Theia End User License and Services Agreement
These terms of business (the “Agreement”) were last updated on 1st July 2019.
You may not access the Software Product (defined below) if you are Theia’s direct competitor, except with Theia’s prior written consent. In addition, you may not access the Software Product for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Confidential Information shall mean non-public information of a party that is marked or otherwise identified as confidential at the time of disclosure, or that a reasonable person would understand to be confidential based on the nature of the information and the circumstances surrounding disclosure. As an example only and not by way of limitation, Theia’s Executable Code, Source Code, Software Product, Documentation, and any idea, algorithm, or trade secrets of Theia in the Software Product or Documentation will be deemed to be Theia’s Confidential Information.
Documentation shall mean the user manuals and/or other documentation provided to you along with the Software Product, whether in tangible or electronic form.
Executable Code shall mean the fully compiled version of a software program that can be executed by a computer and used by an end-user without further compilation.
Intellectual Property Rights shall mean all copyrights, trademarks, service marks, trade secrets, patents, moral rights, contract rights, and other proprietary rights.
License Fee shall mean the fee payable by you for the license of the Software Product, as specified in an Order Form (defined below).
Service Bureau includes but is not limited to application service providers, hosting companies and Internet portals that would use the Software Product for the benefit of the third party to third-party transactions.
Software Product shall mean the software products owned by Theia that are identified in the one or more
Order Forms attached hereto and shall include the Documentation for such software products, including applicable technical and end-user documentation relating thereto provided to you hereunder.
Source Code shall mean the human-readable version of a software program that can be compiled into Executable Code.
2. License Grant and Term
Subject to your compliance with these terms, Theia grants you a non-exclusive license to install and use the Software Product consistent with these terms and related Documentation accompanying the Software Product during the period beginning on the Effective Date and ending at the end date of the subscription until any termination of the Agreement (“License Term”). Theia may terminate this Agreement upon your material breach of this Agreement, which material breach has not been cured within thirty (30) days after receipt of written notice thereof. Upon expiration or termination of the License Term, some or all of the Software Product may cease to operate without prior notice. Upon any expiration or termination of the Agreement, the rights and licenses granted to you under this Agreement shall immediately terminate, and you shall immediately cease using the Software Product. The provisions of Section 1 (Definitions), Section 5 (Restrictions on Use), Section 10 (Confidentiality), Section 11 (Proprietary Rights), Section 14 (Limitation of Liability), and any provisions which, by their nature, should survive the termination hereof, will survive the termination of the Agreement, howsoever caused, but this will not imply or create any continued right to use the Software Product after termination of the Agreement.
3. Restrictions on Transfer
Without first obtaining the express written consent of Theia, you may not assign your rights and obligations under this Agreement.
During the term of your subscription, you are permitted to make a reasonable number of copies of the Software Product solely for backup, archival and testing purposes. You are permitted to make a reasonable number of copies of the Documentation and distribute such copies to your internal user community. Should your subscription term end or should the subscription otherwise terminate, all such copies shall be destroyed by you.
5. Restrictions on Use
You may not:
a) use, copy, or install the Software Product in excess of the licensed quantities or permit the use, copying, or installation of the Software Product by more than the licensed quantities if restricted in Section 3 (License Grant and Term)
b) modify, adapt, alter, or translate the Software Product unless you have requested, in writing, permission from Theia and such permission has been granted to you in writing from Theia;
c) sell, distribute, transfer, sublicense, lease, rent, or loan the Software Product to any third party;
d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the Software Product’s Source Code;
e) circumvent technological measures intended to control access to the Software Product;
f) develop, distribute, or use with the Software Product any products that circumvent the technological measures;
g) use the Software Product in connection with the operations of a Service Bureau, in a time-sharing environment, or for the benefit of any third party; or
h) use the Software Product except as expressly allowed under Section 2 (License Grant and Term). These restrictions are not intended to restrict your ability to implement the provided interfaces but rather intended solely to prohibit unauthorized uses, alterations or modifications, or other changes of the Software Product.
6. License Fees and Payment
a) You shall pay Theia the License Fee specified in the one or more order forms attached hereto as an exhibit (“Order Form”).
b) The License Fee includes your Software Product updates and maintenance of the Software Product as set forth in this Agreement and Order Forms. Provided the Annual License Fee is paid, Theia shall provide Software Product updates and support as set forth herein.
c) All payments must be made in U.S. dollars.
d) You will be responsible for payment of, and shall not withhold from, the License Fee, all applicable sales, use, ad valorem, and excise taxes; duties; and assessments based on your use or possession of the Software Product. You shall defend, indemnify and hold Theia harmless
from all claims and liability arising from your failure to pay such taxes. You shall not be responsible for any taxes related to Theia’s income.
e) Travel, living, and out-of-pocket expenses and fees are not included in the License Fee. Such expenses and fees will be invoiced monthly.
7. License Fees and Support
a) Annual License Fees for all renewal periods are due by the anniversary date of the Effective Date. Theia will invoice you thirty (30) days in advance of this date. Theia reserves the right to raise your annual License Fee by no more than five (5%) on each anniversary date.
b) For any annual period for which Theia is offering support services for the Software Product to its customer base in general and you have paid the annual License Fee, Theia will provide you with support services for the Software Product on the following terms:
i. To ensure that the Software Product will continue to perform substantially in accordance with its published specifications on the designated operating system, Theia will provide assistance via telephone, facsimile, the Internet, and/or dial-up direct computer (to the extent provided by you). You may provide Theia, at your cost, with full dial-up access to the Software Product so as to enable Theia to provide the support services set forth herein.
ii. Theia will provide you with all improvements and modifications to the Software Product as developed by Theia that Theia provides generally for no additional fee to its supported customer base.
iii. You agree to reimburse Theia for time spent and expenses incurred if analysis and maintenance of a problem indicates it was not the result of nonconformance in the Software Product. Once Theia determines that the problem was not the result of a nonconformance in the Software Product, Theia will notify you immediately and will not perform any more work without your consent. These charges will be invoiced at Theia’s then-current rates, plus reasonable travel, living expenses, and out-of-pocket. iv. Support services will be provided for the two most recent releases of the Software Product as specified by Theia. If you fail to implement updates and improvements in a timely manner and/or modify the Software Product without Theia’s prior written consent, Theia may, at its option, cancel its support services for the Software Product and will not make any refund of the Annual License Fees paid by you.
8. This Section Intentionally Left Blank
9. Application Analytics
You acknowledge and agree that the Software Product may contain a feature that collects and reports the crash reports, usage statistics, diagnostics information, and usage meta-information of the Software Product (“Usage Data”) to Theia. The feature may also collect and report non-identifying environmental data to Theia, including, but not limited to, operating system, Software Product version, and/or unique device identifier(s) of the computer on which the Software Product is installed and/or information about environment size and components. The IP address from which the Usage Data and/or the non-identifying environmental data is received may also be collected and stored by Theia.
a) Except as expressly allowed under this Agreement, neither party will use or disclose any
Confidential Information of the other except to the extent that such party can document that any
(i) is generally available for use and disclosure by the public without any license or charge;
(ii) is otherwise disclosed by the disclosing party or a third party without breach of a confidentiality obligation;
(iii) is independently developed by the receiving party without reference to the received Confidential Information; or
(iv) is required to be disclosed by the receiving party by law or any governmental authority, provided that the receiving party shall notify the disclosing party as soon as reasonably possible of any such compelled disclosure and give the disclosing party the opportunity to defend against such disclosure or obtain a protective order in connection therewith.
b) Each party shall use commercially reasonable efforts, which shall be no less stringent than those efforts that such party uses to protect its own software or other similar proprietary property, to prevent the Confidential Information from being used by any employee, agent, consultant or other person in any manner that would violate this Agreement.
c) Each party further agrees to use commercially reasonable efforts to assist the other in identifying and preventing any use or disclosure of the Confidential Information, including the Executable Code or Source Code of the Software Product or Documentation or any of the ideas, algorithms, source code, or trade secrets contained therein.
d) Without limiting the foregoing obligation, you shall advise Theia immediately in the event that you learn or have reason to believe that any person who has had access to the Software Product or any portion thereof, as a result of this Agreement, has violated or intends to violate the terms of this Agreement.
e) The parties acknowledge and agree that there is no adequate remedy at law for a breach of this Section, that such a breach would irreparably harm to the disclosing party, and that the disclosing party shall, in the event of such a breach, be entitled to equitable relief, including, without limitation, injunctions, without the posting of any bond, in addition to any other remedies.
11. Proprietary Rights
The Software Product and all worldwide Intellectual Property Rights therein, are the exclusive property of Theia. All right, title, and interest in the Software Product and all related materials, including all copyrights, trade secrets, and other intellectual property rights pertaining thereto, shall remain the property of Theia.
a) Theia represents and warrants that it is duly organized, validly existing, and in good standing under the laws of the State of Delaware, that it has the requisite power and authority to conduct its business as now being conducted, and that it has the full legal right to license the Software Product in accordance with this Agreement.
b) For the period of thirty (30) days, beginning on the Effective Date, Theia warrants the Software Product, when used as permitted under this Agreement and in accordance with the instructions in the Documentation, will operate in substantial conformance with the published specifications set forth in the Documentation.
c) THEIA WILL, AT ITS OWN EXPENSE AND AS ITS SOLE OBLIGATION AND YOUR EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY, USE COMMERCIALLY REASONABLE EFFORTS, WHICH MAY INCLUDE ADVISING YOU ELECTRONICALLY OR TELEPHONICALLY HOW TO MAKE CORRECTIONS, TO CORRECT ANY REPRODUCIBLE ERRORS IN THE SOFTWARE PRODUCT THAT YOU REPORT TO THEIA IN WRITING DURING THE WARRANTY PERIOD. ANY SUCH ERROR CORRECTION PROVIDED TO YOU WILL NOT EXTEND THE ORIGINAL SOFTWARE PRODUCT WARRANTY PERIOD. IF THE ERROR CANNOT BE CORRECTED, THEIA’S ENTIRE LIABILITY AND YOUR EXCLUSIVE FURTHER REMEDY FOR BREACH OF THE WARRANTY SET FORTH IN THIS SECTION SHALL BE, AT THEIA’S OPTION, EITHER (I) REPAIR OF THE SOFTWARE PRODUCT OR (II) REPLACEMENT OF THE SOFTWARE PRODUCT. REPLACED SOFTWARE PRODUCT IS WARRANTED FOR THIRTY (30) DAYS FROM THE DATE OF DELIVERY THEREOF.
d) YOUR FAILURE TO IMPLEMENT UPDATES AND IMPROVEMENTS IN A TIMELY MANNER, WITHOUT THEIA’S PRIOR WRITTEN CONSENT, WILL VOID SUCH WARRANTY.
e) EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS AGREEMENT, THEIA MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THEIA DOES NOT WARRANT THAT THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT OPERATION OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. YOU SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY AND ADEQUACY OF THE INFORMATION FURNISHED FOR PROCESSING AND ANY USE MADE BY YOU OF THE DATA OUTPUT BY THE SOFTWARE PRODUCT AND ANY RELIANCE THEREON.
13. Infringement Claims
a) If the Software Product becomes, or in Theia’s opinion is likely to become, the subject of an infringement claim, Theia may, at its option and expense, either:
i. procure for you the right to continue using the Software Product,
ii. replace or modify the Software Product so that it becomes non-infringing, or
iii. accept return of the Software Product and give you a refund for the License Fees paid by you, less a reasonable allowance for the period of time you have used the Software Product.
b) Subject to the limitations otherwise set forth in this Agreement, Theia will indemnify you against any third party claims of infringement. Theia will pay you the damages, costs and expenses (including reasonable attorneys’ fees) finally awarded against you by a court of competent jurisdiction (or in a written settlement agreement signed by Theia) directly attributable to such third party claims of infringement. This indemnification obligation is subject to the following requirements: (i) you will provide Theia with prompt written notice of any such claim; (ii) you will permit Theia, at its sole discretion, to assume and control the defense and settlement of any such claim; (iii) you will not prejudice the defense of the action or claim; (iv) you will mitigate such damages, costs and expenses, as far as reasonably possible; and (v) you will provide Theia with such assistance, documents, authority and information as it may reasonably require in relation to the action or claim and defence or settlement thereof.
c) Notwithstanding the foregoing, Theia will have no obligation under this Section or otherwise
with respect to any infringement claim based upon:
i. any use of the Software Product not in accordance with this Agreement or for purposes not intended by Theia,
ii. any use of the Software Product in combination with other products, equipment, software, or data which you are not authorized to use in conjunction with the Software Product,
iii. any use of any release of the Software Product other than the most current release made available to you,
iv. any modification of the Software Product by any person other than Theia,
v. your continued alleged infringing activity after being informed of modifications that would have avoided the alleged infringement, or
vi. any combination of your use of the Software Product with any other activities of you or others.
d) You shall defend, indemnify and hold Theia harmless from and against all claims arising from the activities described in any of the foregoing clauses (c)(i)-(c)(vi).
e) THIS SECTION STATES THEIA’S ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE
REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
14. Limitation of Liability
EXCEPT FOR LIABILITY ARISING FROM OR IN CONNECTION WITH BREACHES OF SECTION 5 (RESTRICTIONS ON USE), SECTION 10 (CONFIDENTIALITY), AND SECTION 11 (PROPRIETARY RIGHTS), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS OR ANY DAMAGES ARISING FROM ANY DATA LOSS OR CORRUPTION OF ANY KIND, ARISING FROM OR RELATING TO THIS AGREEMENT INCLUDING THE USE OF THE SOFTWARE PRODUCT PROVIDED HEREUNDER. EXCEPT FOR LIABILITY ARISING FROM OR IN CONNECTION WITH BREACHES OF SECTION 5 (RESTRICTIONS ON USE), SECTION 10 (CONFIDENTIALITY), AND SECTION 11 (PROPRIETARY RIGHTS), EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE PRODUCT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF THE TOTAL FEES PAID OR PAYABLE TO THEIA I IN CONNECTION WITH THIS AGREEMENT. YOU ACKNOWLEDGE THAT THESE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THEIA WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
You acknowledge that the Software Product contains valuable trade secrets and proprietary information of Theia, that any actual or threatened breach of Section 5 (Restrictions on Use) or Section 10 (Confidentiality) will constitute immediate, irreparable harm to Theia for which monetary damages would be an inadequate remedy, that Theia shall, in the event of such a breach, be entitled to equitable relief, including injunctive relief, without the posting of any bond, in addition to any other remedies. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.
You will maintain records sufficient to verify the amounts owing to Theia hereunder for the prior three years. You will permit Theia or its representatives to review your relevant records and inspect your facilities to ensure compliance with this Agreement. Theia will give you at least two (2) business days’ advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with your normal operations.
17. Export Restrictions
You agree to comply in all respects with the applicable export laws and regulations of the United States and not distribute or transfer the Software Product in contravention of those laws and regulations. You will defend, indemnify and hold harmless Theia from and against any violation of such laws or regulations by you or any of your agents, officers, directors, or employees.
All waivers must be in writing. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
19. Governing Law, Jurisdiction and Costs
This Agreement will be governed by the laws of the State of Delaware as such laws apply to contracts between Delaware residents performed entirely within Delaware. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a state court in Delaware or a federal court in Delaware, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shaft remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
22. Entire Agreement
This Agreement, together with any applicable Order Forms and Statements of Work, constitutes the entire agreement between the parties regarding the Software Product and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral; provided that any non-disclosure agreement or confidentiality agreement between you and Theia shall survive the execution of this Agreement. In the event of any conflict between the term and conditions of any such non-disclosure or confidentiality agreements and this Agreement, the terms and conditions of this Agreement shall govern. This Agreement may be amended only by a written document signed by duly authorized representatives of both parties. A duly authorized representative of Theia consists solely of either the chief executive officer, president, or chief financial officer. If you issue or respond to a purchase order, or similar document, in connection with this Agreement, any preprinted terms and conditions appearing thereon shall not apply to or become part of this Agreement regardless of any statement to the contrary contained therein.