Sideview Subscription License Agreement

(Last revised: August 9^th 2022)

This Sideview Subscription 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 and its Authorized Users a non-exclusive, non-transferable license to reproduce and use the Sideview Software and the Documentation, and create Developed Apps, for the Term and solely for internal use, and provided Licensee and its Authorized Users comply with the restrictions in Section 1.2 below. 

1.2 License Restrictions.

(a) Scope of License restrictions. Licensee’s use of the Software is limited by the use restrictions (if any) specified in the applicable Order Form. 

(b) No Developed Apps for Third Parties. Licensee will not: (i) distribute to any third party 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. 

© 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 not remove any copyright or other legal notices on the Sideview Software.

1.3 Payment. Licensee will pay Sideview the license fees for the Sideview Software specified on the Order Form (the ​“License Fees”). License Fees for the Initial Term are due Net 30 days from the execution of this Agreement or from Licensee’s receipt of the applicable Invoice from Sideview, whichever is earlier. Support and Maintenance is included in the License Fees and further described in Section 6. LICENSE FEES MAY CHANGE FROM TIME TO TIME AND LICENSEE SHOULD CHECK THE CURRENT LICENSE FEES BEFORE RENEWAL.

2. Proprietary Rights & Audit.

2.1 Ownership. Sideview retains all right, title, and ownership in and to the Sideview Software, and Licensee recognizes that its Software is 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 Obligations with respect to Splunk Software. Licensee recognizes and agrees 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. Within ten business days of Sideview’s written request, Licensee will provide a screenshot or screenshots as necessary to confirm the Licensee’s current compliance with license restrictions (see 2.1). Sideview shall not make this request more than once in any 6 month period.

2.4 No Trademarks. This Agreement does not grant either party a license to the other’s trademarks.

3. Warranty Disclaimer & Indemnity.

3.1 Disclaimer. THE SIDEVIEW SOFTWARE IS PROVIDED ​“AS IS”. SIDEVIEW MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR SUPPORT, ITS QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. 

3.2 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 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.

3.3 Limitation of Liability. IN NO EVENT WILL SIDEVIEW’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE LICENSE FEES PAID FROM THE MOST RECENT YEAR. 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 3.3, Sideview’s liability will be limited to the maximum extent permissible.

4. Confidential Information. 

4.1 Confidential Information: Each party may receive from the other party information that is proprietary to the disclosing party, and is marked as confidential or a similar notice (if disclosed in writing or tangible form), identified as confidential (if disclosed verbally) and reduced to writing within thirty days of such disclosure (Confidential Information). The Software shall be treated as confidential information hereunder. Confidential Information does not include information that the receiving party can demonstrate: (i) is or has become public knowledge through no fault of the receiving party; (ii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iii) is independently developed by employees, agents or consultants of the receiving party without use of or reference to such information. 

4.2 Use and Disclosure Restrictions: The receiving party will: (i) safeguard Confidential Information with the same degree of care as it exercises with its own confidential information of a like nature, but no less than reasonable care; (ii) not disclose any Confidential Information to third parties other than Licensee’s agents and consultants who have a need to know and are bound by confidentiality agreement; and (iii) will use the other party’s Confidential Information solely in the exercise of the rights and obligations under this Agreement and for no other purpose. The receiving party may disclose Confidential Information if required by a regulation, law or court order, but only to the extent required to comply with such regulation, law or order, and only after providing reasonable advance notice to the originally disclosing party to allow such party to contest such disclosure. 

5. Term & Termination.

5.1: Term License: This Agreement begins upon execution and will remain in effect until the expiration of the Software license term specified on Sideview’s Order Form (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, 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: Sections and Articles 1.2, 2, 3, 4, 5 & 7. 

6. Support and Maintenance.

Subject to timely payment of Fees, Sideview shall provide support and maintenance (“Support Services”) as described in Exhibit A. 

7. Miscellaneous

7.1 Notices. Notices pursuant to this Agreement will be sent: (a) to Sideview at info@​sideviewapps.​com; and (b) to Licensee at the points of contact provided on the Order Form. 

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 subparagraphs (a) through (d) of the Commercial Computer Software Restricted Rights clause at FAR 52.227.19; in subparagraph ©(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 along with any additional terms incorporated herein by reference, including the Support Services Exhibit, 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.

Definitions

“Authorized Users” means Licensee’s authorized users including its employees, agents and consultants, and any other individual or entity working on behalf of Licensee in connection with Licensee’s use of the Sideview Software under this Agreement.

“Developed App” means any application, view, module, extension, or other software created by or through the Sideview Software created by Licensee subject to the terms and conditions of the Agreement. 

“Documentation” means the Software’s standard online user manual.

“Initial Term” means the initial term of the Software license as further described in Section 5.1.

“Order Form” means an ordering document such as an online order or invoice for the purchase of the Sideview Software. Each Order shall be subject to this Agreement and all applicable exhibits. 

“Renewal Term” means the renewal term of the Software license as further described in Section 5.1.

“Term” means the Initial Term and/​or Renewal Term as described in Section 5.1 and the applicable Order Form. 

EXHIBIT A

SIDEVIEW SUPPORT SERVICES

This Support Services Exhibit is incorporated by reference to the Sideview Subscription License Agreement (the ​“License Agreement”).

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. Commencing on the effective date of the License Agreement, and subject to timely payment of Fees as specified in the License Agreement, Sideview will provide to Licensee the Support Services contained herein. 

1. Support and Maintenance. Sideview will:
2. Use commercially reasonable efforts to respond to a support request in accordance with the service levels described in Section 8 below, provided that Licensee submits a support request by email describing the support request at support@​sideviewapps.​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 provide technical support by telephone, email, and web-conferencing as necessary in its reasonable opinion; and
3. Deliver updates such as bug fixes and patches; and 
4. Provide Software Upgrades as generally available to Sideview customers. 

1. Update Assurance. The right to use updates to the Software as they become generally available to Sideview’s end user licensees. An ​“Update” is any newer version of the Software which has been released to the public and which replaces the prior version of the Software. All such updated Software is licensed to Licensee for use subject to all terms and conditions of the License Agreement. 

1. 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 © 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.

1. Licensee Obligations. Licensee will designate a contact person for all support requests. Licensee shall be responsible for making regular backups of their reports dashboards and configurations. 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.

1. 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 hereunder; (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 hereunder may be obtained at Sideview’s then current rates for special technical services upon request.

1. Acknowledgement of Use of Personal Data. Licensee acknowledges and agrees 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.

1. Service Levels. Upon receiving a Service request, Sideview, in its sole discretion, will classify the problem according to the following criteria:

*These times are estimates, and subject to Sideview’s business hours as specified in Section 2 above. For example, if a support request is sent on a holiday or weekend, the response times do not begin until Sideview is open for business following the holiday or weekend.