End User Software License Agreement
Grant of License
- Grant Delivery
- No Modification
- No Sublicensing
- End-User Limits
The Licensor grants to Customer a non-exclusive, non-transferable license to use INAPPeRTC Chat API during the term set forth in the order form provided to the customer or customers buying agent. Licensor will make INAPPeRTC Chat API available for download from a secure site situated in a mutually agreeable location no later than 2 business days after Customer or customers buying agent issues its binding order form as specified in Section 2.a. Licensor will be responsible for obtaining any export licenses required for making Licensed Software available to Customer hereunder. Each version of the software made available during the Term to the Customer as outlined in the order form, including any updates or upgrades provided to Customer or to others through the maintenance and support services set out in the order form, will collectively be called “Licensed Software”.
Licensed Software is made available by Licensor on a “per-cluster -instance” basis. Customer may install, operate and use such Licensed Software on one (1) cluster instance per license purchased by Customer for use on any number of computing instances in the world constituting a single cluster instance to provide services to itself or to its customers.
Customer may incorporate the Licensed Software into, or combine it with, other software for its own use as provided above but may not modify the Licensed Software.
Customer may not sublicense the Licensed Software to any third party, in whole or in part, in any form without the prior written consent of Licensor, which Licensor may withhold in its sole discretion.
Unless otherwise provided in the applicable order form, (a) a Service may not be accessed by more than the number of end-users set forth in the applicable order form, (b) and end-user’s password may not be shared with any other individual, and (d) an end-user identification may only be reassigned to a new individual replacing one who will no longer user the service.
Orders, Fees and Payment
- Issuance of Order Form
- Fees and Invoicing
- Payment Terms
Customer agrees (either directly or through customers buying agent) that it will issue an initial order form for the Licensed Software that will reference and incorporate the terms of this Agreement, and Licensor will accept the order form. Customer and Licensor agree that any additional or conflicting terms and conditions appearing on an order form, order acceptance document, invoice or payment advice, or presented in any electronic portal or automated order management system, whether or not required to be electronically accepted, will not be construed as amendments to or modifications of this Agreement. To be effective, any such amendment or modification must be agreed in writing and must be physically signed by authorized representatives of Customer and Licensor. No order form will be required for any renewal of the license.
The license fee will be payable by Customer (either directly or through Customers buying agent) as on time and as specified in the order form provided. The parties agree that the fee for each cluster instance will be calculated based on the expected maximum number of concurrent connections for such cluster instancseatse. Licensor may invoice the license fees on receipt of valid purchase order and no later than upon making the Licensed Software first available for download and, upon any renewal, upon the effective date of the renewal. Payment obligations are non-cancelable, and fees paid are non-refundable. Customer acknowledges that, if agreement is terminated by Customer early other than for Rip Bull’s breach, the Customer is liable for all fees for the rest of the then-current term of the agreement
To the extent that the Customer (or Customers appointed 3rd party buying agent) places and Rip Bull accepts order form pursuant to this agreement, each order will constitute a contract between Customer and Rip Bull which shall be governed solely and exclusively by the terms of this agreement. Any additional or conflicting terms and conditions appearing on an order or in subsequent documentation or provided electronically will not be affected unless agreed to in writing by an authorized representative of Rip Bull. All fees will be invoiced electronically and in accordance with the relevant order form. All fees are due on receipt or 30 days from the invoice datein line with terms agreed on the order form. If any invoiced amount is not received by Rip Bull by the due date, then such amount may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Without limiting Rip Bull’s other rights and remedies, if any invoiced amount is more than 30 days past due, then Rip Bull may suspend services until overdue amounts are paid in full.
Fees specified in order forms do not include any taxes. Customer is responsible for paying all taxes associated with its purchase hereunder. If Rip Bull has the legal obligation to pay or collect tases for which Customer is responsible, Rip Bull will invoice Customer and Customer will pay that amount unless Customer provides Rip Bull with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Rip Bull is solely responsible for taxes assessable against it based on its income, property, and employees.
Copies and Proprietary Rights Notices
Customer agrees to maintain records of each location where the Licensed Software is deployed. Customer agrees to reproduce and apply the copyright notice and proprietary notice of the Licensor to all copies made hereunder, in whole or in part and in any form, of Licensed Software.
Rip Bull owns all right, title, and interest in and to Rip Bull work product proprietary intellectual property. Rip Bull grants to Customer a non-transferable, non-exclusive license to access and use the Rip Bull work product that Rip Bull provides to Customer.
From time to time prior to and during the term of this agreement either Party (“disclosing Party”) has disclosed or may disclose confidential Information to the other Party (“Receiving Party”). The receiving Party shall, during the term of this agreement and for two years thereafter:
- maintain the confidentiality of confidential Information;
- not to use confidential Information for any purpose other than those specifically set out in this agreement;
- not disclose any confidential Information to any person or entity, except to its employees who need to know such information to perform their responsibilities and who have signed written confidentiality contracts containing terms at least as stringent as the terms provided in this agreement;
The term of the licenses to the Licensed Software and associated documentation granted hereunder (the “Term”) will commence upon delivery of the Licensed Software or no later thant 5 days from the date of invoice and continue until the date set forth in the applicable order form unless terminated earlier pursuant to Section 7 hereof. The Term will automatically be extended for additional one (1) year periods on each anniversary of the initial expiration date at the then-applicable fee determined in accordance with Section 2.b unless Customer gives notice of its intent not to renew at least ten (10) business days before the end of the relevant term.
- Termination for Default of Customer
- Termination by Customer for Default or Insolvency of Licensor
- Payments upon Termination
- Surviving Provisions
- Termination Certificate
In the event of any default by Customer in performance or observance of any of its material obligations hereunder, Licensor may give Customer notice of the breach, specifying the nature of the breach. Customer will have 30 days after receipt of such notice to cure the breach. If Customer does not cure the default to the reasonable satisfaction of Licensor, Licensor may terminate this Agreement upon written notice to Customer effective immediately or at a later date specified in such notice.
In the event of an uncured default by Licensor of its maintenance and support obligations hereunder, or in the event the Licensor files a petition in bankruptcy, becomes insolvent, makes an assignment for the benefit of creditors, takes steps to liquidate, dissolve or wind up or admits in writing its inability to pay its debts as they come due, or if it has a petition in bankruptcy filed against it or a receiver or trustee appointed for its assets, and such filing or appointment is not stayed or dismissed within thirty (30) days, Customer may terminate this Agreement upon written notice to Licensor provided, however, that Customer will have the right and license to continue to use the Licensed Software in object code form in perpetuityfor the remaining term without further payment of any licensing fees, and that the restrictions in Section 1.b and 1.c shall thereafter be of no force or effect.
Upon termination of this Agreement by Licensor for the uncured breach of Customer as provided in Section 7., Licensor will have no obligation to refund any portion of fees paid by Customer for periods after the effective date of termination. Upon termination of this Agreement by Licensor as provided in Section 7.b, Licensor will promptly refund any portion of fees paid by Customer for the portion of any Term after the effective date of termination.
The provisions of Sections 4, 5, 12, 17, and 22 hereof shall survive any expiration or termination of this Agreement.
In the event of expiration of the initial or any renewal Term or upon termination of this Agreement pursuant to Section 7.a, Customer will immediately discontinue use of and destroy all copies of the Licensed Software and, within one (1) month after termination, will furnish to Licensor a certificate which certifies with respect to each copy of the Licensed Software that to the best of its knowledge, the original and all copies, in whole or in part and in any form, of the Licensed Software have been destroyed.
Maintenance and Support
During the initial and any renewal Term, Licensor will provide to Customer the maintenance and support services set forth in the order form.
Licensor warrants that the Licensed Software, when properly installed and used in accordance with the documentation, will substantially conform to the functional specifications published by Licensor in its documentation upon Licensed Software delivery. Licensor does not warrant that Licensed Software will meet Customer’s requirements or that operation of Licensed Software will be uninterrupted or error-free. If Customer believes that the Licensed Software does not operate as expected, Customer’s sole remedy will be to access the support services or, if such support services do not remedy the issue and allow continued use of the Licensed Software in commercial applications, to terminate the Agreement as provided in Section 7.b . Licensor makes no other warranties express, implied or statutory, with respect to the Licensed Software provided under this Agreement. Licensor specifically disclaims all implied warranty of merchantability, fitness for a particular purpose and non-infringement of intellectual property.
Patent and Copyright Indemnity
- Altered Version
Licensor hereby indemnifies Customer against any claim that the Software Programs, furnished and used within the scope of this Agreement, infringes any registered copyright or patent, provided that: (1) Licensor is given prompt notice of the claim; (2) Licensor is given immediate and complete control over the defense and/or settlement of the claim, and Customer fully cooperates with Licensor in such defense and/or settlement; (3) Customer does not prejudice in any manner Licensor's conduct of such claim; and (4) the alleged infringement is not based upon the use of the Software in a manner prohibited under this Agreement, in a manner for which the Software was not designed, or in a manner not in accordance with the Specifications.
Licensor shall have no liability for any claim of infringement based on (1) the use of a superseded or altered version of the Software if infringement would have been avoided by the use of a current or unaltered version of the Software which Licensor made available to Customer; or (2) the combination, operation or use of the Software with software, hardware, or other materials not furnished by Licensor.
If a final injunction is obtained against the use of any part of the software by reason of infringement of registered copyright or patent, Licensor will, at its option and expense, either (1) procure for Customer the right to continue to use the Software; (2) modify the Software so that it becomes non-infringing; or (3) repurchase the Software and Documentation less depreciation pro rata for the part of the termyear, from the date of acceptance to the date of removal of the software. If licensor selects this third option, Customer shall, immediately upon receipt from Licensor of the payment set forth above, at Licensor's option destroy or return all copies of the Software and Documentation in its possession or under its control.
The foregoing states Licensor's entire obligation and liability with respect to the infringement of any property right.
Customer hereby indemnifies Licensor against any claim for (1) alleged infringement of any registered copyright or patent, arising out of the use of the Software by Customer in any manner prohibited by this Agreement and (2) any claim related to or arising out of a financial transaction brought by any third party based on the use of the Software.
Third Party Claims Against Licensor
- Customer acknowledges that Licensor has no control over the testing of Customer’s products, or the specific applications and use of the Licensed Software. Licensor shall not be liable for any claim or demand made against Customer by any third party, except to the extent such claim is covered under Section 12.
- If a third party makes a claim against Licensor arising out of the use of Customer’s product, Licensor will give Customer prom notice of such claim. At Customer’s option and expense, Customer may take sole control of the defense and any settlement of such claim. Customer will reimburse and hold harmless Licensor for any liability, damages, settlement amounts, costs and expenses, including reasonable attorney’s fee, incurred by or awarded against Licensor in connection with such claim.
- The provisions in this Section shall survive any expiration or termination of this Agreement.
Limitation of Liability
To the extent permitted under applicable law, in no event shall Licensor be liable for indirect, special, incidental, or consequential damages (including lost profits or savings) whether based on contract, tort or any other legal theory. Even if the Licensor has been advised of the possibility of such damages. In no event shall the Licensor’s liability under this Agreement exceed the amount received from Customer for the Software or service giving rise to the claim. In the case where no amount was paid, the Licensor shall have no liability for any damages whatsoever. The provisions of this Section 12 shall survive the termination of this Agreement.
Licensor will follow commercial best practices in its industry to mitigate the risk that any Licensed Software contains any virus, worm, Trojan, time bomb, ransomware or other disabling or harmful code, file or program intended to interfere with the operation of computer systems, to alter, delete or interfere with access to data, or to limit Customer’s access to the Licensed Software (“Malicious Code”). Licensor will scan all code prior to delivery to Customer. If at any time Licensor discovers, or is notified of, any Malicious Code, Licensor will remove it as quickly as possible at its sole expense.
All notices in connection with this Agreement shall be in writing and may be given by certified, registered, or first-class mail or personally delivered the attention of Rip Bull Legal Department, at Rip Bull Networks, Inc., 350 Townsend St STE 500, San Francisco, Ca 94107, firstname.lastname@example.org; or as updated by Rip Bull via notice to Customer. For purpose of this Agreement, a notice shall be deemed effective upon personal delivery to the party or if by mail five days after proper deposit in a mailbox.
This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives and to their permitted successors and assigns except as otherwise provided herein.
In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.
Governing Law and Dispute Resolution
This Agreement, and any disputes arising out of or related to this Agreement, shall be governed, and interpreted exclusively by the laws of the State of California.
All communications and notices between the parties relating to this Agreement must be in the English language. The parties agree that this Agreement was prepared and negotiated in the English language. Any translation of this Agreement by a party into a language other than English is made for that party’s convenience, and in the event of any conflict between such translation and the original English language version, the English language version will control. The English language version of this Agreement will be used in any proceeding to interpret or enforce this Agreement.
This Agreement and the licenses granted by it may not be assigned, sublicensed, or otherwise transferred by Customer without the prior written consent of Licensor, except that Customer may assign this Agreement without such consent to its successor in interest by way of merger, acquisition or sale of all or substantially all of its assets.
The services, Rip Bull technology and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any Prohibited Party List. Customer will not provide access or use of export Rip Bull technology to (a) any end-user or third party located in a country or region subject to a U.S. Government embargo or designated as a state sponsor of terrorism; (b) to any end-user or third party on any Prohibited Party List; or (c) in violation of any U.S. or other applicable export laws and regulations, including the Export Administration Regulations administered by the U.S. Department of Commerce, the International Traffic in Arms Regulations administered by the U.S. Department of State, and U.S. sanctions programs administered by the U.S. Treasury Department.
Notice to U.S Government End Users
The Software and Documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States. For U.S. Government End Users, Rip Bull agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
The parties agree to meet periodically to discuss ways in which they can expand current market for their respective products and services. Both parties can display the other’s company logo as its partner on their websites, subject to compliance with the other party’s trademark usage guidelines. Each party may mention the other party as its partner in their PR releases. The content of one party’s PR needs to be approved by the other party before releasing, and either party may withdraw consent for displaying its logo or using its name at any time.
Nothing will obligate a party to pay any commissions to the other party or to restrict a party from entering any business relationship with any other person or entity. Any agreement on such matters must be separately negotiated and signed.
Entire Agreement and Waiver
This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions, and understandings, express or implied, concerning such matters. No failure to exercise or any delay in exercising any right, power, or remedy by a party under this Agreement will operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. To be binding, a waiver must be in writing and signed by the waiving party.