This License Agreement (the “Agreement”) is made between Itso, Inc. (“Itso”), a Delaware corporation and each party (a “Customer”) that uses the Product or Services (each as defined below). Between Itso and each Customer, the Agreement consists of these terms and each amendment these terms. This Agreement is effective as of the date that Customer first accesses the Product or Services. By using the Product or Services, Customer agrees to all of the terms set forth below.
1.1. "Beta Features" means any Product features, functionality or services which Itso may make available to Customer to try at no additional cost, and which is clearly designated as beta, trial, non-production or another similar designation.
1.2. “Customer Data” means (a) all data in Customer’s databases, (b) all data copied into the Services from any of Customer’s databases, (c) Customer Confidential Information used to provision the Product, and (d) all analytical results generated by the Product.
1.3. “Documentation” means the user guides and manuals for the Services provided by Itso for Customer’s own internal use.
1.4. “Instance” means an authorized deployment of the Product installed on a single operating system.
1.5. "Internal Business Purposes" means use of the Product by or for the benefit of Customer’s internal operations.
1.6. “Aika Cloud” means the Product is installed and provisioned to Customer on a web connected platform that is run in a third-party hosting facility designated by Itso.
1.7. “Product” means the licensed Itso data platform, excluding Third Party Software, related Documentation, and updates and enhancements made to the foregoing by or for Itso.
1.8. “Services” means the Aika Cloud and Support Services that are access by Customer.
1.9. "User" means an individual who has been authorized by Customer to use the Services. A User may be provisioned directly in the Product or indirectly in another system, with privileges or privileged access to the Product.
2.1. Usage. Upon consent to this Agreement, Itso will provide Customer with access to an Instance to access the Services. Customer understands and agrees that: (a) that each User constitutes one individual and log-on credentials for each User may not be shared; (b) the Services are for use with data managed and/or owned by Customer. Any circumvention of technical measures constitutes a material breach of this Agreement.
2.2. Customer Responsibilities. Customer shall: (a) use the Services in accordance with this Agreement and all Documentation; (b) be responsible for its Users’ compliance with this Agreement; (c) use commercially reasonable efforts to prevent unauthorized use or access to the Services, any account or password, or any copying of the Product, and notify Itso immediately of any such unauthorized use, access or copying; and (d) be solely responsible for: (i) the accuracy and legality of Customer Data, the means by which it acquires and uses such Customer Data, including compliance with any regulations and laws applicable to the Customer Data (including, without limitation, privacy and data protection), and has obtained all rights in the Customer Data necessary to permit Itso’s compliance with its obligations under this Agreement and (ii) any acquisition, implementation, support or maintenance of third-party products or services purchased by Customer that may interoperate with the Services.
2.3. Restrictions. Customer shall not, and shall not allow others to: (a) cause or permit the reverse engineering, disassembly, or decompilation of any portion of the Product; (b) remove any copyright notices, trademarks or other proprietary notices or restrictions from the Product; (c) use or modify the Product in any way that would subject the Product, in whole or in part, to a Copyleft License (as defined below); (d) use the Product or Services, or permit it to be used, for purposes of evaluation benchmarking, performance tests or other comparative analysis intended for publication or disclosure to third parties; (e) except as permitted by this Agreement, directly or indirectly: distribute, sell, sublicense, rent, lease, market, use or commercialize the Product (or any portion thereof); (f) provide the Product on a time sharing, hosting, service provider or other similar basis; (g) copy any features, functions or graphics of the Product for any purpose other than what is expressly authorized under this Agreement; (h) send, store, access or authorize a third party to send, store or access spam, unlawful, infringing, obscene or libelous material, viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (i) interfere with or disrupt the integrity or performance of the Services; or (j) perform operations that adversely impact the Aika Cloud infrastructure. “Copyleft License” means a software license that requires that information necessary for reproducing and modifying such software must be made available publicly to recipients of executable versions of such software (see, e.g., http://www.gnu.org/copyleft/).
2.4. Beta Features. Beta Features made available by Itso are provided to Customer for testing purposes only, and Itso does not make any commitment to provide Beta Features in any future versions of the Product. Customer is not obligated to use Beta Features. Itso may immediately and without notice remove Beta Features for any reason without liability to Customer. Notwithstanding anything to the contrary in this Agreement, Itso does not provide Support Services for Beta Features, and all Beta Features are provided "AS IS" without warranty of any kind.
- LICENSE RIGHTS.
3.1. License Grant.
- Right To Use. Subject to the terms of this Agreement, Customer shall have the right to access, use, and configure the Product.
3.2. Ownership Rights.
- What Itso Owns. The Product constitutes proprietary intellectual property of Itso and its licensors, protected by patents, trademark, copyright and other intellectual property laws. Except for the rights granted herein, Itso and its licensors retain all right, title and interest, including all intellectual property rights, in the Product (and any derivative works of or improvements to any of the foregoing created by or for Itso) and Documentation. The term “purchase” in reference to the Product notwithstanding, it is expressly agreed by the parties that title to the Product does not pass to Customer and Customer’s rights with respect to the Product will only be that of a licensee. Except as expressly provided herein, this Agreement does not grant Customer any rights under any of Itso’s intellectual property rights. Customer agrees that any and all use of Itso’s trademarks by Customer will inure to the benefit of Itso and Customer shall have no trademark rights in Itso’s trademarks.
- What Customer Owns. Customer retains all rights to Customer Data. Itso disclaims all ownership and other rights as to Customer Data, except any limited rights granted by Customer to allow the Product to analyze Customer Data in accordance with this Agreement.
3.3. Feedback. Customer or Customer User’s may, from time to time, provide suggestions, comments, corrections, ideas, enhancement or feature requests or other information to Itso with respect to any of Itso’s Services, Documentation, or operations (collectively, referred to hereafter as “Feedback”). Customer agrees that such Feedback is given voluntarily, and that Itso may use, disclose, reproduce, modify, commercialize, license, distribute and exploit the Feedback freely, in its sole discretion, without any restriction or obligation of any kind. For the avoidance of doubt, Feedback does not include Customer Confidential Information or Customer Data.
4.1. No Support or Maintenance. Customer acknowledges and agrees that Itso will have no obligation to provide Customer with any support or maintenance in connection with the Services, although Itso may voluntarily provide support.
- TERM AND TERMINATION.
5.1. Term of Agreement. This Agreement commences on the first day Customer accesses the Services and continues until Customer does not access the Services for at least thirty (30) days. In the event Customer subsequently access the services again, the Agreement will then take effect again.
5.2. Termination Rights. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days).
5.3. Effect of Termination. Immediately upon termination of this Agreement, Customer shall cease all use of the Services. Within ten business days following the termination date, Customer shall, at Itso’s option, return to Itso or destroy (and certify to Itso in writing as to such destruction) and any other materials embodying or reflecting the Services and Itso Confidential Information.
5.4. Survival. Sections 1, 2.3, 3, 5.3, 6, 7.6, 7.7, 8, 9 and 12 of this Agreement shall survive expiration or any termination of this Agreement; provided that Sections 8 and 9 shall only survive to the extent applicable to a claim.
6.1. Confidential Information. Subject to the limitations set forth in Section 6.2, all information disclosed by one party to the other party during the term of this Agreement that is either identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, whether in oral, written, graphic or electronic form, shall be deemed to be “Confidential Information.” The existence and terms of this Agreement are Confidential Information of both parties.
6.2. Exceptions. Information will not be considered Confidential Information if the receiving party can establish by documentary evidence that the information is or was: publicly available through no act or omission of the receiving party; in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; lawfully disclosed to the receiving party by a third party without restriction on disclosure; or independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information.
6.3. Nondisclosure. The parties agree, both during the Subscription Term and for a period of three years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other’s Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees, subcontractors, agents or service providers performing services for the benefit of the receiving party (collectively, “Representatives”) who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its Representatives in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall, to the extent permitted by law, promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 6.3 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.
6.5. Processing of Customer Data. Customer grants Itso the non-exclusive right to access and process the Customer Data for the sole purpose and only to the extent necessary to provide the Services. Itso agrees not to use, access, disclose or process any Customer Data, except to: (i) perform the obligations permitted by Customer under this Agreement; and (ii) comply with applicable laws.
6.6. Data Protection. To the extent the parties execute a Data Protection Agreement (“DPA”) due to the processing of Personal Data (as defined in the DPA) which may be contained in Customer Data or Customer Confidential Information that is processed by Itso in its provision of the Services, the terms of such DPA shall be incorporated into this Agreement by reference.
- LIMITED WARRANTIES AND EXCLUSIVE REMEDIES.
7.1. Authority. Each of Itso and Customer represents and warrants that: it has the full right, power and authority to enter into and perform this Agreement; the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; its entry herein does not violate any other agreement by which it is bound; and it is a legal entity in good standing in the jurisdiction of its formation.
7.2. Product Warranty. Subject to Section 7.7 below, Itso warrants that the Product, as made available to Customer by Itso, will perform the material functions described in the applicable Documentation when used in the software and browser operating environment described therein and connected to databases supported by Itso. For breach of the foregoing, Itso agrees to fix the material functionality at issue and if Itso is unable to fix the deficiency, Customer’s sole and exclusive remedy for a breach of warranty contained in this Section 7.2 shall be to terminate the Agreement and have Itso refund to Customer the pro-rata unused portion of any pre-paid fees.
7.3. Security. Itso will use procedural, technical, and administrative safeguards for its Services designed to protect the confidentiality, security, integrity, availability, and privacy of Customer Confidential Information and Customer Data stored in the Instance. Notwithstanding any other provision of this Agreement or any other agreement related to the Services, Itso will not be responsible for any breach or loss resulting from Customer’s security configuration or administration of the Services.
7.4 Service Levels. Itso does not commit to any service levels for the Services.
7.5. Warranty Exclusions. Itso is not obligated to correct errors caused by: (a) unauthorized modification to the Product, (b) using the Services other than as described in the Documentation, (c) non-Itso software, or (d) combining the Product with any other software not authorized by Itso in writing.
7.6. NO IMPLIED WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 7 AND AS PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7.7. DISCLAIMER. ITSO DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE OR WITH ANY NON-ITSO PROGRAMS USED BY CUSTOMER, THAT THE OPERATION OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS IN THE SERVICES OR DOCUMENTATION WILL BE CORRECTED. ITSO SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE SERVICES COMPLIES WITH APPLICABLE LAWS IN CUSTOMER’S JURISDICTION(S).
Customer agrees to indemnify and hold Itso (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) Customer’s use of the Services, (b) Customer’s violation of this Agreement, (c) Customer’s violation of applicable laws or regulations or (d) Customer Data. Itso reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify Itso, and Customer agrees to cooperate with Itso’s defense of these claims. Customer agrees not to settle any matter without the prior written consent of Itso. Itso will use reasonable efforts to notify Customer of any such claim, action or proceeding upon becoming aware of it.
- LIMITATION OF LIABILITY.
9.1. NO INDIRECT DAMAGES. EXCEPT FOR A BREACH BY CUSTOMER OF SECTION 2, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUE, GOODWILL, OR INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE PARTY AND/OR ITS LICENSORS HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.2. LIMIT ON DAMAGES. EXCEPT FOR A BREACH BY CUSTOMER OF SECTION 2, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO ITSO DURING THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER ANY ORDER FORM.
9.3. Allocation of Risk. The provisions of this Agreement fairly allocate the risks between Itso, on the one hand, and Customer on the other. Customer acknowledges and agrees that the pricing reflects this allocation of risk and the limitation of liability specified herein, and that Itso would not enter into this Agreement without such allocation and limitation.
Customer acknowledges and agrees that the Product is subject to all applicable export control and economic sanctions laws and regulations, including, without limitation, those of the United States Government. Customer shall strictly comply with all applicable export control and economic sanctions laws and regulations related to the Product, including, without limitation, U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774, the economic sanctions codified in 31 C.F.R. Part 500 et seq., and all licenses and authorizations issued under such laws and regulations. Customer shall fully cooperate with Itso in securing any export licenses and authorizations required under applicable export control and economic sanctions laws and regulations. Customer agrees that it shall not, and shall cause its representatives, employees, agents, contractors and customers to agree not to, export, re-export, divert, release, transfer, or disclose any such Product, or any direct product thereof, to any prohibited or restricted destination, end-use or end-user, except in accordance with all relevant export control and economic sanctions laws and regulations. Customer shall make its records available to Itso upon reasonable request to permit Itso to confirm Customer’s compliance with its obligations as set forth in this Section 10.
- U.S. GOVERNMENT RIGHTS.
This Section 11 applies if Customer is, or is a contractor to, a US government agency. The Product, and any related documentation contain commercial computer software and documentation which are proprietary data belonging solely to Itso and its licensors. Pursuant to DFARS 227.7202 or FAR 12.212, as applicable, the U.S. Government's right to use, reproduce or disclose the Product and any related documentation acquired under this Agreement is subject to the restrictions of this Agreement. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of the Product and any related documentation and shall supersede any conflicting terms or conditions. No license of any kind is granted in the case of acquisitions which contain or are subject to the clause FAR 52-227.19 COMMERCIAL COMPUTER SOFTWARE-RESTRICTED RIGHTS (JUNE 1987) or DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (OCT 1988) or any other clause which purports to grant to the government rights greater than, or additional to those, set forth in this Agreement.
12.1. Integration; Severability. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof, including any non-disclosure or confidentiality agreements entered previously. If any provision of this Agreement is adjudicated invalid or unenforceable, the remaining provisions will remain in full force and effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. This Agreement shall supersede the terms of any Customer purchase order or other business form (“Customer’s Form”). If accepted by Itso in lieu of or in addition to an Itso order form, Customer’s Form shall be binding only as to the following terms: the Services ordered; and the appropriately calculated fees due. Other terms shall be void and unenforceable, irrespective of the representations, obligations and covenants contained therein.
12.2. Assignment. This Agreement may not be assigned by either party without the other party’s prior written consent, whether by operation of law or otherwise, except that Itso may assign this Agreement to its successor in the event of a merger, acquisition, corporate reorganization or sale of all or substantially all of Itso’s assets. Any other purported assignment shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns.
12.3. Force Majeure. Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.
12.4. Amendment; Counterparts. This Agreement is subject to occasional revision, and if Itso makes any substantial changes, Itso may notify Customer by posting notice of the changes at www.getaika.com/license-agreement/. Any changes to this Agreement will be effective upon thirty (30) calendar days following Itso’s posting of notice of the changes. These changes will be effective immediately for new users of the Services. Continued use of the Services following notice of such changes shall indicate Customer’s acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
12.5. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Texas, United States of America without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement will be brought in the federal or state courts in the Western District of Texas and Hays County, Texas, U.S.A., and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.
12.6. Notices. All notices under this Agreement shall be sent in writing and shall be delivered by: personal hand delivery; first class mail with return receipt; overnight mail by recognized commercial carrier with tracking receipt; or confirmed email or fax and copied by one of the methods described in (a), (b) or (c) above, to Customer at the email address associated with the first User from Customer to use the Services and to Itso at 1122 Belvin St., San Marcos, Texas 78666; firstname.lastname@example.org. Either party may update its address as described in this paragraph.
12.7. Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, franchise, agency, fiduciary or employment relationship between Customer and Itso.