1. Grant of License and Restrictions. Subject to the terms hereof, payment of all fees, and any applicable user/use limitations, Data Quarry grants Licensee a personal, non-sublicensable, nonexclusive, right to (a) use Data Quarry’s Quarry Software product in object code form only (“Product”) and any additional features selected by Licensee in object code form only (“Options”) only in accordance with Data Quarry’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 Data Quarry; Data Quarry 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 (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 (except as expressly and specifically authorized by Data Quarry), (iii) possess or use any Product, or allow the transfer, transmission, export, or re-export of any Product 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 (v) modify any Product. 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 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 DATA QUARRY FOR NONCOMPLIANCE WITH) THE RESPECTIVE LICENSES FOR THE THIRD PARTY SOFTWARE AVAILABLE AT https://dataquarryinc.com/license-agreements/.
2.1 If the license (other than a free evaluation license) for a Product has not been terminated and all applicable fees have been timely paid, then during the periods for which Support Services has been purchased, Data Quarry will use reasonable commercial efforts to provide the support and maintenance services for that Product as and to the extent described in Data Quarry’s then applicable standard Support and Maintenance Terms available at https://dataquarryinc.com/support-policies/ (“Support Services”), except with respect to Third Party Software. The license fee for the Product payable pursuant to Section 3 is inclusive of payment for Support Services until the first anniversary of the date the Product is received by Licensee (the “Receipt Date”). Unless the renewal of Support Services are cancelled pursuant to this paragraph, upon each anniversary of the Receipt Date (a “Renewal Date”), Licensee’s subscription for Support Services shall be renewed for an additional year and Licensee shall, within thirty (30) days of such date of renewal, pay Data Quarry an amount equal to Data Quarry’s Support Services Renewal Fee in effect on the applicable Renewal Date. Licensee may elect to cancel all future renewals of its subscription to Support Services by providing Licensee with written notice of such cancellation thirty (30) days prior to the applicable Renewal Date.
2.2 “Support Services Renewal Fee” shall be based on the software licensed and it’s correlating percent of the Product/s and Options price paid by licensee. Data Quarry’s support services software fees are available at https://dataquarryinc.com/support-policies/. Data Quarry may, in its sole discretion, change the Support Services Renewal Fee at any time effective upon thirty (30) day written notice to Licensee (which notice may include, without limitation, email notification to the registered email contact of Licensee provided to Data Quarry).
3. Product Fees and Payment. Licensee shall pay the applicable license fees for the Product and Options (as set forth on Data Quarry’s then current price list) within thirty days after first receipt of the Product or the date(s) otherwise expressly agreed by Data Quarry. In addition, without limiting Data Quarry’s remedies, if Licensee makes or uses copies, or has users/uses, that are not authorized hereunder, it will so report to Data Quarry and will pay additional license fees equal to Data Quarry’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, Data Quarry 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 Data Quarry has the legal obligation to pay or collect such taxes, the appropriate amount shall paid by Licensee directly to Data Quarry. Licensee will reimburse Data Quarry for all reasonable travel and other related expenses incurred by Data Quarry in its performance hereunder; provided, however, that such expenses shall have been pre-approved by Licensee.
4. Termination; Breach. All licenses will only 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; provided that in any case a free evaluation license will have a license period of not more than thirty (30) days. 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 Data Quarry. 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 MAY CONTAIN DISABLING CODE THAT (EITHER AUTOMATICALLY OR UPON INPUT FROM DATA QUARRY) WILL MAKE THE PRODUCT (AND RELATED DATA) UNUSABLE UPON TERMINATION OF THE LICENSE OR UPON BREACH.
5. Indemnification. Except in the case of a free evaluation license, Data Quarry 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 Data Quarry 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; Data Quarry 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 Data Quarry, (ii) made in whole or in part in accordance to Licensee specifications, (iii) that are modified after delivery by Data Quarry, (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 Data Quarry from all damages, costs, settlements, attorneys’ fees and expenses related to (I) any claim of infringement or misappropriation excluded from Data Quarry’s indemnity obligation by the preceding sentence, or (II) any other claim in connection with the Product or the use or distribution thereof.
6. Limited Warranty and Disclaimer. Except in the case of a free evaluation license, Data Quarry warrants for a period of thirty (30) days from delivery of a Product that such Product will materially conform to Data Quarry’s then current user documentation for such Product. This warranty covers only problems reported to Data Quarry during the warranty period. ANY LIABILITY OF DATA QUARRY 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 DATA QUARRY’S OPINION, IMPRACTICAL, TO REFUND OF AN APPROPRIATE PORTION THE REMAINING UNAMORTIZED LICENSE FEE PAID BY LICENSEE. EXCEPT FOR THE FOREGOING WARRANTY BY DATA QUARRY, 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, DATA QUARRY DOES NOT WARRANT RESULTS OF USE OR THAT THE PRODUCTS AND SERVICES ARE BUG FREE OR THAT THE PRODUCT’S USE WILL BE UNINTERRUPTED.
7. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE HEREIN OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, NEITHER DATA QUARRY 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 HEREUNDER 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 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 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.
8. Identification. Data Quarry may use Licensee’s name and logo in client listings. Data Quarry may issue a press release announcing the relationship contemplated hereby, subject to Licensee’s approval which shall not be unreasonably withheld or delayed.
9. 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 Data Quarry’s Product business or assets or Licensee’s business for which Products 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 and accompanying documentation provided by Data Quarry 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.
10. Embedded Reporting / Compliance Routine; Data Access and Use. Licensee acknowledges that Products may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Products 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 Data Quarry. Data Quarry will be entitled to inspect the installation and configuration of such Products and systems from time to time on reasonable notice. Provided it does not identify Licensee, Data Quarry 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.