to Company, including all intellectual property rights, and all portions, copies or modifications thereof.
2.2. Trademarks. The CodeTheProject name, logo, trade names and trademarks are owned by CodeTheProject, and no right is granted to Company to use any of the foregoing except as expressly permitted herein or by written consent of CodeTheProject.
2.3. Suggestions. CodeTheProject shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any product or service any suggestions, enhancement requests, recommendations or other feedback provided by Company, including Subscription Users, relating to the operation of any product or service owned by CodeTheProject.
2.4. Data Ownership. Company owns rights, title and interest in and to all of its data. Company is solely responsible for the accuracy, integrity, and legality of Company’s data.
During the time that Company has paid the applicable fees under this agreement, CodeTheProject will provide Company with support services for the Software made available through the CodeTheProject Support Portal as listed on an Order Form. Services are provided to Company solely for Company’s internal use, and Company may not use the Software or Support Services to supply any consulting, support or training services to any third party.
4. Payment Terms
4.1. Fees and Payment. Company agrees to pay all fees specified on the relevant Order Form. Fees are due seven (7) days from the invoice date, unless otherwise noted in an Order Form. Subscription fees are exclusive of, and Company is responsible for, shipping costs, duties and taxes (including Value Added Tax which shall be paid by the Company, if applicable, at the rate and in the manner for the time being prescribed by law). Except as otherwise set forth in this Agreement, all fees paid to CodeTheProject are non-refundable.
4.2. Additional Subscription Users. Additional Subscription Users may be ordered under the terms of this Agreement by Company through an Order Form. Additional Subscription Fees shall be assessed at the then current rate. Company understands and agrees that Company will be charged the equivalent of a full monthly fee for Subscription Users that are added in the middle of a monthly period and each of the monthly periods remaining in the then-current Subscription Term. The term of the Additional Subscription shall terminate on the same date as the pre-existing subscriptions. Company understands and agrees that the number of Subscription Users licenses purchased under a specific Order Form cannot be decreased during the relevant Subscription Term.
4.3. Renewal. All fees required for renewal of a Subscription Term will be invoiced in advance prior to expiration of the current Subscription Term (the "Renewal Invoice"), and any pricing or changes in the number of Subscription Users for such renewal Subscription Term will be reflected in the Renewal Invoice. Fees for any subsequent renewals shall be set at the then-current CodeTheProject pricing, unless otherwise stated on the Order Form, Renewal Invoice or otherwise agreed to in writing by the parties.
4.4. Overdue Charges. Overdue amounts are subject to interest at a rate of one percent (10.0%) per month, or the maximum rate permitted by law, whichever is lower. If any charge owing by Company to CodeTheProject or the applicable CodeTheProject Authorized Reseller is Seven (7) days or more overdue, CodeTheProject may, without limiting its other right and remedies, suspend services until such amounts are paid in full.
4.5. Audit Rights. Company shall maintain accurate records necessary to verify the number of Subscribed Users. Upon CodeTheProject’s written request, Company shall provide CodeTheProject with such records within ten (10) business days. If Company has more Subscription Users than Company has paid for, Company shall immediately pay CodeTheProject the applicable additional Subscription fee.
Each party acknowledges that it acquires only the right to use the other party’s Confidential Information under the terms and conditions of this Agreement and does not acquire any rights of ownership or title in the other party’s Confidential Information. Each party will hold in confidence any Confidential Information received by it from the other and will protect the confidentiality of such with the same degree of care that it exercises with respect to its own information of like import. Each party will only disclose Confidential Information to its employees, agents, representatives and authorized contractors (collectively "Representatives") having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party’s limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives’ agreements to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Each party is liable for all acts and omissions of the Representatives related to the other party’s Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section. In the event that a party is required to disclose Confidential Information pursuant to any applicable statute, regulation or order of a court of competent jurisdiction, that party will use commercially reasonable efforts to notify the other party of the required disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information: (a) previously known to it without obligation of confidence, (b) independently developed by or for it without use of or access to the Disclosing Party’s Confidential Information, (c) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (d) that is or becomes publicly available through no breach of this Agreement. The terms of this Agreement, Original Code and the structure, sequence and organization of the CodeTheProject Product are Confidential Information of CodeTheProject or its licensors.
6. General Representations and Warranties
CodeTheProject represents and warrants that: (a) it has the authority to enter into this Agreement with Company; and (b) to CodeTheProject’s knowledge, CodeTheProject branded Software does not, at the time of delivery to Company, include malicious or hidden mechanisms or code for the purpose of damaging or corrupting the Software.
7. Disclaimer of Warranty
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY CodeTheProject (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CodeTheProject, ITS AFFILIATES, DEALERS, PARTNERS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. CodeTheProject DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
8. Limitation of Liability
CodeTheProject WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OR IN TORT (INCLUDING NEGLIGENCE), EVEN IF CodeTheProject HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.CodeTheProject’S AGGREGATE LIFETIME CUMULATIVE LIABILITY FOR CLAIMS RELATING TO THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, WILL BE LIMITED TO THE AMOUNT PAID BY COMPANY TOCodeTheProject UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY. LIABILITY FOR DAMAGES WILL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING SHALL NOT LIMIT COMPANY’S PAYMENT OBLIGATIONS UNDER SECTION 4.
9. Mutual Indemnification
9.1. Subject to the limitations in Section 8, CodeTheProject shall defend Company against any third party claim that the Software infringes such third party’s U.S. patent, copyright, or trade secret ("Infringement Claim"), and indemnify Company from the resulting costs and damages awarded against Customer to the third party making such Infringement Claim, by a court of competent jurisdiction or agreed to in settlement; provided that Company (a) notifies CodeTheProject promptly in writing of such Infringement Claim, (b) grants CodeTheProject sole control over the defense and settlement thereof, and (c) reasonably cooperates in response to a CodeTheProject request for assistance. CodeTheProject will have the exclusive right to defend any such Infringement Claim and make settlements thereof at its own discretion, and Company may not settle or compromise such Infringement Claim, except with prior written consent of CodeTheProject.
9.2. In the event that a court holds that the Software, or if CodeTheProject believes a court may hold that the Software, infringes the intellectual property rights of any third party, CodeTheProject may (but is not obligated to), in its sole discretion, do any of the following: (a) procure for Company the right to continue using the Software, (b) replace or modify the Software so that it becomes non-infringing while providing substantially equivalent performance or, (c) accept return of the Software, terminate this Agreement, and refund Company an amount equal to the license fees paid to CodeTheProject multiplied by the percentage of the term of the license for the Software that Company did not enjoy due to the early termination by CodeTheProject.
9.3. CodeTheProject shall have no liability or obligation under this Agreement to the extent the alleged infringement is based on: (a) Modifications or derivative work of the Software developed by anyone other than CodeTheProject, (b) a combination of the Software with any product or service not provided by CodeTheProject, (c) use of the Software by Company is not strictly in accordance with this Agreement; or (d) indirect or willful infringement.
9.4. This Section 9 states CodeTheProject’s entire liability and Company’s exclusive remedy for any infringement related to the Software.
10. Term and Termination
10.1. Term. Unless otherwise stated in the applicable Order Form, the initial term ("Effective Date") of this Agreement shall commence on the date CodeTheProject executes the applicable Order Form, and shall continue until the all Order Forms or Renewal invoices have expired or been terminated.
10.2. Termination. This Agreement may be terminated by a party for cause immediately if (a) the other ceases to do business, or otherwise terminates its business operations; or (b) the other materially breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days of written notice describing the breach.
10.3. Effect of Termination. Upon termination of this Agreement by either party (a) the licenses granted under this agreement will be immediately revoked and CodeTheProject may immediately deactivate Company’s account. No refunds of payment will be made unless termination of this Agreement is a result of a breach by CodeTheProject under Section 10.2, in which case Company will be entitled to a refund of the pro rata portion of fees associated with the remainder of the Subscription Term. Company understands and agrees that upon expiration of the Subscription Term or termination of the Agreement, whichever occurs first, the licenses granted under this Agreement will be immediately revoked and CodeTheProject may immediately deactivate Company’s account. In no event shall any termination relieve Company of the obligation to pay any fees payable to CodeTheProject for the period prior to the Effective Date of termination.
10.4. Surviving Provisions. Company’s obligation to make a payment of any outstanding, unpaid fees, the defined terms used in the Agreement and the terms of Sections 1.3, 2, 4, 5, 7, 8, 9, 10.4, 11, and 12 shall survive termination or expiration of this Agreement.
11. General Provisions
11.1. Export Compliance. Company may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.
11.2. Standard Marketing. Company agrees that CodeTheProject may reference Company as a customer of CodeTheProject. Company agrees to not use CodeTheProject’s name or logo without prior written consent.
11.3. Notices. All notices shall be in writing and sent by first class mail or overnight mail, or transmitted by facsimile, to the addresses indicated on the Order Form or such other address as either party may indicate. Notices regarding this Agreement shall be in writing and addressed to Company at the address Company provides, or, in the case of CodeTheProject, to CodeTheProject Inc., Attention. General Counsel, 27 North Wacker Drive Suite 370 Chicago, IL 60606 USA.
11.4. Assignment. Company may not assign this Agreement without the prior written consent of CodeTheProject; provided that such consent shall not be required for assignment to a purchaser of all or substantially all of the assets or equity securities of Company who undertakes in writing to be bound by all the terms and conditions of this Agreement. Any prohibited assignment shall be null and void.
11.5. Relation of the Parties. CodeTheProject and Company are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.6. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.7. Governing Law. This Agreement shall be governed by the laws of the State of Illinois without giving effect to conflict of laws principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Cook County, IL for resolution of any disputes arising out of this Agreement. The United Nations Convention for the International Sales of Goods shall not apply.
11.8. Force Majeure. Neither party hereto shall be in default hereunder by reason of its delay or failure to perform any of its obligations hereunder for any event, circumstance or cause beyond its control such as, but not limited to, acts of God, strikes, lockouts, general governmental orders or restrictions, war, threat of war, hostilities, revolution, acts of terrorism, riots, epidemics, fire, earthquake or flood. The performance of this Agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this Agreement.
11.9. Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding shall not affect the validity of the other parts of the Agreement.
11.10. Waiver. The waiver of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach.
11.11. Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements including emails and requests for proposals, regarding the subject matter hereof. The headings in this agreement are for reference purposes only, and shall not affect the meaning or construction of the terms and conditions of this Agreement. This agreement shall not be amended, unless in writing and signed by authorized representatives of both parties.
"Copyleft License" means a software license that requires that information necessary for reproducing and modifying such software must be made available publicly to recipients of executable versions of such software (see, e.g., GNU General Public License and http://www.gnu.org/copyleft/).
"Forked Software" means modifications to any open source version of the Original Code to develop a separately maintained source code program (a) with features not present in the Original Code or (b) where modifications to the Original Code are not automatically integrated with the Original Code.
License Control Mechanism means functionality that reports the number of authorized Subscription Users, and provide CodeTheProject (and Authorized CodeTheProject Resellers, where applicable) with the ability to monitor certain usage of the Software.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
"Modifications" means any work based on or incorporating all or any portion of the Software, including, without limitation, modifications, enhancements and customizations to the Software.
"Order Form" means a document for purchasing Subscriptions of CodeTheProject products and services. An Order Form is considered an attached exhibit to this agreement.
"Original Code" means Software source code.
"Subscription" means Company’s right to use the Software for the Subscription Term, per the terms of the Agreement and any related Order Form(s).
"Subscription Term" means the period of time which Company may access the applicable Software as set forth in an Order Form.
"Subscription User" means an individual employee, contractor or agent of Company and its Affiliates authorized by Company to use the applicable Software for which a Subscription has been purchased and who has been given a user identification and password.