LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY OPENING THE SOFTWARE PACKAGE, INDICATING ASSENT ELECTRONICALLY, OR DOWNLOADING, INSTALLING, COPYING, OR USING THE SOFTWARE, THE LICENSEE AGREES TO ACCEPT THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (THE "AGREEMENT") AND AGREES THAT THE LICENSEE IS LEGALLY BOUND BY ITS TERMS. IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, THEN THE INDIVIDUAL ACCEPTING THESE TERMS HEREBY REPRESENTS AND WARRANTS THAT THEY HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO THESE TERMS. IF LICENSEE DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT CONTINUE DOWNLOADING, INSTALLING, COPYING OR USING THE SOFTWARE AND RETURN THE SOFTWARE FOR A REFUND.
BlueMarvel.ai Inc., a software product company ("BlueMarvel") is the licensor of the Software. As used in this Agreement, the term "Software" refers to software, and all related access keys, license management, documentation (e.g., manuals and specifications) and libraries as well as revisions or updates to the foregoing provided by BlueMarvel or its distributor to Licensee. The term "Documentation" means user manuals or operating instructions provided by BlueMarvel with the Software. "Proposal" means, if applicable, the BlueMarvel proposal describing the Software as provided by BlueMarvel to its distributor or to Licensee, as the case may be.
LICENSE: Subject to Licensee's compliance with this Agreement and payment of applicable fees, BlueMarvel grants Licensee a non-transferable, non-sublicensable, non-exclusive limited license during the License Term to use the Software provided to Licensee solely: (a) for Licensee's internal business purpose, (b) in accordance with the Documentation, and (c) by and through its Authorized Users. BlueMarvel may, from time to time, revise or update the Software and, in so doing, incurs no obligation to furnish such revisions or updates to Licensee, except as otherwise provided in a separate written agreement. The "License Term" means the period of time that Licensee is authorized to access the Software as specified in the Proposal. If the "License Term" is not defined in the Proposal, then the License Term will be twelve months.
RESTRICTIONS: Licensee may not exceed any limits applicable to Licensee's use of the Software (e.g., as may be identified in this license, the Product Terms, the applicable data sheet, the Proposal, or the Documentation (collectively, the "Product Descriptions")) nor use any features of the Software for which Licensee has not purchased a license. To the extent the Product Descriptions include a number of users, systems, tags, or other parameter, Licensee may not use more than the specified parameter (or, as applicable, use the Software in support of more than the specified parameter) without purchasing an additional license. BlueMarvel may use technological and/or other measures to prevent unlicensed access to, or use of, the Software or its features, and Licensee acknowledges and agrees to the use of such measures, and that Licensee shall not actually, nor attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features. LICENSEE MAY NOT USE OR COPY THE SOFTWARE EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENSE OR THE PRODUCT TERMS. LICENSEE MAY NOT REVERSE ENGINEER, DECOMPILE, DECODE, OR OTHERWISE ATTEMPT TO DERIVE OR ACCESS THE SOURCE CODE OF THE SOFTWARE, MODIFY, TRANSLATE, ADAPT, OR CREATE DERIVATIVE WORKS OF THE SOFTWARE OR ANY COPY (PERMITTED ABOVE), IN WHOLE OR IN PART. This Agreement and the Software may only be transferred or assigned (by operation of law or otherwise) with BlueMarvel's written consent and upon payment of applicable transfer fees. Unless otherwise expressly permitted in writing, Licensee may not use the Software to provide training services or consulting services, to third parties or otherwise provide the Software or extend the benefit of the Software to any third party other than an Authorized User that uses the Software for Licensee's benefit. Licensee may not use the Software in violation of any governmental law, regulation, or rule or use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor's commercial disadvantage.
RESPONSIBILITY FOR USE OF SOFTWARE: Licensee may permit subcontractors to access and use the Software solely (i) in compliance with the terms of this Agreement and (ii) for Licensee's benefit. Licensee shall ensure that all such users comply with the terms of this Agreement. Notwithstanding the foregoing, under no circumstances may Licensee provide access to the Software to a competitor of BlueMarvel. Licensee is responsible and liable for all uses of Licensee's instance(s) of the Software. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software by its authorized users or by any other person or entity to whom Licensee or an authorized user may provide access to or use of the Software.
SECURITY ASSESSMENTS: In the event Licensee wishes to assess the vulnerability of the Software (including conducting a penetration test or any other form of vulnerability assessment or test), Licensee agrees to obtain BlueMarvel's prior written consent. BlueMarvel will not unreasonably withhold or unduly delay such consent, but Licensee agrees that BlueMarvel may require that: (i) BlueMarvel participate in any such tests/assessments, (ii) receive the results of such tests/assessments, and (iii) Licensee not publish, distribute, or otherwise make available the results (in whole or part) to any third party without the express written consent of BlueMarvel. BlueMarvel may further require that any such tests/assessments be conducted in accordance with and subject to a separate written agreement between Licensee and BlueMarvel.
DATA PRIVACY AND USE: When Licensee downloads, installs or uses the Software, BlueMarvel may use automatic means to collect information about Licensee's device and about its use of the Software. Licensee also may be required to provide certain information about Licensee or its users as a condition to downloading, installing or using the Software or certain of its features or functionality, and the Software may provide Licensee with opportunities to share information about Licensee or its users with others. BlueMarvel may collect information, including but not limited to information relating to the manner or frequency of use of the Software. This includes data that BlueMarvel collects as part of BlueMarvel's services. Some of the data BlueMarvel collects is relatively static, such as data about the product but other data is more dynamic, such as information about current and past product usage levels, information about abnormal product functioning, information about the status and location of products used with the Software and/or Licensee's device. Monitoring may continue until the Software is deleted or the services are cancelled or terminated. All information BlueMarvel collects through or in connection with this Software and the use of the Software in connection with BlueMarvel products is subject to the BlueMarvel privacy notice found at www.bluemarvel.ai ("the Privacy Notice"). BlueMarvel will collect, use and disclose Licensee's personal information and the personal information of its additional users as set out in that Privacy Notice, and Licensee and the additional users or third parties Licensee has granted access or control consent to us doing so. The Privacy Notice applies subject to requirements of local law. In the event of a conflict between the Privacy Notice and applicable data protection laws, the stricter obligation applies. Furthermore, the data that is generated and collected by the Software may be stored in a hosted environment at a location identified to Licensee in the documentation for the Software. Licensee is solely responsible for compliance with all applicable local, state and federal data sovereignty laws, regulations and restrictions as it relates to the movement of data generated and collected by the Software. Licensee agrees that BlueMarvel may use all data that it collects or receives: (i) for purposes of supporting the Software, verifying compliance with the terms of this Agreement, enforcing BlueMarvel's rights, or performing services for Licensee; and (ii) once aggregated with data received from other BlueMarvel customers, for purposes of improving BlueMarvel's products or for any other commercial purpose.
TITLE: Licensee acknowledges and agrees that the Software is licensed and not sold. Licensee does not acquire any ownership interest in the Software under this Agreement, or any other rights thereto, other than the limited license expressly granted above. BlueMarvel and its licensors reserve and shall retain their entire right, title, and interest in and to the Software and all intellectual property rights in the Software, except as expressly granted to the Licensee in this Agreement. Licensee's right to use the same is at all times subject to the terms and conditions of this Agreement. No license, express or implied, is granted under any intellectual property directly or indirectly owned by BlueMarvel which does not specifically read on the Software as provided hereunder, nor shall any license, except the license specifically granted herein, be implied in law, implied in equity, or exist under the doctrine of patent exhaustion. Licensee acknowledges and agrees that the following are BlueMarvel's confidential information: (i) the Software, (ii) other confidential information provided in connection with the Software, and (iii) any benchmarking data or other results of use or testing of the Software that are indicative of its performance, operation, efficacy, reliability, or quality (collectively, "Proprietary Information"). Licensee shall protect Proprietary Information and shall not use or disclose Proprietary Information to any third party except as expressly permitted under this Agreement. Licensee may provide Proprietary Information to subcontractors that require it for use of the Software in accordance with Section 3; provided that such contractors are subject to a written, enforceable confidentiality agreement with Customer that protects Proprietary Information to the same extent as this Section. If Licensee or any of its employees or contractors sends or transmits any communications or materials to BlueMarvel suggesting, requesting, or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the parties governing Feedback.
TERM; SUSPENSION: The term of this Agreement shall be for the License Term unless terminated earlier as permitted below. BlueMarvel may terminate this Agreement or suspend Licensee's access to the Software immediately upon written notice if Licensee breaches any material term or condition of this Agreement or fails to pay amounts owed for the Software and fails to cure such breach or failure within thirty (30) days of a written notice from BlueMarvel. Licensee may cease use of the Software at any time but may not terminate this Agreement prior to the end of the License Term. BlueMarvel may cease offering the Software during the License Term, but if it does so then, for any Software that is licensed under this Agreement on a subscription basis, BlueMarvel will license to Licensee alternative or successor software with similar functionality to the Software for the remainder of the License Term. Upon expiration of the License Term or the earlier termination of this Agreement as permitted above, Licensee agrees to promptly (i) destroy all Proprietary Information (including the Software) together with all copies in any form and confirm such destruction in writing to BlueMarvel or (ii) return all Proprietary Information (including the Software) and all copies to BlueMarvel. Upon termination of this Agreement due to material breach by Licensee, all license fees outstanding or payable in the future during the remainder of the terminated License Term shall automatically accelerate and be immediately due and payable in full. All fees paid for the Software are non-refundable. A breach or threatened breach by Licensee of this Agreement might give rise to irreparable injury to BlueMarvel and/or its licensors for which money damages would not be adequate compensation. In addition to any other legal remedies that may be available, BlueMarvel and its licensors will be entitled to seek injunctive relief against such breach or threatened breach. Any Section intended to extend beyond termination of this Agreement and/or the enforcement of rights hereunder shall survive termination to the extent necessary to effect the intent of this Agreement and enforce such rights.
WARRANTY DISCLAIMER: TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND BLUEMARVEL AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BLUEMARVEL MAKES NO REPRESENTATIONS OR WARRANTIES ON BEHALF OF ITS LICENSORS. WITHOUT LIMITING THE FOREGOING, NEITHER BLUEMARVEL NOR ITS LICENSORS WARRANTS (I) THAT THE SOFTWARE WILL BE FREE FROM ANY INTERRUPTIONS, DELAYS, INACCURACIES, SERVER DOWN-TIME, ERRORS OR OMISSIONS, (II) THE PERFORMANCE OR RESULTS LICENSEE MAY OBTAIN BY USING THE SOFTWARE, OR (III) THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE SOFTWARE, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY, CONDITION, REPRESENTATION, OR GUARANTY BY BLUEMARVEL. LICENSEE SHALL BE SOLELY RESPONSIBLE FOR MAINTAINING ALL APPROPRIATE BACKUPS OF ITS DATA.
INTELLECTUAL PROPERTY INFRINGEMENT: BlueMarvel will defend Licensee against any claim that Software developed by BlueMarvel infringes a third party's intellectual property right (including patent, copyright, design right and trademark) protectable under the laws of the country where the Software is first used (an "Intellectual Property Claim"). BlueMarvel will only pay any final judgment or settlement entered into by BlueMarvel resulting from the action. Should an Intellectual Property Claim arise, or if BlueMarvel reasonably believes an Intellectual Property Claim will arise, then BlueMarvel may, at its sole option and expense, provide a commercially reasonable alternative to the Software. This may include procuring for Licensee the right to continue using the Software or replacing them with a non-infringing item or changing them to become non-infringing or refunding their price. BlueMarvel's indemnity obligations are conditioned upon Licensee: (a) promptly notifying BlueMarvel in writing that an Intellectual Property Claim has been threatened or filed; (b) allows BlueMarvel complete control of the defense and settlement of the claim; and (c) gives all reasonable help and cooperation requested by BlueMarvel for the defense. BlueMarvel will not be liable for infringement, and Licensee will indemnify BlueMarvel, if the claim arises from any of the following: (i) where such infringement is due to, arises from or, use of the Software in connection with the Licensee's equipment, materials, specifications, designs, processes or other technical information; (ii) Software is used by Licensee in combination with other items not furnished by BlueMarvel; or (iii) Licensee modifies or otherwise causes the Software to become infringing. THE INDEMNIFICATION RIGHTS OF LICENSEE UNDER THIS SECTION 10 SHALL BE THE EXCLUSIVE REMEDY OF LICENSEE WITH RESPECT TO CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.
LIMITATIONS OF LIABILITY: TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE: (I) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BLUEMARVEL, ITS AFFILIATES, AND ITS LICENSORS EXCEED THE FEES PAID BY THE LICENSEE FOR USE OF THE SOFTWARE, IF THE LICENSE TERM IS PERPETUAL, OR THE AVERAGE ANNUAL FEES PAID FOR THE SOFTWARE, IF THE LICENSE TERM IS NOT PERPETUAL; (II) IN NO EVENT SHALL BLUEMARVEL, ANY BLUE MARVEL AFFILIATE, OR ANY BLUEMARVEL LICENSOR BE LIABLE FOR ANY DAMAGES ARISING FROM A CYBER ATTACK OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, LOSS OF DATA, OR LOST PROFITS DAMAGES OF ANY KIND (INCLUDING ANY LOST REVENUE, PROFITS, SAVINGS, BUSINESS OPPORTUNITIES, USE, OR GOODWILL) HOWEVER ARISING, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE. THE LIMITATIONS OF LIABILITY ABOVE SHALL APPLY: (A) TO ALL CLAIMS IN THE AGGREGATE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT; (B) REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UNDER WHICH THE CLAIM ARISES, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, OR OTHERWISE; (C) REGARDLESS OF WHETHER BLUE MARVEL HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; AND (D) REGARDLESS OF IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY IS AN AGGREGATE LIMIT AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE CLAIM. THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF THE PARTIES' BARGAIN HEREUNDER, AND LICENSEE ACKNOWLEDGES THAT SUCH PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK. IF THE FOREGOING LIMITATION OF LIABILITY IS UNENFORCEABLE UNDER APPLICABLE LAW, THEN BLUEMARVEL'S LIABILITY UNDER THIS LICENSE SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
GOVERNING LAW: This Agreement, and all matters concerning its construction, interpretation, performance or validity, shall be governed by the laws of the Province of Alberta excluding its conflict laws. Each Party shall institute and maintain any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or provincial courts in each case located in the Province Of Alberta. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; AND (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT.
THIRD PARTY SOFTWARE: To the extent that a third-party owns any portion of the Software licensed under this Agreement, such third-party owner shall be a beneficiary of this Agreement and shall have the right to enforce its rights under this Agreement independently of BlueMarvel. Any third-party Software, not licensed under this Agreement, shall be subject to third-party owner's applicable license agreement and registration requirement. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SUCH THIRD PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES ARISING FROM THIS AGREEMENT. SUCH THIRD PARTIES ARE BENEFICIARIES OF THIS PROVISION. Licensee authorizes BlueMarvel to provide its contact information, including company name, mailing address, telephone number, ship-to recipient address, and primary contact's name, mailing address, telephone number, and email address, to such third-party owners for the purposes of product registration, support, and compliance with applicable import and export control laws, regulations, orders, and requirements. License terms, notices, acknowledgements, and other information regarding third-party Software may be included in a notice file provided with the Software.
AUDIT: Licensee agree that BlueMarvel may audit Licensee's facility and records to confirm compliance with the terms of this Agreement during the License Term and for two years thereafter. BlueMarvel agrees to provide reasonable written notice prior to conducting such an audit and agrees to conduct the audit during regular business hours without unreasonably interfering with Licensee's normal business operation. No more than one audit may be conducted in any twelve-month period unless BlueMarvel reasonably and good faith believes that Licensee is in violation of the terms of this Agreement. The Licensee shall cooperate with Licensor's personnel conducting such audits and provide all reasonable access requested by the Licensor to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information.
ENTIRE AGREEMENT: LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSEE FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. Except for expressly identified third-party beneficiaries, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
For purposes of this Agreement, (a) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.