DECERNIS LLC WEB STORE – SOFTWARE LICENSE TERMS AND CONDITIONS
Effective as of 24 May 2018
1. ACCEPTANCE OF TERMS. All licenses of software products (the “Licensed Products”) by Decernis LLC (“Decernis”) to you as a subscriber to the Licensed Products (“Licensee”) are made pursuant to the terms and conditions (the “Terms”) set forth herein. To the extent of any conflict between these Terms and any terms and conditions provided by Licensee, including any pre-printed purchase order terms and conditions, these Terms shall take precedence and any conflicting or additional terms and conditions provided by Licensee are hereby rejected.
For purposes of these Terms, the terms “we,” “us” and “our” refer to Decernis. “You” refers to you, as a Licensee.
BEFORE YOU CHECK THE BOX STATING “I HAVE READ AND AGREE TO THESE TERMS AND CONDITIONS”, PLEASE CAREFULLY READ THE TERMS. BY CHECKING THE BOX, YOU ARE AGREEING TO BE BOUND BY AND TO COMPLY IN ALL RESPECTS WITH THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, THEN DO NOT CHECK THE BOX.
IF YOU ARE ACCEPTING THE TERMS ON BEHALF OF YOUR EMPLOYER OR OTHER ORGANIZATION, THE TERM “LICENSEE” SHALL BE DEEMED TO INCLUDE SUCH EMPLOYER OR ORGANIZATION. YOU REPRESENT, WARRANT AND UNDERTAKE THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH EMPLOYER OR ORGANIZATION TO THESE TERMS.
3. LICENSE. Subject to the terms and conditions of these Terms, Decernis hereby grants to Licensee a nonexclusive, nontransferable, nonsublicenseable license for Licensee’s employees and contractors who have been authorized by Licensee (“Authorized Users”) to access and use the Licensed Products (including any manuals, handbooks and other written or electronic material accompanying the Licensed Products) to: (a) generate the standard reports, summaries and extracts made available by Decernis through the Licensed Products (“Decernis Standard Reports”); and (b) include such Decernis Standard Reports in (i) reports and other documents to be submitted by Licensee to regulatory authorities, and (ii) reports and other materials that Licensee distributes to its customers in the ordinary course of business. Notwithstanding the foregoing, all of Licensee’s third party contractors must be approved in writing by Decernis prior to such contractors accessing the Licensed Products, such approval not to be unreasonably withheld. Licensee may not copy or download any portion of the Licensed Products into a separate database format for any purpose without Decernis’ prior written consent. Licensee is responsible for any breach of these Terms by Licensee’s employees, contractors and agents. The number of permitted Authorized Users shall be the number selected by you when purchasing your subscription to the Licensed Product through the Decernis Site. Decernis shall have the right, but not the obligation, to monitor Licensee’s and each Authorized User’s usage of the Licensed Products to allow Decernis to verify Licensee’s compliance with the terms of these Terms, including the number of users accessing the Service.
4. UPDATES. Decernis will provide you with Updates that are made generally available by Decernis to its customers at no additional charge during the Term (as defined in Section 6). “Updates” means updates to the Licensed Products provided by Decernis that may include: (a) updated data or content included in connection with the Licensed Products; (b) corrections of any errors or defects; (c) fixes of any minor bugs; and (d) at the discretion of Decernis, enhancements to the Licensed Products.
5. LIMITATIONS ON USE. You will not use the Licensed Products except as expressly permitted under these Terms. Without limiting the generality of the foregoing, except as expressly permitted in these Terms, you agree not to (nor to permit any third party to) directly or indirectly: (a) transfer, sell, assign, sublicense, rent or lease the Licensed Products; (b) reverse engineer, decompile, disassemble, or translate the Licensed Products; (c) circumvent any technological measure that controls access to the Licensed Products; (d) copy, reproduce, disclose, retransmit, distribute, display, perform, publish, adapt, create derivative works of, translate, or otherwise modify the Licensed Products or combine the Licensed Products with any other products, data or services; (e) remove or alter any printed or on-screen copyright, trademark or other legal notices or disclaimers contained on or in the Licensed Products; (f) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Licensed Products or the data contained therein; (h) scrape, strip or mine data from the Licensed Products or use any automated scrips, agents or similar technologies or methodologies to do the same; or (i) distort or manipulate any data made available through the Licensed Products. You represent and warrant that you will not use, display, disseminate, or distribute in any way the Licensed Products or any portion thereof in violation of any applicable law, rule or regulation of applicable jurisdiction.
6. TERM; TERMINATION
- Term. These Terms will apply to any subscription Licensee places for a subscription to a Licensed Product. Each subscription will be effect for an initial term of 1 year (“Initial Term”) and thereafter, will [automatically renew for additional periods of 1 year (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless terminated in accordance with Section 6(b).] [will renew for additional periods of 1 year each at Licensee’s option if Licensee chooses to renew its subscription for subsequent terms (each, a “Renewal Term” and together with the Initial Term, the “Term”).]
- Termination. Licensee’s subscription may be terminated as follows:
- Either party may terminate its subscription to a Licensed Product for convenience upon 90 days’ written notice to the other party.
- If either party fails to perform or observe any material provision of these Terms, the other party may give the defaulting party written notice of such default, and if such failure is not remedied or started to be remedied to the satisfaction of such other party within 60 days following the date of such notice, such other party may terminate these Terms by giving written notice of termination, which termination will be effective immediately
- If Decernis discontinues distribution of the Licensed Products, Decernis may terminate Licensee’s subscription on written notice to Licensee, and shall refund to Licensee, on a pro rata basis, all License Fees paid for the balance of the Term.
- Effect of Termination. Upon the termination of Licensee’s subscription for any reason, Licensee shall: (i) immediately cease all use of the Licensed Products; and (ii) immediately deliver to Decernis any and all copies of the Licensed Products in whatever form and any written or other materials relating to the Licensed Products (including all data, content and information extracted from, based on or derived from the Licensed Products (including but not limited to any compilation, data set, or subset of such data, content or information)) provided that Licensee may retain a maximum of 10 printed Decernis Standard Reports. The provisions of this Section 6(c) and Sections 7, 8, and 11-16 shall survive the termination or expiration of these Terms.
7. PAYMENTS. Licensee shall pay an annual license fee (“License Fee”) applicable to the Licensed Product Licensee subscribes to, as set forth on the Decernis Site. Except as set forth in Section 6(b)(iii) and Section 12(b), the Licensee Fees are non-refundable. In addition to the License Fees, Licensee shall be solely responsible for, and shall pay to or reimburse Decernis for, any sales and/or use taxes, value added taxes (VAT), excise taxes, tariffs, duties, or other assessments (other than any taxes based upon Decernis’ net income) due with respect to Licensee’s use of the Licensed Products.
8. INTELLECTUAL PROPERTY RIGHTS. These Terms do not provide for a sale of software, data, or media, and conveys no title or ownership rights in the Licensed Products. As between Licensee and Decernis, Decernis is and shall remain the sole and exclusive owner of all right, title and interest in and to the Licensed Products including without limitation, all updates thereto and all patent, trademark, copyright and other intellectual property and proprietary rights therein. Licensee agrees not to take any action inconsistent with such title and ownership. All rights not expressly granted under these Terms are reserved by Decernis.
9. THIRD PARTY MATERIALS. Decernis and Licensee acknowledge that the Licensed Products may incorporate software, data or documentation which were obtained by Decernis under license from third party vendors (“Third Party Materials”), that are the owners or licensees of all intellectual property rights therein. All of the terms and conditions of these Terms shall apply in like manner to Third Party Materials.
10. LICENSEE MATERIALS. Certain Licensed Products may permit Licensee to upload or otherwise provide to Decernis reports, documentation or other materials of Licensee to be made available to Licensee through the Licensed Products (“Licensee Materials”). In the event that Licensee elects to upload or otherwise provide such Licensee Materials to Decernis for access through the Licensed Products, Licensee hereby grants to Decernis a nonexclusive, royalty-free, transferable, sublicenseable, worldwide license to use, reproduce, display, transmit and distribute such Licensee Materials in connection with the Licensed Products licensed to Licensee. Licensee represents and warrants that (a) Licensee either owns or possesses valid rights in and to the Licensee Materials and all portions thereof necessary to grant the rights granted to Decernis by Licensee under this Section 10, and Licensee agrees to provide Decernis with documentation evidencing the same upon request, (b) no third party possesses any license or other rights with respect to the Licensee Materials that would prohibit or impair Decernis’ ability to exercise fully the rights granted by Licensee to the Licensee Materials, and (c) there is no pending or threatened claim, action, or proceeding related to the Licensee Materials with respect to any intellectual property rights, and there is no basis for any such claim, action, or proceeding.
- Confidential Information. During the Term, a party (a “disclosing party”) may disclose to the other party (a “receiving party”) Confidential Information. “Confidential Information” shall mean any and all technical and non-technical information provided by either party to the other, in oral, written, graphic or electronic form, that is either indicated to be the proprietary or confidential information of the disclosing party, or which, by its nature, the receiving party would reasonably deem to be confidential or proprietary, including but not limited to ideas, techniques, works of authorship, databases, inventions, know-how, processes, algorithms, software programs, and software source documents related to the current, future and proposed products and services of a disclosing party, and including, without limitation, a disclosing party’s information concerning research, development, design details and specifications, engineering, financial information, purchasing, manufacturing, customer lists, investors, business and contractual relationships, business forecasts, sales, merchandising, marketing plans and information the disclosing party provides regarding third parties. Without limiting the foregoing, the Licensed Products shall be deemed the Confidential Information of Decernis. Licensee agrees that login information for its account with the Decernis Site, including any username and password, is Confidential Information of Decernis and Licensee shall not disclose such login information to any third party.
- Confidentiality and Non-Use Obligations. All Confidential Information shall remain the sole property of the disclosing party, and the receiving party shall have no interest in or rights with respect thereto except as expressly set forth in these Terms. Each receiving party agrees: (i) not to use any Confidential Information of the disclosing party for any purpose except in the performance of its obligations under these Terms or as otherwise expressly permitted hereunder; (ii) to disclose such Confidential Information only to employees or third party contractors who have a need to know such Confidential Information for purposes of these Terms and who are under a duty of confidentiality no less restrictive than that set forth herein; (iii) to protect such Confidential Information from unauthorized use, access or disclosure in the same manner that it protects its own similar Confidential Information, but in no event with less care than a reasonably prudent person would exercise; and (iv) to promptly notify the disclosing party of any actual or potential unauthorized access to or use of Confidential Information. The foregoing restrictions on disclosure shall not apply with respect to any information which: (A) was or becomes generally known or publicly available through no act or failure to act on the part of the receiving party; (B) is known by the receiving party without restrictions on disclosure at the time of receiving such information as evidenced by its records; (C) is rightfully furnished to the receiving party without restrictions on disclosure by a third party without a breach of such third party’s obligations of confidentiality, or (D) independently developed by receiving party without use of disclosing party’s Confidential Information as shown by receiving party’s written records; provided, that the exceptions set forth in clauses (B), (C) and (D) shall not apply to any information included in the Licensed Products. Specific Confidential Information shall not be within the exceptions of the preceding sentence merely because it is embraced by more general information within those exceptions, nor shall a combination of features be within those exceptions merely because the individual features are within those exceptions.
- Required Disclosures. If any Confidential Information of a disclosing party is required by law to be disclosed by the receiving party, the receiving party may make such disclosure provided that the receiving party: (i) gives the disclosing party prompt written notice of such requirement prior to such disclosure; (ii) provides assistance in obtaining an order protecting Confidential Information from disclosure; and (iii) discloses information only to the extent required by law. Any such required disclosure shall not alter the nature of the information as Confidential Information hereunder as between the parties.
12. WARRANTY; DISCLAIMER
- Decernis warrants that the data made available to Licensee through the Licensed Products has been obtained from selected U.S. Government, international, and other sources which it believes to be dependable, and that it has used reasonable efforts to ensure the accuracy and completeness of these data. However, the nature and volume of the information contained in the Licensed Products are such that errors of fact, omission, and judgment cannot be completely excluded. Licensee’s sole and exclusive remedy, and Decernis’ sole and exclusive liability, for a breach of the warranty set forth in this Section 10(a) is limited to the indemnification obligations of Decernis set forth in Section 13(a).
- Decernis warrants that for a period of 30 days after Licensee’s first access to a Licensed Product, such Licensed Product will conform in all material respects with the specifications of the Licensed Products available upon request through firstname.lastname@example.org. Licensee’s sole and exclusive remedy, and Decernis’ sole and exclusive liability, for a breach of the warranty set forth in this Section 12(b) is to terminate Licensee’s subscription to the applicable Licensed Product. If Licensee terminates its subscription pursuant to this Section 12(b), then Decernis will refund any Licensee Fees paid by Licensee for the applicable Licensed Product.
- DECERNIS MAKES NO WARRANTIES WITH RESPECT TO THE LICENSED PRODUCTS OTHER THAN THOSE EXPRESSLY STATED HEREIN. DECERNIS EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES WITH RESPECT TO THESE TERMS AND THE LICENSED PRODUCTS OR THE USE THEREOF (INCLUDING BUT NOT LIMITED TO THE USE OF THE LICENSED PRODUCTS OR ANY DATA PROVIDED THEREIN IN CONNECTION WITH ANY REPORTS, MATERIALS, DATABASES, SOFTWARE, PRODUCTS OR SERVICES OF LICENSEE OR ANY THIRD PARTY), EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, ACCURACY, COMPLETENESS AND/OR QUALITY, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE AND COURSE OF DEALING. DECERNIS DOES NOT WARRANT THAT (I) THE LICENSED PRODUCTS WILL BE ERROR-FREE OR FREE OF OTHER COMPONENTS THAT MAY INFECT, HARM, OR CAUSE DAMAGE TO LICENSEE’S DATA, SOFTWARE, HARDWARE OR SYSTEMS, OR (II) THE LICENSED PRODUCTS WILL MEET LICENSEE’S REQUIREMENTS, OR (III) ERRORS WILL BE CORRECTED.NOTWITHSTANDING ANY OTHER CLAUSE OF THESE TERMS, NOTHING SHALL LIMIT EITHER A PARTY’S LIABILITY FOR FRAUD, FOR DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE OR ANY OTHER LOSSES WHICH CANNOT BE EXCLUDED BY APPLICABLE LAW.
13. INDEMNIFICATION; LIMITATION ON LIABILITY.
- Decernis shall indemnify Licensee for the cost of any fines or penalties imposed upon Licensee by a governmental authority based on or arising out of a breach by Decernis of the warranty set forth in Section 10(a), up to an amount not to exceed the total License Fees paid by Licensee for the then-current Initial Term or Renewal Term, as applicable.
- Licensee shall indemnify, defend and hold Decernis harmless from and against any loss, liability, claim, damage, cost or expense (including reasonable attorneys’ fees) based on or arising out of: (i) Licensee’s breach of any representation, warranty or obligation hereunder; (ii) any Licensee Materials; and (iii) Licensee’s use of Licensed Products, unless such claims arise solely out of the negligence or willful misconduct of Decernis.
- Each indemnified party shall (i) promptly notify the indemnifying party in writing of any indemnifiable claim, (ii) give the indemnifying party reasonable information, assistance and cooperation required to defend such claim, and (iii) allow the indemnifying party to control the defense of any such claim and all negotiations for its settlement or compromise. The indemnified party may be represented in the defense of any such claim, at the indemnified party’s expense.
- LICENSEE AGREES THAT DECERNIS’ LIABILITY UNDER THESE TERMS, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR BREACH OF WARRANTY, SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEES PAID BY LICENSEE FOR THE LICENSED PRODUCTS FOR THE THEN-CURRENT INITIAL TERM OR RENEWAL TERM. IN NO EVENT SHALL DECERNIS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, LOST PROFITS OR LOST SAVINGS, EVEN IF DECERNIS HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.
14. NOTICES. All notices required or permitted to be given by one party to the other party under these Terms shall be sufficient if sent by either certified mail, return receipt requested, courier, or hand delivery to Decernis, at 1250 Connecticut Ave. #200, Washington, DC 20036, USA and to Licensee, at the address used by Licensee to register on the Decernis Site All notices shall be effective (a) when delivered personally, (b) five (5) calendar days after deposit, postage prepaid, by certified mail, return receipt requested, or (c) the business day after deposit when delivered to a nationally recognized courier.
15. U.S. GOVERNMENT RESTRICTED RIGHTS. The Licensed Products and related documentation and technical data were developed at private expense and without any government funding. If Licensee is a government agency or entity, Licensee agrees as a condition for this license to claim no more than “limited rights” in any documentation or technical data related to the Licensed Products and no more than “restricted rights” in the Licensed Products. If Licensee is a private party or other non-government entity that does business with a government agency or entity, Licensee agrees as a condition for this License to take all steps necessary to ensure that no government agency or entity obtains more than “limited rights” in documentation or technical data related to the Licensed Products or “restricted rights” in the Licensed Products. The terms “limited rights” and “restricted rights” are defined in 48 C.F.R. 52.227-14.
16. MISCELLANEOUS. Decernis and Licensee are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither these Terms nor any rights, obligations or licenses granted hereunder may be assigned, delegated or subcontracted by either party without the prior written consent of the other party, provided however that either party may assign all of its rights and obligations under these Terms without the prior written consent of the other party to a person or entity which acquires all or substantially all of the assets, voting securities or business of such party, whether by sale, merger or otherwise. These Terms shall inure to the benefit of the parties and their permitted successors and assigns. In the case of a successor to or assignee of Licensee, the licenses granted herein extends only to the business or operating units of the Licensee existing immediately prior to such or assignment, acquisition or merger; these Terms confers no rights on the acquiring entity of Licensee or its business or operating units. Licensee shall provide notice of any such assignment (including by operation of law) to Decernis following such assignment. These Terms shall be deemed to have been made and performed in, and shall be construed pursuant to the laws of the State of Delaware, excluding application of its conflict of laws principles. In the event a party initiates any legal proceeding with regard to the interpretation or enforcement of these Terms, the parties hereby agree to submit to the exclusive jurisdiction of the appropriate state and federal courts of the State of Delaware. Any waiver of or amendment to the terms of these Terms shall be effective only if made in writing and signed by an authorized and duly empowered representative of each of the parties. No failure to exercise, and no delay in exercising any right hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right hereunder preclude further exercise of any right hereunder. If any provision of these Terms is found by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions shall remain in full force and effect. Both parties agree that these Terms are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous and contemporaneous written and oral agreements and communications relating to the subject matter of these Terms. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, market shortage of materials, fire, earthquake, flood or any other event beyond the reasonable control of such party, provided that such party uses reasonable efforts, under the circumstances, to resume performance as soon as reasonably practicable.