Daasity Source Code License Agreement

THIS SOURCE CODE LICENSE AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“LICENSEE”) AND DAASITY, INC. (“DAASITY”). IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL “LICENSEE” REFERS TO YOU INDIVIDUALLY.  IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “LICENSEE” REFERS TO THAT ENTITY. BY DOWNLOADING, COPYING, MODIFYING AND OTHERWISE USING THE DAASITY DATA TRANSFORMATION SOFTWARE LICENSED HEREUNDER (THE “SOFTWARE”), YOU ACKNOWLEDGE THAT YOU ARE AT LEAST 18 YEARS OF AGE, THAT LICENSEE IS CURRENTLY A DAASITY CUSTOMER IN GOOD STANDING, THAT LICENSEE HAS REVIEWED AND ACCEPT THIS AGREEMENT, AND THAT LICENSEE AGREES TO BE BOUND BY ALL OF ITS TERMS.  IF YOU ARE NOT 18 YEARS OF AGE OR IF LICENSEE DOES NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, NEITHER YOU NOR LICENSEE ARE AUTHORIZED TO DOWNLOAD, COPY OR OTHERWISE USE THE SOFTWARE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU ACCESS THE SOFTWARE SOURCE CODE (THE “EFFECTIVE DATE”).

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1. Definitions. 

1.       1.1. “Daasity Platform” means Daasity’s data extraction, transformation, visualization and operationalization platform.
2.       1.2. “Documentation” means Daasity’s technical documentation and supporting materials relating to the Licensed Code, if any, and any modifications to or derivative works of the foregoing developed by or for Licensee.
3.       1.3. “Feedback” means all reports and other materials, information, ideas, concepts, feedback and know-how concerning the Licensed Code and/or Documentation.
4.       1.4. “Intellectual Property Rights” means copyright rights (including, the right to use, the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the right to make, use, sell, offer for sale and import), trade secrets, moral rights, right of publicity, right of privacy, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether those rights arise under the law of the United States or any other state, country or jurisdiction throughout the world.
5.       1.5. “Licensed Code” means (i) the Source Code version of the Software provided to Licensee by Daasity under this Agreement; (ii) any modifications to the foregoing developed by or for Licensee; and (iii) any Updates or Upgrades provided by Daasity to Licensee.
6.       1.6. “Open Source Software” means software that is subject to the provisions of any open source, public source, or copyleft license agreement. 
7.       1.7. “Source Code” means programming code that can be printed or displayed in a form readable and understandable by a computer programmer of ordinary skills.
8.       1.8. “Updates” means any bug fixes or error corrections to the Software.
9.       1.9. “Upgrades” means any new versions of the Software other than Updates.
   
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2. Licenses. 

1.       2.1. License Grant. Subject to the terms and conditions of this Agreement, Daasity grants to Licensee a non-exclusive, non-transferable, non-sublicenseable license to (i) use, reproduce and modify the Source Code of the Licensed Code and (ii) compile the modified Licensed Code and upload the compiled version to Licensee’s instance of the Daasity Platform; and (iii) use, reproduce, modify and create derivative works of the Documentation; in each case of (i), (ii) and (iii) solely for Licensee’s internal business purposes in connection with Licensee’s permitted use of the Daasity Platform. 
2.       2.2. License Restrictions and Requirements. Licensee shall not: 

1.         (a) remove from any copies of the Licensed Code or Documentation any product identification, copyright or other notices; 
2.         (b) distribute the Licensed Software or Licensee’s modified versions thereof to any third party; or
3.         (c) use the Licensed Code or derivative works thereof to develop products and services that compete with any Daasity products or services; or

1.       2.3. Upgrades and Updates. Daasity shall not be obligated to develop or deliver any Updates or Upgrades to Licensee.
2.       2.4. Support. Nothing herein shall require Daasity to provide any technical or other support for the Licensed Code. Any technical support provided will be an accommodation to Licensee, and shall not create an obligation for Daasity to provide further technical support. 
3.       2.5. Open Source. Licensee shall not allow or cause any Licensed Code to become subject to any “copyleft,” open source or similar licensing or distribution models. Any Open Source Software provided to Licensee is provided on an “as-is” basis at the sole risk of Licensee. Notwithstanding any language to the contrary in this Agreement, Daasity makes no express or implied warranties of any kind with respect to any Open Source Software provided to Licensee and shall not be liable for any damages regarding the use or operation of the Open Source Software furnished under this Agreement. Any and all express or implied warranties, if any, arising from the license of Open Source Software shall be those warranties running from the third-party manufacturer or licensor to Licensee.

3. Delivery; Acceptance.

1.       3.1. Delivery. Daasity shall deliver or make available the Licensed Code and Documentation via access to a Daasity administered repository.
2.      3.2. Acceptance by Licensee. Licensee accepts the Licensed Code and Documentation upon delivery.

4. Ownership. Daasity retains all right, title and interest, including all Intellectual Property Rights, in and to the Licensed Code and Documentation. Daasity reserves all rights not expressly granted to Licensee by Daasity under this Agreement. There are no implied rights. Licensee shall promptly notify Daasity in writing upon its discovery of any unauthorized use or infringement of Daasity’s Intellectual Property Rights in or to the Licensed Code and/or Documentation. 

5. Fees and Taxes.

1.       5.1. Fees. There shall be no additional fees payable by Licensee for the use of the Licensed Code and Documentation as permitted under the terms of this Agreement. For avoidance of doubt, the foregoing does not relieve Licensee of any fees payable under the terms of any other agreement between Daasity and Licensee.
2.       5.2. Taxes. Licensee is responsible for the payment of all export, excise, sales, use, property and other taxes based on the transactions under this Agreement or the fees paid hereunder, including license fees, other than taxes imposed upon or measured by Daasity’s net income. If Daasity has the legal obligation to pay or collect taxes for which Licensee is responsible pursuant to this Section, Daasity will invoice the amount of such taxes to Licensee and Licensee agrees to pay such amount, unless Licensee provides Daasity with a valid tax exemption certificate authorized by the appropriate taxing authority.

6. Feedback. Daasity may use any comments, suggestions, evaluations or other feedback about the Licensed Code provided by Licensee (“Feedback”), without restriction in any manner now known or in the future conceived, to improve, enhance and/or promote its products and, accordingly, and Licensee grants a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license (with the right to sublicense) to (i) use, copy, reproduce, disclose, distribute, modify, publicly display, prepare derivative works of and otherwise exploit the Feedback (or any modification thereto), in whole or in part, in any format, medium or application, and (ii) to make, use, permit others to use, sell, offer to sell, import and export any product or service that incorporates the Feedback, in whole or in part.

7. Disclaimer. THE LICENSED CODE AND DOCUMENTATION IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY TYPE OR KIND. DAASITY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND THOSE ARISING FROM COURSE OF DEALING, CUSTOM, CONDUCT, USAGE OF TRADE OR OTHERWISE. Daasity does not warrant that the Licensed Code or Documentation will be error-free or will meet Licensee’s needs or requirements.

8. Limitation of Liability.

1.       8.1. Consequential Damages Waiver. IN NO EVENT WILL DAASITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF PROFITS AND LOSS OF USE, ARISING OUT OF OR RELATING THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF DAASITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
2.       8.2. Cap on Damages. IN NO EVENT WILL DAASITY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED IN THE AGGREGATE THE AMOUNTS RECEIVED BY DAASITY FROM LICENSEE UNDER THIS AGREEMENT.

9. Term and Termination. 

1.       9.1. Term. This Agreement commences on the Effective Date and, unless terminated sooner in accordance with Section 9.2 of this Agreement, continues in effect thereafter.
2.       9.2. Termination. If a party materially breaches this Agreement and fails to cure the breach within 10 days after written notice of breach is given to it by the other party, the notifying party may terminate this Agreement upon further written notice of termination. This Agreement shall terminate immediately upon termination of Licensee’s customer agreement with Daasity or if Licensee otherwise ceases to be a Daasity customer. 
3.       9.3. Effect of Termination. Upon expiration or termination of this Agreement, (i) the rights and licenses granted to Licensee pursuant to this Agreement will automatically and immediately terminate; (ii) Licensee shall immediately destroy or, if requested by Daasity, return all Licensed Code and Documentation, and any Daasity confidential information, (iii) Licensee will have an officer of Licensee promptly certify to Daasity in writing that Licensee has fully complied with the requirements of this subsection; and (iv) Licensee shall cease to use the Licensed Code and Documentation.
4.       9.4. Survival. Sections 1 (“Definitions”), 4 (“Ownership”), 5 (“Fees and Taxes”), 7 (“Disclaimer”), 8 (“Limitation of Liability”), 9 (“Term and Termination”), and 10 (“General Provisions") shall survive termination of this Agreement.

10. General Provisions. 

1.       10.1. Relationship. The relationship between the parties will be that of independent contractors. Nothing contained herein will be construed to imply a joint venture, principal or agent relationship, or other joint relationship, and neither party will have the rights, power or authority to create any obligation, express or implied, on behalf of the other.
2.       10.2. Governing Law; Arbitration. This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  Any dispute arising out of or in connection with this Agreement, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by this Agreement, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules.  The number of arbitrators shall be one (1).  The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator.  If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators.  The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings.  
3.       10.3. Attorneys’ Fees. In the event any proceeding or lawsuit is brought by either party in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.
4.       10.4. Assignment. Licensee may not transfer or assign its rights under this Agreement without the prior written consent of Daasity. Any attempted assignment or transfer in violation of this Section is void.
5.       10.5. Waiver. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
6.       10.6. Severability. If any term or provision of this Agreement will be found to be invalid, illegal or unenforceable, the remainder of the provision will be amended to achieve as closely as possible the economic effect of the original term and the validity, legality, or enforceability of the remaining terms and provisions will not in any way be affected or impaired thereby.
7.       10.7. Export Compliance. Licensee will not export, directly or indirectly, the Licensed Code, or any portion thereof in any form, to any country for which United States laws or regulations require an export license or other governmental approval, without first obtaining such license or approval. Licensee hereby will indemnify and hold Daasity harmless from and against any losses, damages, penalties or causes of action resulting from a violation of this Section 10.7.
8.       10.8. Notices. All notices which any party to this Agreement may be required or may wish to give may be given by addressing them to the other party at: 4660 La Jolla Village Drive, San Diego, CA 92122 - for notices sent to Daasity and, for notices sent to Licensee, at the address currently maintained in Daasity’s records by (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery.  All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
9.       10.9. Injunctive Relief. It is expressly agreed that a violation of this Agreement will cause irreparable harm to Daasity and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, Daasity will be entitled to an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions of this Agreement, without the need to post bond.
10.       10.10. Force Majeure. Neither party will be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communications or utility failures, or casualties.
11.       10.11. Entire Agreement; Amendment. This Agreement, including all Exhibits, reflects the entire agreement of the parties regarding the subject matter hereof, and supersedes all prior or contemporaneous understanding or agreements between the parties, whether written or oral. This Agreement will not be amended, altered or changed except by written agreement signed by both parties that identifies itself as an amendment to this Agreement.
12.       10.12. Construction of Agreement. This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof shall not be construed for or against any party. The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole. The word “including” is not limiting and will be deemed to be followed by the wording “without limitation.”
13.       10.13. Controlling Language. This Agreement is prepared an executed in the English language only, which language shall be controlling in all respects. Any translations of this Agreement into any other language are for reference only and shall have no legal or other effect. Any notice which is required or permitted to be given by one party to the other under this Agreement will be in the English language and will be in writing. All proceedings related to this Agreement shall be conducted in the English language.