These terms and conditions (hereafter the “Agreement”) is a binding, legal agreement between you (either an individual or an entity, if you are acting within the scope of your employment) (“you” “your” or “Customer”) and Imply Data, Inc. a Delaware corporation with ofﬁces at 1633 Old Bayshore Hwy, Suite 232, Burlingame, CA, 94010 and its supplier and licensors (“Imply”), regarding the following Imply products you have requested to download which may include any of the following, without limitation, as trial, pre-release, open source software, pay and premium versions of the following products: Imply Pivot - a browser-based visual data explorer allowing users to freely explore relations between dimensions in your dataset, and watch and analyze events as they happen. Imply Advanced Analytics Modules - proprietary modules that provide advanced analytic capabilities not available in the open source Apache Druid project. Imply Manager - software that provides a GUI to define, configure, and manage, and upload data into clusters of Apache Druid servers. Imply Clarity - on-prem or cloud-based (SaaS) usage, performance analytics and alerting application for Apache Druid that allows operators and developers to identify inefficiencies in a deployment, catch problems before they appear, and more quickly discern root causes of issues when problems do arise.
BY CLICKING ON THE CHECKBOX THAT DEMONSTRATES ACCEPTANCE OF THIS AGREEMENT, OR BY DOWNLOADING OR USING THE SOFTWARE, CUSTOMER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE.
1. License Grant
1.1 Evaluation License. The following terms apply to Customer’s access and use of Imply software or SaaS, each as defined below, for evaluation purposes as set forth on the Order Form or via a pop-up notice, or otherwise specified in writing by Imply. Imply grants Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, during the Evaluation Term to access and use the SaaS or install, access and use Imply software only on servers owned or controlled by Customer and solely for internal evaluation of the suitability of the SaaS or software for Customer’s business needs. “Evaluation Term” means thirty (30) days from the date of download by Customer or such other period specified in writing by Imply. If Customer wishes to license the software or SaaS after the Evaluation Term, or for purposes other than those set forth in this Section 1.1, Customer may contact Imply to request a production license. Any such license will be subject to the following standard terms for such license. After the Evaluation Term, Customer’s license to the software or SaaS will terminate and Customer’s access may be disabled by features in the license key. Customer’s use of the software or SaaS for evaluation purposes is “as-is” without a right to Support Services or Imply’s warranty or indemnification obligations set forth in this Agreement.
1.2 Software License
(a) Software License. Subject to the terms of this Agreement, Imply grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, during the license term to install, access, and use the software identified on the Order Form, in object code format only, (“Software”) along with the accompanying Documentation, only on servers owned or controlled by Customer and solely for Customer’s internal business operations. “Documentation” means Imply’s current user manuals, operating instructions and installation guides generally provided with its Software to its licensees.
(b) Open Source Software. Imply may provide Customer with open source software made publicly available by Imply and delivered with a text license file indicating an open source license or otherwise identified in writing as an open source license (“Open Source Software”). Open Source Software shall be subject to the open source license terms and conditions applicable to such software as specified by Imply and as identified in the text license file. Specifically, Open Source Software includes Apache Druid, Plywood, PlyQL, and Tranquility, and may include other software issued by Imply that is identified as Open Source Software in a related text license file.
(c) Third Party Software. Imply may make available to Customer certain third party software, currently identified at https://imply.io/third-party-software (the “Third Party Software”) which may be part of the Software. Notwithstanding anything to the contrary in this Agreement the Third Party Software is subject to the terms and conditions of the third party license agreement applicable to such software. To the extent the terms of any open source licenses applicable to such Third Party Software prohibit any of the restrictions in this Agreement with respect to such Third Party Software, such restrictions will not apply to such Third Party Software. To the extent the terms of open source licenses applicable to such Third Party Software require Imply to make an offer to provide source code or related information in connection with the Third Party Software, such offer is hereby made. Any request for source code or related information should be directed only to: email@example.com. Customer acknowledges receipt of open source license notices for such Third Party Software.
1.3 Copies. Section 1.2 includes the right for Customer to make copies of the Software as necessary to exercise the licenses granted in Section 1.2, and a reasonable number of backup or archival copies, provided that each such copy shall include Imply’s copyright and any other proprietary notices that appear on the original copies of the Software and Customer shall maintain adequate records identifying the location of such backups or copies. Customer will have no right to make back-up copies of Evaluation Software.
1.4 SaaS License. If applicable and as provided on the Order Form, Imply grants Customer the right to access and use software hosted by Imply (“SaaS”) solely for Customer’s internal business purposes, subject to the terms set forth in this Agreement. This right is non-transferable and non-exclusive. Imply reserves the right to modify or improve portions of the SaaS so long as Customer’s access and use of the SaaS is not materially adversely affected.
1.5 Additional Usage Rights; Restrictions on Use.
(b) Restrictions on Use. Except as expressly permitted in this Agreement, Customer shall not, and shall not permit or encourage any third party to: (i) use or distribute the Software or SaaS for third-party training, software-as-a-service, time-sharing or service bureau use except as expressly set forth in Section 1.5 (a); or (ii) translate, disassemble, decompile or reverse engineer any portions of the Software or SaaS that are not provided in source code format, or otherwise attempt to gain access to the source code to such Software or SaaS (or the underlying ideas, algorithms, structure or organization of the object code in the Software); or (iii) modify or create derivative works based on the Software, SaaS or its Documentation; or (iv) remove any proprietary notices or labels on the Software, SaaS, or its individual components or accompanying Documentation; or (v) disclose the results of any performance benchmarks to any third party without Imply’s prior written consent. If the foregoing restriction in subsection 1.5 (b)(ii) is inapplicable to the extent prohibited by law, then in the event that Customer intends to reverse engineer the Software or its individual components as is necessary to achieve interoperability with the Software, or as otherwise and to the limited extent directly permitted by applicable law, but only if: (x) reverse engineering is strictly necessary to obtain such information; and (y) Customer has first requested such information from Imply and Imply failed to make such information available (for a fee or otherwise) under reasonable terms and conditions. Any information supplied to or obtained by Customer under this section is Confidential Information of Imply subject to the obligations of Section 6 (Confidentiality), may only be used by Customer for the purpose described in this section, and will not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software.
1.6 Reservation of Rights. Imply reserves all rights not expressly granted in this Agreement. No rights are granted by implication or estoppel.
1.7 Audit. Imply 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 the terms of the Agreement. Customer will promptly grant such access and cooperate with Imply 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 business 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%) of fees due, Customer will also be liable for the costs of the audit.
2. Available Services.
2.1 Support Services. Imply offers support and maintenance for its licensed Software, SaaS, and Open Source Software products (the “Support Services”). Support Services may be included as part of Customer’s Software and/or SaaS license. Support Services will be provided under Imply’s current prices and standard terms and conditions in effect on the date Support Services are ordered or renewed; Imply’s current Support Services current terms are available at https://imply.io/subscription-support-maintenance-terms/. Imply reserves the right to amend its standard Support Services terms at any time with notice to Customer.
2.2 Managed Services. If Customer elects in the Order Form to have Imply manage the Software as a managed service offering through Customer’s designated Amazon Web Service (AWS) account (the “Managed Services”), then (a) Customer will grant Imply, and Imply’s ability to provide the Managed Services will be contingent on Customer providing Imply, all account access, administrative permissions, login credentials, use, configuration, installation, maintenance, and update rights requested by Imply and reasonably required to provide the Managed Services; and (b) Customer will be responsible for all costs and expenses imposed under Customer’s AWS account. Imply’s access to Customer’s hosted environment is strictly for the purpose of Imply’s provision of the Managed Services during the subscription term identified on the Order Form, and, in no event, will Imply access Customer’s hosted environment for any other purpose.
2.3 Training, Consulting Services. If Customer elects to evaluate or purchase additional services such as training or consulting services as part those terms shall be set forth on the Order Form, and the terms may be found at https://imply.io/legal.
3. Order; Payment Terms.
3.1 Order, Delivery and Acceptance. Except for Customer’s evaluation use of the Imply Products which are available for download via Imply’s website, Customer will place an order for Imply’s products and services by means of an Order Form. The “Order Form” will reference this Agreement and identify the following, without limitation, the Software, SaaS and Services (including Managed Services), as applicable, to be delivered, the license term, any applicable fees, and Customer’s information including the installation and billing addresses. The Software and/or SaaS and any versions, updates or maintenance releases of any component thereof and any Documentation will be delivered only through the internet and, as applicable, made available for download. If necessary, the parties shall reasonably cooperate to effectuate such delivery via FTP or other reasonable means. Customer agrees that acceptance of the Software and/or SaaS will occur upon delivery of the software activation key and download instructions or SaaS access instructions and such acceptance shall not be revoked. Customer is solely responsible for installation of the Software as permitted under this Agreement.
3.2 Payments and Taxes. Customer’s Order Form will set forth the fees for the Software and Services ordered thereunder. All fees are due and payable within thirty (30) days from the date of Imply’s invoice and are non-refundable subject to the remedies set forth in Sections 7.1 and 7.2 and 8.2 (Injunctive Relief) and non-cancelable. 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 Imply’s net income) unless Customer furnishes satisfactory proof of exemption. Imply may assess interest charges of one percent (1%) per month for late payments.
4.0 Privacy and Data Processing Terms.
(a) Definitions. Data Protection Law means all data protection and privacy laws, rules and regulations applicable to a party and binding on that party in the performance of its obligations under this Agreement, including, where applicable, EC Directive 2002/58/EC and (i) prior to May 25, 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation). The terms “personal data,” “data processor,” “data subject,” “process and processing” and “data controller” shall be as defined in the applicable Data Protection Laws.
(b) Party Roles. The parties agree that Customer shall at all times be the data controller and Imply shall be the data processor with respect to the processing of Customer personal data in connection with this Agreement.
(c) Permitted Processing. Imply agrees to the following restrictions with respect to its use and/or processing of personal data pursuant to this Agreement: Imply shall only process any Customer personal data for the purposes of provision, maintenance, or support of the Software, SaaS, and Managed Services provided hereunder, including evolving and optimizing such to meet or exceed current level of effectiveness. In addition to the foregoing, Imply may use any such Customer personal data which is effectively anonymized or aggregated data such that it does not reveal the specific identity of any individual, provided that Imply shall not (i) re-identify any individual from any Customer personal data so anonymized or aggregated; and (ii) identify Customer in any way in its use of anonymized or aggregated personal data as described herein.
(d) Security. In accordance to applicable data protection laws, Imply shall take all commercially reasonable measures, but in no event less than industry standard for a provider of similar products and services as Imply, to protect the security and confidentiality of Customer personal data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties. Imply will provide Customer with its security policy, upon request, that sets forth the technical specifications and the detailed measures taken to protect the security and confidentiality of customer personal data.
(e) Privacy Shield and the Standard Contractual Clauses. To the extent that Privacy Shield is determined to be an invalid mechanism of transfer, Imply shall execute Standard Contractual Clauses for the controller-to-processor transfers, as set out in the Annex to Commission Decision 2010/87/EU, or its successor mechanism.
5.0 Ownership. Customer acknowledges that Imply or its suppliers and licensors retain all proprietary rights, title and interest, including all intellectual property rights, in and to the Software and SaaS and any changes, corrections, bug fixes, enhancements, features, updates and other modifications thereto (collectively, “Modifications”) made by or on behalf of Customer, and as between the parties all such rights shall vest in Imply. Customer acknowledges that the licenses granted in Section 1 do not include the right to prepare any Modifications of the Software or SaaS. Except as explicitly set forth herein, Customer shall have no right to receive any such Modifications. In the event ownership of any portion of the Software or SaaS or any Modifications vest in Customer, Customer hereby assigns and shall assign to Imply all of its right, title and interest in and to all intellectual property and other rights in such materials or Modifications, and waives any and all moral rights in such materials or Modifications to which it may now or in the future be entitled under the laws of any jurisdiction. Notwithstanding the foregoing, Customer may develop interfaces to the Software strictly for its use in conjunction with its licensed use of the Software; provided, however, that Customer shall perform all such development without misappropriating, infringing, or otherwise violating any intellectual property or trade secret rights of Imply and without using, examining, or otherwise referencing the source code of the Software. Such interfaces will be the sole property of Customer.
6.1 Nondisclosure. Each party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”); provided, however that Modifications will be the Confidential Information of Imply and not Customer. Notwithstanding any failure to so designate them, the Software, SaaS, Services and the terms and conditions of this Agreement shall be Imply’s Confidential Information. Each party agrees to: (a) maintain the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except for the purpose of performing its obligations under this Agreement; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding written use and disclosure restrictions at least as protective as those set forth herein). Each party shall immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested by such other party. The foregoing obligations will not apply to Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
6.2 Remedies. Each party acknowledges that any breach or threatened breach of this section may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
7. Representations; Warranty.
7.1 Limited Product Warranty and Remedy. For a period of sixty (60) days after delivery of the Software or Customer’s access to the SaaS (the “Warranty Period”), Imply warrants that the Software and SaaS shall materially conform to the Documentation. Imply does not warrant that operation of the Software or SaaS will be uninterrupted or “bug” free. If Imply breaches the foregoing warranty and Customer promptly notifies Imply in writing of the nature of the breach during the Warranty Period, Imply shall make commercially reasonable efforts to promptly repair or replace the non-conforming Software or SaaS without charge. If, after a reasonable opportunity to cure, Imply does not repair or replace the non-conforming Software or SaaS, Customer must return the Software and the Documentation to Imply, or certify in writing that all copies have been destroyed, and Imply will refund the license fees it received from Customer for the Software or SaaS. This is Customer’s sole and exclusive remedy for breach of the exclusive warranty in Section 7.1.
7.2 Limited Services Warranty and Remedy. Imply shall provide qualified service providers who perform in a professional and workmanlike manner in accordance with industry standards. The warranty specified in this Section 7.2 shall apply only to failures or breaches of warranty which are reported to Imply by Customer within thirty (30) days after (a) the date the Services are delivered to Customer, or (b) the date of acceptance in the case of a Service deliverable as set forth on the Order Form. Imply’s sole obligation for failure to meet the warranty specified above shall be for Imply, upon receipt of written notice of such failure from Customer, to attempt to remediate the failure or cure the breach within thirty (30) days of Customer’s written notice thereof if Imply is unable to correct the failure or cure the breach, then Imply shall return any fees paid for the defective Services.
7.3 Warranty Disclaimer. OTHER THAN THE LIMITED WARRANTIES PROVIDED IN SECTIONS 7.1 AND 7.2, IMPLY DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, SERVICES (INCLUDING MANAGED SERVICES), SAAS, OR OTHER MATERIALS PROVIDED HEREUNDER. IMPLY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THE SOFTWARE, SAAS, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. IMPLY DOES NOT REPRESENT OR WARRANT THAT THE SAAS OR MANAGED SERVICES WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS OR IN A SECURE MANNER. THE SERVICES (INCLUDING MANAGED SERVICES) MAY BE SUBJECT TO LIMITATIONS, DELAY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. IMPLY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY LOSS OF DATA OR DAMAGES RESULTING THEREFROM. THE SERVICES (INCLUDING MANAGED SERVICES) MAY CONTAIN INDEPENDENT THIRD PARTY PRODUCTS AND RELY ON THEM TO PERFORM CERTAIN FUNCTIONALITY IN CONNECTION WITH THE SERVICES. IMPLY MAKES NO WARRANTY AS TO THE OPERATION OF ANY THIRD PARTY PRODUCTS OR THE ACCURACY OF ANY THIRD PARTY INFORMATION.
7.4 Customer Representations and Warranty.
(a) Customer Obligations. Customer will: (i) provide Imply with all information and assistance required to provide the Managed Services and enable Customer’s use of the Managed Services; (ii) immediately notify Imply of any unauthorized access, use, copying, distribution, or other suspected security breach in connection with the Software , SaaS or Managed Services; (iii) not send to Imply or otherwise use any data, information, materials or other content (”Customer Content”) in connection with the Managed Services or SaaS or this Agreement that is illegal, immoral, obscene, threatening, libelous, otherwise unlawful or tortious, otherwise protected by any intellectual property or proprietary right of any third party, or for which Customer does not own or has not procured sufficient license, right, consent and permission to copy, disclose, store, broadcast, transmit, or otherwise use in connection with the SaaS or Managed Services and this Agreement; (iv) be responsible for all activity that occurs in Customer’s or its users’ SaaS or Managed Services accounts (and any transactions completed under Customer’s accounts will be deemed to have been lawfully completed by Customer); and (v) be responsible for ensuring that it obtains all consents, permissions, and licenses for any and all Customer Content that is owned or controlled by third parties that Customer copies, discloses, stores, transmits, broadcasts or otherwise uses in connection with the SaaS and Services.
(b) Customer Warranties. Customer represents and warrants that (i) it has the full corporate power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it has the necessary rights to enter into this Agreement and perform its obligations hereunder; (iii) this Agreement is a binding obligation upon it and, when executed by both parties, is enforceable in accordance with its terms; (iv) it will comply with all applicable laws, rules and regulations in the course of performing its obligations and exercising its rights under this Agreement; and (v) any Customer Content provided to Imply or otherwise used by either party in connection with this Agreement will not infringe, misappropriate or otherwise violate any right of any third party.
8. Indemnification and Limitation of Liability.
8.1 Imply Indemnification. Imply will indemnify, defend or settle any action brought against Customer to the extent that it is based upon a claim that the Software, SaaS, or Services (including Managed Services), 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: (a) must promptly notify Imply in writing of the claim; (b) reasonably cooperates with Imply and provides Imply, at Imply’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the claim; and (c) grants Imply the sole control of the defense and all related settlement negotiations.
8.2 Injunctive Relief. If an injunction is, or in Imply’s opinion is likely to be, threatened, sought or obtained against Customer’s use of the Software or SaaS as a result of a third party infringement claim, Imply may, at its sole option and expense, (a) procure for Customer the right to continue using the affected Software or SaaS, (b) replace or modify the affected Software or SaaS with functionally equivalent software so that it does not infringe, or, (c) terminate the licenses and refund any pre-paid fees received from Customer for the then outstanding license term on a pro rata basis, if applicable.
8.3 Disclaimer of Liability. Imply shall have no liability or obligations for any third party claim of infringement based upon (a) modifications to the Software or SaaS made by a party other than Imply, if a claim would not have occurred but for such modifications; (b) Customer’s failure to use the then current, unaltered version of the applicable Software (including any maintenance release provided by Imply to avoid a claim); (c) use, operation or combination of the applicable Software or SaaS with any programs, data, equipment or documentation that is not deemed by Imply to work in conjunction with the Software, if such infringement would have been avoided but for such use, operation or combination; (d) any Open Source Software or third party software; or (e) Customer’s use of the Software or SaaS other than in accordance with this Agreement and the Documentation. The foregoing constitutes the entire liability of Imply, and Customer’s sole and exclusive remedy, with respect to any third party claims of infringement of intellectual property rights of any kind.
8.4 Limitation of Liability. IMPLY’S AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES CONCERNING PERFORMANCE OR NONPERFORMANCE BY IMPLY 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 IMPLY FROM CUSTOMER FOR THE AFFECTED SOFTWARE, SAAS, OR SERVICES (INCLUDING MANAGED SERVICES) FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE OCCURRENCE OF SUCH LIABILITY. FURTHER, IMPLY WILL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF IMPLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.5 Customer Indemnification. Customer will indemnify and hold Imply harmless against any and all losses, damages, liabilities, judgments, awards, penalties, interest, fines, costs, fees or expenses of whatever kind, including reasonable attorneys’ fees, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, which are incurred by Imply arising out of any third party claim, demand, allegation, investigation, or other proceeding made in connection with or otherwise related to Customer’s use of Customer Content with the SaaS or Managed Services; Customer’s violation of any applicable law; or Customer’s breach of the export control provision in this Agreement.
9. Term and Termination.
9.1 Term. Unless earlier terminated as provided in this section, this Agreement and the license grant herein shall be effective as of the Effective Date set forth in the Customer’s Order Form and shall continue for the duration of the license term set forth therein unless renewed or terminated in accordance with this Section 9 (the “Term”). After the expiration of the initial license term, the license grant and Service subscription set forth in the Order Form shall automatically renew in one (1) year increments on the renewal terms set forth in the Order Form unless either party terminates the license by providing written notice at least sixty (60) days prior to the scheduled renewal date.
9.2 Suspension. Imply may suspend Customer’s access to the SaaS: (a) if Imply considers it necessary to prevent or terminate any actual or suspected use of the of the SaaS in violation of this Agreement; or (b) upon notice to Customer if: (i) Customer commits a material breach of this Agreement; (ii) Imply reasonably determines that Customer’s use of the SaaS is in excess of the license metrics paid for by Customer in the Order Form; or (iii) if there is a threat to the security and integrity of the hosted environment for the SaaS. Suspension of the SaaS will be without prejudice to any rights or liabilities accruing before or during the suspension, including Customer’s obligation to pay fees.
9.3 Termination. Either party shall have the right to terminate this Agreement and the license granted herein upon written notice in the event the other party fails to perform or observe any material term or condition of this Agreement and such default has not been cured no later than thirty (30) days after written notice of such default to the other party. Imply may also terminate this Agreement immediately if the Customer: (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.
9.4 Effect of Termination. The rights and obligations of Imply and Customer in Sections 1.5 (Reservation of Rights), 5 (Ownership), 6 (Confidentiality), 7.3 (Warranty Disclaimer), 8.4 (Limitation of Liability), and 10 (Miscellaneous) shall survive termination of this Agreement. All of Customer’s rights in the Evaluation Software will terminate immediately upon termination of this Agreement. No later than five (5) days after termination of this Agreement, Customer shall return to Imply or, upon Imply’s request, destroy, at Customer’s sole expense, all Confidential Information of Imply and any materials containing any Confidential Information of Imply, the Software, including all copies thereof, and deliver to Imply a certification, in writing signed by an officer of Customer, that such Confidential Information, Software and all copies thereof have been returned or destroyed, and their use discontinued. Customer has five (5) days from termination to download any data from its SaaS account. Nothing contained herein shall limit any other remedies that Imply may have for the default of Customer under this Agreement nor relieve Customer of any of its obligations incurred prior to such termination.
10.1 Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without Imply’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Imply shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this section, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
10.2 Insurance. Imply shall take out and maintain the following minimum insurance at its expense for the duration of the Term covering locations where Imply is to perform Services on Customer’s premises: (a) Workers’ Compensation – as required by the statute of states where services are being performed; (b) Comprehensive General Liability Insurance – $2,000,000 per occurrence/aggregate bodily injury and $2,000,000 per occurrence/aggregate property damage; and (c) Automobile Liability Insurance – $1,000,000 per occurrence, bodily injury and property damage combined. Nothing in this agreement shall be deemed to preclude Imply from selecting a new insurance carrier or carriers or obtaining new or amended policies at any time, as long as the above insurance coverage and limits are maintained. Imply agrees to provide Customer with a certificate(s) of insurance evidencing such coverage within a reasonable time of the receipt of a written request for same.
10.3 Entire Agreement; Modification; Waiver. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. If there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Exhibit, Customer purchase order or other document, the terms and conditions of this Agreement shall prevail. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
10.4 Dispute Resolution and Governing Law. All claims, disputes, and other matters in question arising out of, or relating to, this Agreement or the interpretation or breach thereof, shall be fully, finally and exclusively resolved by binding and confidential arbitration conducted pursuant to the rules of Judicial Arbitration and Mediation Services, Inc. (JAMS) in San Francisco, California. This agreement to arbitrate shall be specifically enforceable under applicable law in any court. Notice of the demand for arbitration shall be filed in writing with the other party to this Agreement and JAMS. By entering into this Agreement, Imply and Customer waive their respective rights to have any such disputes or claims tried by a judge or jury. To the fullest extent permitted by law: no arbitration under this Agreement shall be joined to any other arbitration, including any arbitration involving any other current or former customer of Imply; no class arbitration proceedings shall be permitted; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between Customer and Imply); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between Customer and Imply). Customer’s arbitration fees and share of arbitrator compensation will be limited to those set forth in the JAMS Rules with the remainder paid by Imply. If such costs are determined to be excessive, Imply will pay all arbitration fees and arbitrator compensation. The parties hereto may litigate in court only to compel arbitration under this Agreement, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator(s). The parties hereto hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of California to enforce the provisions of this section, and to resolve any disputes and claims cognizable in court relating in any way, or arising out of, this Agreement or Customer’s use of the Software, SaaS, or Services (including Managed Services). The court, not the arbitrator, shall determine whether arbitration may occur and enforce the arbitration agreements contained herein, including the prohibition on consolidated arbitrations and class arbitration. This Agreement and all disputes and claims relating in any way to, or arising out of, this Agreement, the Software, SaaS, or Services (including Managed Services) shall be governed by the laws of the State of California and the Federal Arbitration Act. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
10.5 Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
10.6 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. 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 may identify the other as a customer or supplier, as applicable, and place the other party’s logo on its website.
10.7 Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified on the Order Form.
10.8 U.S. Government Restricted Rights. If the Software is being licensed by the U.S. Government, the Software and Documentation is deemed to be “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
10.9 Export Law Assurances. The Software and SaaS are subject to export control laws and regulations. Customer may not access, download, or otherwise export or re-export the Software and/or SaaS or any underlying information or technology except in full compliance with all applicable laws and regulations, including, United States export control law. None of the Software, SaaS, or underlying information or technology may be accessed, downloaded, or otherwise exported or re-exported: (a) into (or to a national resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Customer hereby agrees to the foregoing and represents and warrants that Customer is not located in, under control of, or a national or resident of any such country or on any such list.
10.10 Construction. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.”
This Software License was last modified on the 24th of April 2018.