SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU, THE CUSTOMER ("CUSTOMER") AND CDATA SOFTWARE, INC., A NORTH CAROLINA LIMITED LIABILITY CORPORATION, WITH ITS PRINCIPAL PLACE OF BUSINESS AT 101 EUROPA DRIVE, SUITE 110, CHAPEL HILL, NORTH CAROLINA 27517 USA AND ITS AFFILIATES, SUCCESSORS AND ASSIGNS ("LICENSOR"). CUSTOMER'S ADDRESS SHALL BE EITHER THE ADDRESS STATED IN THE SIGNATURE BLOCKS BELOW (IF THIS AGREEMENT IS SIGNED BY CUSTOMER) OR ON THE LICENSOR ORDER FORM INTO WHICH THIS AGREEMENT IS INCORPORATED BY REFERENCE. LICENSOR AND CUSTOMER SHALL BE REFERRED TO COLLECTIVELY AS "PARTIES" OR INDIVIDUALLY AS "PARTY". NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN EXPRESSED, AND OTHER TRUE AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HEREBY AGREE AS FOLLOWS: 1. DEFINITIONS. 1.1 "Affiliate" means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a Party, where "control" is the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise. 1.2 "Application" means any application, program or other software that Customer develops using the Software. An Application must represent a significant functional and value enhancement to the Software such that the primary reason for a Customer to license the Application is other than the right to receive a license to the Software included in the Application. 1.3 "Authorized User" means one named person, employee, contractor or temporary worker authorized to Use the Licensor Products for personal use or while performing duties within the scope of their employment or assignment. 1.4 "Change of Control" of Customer means a transaction or series of transactions (a) pursuant to which Control (defined below) of Customer is acquired by persons or entities other than those who Control Customer on the Effective Date of this Agreement, or (b) resulting in the sale of all or substantially all of Customer's assets.
1.5 "Cloud Services" means the proprietary Licensor web-based software as a service that may be set forth on an Order Form and subsequently made available by Licensor via a customer login link at a web page designated by Licensor including any client software to which Customer is given access in connection with such service, as described in the Documentation.
1.6 "Confidential Information" means all information which the Disclosing Party protects against unrestricted disclosure to others, furnished by the Disclosing Party to the Receiving Party (the party disclosing such Confidential Information being the "Disclosing Party" and the party receiving such Confidential Information being the "Receiving Party") in connection with this Agreement that (a) the Disclosing Party designates as confidential at the time of disclosure or (b) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure, including but not limited to, pricing terms and any information (including benchmark results) that is related to: the Cloud Services, Professional Services, Software, and Support and Maintenance and the content of this Agreement.
1.7 "Control" means the power to direct or cause the direction of the affairs of an entity whether by means of direct or indirect ownership of fifty percent (50%) or more of the voting rights or similar rights of ownership or by means of having the power to direct the management or directors whether conferred by constitutional documents, shareholder agreement or other document regulating the affairs of an entity.
1.8 "Core" means a core of a CPU made up of an independent processor combined onto a single integrated circuit or silicon chip, in both virtualized and/or non-virtualized environments, and regardless of whether used in a Production or Non-production environment.
1.9 "Customer Data" means electronic data submitted by Customer to the Cloud Services or created by Customer in the course of using the Cloud Services.
1.10 "Derivative Work" means a work which is based upon one or more pre-existing copyrightable works such as a revision, modification, translation, abridgment, compilation, condensation or expansion or any other form in which such pre-existing work may be recast, transformed, or adapted, and which, if prepared without the consent of the author of the pre-existing work, would be a copyright infringement.
1.11 "Desktop/Workstation" means a single physical machine, including but not limited to a personal computer, workstation, laptop computer, desktop computer or mobile device, specifically excluding a Server, on which the Software is loaded or executed, that is operated, either attended or via remote access, by one person at a time, and cannot be used by more than one person, directly or indirectly, simultaneously.
1.12 "Documentation" means printed materials and "online" or electronic documentation relating to the Software provided under this Agreement.
1.13 "Developer" means any named identifiable individual person, not necessarily named at the time of a license grant, regardless of whether or not the individual is actively using the Software at any given time, designated by Customer to do any of the following: (a) build, compile, assemble, test or otherwise cause to be executed any application programs that rely on the Software as a component; (b) use or execute any Software programs for development, testing, or support purposes; (c) package or otherwise prepare Software components for redistribution as part of another program or application; or (d) have possession of any Software resources or files for any purposes other than archiving.
1.14 "Licensor Products" means collectively the Cloud Services, Professional Services, Software, and Support and Maintenance.
1.15 "Machine" means an attended or remotely controlled computer where the Software is loaded, that is operated by no more than one person at a time.
1.16 "Maintenance" means new releases of the Software where the number to the left of the first "." in the product designation is changed by Licensor (e.g. "16.0.6360.0" is changed to "17.0.6360.0") and all minor successor upgrades, revisions, patches, enhancements, fixes, modifications, additions or maintenance releases of the Software where any number to the right of the first "." in the product designation is changed by Licensor (e.g. "16.0.6355.0" is changed to "16.0.6360.0").
1.17 "Materials" means any deliverables, Object Code, or other items provided by Licensor in connection with the provision of Professional Services.
1.18 "New Release" means new releases of the Software where the number to the left of the first "." in the product designation is changed by Licensor (e.g. "16.0.6360.0" is changed to "17.0.6360.0") if any, licensed to Customer by the Licensor.
1.19 "Non-Commercial" means any Use of the Software which (a) is not undertaken for profit; (b) is not intended to produce software, works, services, or data for commercial use; or (c) is neither conducted, or funded, by a person or an entity engaged in the commercial use, application, development or exploitation of works similar to the Software.
1.20 "Non-Production" means a non-operational environment into which the Software may be installed, which is not processing live data, which is not running any operations of the Customer and which has not been deployed to permit any users to access live data. Non-Production environments include development and test environments.
1.21 "Object Code" shall mean computer programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or reverse-engineering.
1.22 "Open Source Viral License Terms" means terms in any software license which require, as a condition of use, modification and/or distribution of such software or other software incorporated into, derived from or distributed with such software (a "Work"), any of the following: (a) the making available of source code or design information regarding the Work; (b) the granting of permission for creating derivative works regarding the Work; or (c) the granting of a royalty-free license to any party under intellectual property rights regarding the Work.
1.23 "Order Form" means a Licensor standard ordering document (including online purchasing webpage) referencing this Agreement and reflecting the Licensor Products purchased by Customer.
1.24 "Product Key" means a unique key-code that enables Customer to Use the Software. Only Licensor and or its authorized representatives are permitted to produce Product Keys for Software.
1.25 "Production" means an operational environment into which the Software has been installed, which is processing live data and which has been deployed so that the intended users of the environment are able to access the live data. Production environments include quality assurance, disaster recovery, failover, and high availability environments.
1.26 "Professional Services" means professional consulting services purchased by Customer in the applicable Order Form and SOW and relating to training, development and assistance with Software or Cloud Services.
1.27 "Server" means a physical or virtual machine which has a server operating system and/or where more than one person can simultaneously use the computer either by direct or remote access.
1.28 "Site" means the single physical location that corresponds to a single physical mailing address, where Customer's Developers are licensed to use the Software under Exhibit A as designated in the Order Form. 1.29 "Software" means the (a) the proprietary Licensor software application product that is deployed on Customer's premise and that are specified in an Order Form; and (b) all related Documentation for and any Support and Maintenance releases of the same Software.
1.30 "Source Code" shall mean the human-readable form of the computer programming code and related system documentation including all comments and any procedural code such as job control language.
1.31 "Subscription" means the Customer's right to Use the relevant Software or access the Cloud Services and Support and Maintenance on a subscription basis, as and to the extent listed herein and on an Order Form. 1.32 "Support" means the applicable technical support services provided for at the Licensor's website.
1.33 "Term" means the period commencing as of the Effective Date and expiring on the day that the last Subscription Term under this Agreement terminates.
1.34 "Update" collectively means all minor successor upgrades, revisions, patches, enhancements, fixes, modifications, additions or maintenance releases of the Software where any number to the right of the first "." in the product designation is changed by Licensor (e.g. "16.0.6355.0" is changed to "16.0.6360.0), if any, licensed to Customer by the Licensor but does not include New Releases.
1.35 "Use" means to run, view, print, update, utilize, access, download, store, load, install, execute, display, or copy the Software into the memory of a computer or otherwise benefit from using the functionality of the Software in accordance with the Documentation. 2. SOFTWARE LICENSES; ACCESS TO CLOUD OFFERINGS. If and to the extent the relevant Order Form covers Software, then the terms and conditions of Attachment 1 to this Agreement shall govern Customer's access to and use of that Software. If and to the extent the relevant Order Form covers Cloud Services, then the terms and conditions of Attachment 2 to this Agreement shall govern Customer's access to and use of the Cloud Services. 3. OWNERSHIP. 3.1 Software and Cloud Services. Licensor and its suppliers have and will retain all right, title and interest in and to the Licensor Products and Documentation (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. Customer acknowledges that it is obtaining only a limited license right to access and use (as the case may be) the Licensor Products and Documentation and that irrespective of any use of the words "purchase," "sale," or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise. In addition, Licensor will have a royalty-free, worldwide, irrevocable, perpetual license to use for any purpose any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Licensor Products.
3.2 Professional Services Work Product. Customer shall have a license right to use or access any work product or Materials delivered as part of the Professional Services, solely for its internal business purposes and solely in connection with (as the case may be) the Software regarding which the Professional Services were commissioned. Other than the limited license described in the prior sentence, Licensor shall retain all right, title and interest in and to any such Materials and Professional Services work product and any derivative, enhancement or modification thereof and Customer maintains ownership of its Confidential Information.
4. FEES; PAYMENT TERMS; AUDIT