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Revised/updated: February 12, 2015
SIDEVIEW INTERNAL USE LICENSE AGREEMENT
This Sideview Internal Use License Agreement (this “Agreement”) governs the use of software provided by Sideview LLC (the “Sideview Software”).
PLEASE REVIEW THIS AGREEMENT CAREFULLY; IT SETS FORTH TERMS AND CONDITIONS YOU MUST ACCEPT IN EXCHANGE FOR ACCESS TO AND USE OF THE SIDEVIEW SOFTWARE. BY CLICKING “I AGREE,” YOU FORM A BINDING CONTRACT BETWEEN YOUR COMPANY AND SIDEVIEW LLC (“Sideview”), AND YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO EXECUTE CONTRACTS ON BEHALF OF YOUR COMPANY. (This Agreement refers to your company as “Licensee.” The “Licensee” may be your employer, yourself acting as a sole proprietorship, or any other business entity you represent.) IF YOU DO NOT CONSENT TO THIS AGREEMENT, YOU MAY NOT DOWNLOAD, REPRODUCE, OR OTHERWISE EXPLOIT THE SIDEVIEW SOFTWARE.
1. License & Payment.
1.1 Rights Granted. Sideview hereby grants Licensee a non-exclusive license to reproduce and use the Sideview Software, solely for internal use, provided Licensee complies with the restrictions in Section 1.2 below.
1.2 License Restrictions.
(a) No Developed Apps for Third Parties. Licensee will not: (i) distribute to any third party any application, view, module, extension, or other software created by or through the Sideview Software (any “Developed App”); or (ii) allow a third party to access, use, or otherwise exploit any Developed App, including without limitation as a service bureau or software-as-a-service offering. The restrictions of the preceding sentence apply regardless of whether the Developed App includes elements of the Sideview Software, regardless of whether the third party owns, is owned by, or shares common ownership with Licensee, and regardless of whether Licensee requires consideration for the proposed distribution or other exploitation of the Developed App. (Rights to commercialize Developed Apps may be available through a separate agreement with Sideview.)
(b) Other License Restrictions. Copies of Sideview Software created or transferred pursuant to this Agreement are licensed, not sold, and Licensee receives no title to or ownership of any copy or of any Sideview Software. Furthermore, Licensee receives no rights to the Sideview Software other than those specifically granted in Section 1.1 above. Without limiting the generality of the foregoing, Licensee will not: (i) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Sideview Software; or (ii) use the Sideview Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Sideview Software. Licensee will retain all copyright and other legal notices provided with the Sideview Software on all copies.
1.3 Payment. Licensee will pay Sideview the licensee fees for the Sideview Software set forth on Sideview’s website as of the date of payment (the “License Fees”). License Fees are due upon execution of this Agreement and thereafter upon the first day of each Renewal Term (as defined in Section 5.1 below). LICENSEE IS ON NOTICE THAT LICENSE FEES MAY CHANGE FROM TIME TO TIME AND THAT IT SHOULD CHECK THE CURRENT LICENSE FEES BEFORE RENEWAL.
2. Additional Rights & Responsibilities.
2.1 Ownership. Sideview retains all right, title, and ownership in and to the Sideview Software, and Licensee recognizes that such assets are protected by U.S. and foreign intellectual property laws, including copyright. Licensee retains all title to and ownership of the Developed Apps, as well as all rights therein, subject to the provisions of Section 1.2 above.
2.2 No Additional Obligations. Licensee recognizes and agrees that Sideview has no responsibilities related to this Agreement not specifically stated in this Agreement. Without limiting the generality of the foregoing, Licensee recognizes and agrees: (a) that Sideview’s support obligations are limited to those on the attached addendum ; and (b) that Sideview is not the provider of the Splunk Server software and that SIDEVIEW WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE SPLUNK SERVER SOFTWARE, FOR ANY OTHER PRODUCT OR SERVICE FROM SPLUNK, INC., OR FOR ANY ACT OR OMISSION OF SPLUNK, INC. OR OF ANY OTHER THIRD PARTY.
2.3 Audit. Promptly after Sideview’s written request, Licensee will provide written certification from an officer of Licensee that all use of the Sideview Software, including use of Developed Apps, is compliant with this Agreement. Sideview may audit Licensee’s use of the Sideview Software on 30 days’ advanced written notice at any time during the Term (as defined in Section 5.1 below) or for 1 year thereafter. Licensee will cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of the Sideview Software. Such audit will not unreasonably interfere with Licensee’s business activities. In the event that an audit reveals unauthorized use of the Sideview Software, Licensee will reimburse Sideview for the reasonable cost of the audit, in addition to such other rights and remedies as Sideview may have.
2.4 No Trademarks. This Agreement does not grant either party a license to the other’s trademarks.
3. Warranties & Indemnity.
3.1 Identification & Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement. Licensee represents and warrants that it has correctly identified itself and that the contact information provided to Sideview pursuant to Section 6.1 below is and will remain correct.
3.2 No Other Warranties. THE SIDEVIEW SOFTWARE IS PROVIDED “AS IS” AND AS AVAILABLE, SIDEVIEW WARRANTS THAT THE SOFTWARE WILL FUNCTION IN A COMMERCIALLY REASONABLE MANNER. EXCEPT FOR THE FOREGOING, SIDEVIEW MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED.
3.3 Indemnity. Licensee will indemnify, defend, and hold harmless Sideview, including its employees, officers, directors, shareholders, parents, subsidiaries, and insurers, against any claim arising out of or related to Licensee’s use of any Developed App or of the Sideview Software. Licensee’s obligations set forth in the preceding sentence include, without limitation, retention and payment of attorneys and payment of court costs, as well as settlement at Licensee’s expense, payment of judgments, or both.
4. Limitation of Liability. IN NO EVENT WILL SIDEVIEW’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE PAID FEES FROM THE MOST RECENT YEAR OR THE PERPETUAL LICENSE COST, WHICHEVER IS HIGHER. IN NO EVENT WILL SIDEVIEW BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. If applicable law limits the application of the provisions of this Article 4, Sideview’s liability will be limited to the maximum extent permissible.
5. Term & Termination.
5.1 The Software may be used pursuant to a Term or Perpetual License as determined at the time of invoicing.
5.1: Term License: This Agreement begins upon execution and will continue for 1 year (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive periods of 1 year (each a “Renewal Term”) unless either party notifies the other of its intent not to renew 30 or more days before the start of such Renewal Term. (The “Term” refers to the current Initial Term or Renewal Term.)
5.2 Perpetual License: The License granted under this agreement is a Perpetual license. Maintenance and Support pursuant to the attached addendum will be provided for an initial twelve month term, and as renewed thereafter. Maintenance and Support will be available for as long as Sideview supports the Software.
5.2 Termination. Either party may terminate this Agreement for material breach by written notice, effective in 30 days unless the other party first cures such breach; provided no advanced notice is required to terminate for Licensee’s breach of any provision of Section 1.1 or 1.2 above.
5.3 Effect of Termination. Upon termination of this Agreement, including the end of the Term without renewal, the license granted in Section 1.1 above will terminate and Licensee will cease all use of the Sideview Software and delete all copies in its possession or control. The following provisions will survive termination of this Agreement: (a) Sections and Articles 1.2, 2, 3.2, 3.3, and 4 of this Agreement; and (b) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
6. Support and Maintenance.
Support and Maintenance will be provided in accordance with the Support and Maintenance Addendum attached hereto.
7.1 Notices. Notices pursuant to this Agreement will be sent: (a) to Sideview at firstname.lastname@example.org; and (b) to Licensee at the points of contact provided to Sideview upon execution of this Agreement. Either party may update such contact information by written notice pursuant to the preceding sentence.
7.2 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards.
7.3 Interpretation. This Agreement will be governed solely by the internal laws of the State of California, without reference to any rule or law that would apply the laws of any other jurisdiction to the parties’ rights or duties. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Francisco, California. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
7.4 Government Restricted Rights. The Sideview Software is provided with Restricted Rights. Use, duplication, or disclosure for or by the government of the United States, including without limitation any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable, in subparagrahs (a) through (d) of the Commercial Computer Software Restricted Rights clause at FAR 52.227.19; in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013; or in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is Sideview, LLC. Licensee will not remove or deface any restricted rights notice or other legal notice appearing in the Sideview Software or on any media (including packaging) associated with the Sideview Software.
7.5 Assignment & Successors. Licensee may not assign this Agreement or any of its rights or obligations hereunder without Sideview’s express written consent. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
7.6 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
7.7 Amendment. Sideview may amend this Agreement by posting a new version at the Sideview website and providing Licensee with written notice thereof, provided such amendment will not become effective until the start of the first renewal term beginning 60 or more days after such notice. This Agreement may not be modified in any other way except through a written contract signed by authorized representatives of each party.
SIDEVIEW MAINTENANCE AND SUPPORT ADDENDUM
This Maintenance and Support Addendum is an agreement between you, the Licensee under Sideview’s Internal Use License Agreement (the “Licensee”) and Sideview, LLC. (“Sideview”). The Licensee agrees to be bound by the terms of this Maintenance and Support Addendum (the “Support Addendum”).
This Support Addendum and the rights granted herein are only effective as to end users who have a valid license pursuant to a Sideview Internal Use License Agreement (the “License Agreement”) for the underlying Sideview software product(s) (the “Software”) for which this support will be provided.
IF LICENSEE DOES NOT AGREE TO THESE TERMS, THEN SIDEVIEW IS UNABLE TO PROVIDE SUPPORT FOR THE SOFTWARE TO LICENSEE. RECEIPT OF SUPPORT INDICATES LICENSEE’S AGREEMENT TO THESE TERMS.
1. Support Offering. For Term Licenses, support and maintenance is included in the term license fee and will be provided for the license term. For Perpetual Licenses support and maintenance is provided on an annual basis for a support and maintenance fee equal to twenty percent (20%) of the Perpetual License cost. Commencing on the effective date of this Support Addendum, Sideview will provide to Licensee the support service(s) contained herein. Support services are provided under the terms and conditions listed below, until the end date hereof. Sideview may terminate this Maintenance and Support Addendum on notice provided such notice is given 365 days before termination.
2. Support and Maintenance: Support and Maintenance includes:
• Access to technical support provided by telephone, email, and web-conferencing as necessary. Such support will be provided within twenty-four hours after Licensee submits a support request email describing the support need via email to Sideview at email@example.com. All such support shall be provided from 9 a.m. to 5 p.m. (Pacific time) during the normal business week and excluding United States national holidays observed by Sideview. Sideview will endeavor to provide support outside of the hours of between 9 a.m. to 5 pm. but responses are not typically provided except on a case by case basis.;
• Delivery of updates (i.e. bug fixes and patches);
• Upgrade Assurance.
3. Upgrade Assurance. The right to use upgrades to the Software as they become generally available to Sideview’s end user licensees. An “Upgrade” is any version of the Software which has been released to the public and which replaces the prior version of the Software. All such upgraded Software is licensed to Licensee for use subject to all terms and conditions, including without limitation disclaimers of warranties and limitation of liabilities, of the License Agreement. Nothing in this Support Addendum shall be construed as separately licensing copies of the Software or increasing the number of copies of Software licensed to Licensee.
4. Scope of Support. Support with respect to the Software will include (a) clarification of functions and features of the Software; (b) clarification of documentation pertaining to the Software; and (c) assistance in error identification, verification, analysis and correction to the extent possible by telephone and email (d) a temporary workaround that can be applied to the currently installed version; or (e) incorporation of a fix into an upcoming maintenance release.
Licensee’s technical assistance may be limited to error correction resolution if Licensee has not installed and implemented all licenses for such Software in accordance with the directions for installation provided by Sideview. Technical support will not include activities that would be typically made generally available and characterized by Sideview as consulting regarding proper installation and implementation, product training, consulting involving integration, pre-production configuration services, implementation services or the like.
5. Licensee Obligations. Licensee will designate a contact person for all support requests. Licensee shall be responsible for making back-ups of all support requests and resolution. Licensee personnel shall have received Splunk training and shall have completed, if Splunk has been installed on more than one host, Spunk’s “Administering Splunk” class, or plan to have complete same within one year of the effective date of the license.
6. Exclusions. Sideview is not required to provide any maintenance or support services relating to problems arising out of (i) Licensee’s failure to implement all bug fixes and patches to the Software which are issued under this Support Addendum; (ii) changes to the operating system or environment which adversely affect the Software; (iii) any alterations of or additions to the Software performed by parties other than Sideview; (iv) improper installation of the Software or use of the Software in a manner for which it was not designed; (v) accident, negligence, or misuse of the Software; (vi) operation outside of environmental specifications; (vii) interconnection of the Software with other software products not supplied by Sideview; or (viii) use of the Sideview Product on a server other than the server for which such Sideview Product was designed for and licensed for use on. Sideview shall only be obligated to support the then current production version of the Software and the immediately prior version for a period of six (6) months after such release. Support for any earlier versions or for other problems not covered under this Support Addendum may be obtained at Sideview’s then current rates for special technical services.
7. Acknowledgement of Use of Personal Data. Licensee recognizes that Sideview will require Licensee to supply certain personal data (such as business contact names, business telephone numbers, business e-mail addresses), in order for Sideview to provide Support and to keep Licensee apprised of support and product updates.
8. Service Levels. Service requests are prioritized as follows: Upon receiving a request, Sideview will classify the problem according to the following criteria:
|Priority||Description||Initial Response Time||Target Resolution Time|
|Priority 1||Software is inaccessible or the majority of its functionality is unusable.||Four Hours||Three days|
|Priority 2||One or more key features of Sideview Software are unusable||1 business day||Seven days|
|Priority 3||Sideview Software not operating as documented||2 business days||Next Maintenance Release.|
|Priority 4||Enhancement Requests||2 business days||At Sideview’s discretion|
9. Support Services Warranty. Sideview warrants, for a period of thirty (30) days from the date of performance of support services under this Support Addendum, that such support services will be performed in a manner consistent with generally accepted industry standards. For support services not performed as warranted in this provision, and provided Licensee has reported such non-conformance to Sideview within thirty (30) days of performance of such non-conforming support services, Sideview will, at its discretion, either correct any nonconforming support services or refund the relevant fees paid for the nonconforming support services. THIS IS LICENSEE’S EXCLUSIVE REMEDY AND SIDEVIEW’S SOLE LIABILITY ARISING IN CONNECTION WITH THE SUPPORT SERVICES WARRANTY DESCRIBED IN THIS SECTION.
10. DISCLAIMER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL SIDEVIEW BE LIABLE TO YOU FOR (i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THE PROVISION OF SUPPORT SERVICE(S), EVEN IF THE PARTY, ITS RESELLERS, SUPPLIERS OR ITS AGENTS HAS BEEN TOLD SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL SIDEVIEW’S LIABILITY EXCEED THE PURCHASE PRICE FOR THE SUPPORT SERVICE(S). NOTHING IN THIS SUPPORT AGREEMENT SHALL EXCLUDE OR LIMIT SIDEVIEW’S LIABILITY FOR ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW.
11. Integration. This Support Addendum, as supplemented by any relevant terms in the License Agreement not otherwise defined herein, constitutes the entire agreement between this parties pertaining to the subject matter hereof, and, except as otherwise agreed upon in writing by the parties, supersedes any and all prior written or oral agreement with respect to such subject matter. All of the terms and conditions of the License Agreement are incorporated herein. In the event of any conflict between the terms of this Support Addendum and the License Agreement, this Support Addendum shall control.