THIS SOFTWARE LICENSE AGREEMENT & SUPPORT SUBSCRIPTION AGREEMENT (including all documents and URLs referenced herein, this “Agreement”) is entered into and effective as of the Effective Date of the applicable Order Form and is by and between Driven, Inc., a Delaware corporation, with its principal place of business at 720 Market Street, Suite 300, San Francisco, California 94102 (“Driven”) and you, the “Customer,” identified on the Order Form. If you are downloading the Software on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and any persons to which the entity permits access and use of the Software. Each of Driven and Customer may be referred to herein individually as a “party” or collectively as the “parties.”
THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN CUSTOMER AND DRIVEN. DRIVEN’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
- “Development Use” means use of the Software by customer to design, develop and/or test new applications for Production Use.
- “Documentation” means Driven’s current user manuals, operating instructions and installation guides generally provided with the Software to its licensees.
- “Maintenance Release” means Upgrades and Updates to the Software which are made available to licensees pursuant to the standard Support Services Terms and Conditions.
- “Order Form” means the document by which Software and Support Services are ordered by Customer.
- “Production Use” means using the Software with Customer’s applications for internal business purposes only, which may include third party customers’ access to or use of such applications. Production Use does not include the right to reproduce the Software for sublicensing, resale, or distribution, including without limitation, operation on a time sharing or service bureau basis or distributing the software as part of an ASP, VAR, OEM, distributor or reseller arrangement.
- “Software” means the object code versions of the software described on an Order Form and the related Documentation.
- “Support Services” means technical support for Software under Driven’s then-current standard Support Services Terms and Conditions. Driven’s current, standard Support Services Terms and Conditions are found at http://www.Driven.io/end-user-support-services-terms-and-conditions/.
- “Subscription Term” means the license term specified in a related Order Form, and any applicable renewal terms.
- “Territory” means the United States and any additional territories explicitly agreed to by the parties, as set forth on an Order Form.
a. License Grant. Driven grants Customer, during the Subscription Term identified on the applicable Order Form, a fee-bearing, non-exclusive, revocable, and non-transferable (except as permitted herein) license to download (from the website provided by Driven), install, copy, and use the Software and the Documentation, subject to the terms and conditions of this Agreement and any other limitations (such as number of application executions/jobs) specified in the Order Form, solely for Customer’s Development Use and/or Production Use.
b. Prohibitions. Customer is not authorized and agrees not to: (i) copy the Software, except for archival or disaster recovery purposes, and if Customer does copy for these purposes, Customer will preserve any proprietary rights notices on the Software and place such notices on any and all copies Customer has made or makes; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols from the Software; (iii) lease, rent or sublicense the Software to any third party, or otherwise use it except as permitted in this Agreement; (iv) modify the Software except in accordance with the Documentation solely to allow for interoperability with Customer’s internal MIS systems; (v) distribute the Software; (vi) use the Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or applicable Documentation; or (vii) encourage, authorize, or enable anyone to do any of the foregoing. Any such modifications made in (iv) above shall not be derivative works, and Customer shall not create or attempt to create any derivative works from the Software. Customer may not disclose the results of any performance benchmarks to any third party without Driven’s prior written consent. Customer will indemnify and hold harmless Driven and its representatives fully against any claims, liabilities, costs, expenses, and other harm arising from Customer’s unauthorized use of the Software or any other violation of this Agreement (including any of the prohibitions stated above).
c. Consultant Use of Software. Customer may permit its third party consultants to access and use the Software solely for Customer’s operations permitted hereunder, provided that said consultants have signed an agreement with Customer protecting Driven’s intellectual property with terms no less stringent than the terms and conditions of this Agreement, and that Customer ensures that any such consultant’s use of the Software complies with the terms of this Agreement.
d. Ownership. The Software is licensed, not sold. Customer’s rights with respect to the Software are limited to those expressly granted in Article 2(a). Driven and its licensors reserve sole and exclusive title and ownership of the Software and all copyrights, patents, trademarks, and other intellectual property rights therein. Customer may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the Software. If Customer provides Driven with any suggestions, comments, or other feedback regarding the Software (“Feedback”) Customer acknowledges that such Feedback will become the exclusive property of Driven, and Driven may use (or not use) any such Feedback in any manner and for any purpose, without compensation to Customer and without implying or creating any interest on Customer’s part in any of Driven’s products or services that may be based on such Feedback. Customer hereby irrevocably assigns to Driven all right, title, and interest in any Feedback Customer provides.
e. Audit. Driven may, at any time during the term of this Agreement and with seven (7) days prior written notice, request and gain access to Customer’s premises, subject to Customer’s reasonable security procedures, for the limited purpose of conducting an audit to verify that Customer is in compliance with this Agreement. Customer will promptly grant such access and cooperate with Driven in the audit. The audit will be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose and not disrupt Customer’s operations. Customer shall be liable for promptly remedying any underpayments revealed during the audit. If the audit reveals an underpayment discrepancy in excess of five percent (5%), Customer will also be liable for the costs of the audit.
3. Confidential Information. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information shall be limited to the Software, any features, results or output produced by, and other information relating to, the Software (including, without limitation, all Feedback), any business or technical information of Driven that is disclosed to Customer in connection with this Agreement, the terms and pricing under this Agreement, and all information clearly identified as confidential. A party’s Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by the other party. The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of two (2) years after termination of this Agreement. The parties agree, unless required by law, not to use each other’s Confidential Information, or make each other’s Confidential Information available in any form to any third party, for any purpose other than the implementation of this Agreement. Driven may reasonably use Customer’s name and a description of Customer’s use of the Software for its investor relations and marketing purposes.
4. Payments and Taxes. The total fees for each Order Form will be due and payable within thirty (30) days from the date of Driven’s invoice. All fees are non-refundable (subject to Articles 5(b) and 6(b)(iii)) and non-cancelable. Customer agrees that acceptance of the Software will occur upon electronic delivery of the license key and download instructions, and that such acceptance shall not be revoked. The terms and conditions of this Agreement shall prevail regardless of any preprinted or conflicting terms on a purchase order, other correspondence, and any and all verbal communication. Customer will pay all sales, use, VAT, and other consumption taxes, personal property taxes and other taxes (other than those based on Driven’s net income) unless Customer furnishes satisfactory proof of exemption. Driven may assess interest charges of one percent (1%) per month for late payments.
5. Limited Warranty.
a. Exclusive Warranty. For a period of sixty (60) days after delivery of the Software, Driven warrants that the Software shall materially conform to the Documentation. Driven does not warrant that operation of the Software will be uninterrupted or “bug” free.
b. Remedies. If Driven breaches the foregoing warranty and Customer promptly notifies Driven in writing of the nature of the breach, Driven shall make commercially reasonable efforts to promptly repair or replace the non-conforming Software without charge. If, after a reasonable opportunity to cure, Driven does not repair or replace the non-conforming Software, Customer must return the Software and Documentation to Driven, or certify in writing that all copies have been destroyed, and Driven will refund the license fees it received from Customer for the Software. This is Customer’s sole and exclusive remedy for breach of the exclusive warranty in Article 6(a).
c. Disclaimer of Warranty. DRIVEN DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. OTHER THAN THE LIMITED WARRANTY SET FORTH IN ARTICLE 5(a) ABOVE, DRIVEN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND MERCHANTABILITY, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DRIVEN OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
6. Intellectual Property Indemnification.
a. Defense. Driven will defend or settle any action brought against Customer to the extent that it is based upon a claim that the Software, as provided under this Agreement and used within the scope of this Agreement, infringes any United States patent or copyright, or misappropriates any trade secret, and will pay any damages that are finally awarded against Customer for such infringement or misappropriation, provided that Customer: (i) must promptly notify Driven in writing of the claim; (ii) reasonably cooperates with Driven and provides Driven, at Driven’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the claim; and (iii) grants Driven the sole control of the defense and all related settlement negotiations.
b. Injunctive Relief. If an injunction is, or in Driven’s opinion is likely to be, threatened, sought or obtained against Customer’s use of the Software as a result of a third party infringement claim, Driven may, at its sole option and expense, (i) procure for Customer the right to continue using the affected Software, (ii) replace or modify the affected Software with functionally equivalent software so that it does not infringe, or, (iii) terminate the licenses and refund any pre-paid fees received from Customer for the then outstanding subscription period on a pro rata basis, if applicable.
c. Disclaimer of Liability. Driven shall have no liability or obligations for any third party claim of infringement based upon (i) modifications to the Software made by a party other than Driven, if a claim would not have occurred but for such modifications; (ii) Customer’s failure to use the then current, unaltered version of the applicable Software (including any Maintenance Release provided by Driven to avoid a claim); (iii) use, operation or combination of the applicable Software with any programs, data, equipment or documentation that is not deemed by Driven to work in conjunction with the Software, if such infringement would have been avoided but for such use, operation or combination; (iv) any third party software; or (v) Customer’s use of the Software other than in accordance with this Agreement and the Documentation. The foregoing constitutes the entire liability of Driven, and Customer’s sole and exclusive remedy, with respect to any third party claims of infringement of intellectual property rights of any kind.
7. Limitation of Liability.
a. LIMITATION. DRIVEN’S AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES CONCERNING PERFORMANCE OR NONPERFORMANCE BY DRIVEN OR IN ANY WAY RELATED TO THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE LICENSE FEES RECEIVED BY DRIVEN FROM CUSTOMER FOR THE AFFECTED SOFTWARE FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE OCCURRENCE OF SUCH LIABILITY.
b. NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL DRIVEN BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST DATA OR LOST PROFITS, EVEN IF DRIVEN HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
8. Term, Renewal and Termination. This Agreement, including Exhibits and any Order Form(s), will continue for the duration of the applicable Subscription Term, which will automatically renew in one (1) year increments unless either party terminates the applicable subscription by providing written notice to the other at least sixty (60) days prior to the scheduled renewal date. Driven shall provide Customer reasonable notice of any subscription fee increase for each renewal term prior to Customer’s deadline for non-renewal. Any reinstatement of lapsed subscription is subject to Driven’s approval and reinstatement fees.] Either party will be in default if it declares bankruptcy or otherwise fails to perform any of its duties or obligations and does not undertake an effort to substantially cure such default within thirty (30) days after written notice is given to the defaulting party, except that any breach of Article 3 shall be grounds for immediate termination. In the event of default, the non-defaulting party may terminate this Agreement by providing written notice of termination to the defaulting party. If Customer is the defaulting party, Customer must promptly, at Driven’s direction, destroy or return all affected Software and Documentation. Upon termination or expiration of this Agreement, the provisions of Articles 1, 2(d), 3, 6, 7, 8 and 10 will survive.
9. Support Services. Support Services are included as part of Customer’s subscription of the Software, subject to Customer’s full subscription payment. Support Services will be provided under Driven’s standard Support Services Terms and Conditions in effect on the date the applicable subscription of Software is ordered or renewed. Driven reserves the right to amend its standard Support Services Terms and Conditions at any time with notice to Customer. Driven’s standard Support Services Terms and Conditions as of the Effective Date are available at http://www.driven.io/end-user-support-services-terms-conditions/.
a. Force Majeure. Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.
b. Export Compliance. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Software, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations, including but not limited to nuclear, chemical, or biological weapons proliferation..
c. Assignment. Customer may not assign this Agreement without Driven’s prior written consent which will not be unreasonably withheld. Any attempt by Customer to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
d. Favorable Publicity. Driven may (a) favorably reference Customer as a Driven customer to third parties; (b) favorably reference Customer in printed marketing materials, and (c) favorably use Customer’s name and/or logo for the limited purpose of identifying Customer as a current or former Driven customer, including placing such information on Driven’s websites, brochures, or other marketing materials. Likewise, Customer may favorably reference Driven as providing, or having provided, software and support services to Customer.
e. Severability. If any part of this Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
f. Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
g. Notices. All notices permitted or required under this Agreement shall be in writing, will reference this Agreement, and shall be delivered in person, by facsimile, email, overnight courier service or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in the Order Form or as either party may specify in writing. Such notice shall be deemed to have been given upon receipt. Notice to Driven will be addressed Attn: Legal.
h. Governing Law. This Agreement will be governed by both the substantive and procedural laws of California, U.S.A., excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
i. United States Government Rights. The Software provided under this Agreement is commercial computer software developed exclusively at private expense, and is in all respects the proprietary data belonging solely to Driven or its licensors.
Department of Defense Customers: If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DOD), then, pursuant to DOD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government’s right to use, reproduce or disclose the Software and any accompanying Documentation acquired under this Agreement is subject to the restrictions of this Agreement.
Civilian Agency Customers: If the Software is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government’s right to use, reproduce or disclose the Software and any accompanying Documentation acquired under this Agreement is subject to the restrictions of this Agreement.
ENTIRE AGREEMENT. Each Order Form is a separate agreement and (a) is deemed to incorporate this Agreement, unless otherwise expressly provided in that Order Form; (b) constitutes the exclusive terms and conditions with respect to the subject matter of that Order Form notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Customer to place orders or otherwise effect transactions under this Agreement; and (c) represents the full, final, complete and exclusive statement of the agreement between the parties with respect thereto, notwithstanding any prior written agreements or prior contemporaneous oral agreements with respect to the subject matter of the Order Form. In the event of any conflict between this Agreement and an Order Form, this Agreement will take precedence unless otherwise expressly provided in the Order Form. Any amendment or modification to this Agreement must be in writing signed by both parties. By signing the Order Form Customer agrees that (i) the Order Forms will be governed by these standard terms and conditions and (ii) the appropriate fees will be timely paid