Terms of Evaluation
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this “Agreement”) governs your access to and use of software and related online tools and services provided by Backtrace I/O, Inc., a Delaware corporation (“Backtrace”). “Licensee” means the entity executing an order form or similar document referencing this Agreement (an “Order Form”). By executing an Order Form, Licensee agrees to the following terms and conditions. The Order Form specifies the particular software solution (the “Software”) and online tools and services (“Web Services,” and collectively with the Software, the “Service”) to be received by Licensee. Licensee and Backtrace together are the “Parties”, and each is a “Party”. This Agreement may be updated at any time by Backtrace, and the date of such modified Agreement will be indicated below. Notwithstanding any such update, any Order Form will remain governed by the terms of the Agreement version in effect as of the date such Order Form was executed by Licensee (the “Effective Date”).
UPDATED: September 3, 2019.
1. Grant. Subject to the terms and conditions of this Agreement, Backtrace grants Licensee a limited, nonexclusive, nontransferable license, without the right to sublicense, to (a) download, install, store, and use the Software to monitor, analyze and report on software errors up to the limits and for the Term (as defined in Section 7) set forth in the Order Form and (b) access and use the Web Services during the Term.
2. Restrictions. Restrictions. Licensee acknowledges that the Service contains and constitutes valuable trade secrets of Backtrace. Accordingly, Licensee will not: (i) use the Service for any purpose, except as expressly permitted in this Agreement; (ii) transfer, assign, sublicense, copy, distribute, modify, or create derivative works of the Service, in whole or in part; or (iii) decompile, reverse assemble or otherwise reverse engineer or attempt to derive the source code from the Service. Licensee will not remove or alter any of the copyright notices or other proprietary markings on the Service.
- Support Services. During the Term, Backtrace will:
1. Use commercially reasonable efforts to resolve issues with the then-current version of the Software and Web Services;
2. Provide customer with updates and upgrades to the Service, when and as available;
3. Provide customer with access to online documentation for the Services;
4. Provide commercially reasonable assistance with respect to the Services via email and live chat, from 9am-6pm Eastern, Monday through Friday, excluding Backtrace holidays, to include:
1. clarification of functions and features of the Software;
2. clarification of the documentation;
3. guidance in the operation of the Software; and
4. error verification, analysis, and correction pursuant to Section 2(a).
- IP Ownership. The Service and all intellectual property rights therein are the exclusive property of Backtrace. Licensee’s only right to the Service is the limited license granted in Section 1. Any data or other output Licensee generates using the Service will be the exclusive property of Licensee (“Licensee Outputs”). All pre-existing intellectual property of each Party remains the intellectual property of that Party.
1. “Confidential Information” is all technical and non-technical information disclosed by one Party to the to the other Party (including but not limited to the Service, product information, plans and pricing, financials, marketing plans, business strategies, Licensee and user information, Licensee Outputs, data, research and development, software, APIs, specifications, designs, formulae, algorithms, and know-how); either designated as, or which would reasonably understood to be confidential or proprietary. In addition, the existence and terms of this Agreement and the fact that discussions are taking place between the Parties in connection with this Agreement is deemed to be the Confidential Information of both Parties.
2. The receiving Party will: (i) hold the disclosing Party’s Confidential Information in confidence; (ii) restrict disclosure of such Confidential Information to those of its employees or agents with a need to know such information and who have previously agreed to be bound by confidentiality obligations substantially similar to this Section 4; (iii) use such Confidential Information only in connection with this Agreement; and (iv) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such
3. The restrictions set forth herein will not apply to Confidential Information to the extent it (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure without breach of this Agreement by the receiving Party; (iii) was lawfully received by the receiving Party from a third party without such restrictions; (iv) was known to the receiving Party without such restrictions prior to its receipt from the disclosing party; (v) was independently developed by the receiving Party without reference to such Confidential Information; (vi) was generally made available to third parties by the disclosing Party without such restriction; or (vii) is required to be disclosed by the receiving Party pursuant to judicial order or other compulsion of law, provided that the receiving Party will provide to the disclosing Party prompt notice of such order and comply with any protective order imposed on such disclosure.Confidential Information unless otherwise specified in writing by the disclosing Party.
4. Upon written request of the disclosing Party or upon termination of this Agreement, all copies of the disclosing Party’s Confidential Information will be returned to the disclosing Party or promptly destroyed.
1. Licensee will pay Backtrace the fees set forth in the Order Form (the “Fees”). If the Order Form does not specify any invoicing terms, all Fees will be invoiced annually in advance. Backtrace reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term (as set forth on the Order Form) or then current renewal term, upon sixty (60) days’ prior notice to Licensee (which may be sent by email). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of this Agreement. All fees are non-cancelable and non-refundable.
2. Licensee shall be responsible for all applicable taxes, however designated, incurred in connection with this Agreement, including but not limited to federal, state, or local sales or use taxes, value-added taxes, excises, and other taxes or duties which may now or hereafter be levied on the services provided hereunder or on payments made under this Agreement.
- Marketing. Backtrace may use Licensee’s name and logo on Standard Promotional Materials (“Materials”) for the sole purpose of marketing the Service. Materials include:
1. Backtrace website found at https://backtrace.io
2. Printed and digital materials, including collateral, emails, banners
3. Sales presentations
Any use of Licensee’s name and logo shall terminate upon the expiration or termination of this Agreement
- Term and Termination. This Agreement starts on the date that the parties sign an Order Form and continues until either party terminates this Agreement in accordance with this Agreement. If all Order Forms under this Agreement have expired or been terminated, either party may terminate this Agreement for convenience by providing 30 days’ prior written notice. Neither party may terminate an Order Form for convenience. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice for a material breach of the other Party that is not cured within such period. Sections 3, 4, 8, 10, 11, 12 and 13, and the last sentence of this Section 7 will survive any termination or expiration of this Agreement. Upon termination of this Agreement, Licensee must remove the Software from its systems. During the Term of this Agreement and one year following termination, Backtrace may inspect your records relating to your use of the Services for the purposes of verifying compliance with this Agreement.
- INDEMNIFICATION. Backtrace will hold Licensee harmless from any final court judgment awarded or settlement entered into arising from any third party claim alleging that Licensee’s use of the Service infringes such third party’s patent or copyright rights or misappropriates that third party’s trade secrets, provided that Licensee promptly notifies Backtrace of any claim and reasonably assists Backtrace in defending such claim. Backtrace will have sole control over the defense and settlement of any claim eligible for indemnification under this Section 8, provided that Backtrace may not agree to a settlement that imposes any liability or obligation on Licensee without Licensee’ written consent. The foregoing obligations do not apply to third party claims arising out of Licensee’s use of the Service where the Service was (a) modified by Licensee or any third party not authorised by Backtrace, (b) combined with other products, processes or materials where the alleged infringement relates to such combination, (c) used by Licensee in the allegedly infringing form after Backtrace made available modifications that would have avoided the alleged infringement, (d) Backtrace’s compliance with any materials, designs, specifications or instructions provided by Licensee, or (e) not used in accordance with this Agreement, (collectively “Excluded Claims”). If the Service is held by a court of competent jurisdiction to be or is believed by Backtrace to be infringing, Backtrace may, at its option and expense (i) replace or modify the Service to be non-infringing (without materially impairing the Service features and functions), (ii) obtain for Licensee a license to continue using the Service, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and refund Licensee any prepaid, unused Fees for the Service. This Section 9 sets forth Backtrace’s entire and exclusive liability and obligation, and Licensee’s entire and exclusive rights and remedies, with respect to alleged or actual infringement of third party intellectual property rights by the Services.
- WARRANTY DISCLAIMER. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. BACKTRACE AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF A THIRD PARTY’S RIGHTS.
- LIMITATION OF LIABILITY. EXCEPT FOR BACKTRACE’S INDEMNIFICATION OBLIGATIONS, OR CLAIMS ARISING BECAUSE OF BACKTRACE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BACKTRACE AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES WILL NOT BE LIABLE (REGARDLESS OF THE THEORY OF LIABILITY ASSERTED AND EVEN IF BACKTRACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR: (A) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR THIS AGREEMENT; OR (B) DIRECT DAMAGES IN AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY LICENSEE TO BACKTRACE UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
- Governing Law; Dispute Resolution. This Agreement and all the rights and obligations of the parties hereunder will be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. Each Party consents to the exclusive jurisdiction and venue of the state and federal courts located in New York County, New York, and agrees not to contest such jurisdiction or venue.
- Assignment. Licensee may not assign, transfer or delegate any rights or duties under this Agreement without Backtrace’s prior written consent, except in conjunction with a change in ownership, merger, acquisition, or the sale or transfer of all or substantially all of Licensee’s assets either voluntarily, by operation of law, or otherwise. Backtrace may freely assign this Agreement. Any attempted assignment or delegation without such consent will be null and void.
- General. All waivers must be in writing and signed by an authorized representative of the Party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. This Agreement may be modified by Backtrace as set forth in the preamble, provided that no such changes will affect any Order Form in effect prior to such modification. If any provision of this Agreement is determined to be invalid, unlawful, void, or unenforceable to any extent, the remainder of this Agreement will remain valid and enforceable to the fullest extent permitted by law. This Agreement sets forth the entire agreement and final understanding of the Parties relating to the subject matter hereof and supersedes and terminates all prior or contemporaneous agreements and understandings between the Parties relating to the subject matter hereof including for the avoidance of doubt any Evaluation Agreement entered into by the parties.