By signing an Order Form that references this Agreement (“Agreement”), or by downloading our Software for a free trial, the Customer agrees to enter into this Agreement with JethroData. The Order Form together with this Agreement forms a binding contract between Customer and JethroData. You represent and warrant that have the authority to enter into this Agreement on behalf of your organization.

 

1.    Definitions.

“Affiliate” means any entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of ownership of more than 50% voting equity interests in a company.

“Customer” or “you” and “your” means the person or organization that signs an Order Form or downloads the Software for a free trial.

 "Documentation" shall mean the reference, installation, administrative and user manuals relating to the use of the Software published by JethroData and delivered by JethroData to Customer.  Documentation shall not include marketing materials.

“JethroData,” “we” and “us” means the JethroData company that signs an Order Form, or if you download our Software for a free trial, JethroData, Inc., a Delaware corporation.

 "Order Form" shall mean an ordering schedule or Statement of Work which references this Agreement and is signed by both parties to place orders for JethroData’s standard Software products and/or associated professional services under this Agreement.

“Server” means: (a) a single physical machine other than a Larger Host (defined below); (b) a single instance of virtualized or containerized environment other than a Larger Host; or (c) each 512GB unit of RAM in a physical server or in a virtualized or containerized environment that has more than 512GB of RAM (“Larger Host”). The number of Servers requiring coverage for use of a subscription on each Larger Host is determined by dividing the RAM GB of the Larger Host by 512GB with any remainder rounded up. For example, a Larger Host with 800 GB of RAM would be counted as two (2) Servers.

“Services” has the meaning set forth in Section 10.1 below.

 "Software" shall mean all or any portion of the binary computer software programs for the JethroData commercial software products licensed to Customer under this Agreement (as indicated in the applicable Order Form) and associated Documentation, and including all corrections and updates thereto provided as part of Support and Maintenance. For Trial Licenses, the applicable Software shall be identified in the Trial License download path in the JethroData website.

 “Statements of Work” or “SOWs” shall mean Statements of Work which are signed by both parties to place orders for professional services to be performed by JethroData under this Agreement.

 “Support and Maintenance” means the maintenance and support terms and procedures in the Software Support Policy attached to this Agreement as Schedule A.

 

2.    Software Subscriptions

2.1  Commercial Subscriptions. JethroData grants Customer a nonexclusive, nontransferable license for Customer and its Affiliated Entities to use the Software for the term specified in the applicable Order Form, solely for Customer’s and its Affiliated Entities’  business operations  (“Commercial Subscription”).  Each Commercial Subscription is limited to the term, maximum number of Servers and such other license parameters as are specified in the applicable Order Form. Limited term Commercial Subscriptions include Support and Maintenance at no additional charge over the applicable subscription fee referenced in the applicable Order Form. If no license or subscription term is specified on the applicable Order Form, the license term for the Commercial Subscription under such Order Form shall be deemed to be a period of one (1) year.

2.2 Free Trial License. If you download our Software for a free trial, JethroData grants you a nonexclusive, nontransferable license for a term of 45 days to use and reproduce the Software in your internal test environment solely to test and evaluate the Software. You may not use the Software for production purposes or any other purpose, including testing or quality assurance of other software or systems without purchasing a Commercial Subscription. After the end of this 45-day period, your license to use the Software ends and you must stop using it. You may purchase a Commercial Subscription from us if you would like to continue using the Software. We provide the free trial of our Software on an AS-IS basis without any warranty or Support and Maintenance.  

2.3  Support and Maintenance. During term limited Commercial Subscriptions, use of the Software, Support and Maintenance as described in Schedule A to this Agreement is included in the subscription fee, and does not incur a separate charge.

2.4  Software Download. JethroData shall provide Customer via download from the JethroData website with one (1) machine readable copy of the executable object code of the Software and an electronic copy of the corresponding Documentation with each order hereunder.  Customer may make a reasonable number of copies of the Software and Documentation for archival purposes and to support its authorized usage of the Software licenses granted hereunder.

2.5  Reports. Upon written request from JethroData, Customer shall provide and accurate report setting forth and certifying the number of Servers on which the Software has been installed.

 

3.   Customer Responsibilities. Customer shall not and will not allow any third party to:

a.    copy, modify or create any derivative works of the Software;

b.    reverse compile, reverse assemble all or any portion of the Software or otherwise attempt to access the source code of the Software;

c.     distribute, disclose, market, rent, lease or transfer to any third party the Software or use the Software in any service bureau arrangement;

d. `  directly or indirectly circumvent or violate the technical restrictions of the Software;

e.    remove any identification, proprietary, copyright or other notices in the Software or documentation;

f.     publicly disseminate performance information about or analysis of the Software or your subscription, including benchmarking test results;

g.    use the Software on more Servers than licensed on an Order Form, or use any support included in any subscription for an unsupported license; or

h.    violate any applicable laws in connection with your use of Software or export the Software in violation of U.S. Department of Commerce export administration regulations.

 

4.   Fees and Payment Terms; Taxes    

4.1  Fees and Payment Terms. Customer shall pay JethroData the fees specified in each applicable Order Form. Customer shall reimburse JethroData for any expenses which are approved by Customer in advance and in writing.  Fees that are properly due under this Agreement shall be due and payable within thirty (30) days of Customer’s receipt of the invoice.  Unless otherwise specified in the applicable Order Form, the Software ordered will be delivered within ten (10) business days of the date of the order.  Overdue payments shall bear interest at the lesser of twelve percent (12%) per annum or the maximum rate allowed under applicable law.

4.2  Taxes. All Fees payable under the applicable Order Form are net amounts and payable in full, without deduction for taxes or duties of any kind. Customer will be responsible for, and will promptly pay any applicable sales tax, use tax, withholding tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or Customer’s purchase, receipt or use of the Software, excluding taxes based on JethroData’s gross or net income, real or personal property, or employees. If Customer is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, Customer will provide JethroData with any required documentation to verify its tax-exempt status with the applicable taxing authorities.

 

5.   Title and Protection

5.1  JethroData (or its third party providers) retains title in and to all portions of the Software and any copies thereof, and all associated intellectual property rights. Except for the express licenses set forth in this Agreement, this Agreement does not transfer any right, title or interest in any intellectual property right of either party to the other.

5.2  U.S. Government Customers will receive no greater than Restricted Rights as defined in FAR 52.227-14, FAR 52.227-19(c)(1-2) (Jun 1987) or DFAR 252.227-7013(c)(1)(ii) (Oct 1988), DFAR 252.221-7015(c) (May 1991), DFAR 252.227-7014, or DFAR 252.227-7018 as applicable in any Software. US Government Customers will secure no greater than limited rights as defined in FAR 52.227-14, DFAR 252.227-7015, DFAR 252.227-7018, or DFAR 252.227-7013 as applicable in any technical data in or related to the Software.

 

6.    Confidentiality

6.1 Confidential Information. “Confidential Information” means information that is clearly identified in writing at the time of disclosure as confidential, and information that would reasonably be understood to be confidential by its nature, and includes the pricing and commercial terms in any pricing proposal or Order Form. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party.

6.2 Non-Disclosure Obligations. Each party receiving (“Receiving Party”) Confidential Information from the other party (“Disclosing Party”) agrees:  (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as permitted by the Disclosing Party; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and (d) to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation, provided, however, that unless prohibited by law, the party ordered to disclose the information gives the disclosing party prompt notification of such requirement and an opportunity to object to such disclosure and/or seek a protective order regarding such disclosure.

7.    Indemnity. JethroData shall indemnify and defend Customer against any third party claims  that the Software infringes any third party patent, copyright, or other intellectual property right; provided that JethroData is given prompt notice of such claim and is given information, reasonable assistance and sole authority to defend and/or settle the claim. JethroData’s settlement of any such claim shall be subject to Customer’s prior written consent, which consent shall not be unreasonably withheld; provided, however, that the following settlement terms may be agreed by JethroData without the consent of Customer: (i) money damages which are paid by JethroData under the indemnity, (ii) prohibition on Customer’s use of the intellectual property that is alleged to be infringing and/or (ii) obligation to maintain the confidentiality of the settlement terms..  In the defense or settlement of the claim, JethroData may obtain for Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing while giving equivalent performance or, if such remedies are not reasonably available, remove the infringing portion of the Software, accept its return and, if Customer's use of the Software is terminated prior to the end of the term of Customer’s subscription to use same under the applicable Order Form, provide Customer with a pro-rata refund of the prepaid but unused subscription fees for the terminated portion of such subscription term. If Customer purchased a perpetual license to use the Software such pro-rata refund will be based on a five (5) year straight line depreciation schedule from the date when such perpetual Software license was granted hereunder. JethroData shall have no liability if the alleged infringement is based on a modification of the Software by anyone other than JethroData, its agents, or its subcontractors; or is based on the use of the Software in a manner that conflicts with this Agreement.  This Section 7 states JethroData's entire liability and Customer's exclusive remedy for infringement.

 

8.    Warranty

8.1  Software Warranty. For each Commercial Subscription, JethroData warrants that the Software, unless modified by Customer, will perform the functions described in the Documentation and JethroData will undertake to correct any reported error in accordance with the Software Support Policy attached hereto as Schedule A.   

8.2 No Virus Warranty.  JethroData warrants that prior to delivery of the Software to Customer, JethroData shall utilize an updated version of a commercially available anti-virus application to check the Software and remove any viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”).

8.3 Services Warranty. JethroData represents and warrants that it will perform any Services in a diligent and workmanlike manner consistent with industry standards.

8.4  Warranty Disclaimer. JETHRODATA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. JETHRODATA DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR FREE OF ERRORS, OR THAT ALL ERROR CONDITIONS WILL BE CORRECTED.

 

9.    Limitation of Liability

NEITHER JETHRODATA OR ITS THIRD PARTY LICENSORS, NOR CUSTOMER, WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT AS ARISING FROM THE INDEMNITY OBLIGATIONS HEREUNDER, THE liability OF JETHRODATA AND ITS THIRD PARTY LICENSORS , for damages under this Agreement shall in no event exceed AN amount EQUAL TO software license and SUBSCRIPTION FEES paid/PAYABLE by CUSTOMER to JETHRO DATA for the Software for the 12 MONTH period prior to the date whenthe claim arose.  the parties agree to the allocation OF LIABILITY RISK which is set forth in this Section.

 

10. Professional Services

10.1 Services. JethroData will provide the professional services described in each Order Form (which may be in the form of a Statement of Work) (collectively, “Services”). Any change in the scope of Services must be agreed upon in writing by JethroData and Customer, and may result in additional fees and scheduling changes.

10.2 Ownership of Project Deliverables.

a.    Subject to subsection (b) below, Customer will own all intellectual property rights in and to: (i) its proprietary customer materials; and (ii) all original components of the project deliverables created by JethroData and delivered to Customer in performing Services under to this Agreement (“Project Deliverables”) upon payment of all fees due for the Services.

b.    Notwithstanding the foregoing, JethroData and its licensors will retain exclusive ownership of the following (collectively “JethroData Materials”): (i) all pre-existing works, inventions, technology, data and materials incorporated or used in association with the design and development of the Project Deliverable; (ii) any works created by JethroData pursuant to its performance of the Services, including, but not limited to, any proposed, draft, or preparatory materials, that are not incorporated into the Project Deliverables; (iii) all derivatives, improvements, enhancements or extensions of the JethroData Materials, and (iv) all ideas, concepts, code, know-how, and techniques, that JethroData may use, conceive of or first reduce to practice in connection with the Services that are not uniquely applicable to Customer or that have general applicability in the art. Upon payment of all fees due for the Services, JethroData will grant to Customer a non-exclusive, non-transferable, indefinite, worldwide, royalty-free and paid-up license to use the JethroData Materials as incorporated in the Project Deliverable for Customer’s internal business purposes, provided that Customer will have no right to use such JethroData Materials apart from the Project Deliverable or in any other manner, and Customer’s ownership under (ii) above shall be subject to such license of the JethroData Materials.  Neither the term “Project Deliverable” nor the term “JethroData Materials” shall under any circumstances be deemed to include Software or any commercial software products of JethroData and any subscription to use same as a hosted service (SAAS).

 

11.    Term and Termination

11.1  Term. This Agreement starts on the date that the parties sign an Order Form, or you download our Software for a free trial, and continues until either party terminates this Agreement in accordance with this Section 11.

11.2  Termination

a.  If a party materially breaches this Agreement or an Order Form and does not cure such breach within 30 days after receipt of written notice of the breach, the other party may (i) terminate this Agreement (including all Order Forms hereunder); or (ii) terminate only the Order Form(s) which is the subject of the breach. Such notice by the complaining party shall expressly state the reasons for the claimed material breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel of the alleged breaching party at the address listed in the Order Form of the heading of this Agreement (or such other address that may be provided pursuant to this Agreement).

b.    Upon termination of this Agreement, Customer will remove the Software from all Servers (but shall not be obligated to remove the Software from ordinary course non-operational backups). Provisions intended by their nature to survive termination of this Agreement shall survive termination. During the term of this Agreement and one year following termination, we may inspect Customer’s records relating to use of the Software or Services for the purposes of verifying compliance with this Agreement.

12. Notices.  All notices shall be in writing and sent by first class mail or overnight mail (or courier), or transmitted by facsimile (if confirmed by such mailing), to the addresses indicated on the first page of this Agreement, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party.  Copies of all notices to each party shall be sent to the Legal Department.

13. Assignment.  Neither party may assign this Agreement (by operation of law or otherwise) without the prior written consent of the other party; provided, that such consent shall not be required for assignment to an Affiliated Entity of the assigning party or a purchaser of all or substantially all of the assets or equity securities of the assigning party.  Any prohibited assignment or sublicense shall be null and void.

13. Dispute Resolution. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.

14.  General.  This Agreement is made in and shall be governed by the laws of the State of New York, excluding choice of law principles.  All proceedings shall be conducted in English.  Venue for all proceedings shall be New York County.  The United Nations Convention for the International Sale of Goods shall not apply.  The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement.  Except for Customer's obligation to pay JethroData, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to effect the parties’ intention and the remaining provisions will not be affected. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future.  This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties.  The parties may sign this Agreement electronically and in counterparts, each of which is deemed to be an original and all of which taken together comprise a single document.  This Agreement and the Order Forms constitute the entire agreement between the parties concerning Customer's use of the Software.  No purchase order, other ordering document or any hand written or typewritten text which purports to modify or supplement the printed text of this Agreement or any Order Form shall add to or vary the terms of this Agreement, unless document expressly amends this Agreement and is executed by both parties.  All such proposed variations or additions (whether submitted by JethroData or Customer) are objected to and shall have no force or effect.  This Agreement replaces and supersedes any prior verbal understandings, written communications and representations.

 

Schedule A