SOFTWARE LICENSE TERMS AND CONDITIONS
DO NOT INSTALL AND/OR USE THE SOFTWARE UNTIL YOU HAVE CAREFULLY READ THE FOLLOWING:
This Software License (the “License”) sets forth the terms and conditions for licensing of the Software. Installation and/or use of the Software verifies that End User has read, understands, and accepts the terms and conditions of this License. If you are not either the End User or an authorized representative of End User, or if you do not agree with all the terms and conditions of this License, then do not install and/or use the Software, but immediately contact Bocada for further assistance.
- “Certified Operating Environment” or “COE” means the operating system software, database products, backup software and any other software and/or hardware on which the Documentation specifies the Software will operate.
- “End User” means the purchaser / user of the Software.
- “Documentation” means the user documentation supplied by Bocada with the Software, in whatever form recorded.
- “License Term” means the term for which Licensee is authorized to use the Software as set forth in a valid quote and purchase order form signed by the parties (“Order”).
- “Software” means the machine-readable object code copy of the software.
- “Unit” means any backup master server, any backup media server, or any client resource, either physical or virtual, for which the Software collects data.
- Software License. Subject to the payment of all applicable undisputed fees and contingent upon End User’s compliance with all other terms and conditions of this License, Bocada grants End User a worldwide, non-exclusive, non-transferable, royalty-free license to install the Software on End User’s COE, and use the licensed functionality of the Software during the License Term solely for End User’s own internal data reporting and analysis requirements. All intellectual property rights and title to the Software shall remain with Bocada, and no interest or ownership therein is conveyed to End User under this License.
- Software License Restrictions. Pursuant to the terms and conditions of this License including all rights and restrictions set forth herein, End User agrees to use the Software solely during the License Term and solely in conjunction with the COE as specified in the Documentation. Additionally, unless otherwise expressly provided for in this License, End User has no right to the source code and agrees that it shall not: (i) use the Software in a configuration that exceeds the number of Units Licensed for which the applicable fees have been paid; (ii) bypass restrictions on functionality and/or enable/use features not licensed; (iii) modify, adapt, or translate the Software or create derivative works there from; (iv) reverse compile (to ensure interoperability or for any other reason), reverse engineer or attempt any other source code derivation of the Software; (v) lease, loan, resell or otherwise distribute the Software to any third party; (vi) use the Software to provide marketing, training or consulting services to any third party; or (vii) permit access to or use of the Software by or on behalf of any third party with the exception of End User’s affiliates, subsidiaries or contractors, where such access and/or use shall solely be for the benefit of End User and in accordance with the terms and conditions of this License including all rights and restrictions set forth herein.
- Territory. The License granted hereunder shall be for the worldwide use of the Software; provided that End User shall not (i) directly or indirectly, export, re-export, transship, access or use the Software or its related technology in violation of any applicable U.S. export control laws and regulations or any other applicable export control laws of any country having jurisdiction over the parties or this transaction, or (ii) commit any act or omission or request Bocada to commit any act or omission that would violate the export control laws or regulations of the United States or other applicable export control laws, rules or regulations.
- Duplication of Software & Documentation. Notwithstanding the installation of the Software on the COE, End User may make a single copy of the Software solely for archival or backup purposes or for the purpose of disaster recovery testing. End User may make a reasonable number of copies of the Documentation solely for End User’s internal use. In the event that End User makes any such copies of the Software and/or Documentation, End User shall duplicate, without alteration, all copyright, trademark and related proprietary notices incorporated in or fixed to the Software and/or Documentation on all such copies.
- Initial License Purchase and Additional Licenses. During the License Term, End User may procure additional licenses to use the same Software, provided that additional licenses must be added in minimum quantities of fifty (50) Units through the remainder of the License Term.
- Right to Audit. End User shall cooperate in good faith to confirm End User’s compliance with this License and all related Orders. Upon request, End User shall run a report to determine the number of Units of Software in use by End User pursuant to the License. Such report shall be developed by Bocada and verified by both Bocada and End User for its completeness and accuracy to confirm End User’s compliance with the License and the related Order(s) (the “Compliance Report”). Within ten (10) business days of Bocada’s request, End User shall deliver a copy of the Compliance Report by fax or email to Bocada for evaluation and determination of any additional License Fees that are owed by End User to Bocada, if any. End User shall not have the ability to cure any such excess usage other than through End User’s payment of all additional amounts due hereunder, and End User’s continued compliance with the License and related Order(s) may only be achieved through the payment of all such additional amounts.
- Third Party Software. The Software may contain third party software (“Third Party Software”) that is available under open source or free software licenses. This License does not alter any rights or obligations End User may have under those open source or free software licenses. Notwithstanding anything to the contrary contained in such licenses, the disclaimer of warranties and the limitation of liability provisions in this License shall apply to such Third Party Software. A current list of Third Party Software used by Bocada can be found at https://www.bocada.com/third-party-licenses/.
- End User represents and warrants that its use of the Software will comply and conform with the terms and conditions of this License as well as all applicable federal, state and local laws.
- WITH THE EXCEPTION OF ANY CONDITION OR WARRANTY IMPLIED BY STATUTE WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT AND ANY WARRANTY EXPRESSLY SET FORTH IN THIS LICENSE OR AN AGREEMENT SIGNED BY THE PARTIES, BOCADA MAKES NO WARRANTIES IN RELATION TO THE SOFTWARE OR DOCUMENTATION INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SOFTWARE WILL OPERATE UNINTERUPTED OR ERROR FREE. NO WARRANTY IS MADE REGARDING THE RESULTS OF USAGE OF THE SOFTWARE OR THAT THE SOFTWARE’S FUNCTIONALITY WILL MEET LICENSEE’S REQUIREMENTS.
- Infringement Indemnification by Bocada. During the term of this License, Bocada shall indemnify End User and its officers, directors, or employees (each, an “Indemnitee”) from and against, any claim, suit, or proceeding made or brought against any Indemnitee by a third party to the extent such claim, suit, or proceeding is based on an allegation that End User’s operation or possession of the latest Release of the Software in the form licensed to End User, infringes, violates, or misappropriates any (a) United States patent or United States copyright; or (b) any trade secret to the extent related to the Software (each, an “Infringement Claim”). Bocada shall further indemnify and hold the Indemnitee harmless from and against all reasonable costs of litigation (including, without limitation, reasonable attorneys’ fees) in connection with such defense or settlement of any such Infringement Claim and any damages finally awarded with respect to any such Infringement Claim. If an actual or potential Infringement Claim for which Bocada is obligated to defend or settle or to indemnify End User pursuant to this Section is made or arises, then Bocada will, at Bocada’s option and discretion, at no additional cost to End User, take any one or combination of following measures: (a) procure for End User the right to continue using the Software; (b) replace or modify the Software, or any part thereof, so that it is no longer subject to any such actual or potential Infringement Claim, provided that the Software shall continue to perform in material conformance with applicable Documentation; or (c) terminate End User’s License to the Software, or any part thereof, granted under this License and refund to End User an amount which represents the value of the unused portion of the License, such value to be determined by fully amortizing the License fee End User paid to Bocada based on a thirty-six (36) month useful life. The provisions of this Section identify End User’s sole remedy and Bocada’s sole responsibilities with respect to any Infringement Claim.
- Indemnification by End User.Notwithstanding the foregoing, Bocada shall have no obligations under this Section and End User shall indemnify and save harmless Bocada from and against any losses, damages, liabilities, fines, penalties, and expenses (including reasonable attorneys’ fees) that arise out of or result from any and all Infringement Claims to the extent based on: (i) the use of any version of the Software other than a current, unaltered release, if such infringement could have been avoided by the use of a current, unaltered release and such release has been made available to End User by Bocada; (ii) the combination, operation or use of the Software with other software which was not provided or approved by a duly authorized representative of Bocada, if such infringement would have been avoided in the absence of such combination, operation or use; (iii) End User’s use of the Software in any manner inconsistent with the terms and conditions of this License, the Documentation, or the applicable order including, without limitation, the use of the Software on, or in conjunction with, an operating environment other than the COE; (iv) aspects of the Software that were created based upon information supplied by End User; (v) modifications to the Software that were made without express written directions from Bocada; (vi) a patent or copyright owned, controlled, licensable, or licensed by End User or any of its affiliates; (vii) any violation by End User of export regulations; or (viii) the result of End User’s gross negligence or willful misconduct.
LIMITATION OF LIABILITY
- IN NO EVENT WILL BOCADA BE LIABLE TO THE END USER FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSSES RELATING TO OR ARISING FROM THIS LICENSE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, (i) THE LOSS OF USE, REVENUES, PROFITS, GOODWILL OR SAVINGS, (ii) THE LOSS, CORRUPTION OR INACCURACY OF DATA, DATA FILES OR PROGRAMS FOR ANY REASON INCLUDING ANY INFORMATION PRESENTED BY THE SOFTWARE, OR (iii) THE DISRUPTION OF NETWORKS, OPERATING SYSTEMS, HARDWARE OR OTHER SOFTWARE.
- BOCADA’S LIABILITY TO LICENSEE FOR DIRECT DAMAGES SHALL BE LIMITED TO THE LICENSE FEES PAID TO BOCADA FOR END USER’S USE OF THE SOFTWARE.
- Bocada may terminate any License upon written notice if the End User breaches a material term of this License. Unless otherwise expressly provided, termination for cause shall not limit either party from pursuing all available remedies under this License, at law or in equity.
- Termination for Convenience.End User may terminate this License at any time for convenience upon written notice. Upon such termination, all payments with respect to a License ordered pursuant hereto shall be immediately due and payable. For the avoidance of doubt, notwithstanding such termination, End User shall be responsible for payment through the end of the License Term.
- Obligations Upon Termination. Upon termination for any reason, End User must immediately cease using the Software, and must certify to Bocada in writing within five (5) days of termination that the Software is no longer in use. In addition, as quickly as practicable (and in any event within thirty (30) days of termination), End User must uninstall and destroy all copies of the Software and Documentation, and must certify to Bocada in writing that the Software and Documentation has been uninstalled and destroyed.
- Survival. Sections 1, 2(b), 2(f), 2(g), 3, 4, 5, 6(d), 7 and 8 will survive termination or expiration of this License.
The Software and all related Documentation is Bocada proprietary information. Bocada does not grant any express or implied right to End User to or under any patents, copyrights, trademarks, or trade secret information of Bocada, and Bocada reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets. End User shall: (i) refrain from disclosing any Bocada proprietary information to any third party; (ii) take reasonable security precautions to guard the Bocada proprietary information against unauthorized disclosure, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care.
GENERAL TERMS & CONDITIONS
- Governing Law and Venue.This License shall be governed by the laws of the State of Washington. Any legal action or proceeding relating to this License shall be instituted in a state or federal court in King County, Washington. Bocada and End User agree to submit to the jurisdiction of, and agree that venue is proper in, said courts.
- Relationship of the Parties.The relationship between the parties shall only be that of independent contractors, and nothing in this License shall be construed to create a partnership, joint venture or agency relationship between the parties. Additionally, neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Each party shall be solely responsible for payment of all compensation owed to its employees as well as all employment-related taxes, and each party shall maintain appropriate worker’s compensation and general liability insurance for its employees.
- End User shall not attempt to assign this License nor any right, obligation or Software Licensed hereunder without the prior written consent of Bocada. Without Bocada’s consent, any attempted assignment, transfer or conveyance of this License, in whole or in part, shall be void and of no effect.
- If any provision of this License is declared unlawful, void or unenforceable, then that provision shall be severed from this License and will not affect the validity and enforceability of any of the remaining provisions.
- Restricted Rights. If End User is an agency or instrumentality of the United States Government, the Software and related Documentation are “commercial computer software” and “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, the use, reproduction and disclosure of the Software and its Documentation are governed by the terms of this License.
- Force Majeure. With the exception of all payment obligations hereunder, neither party shall be deemed in default of this License to the extent such party’s performance of any obligation is delayed or prevented as a result of a cause beyond its reasonable control which could not have been avoided by the exercise of due care; provided said party gives reasonably prompt notice of the force majeure condition and uses reasonable efforts to rectify said condition, to the extent that such notice and efforts to rectify said condition are feasible based on the type of force majeure situation.
- Dispute Resolution. Except as otherwise specifically provided in or permitted by this License, all disputes, differences of opinion or controversies arising in connection with this License shall first be resolved through good faith negotiation to arrive at an agreeable resolution. If, after negotiating in good faith for a period of ninety (90) calendar days, or any agreed further period, the parties are unable to resolve the dispute, then the parties may seek resolution by exercising any rights or remedies available to either party at law or in equity.
- Entire Agreement. This License constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, but excluding an executed Master Software and Services Agreement, concerning its subject matter. No modification or amendment of any provision of this Agreement shall be effective unless in a writing signed the parties. NEITHER PARTY WILL BE BOUND BY, AND EACH SPECIFICALLY OBJECTS TO, ANY PROVISION THAT IS DIFFERENT FROM OR IN ADDITION TO THIS AGREEMENT (WHETHER PROFFERED VERBALLY OR IN ANY STANDARD FORM, QUOTATION, INVOICE, SHIPPING DOCUMENT, PURCHASE ORDER, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE, PROPOSAL, OR OTHERWISE), UNLESS SUCH PROVISION IS SPECIFICALLY AGREED TO IN A WRITING SIGNED BY BOTH PARTIES.
- Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Any waivers are effective only if recorded in a writing signed by the party granting the waiver. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing to the party’s address set forth below the signatures on an Order and shall be deemed to have been given upon (i) receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. Mail (return receipt requested); or (iii) the second business day after sending by a major commercial delivery service, confirmed facsimile or email.
USE OF NAME
Bocada will not use End User’s name or logo in connection with any marketing, publicity, advertising, or promotional materials or activities without End User’s prior written consent; provided that Bocada shall have the right to publicly list End User as a customer on its web site, in its product brochure or in conversations with its clients or prospective clients.
BOCADA COPYRIGHT AND PATENTS
Products: Bocada Prism and Bocada Vision © 2019 Bocada, LLC. Portions of Bocada Prism and Bocada Vision may be covered by one or more of the following US Patents: 6,640,217, 6,708,188, 6,745,210, 7,457,833, 7,469,264, 7,496,614, and 8,407,227.
Bocada may modify any of the terms and conditions contained in this License at any time and in its sole discretion by posting the revised terms online. Changes will become effective 15 days after they are posted. If any modification is unacceptable to End User, End User’s only recourse is to terminate this License. End User’s continued participation use of the Software after any changes take effect will constitute End User’s acceptance of all applicable changes.