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Revised/updated: July 24, 2012
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 value-added reseller 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 does not provide support for the Sideview Software and has no responsibility to provide any support whatsoever, including without limitation technical support or updates or upgrades; 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, AND EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH IN SECTION 3.1 ABOVE, SIDEVIEW MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing: (a) SIDEVIEW HAS NO OBLIGATION TO INDEMNIFY OR DEFEND LICENSEE AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; and (b) Sideview does not warrant that the Sideview Software will perform without error or interruption.
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. THE LIABILITIES LIMITED BY THIS ARTICLE 4 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF SIDEVIEW IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF LICENSEE’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. 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 Term. 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 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.
6.1 Notices. Notices pursuant to this Agreement will be sent: (a) to Sideview at email@example.com; 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.
6.2 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards.
6.3 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.
6.4 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.
6.5 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.
6.6 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.
6.7 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.