Software End-User License Agreement
BAFFLE SOFTWARE END USER LICENSE AGREEMENT PLEASE READ THIS SOFTWARE END-USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE INSTALLING OR OTHERWISE USING THIS SOFTWARE (“SOFTWARE”) AS PROVIDED HEREWITH BY BAFFLE, INC.
This is a legal agreement (“AGREEMENT”) between the end-user customer (“you”), and Baffle, Inc. (hereinafter referred to as “BAFFLE”). BY INSTALLING OR USING THE SOFTWARE, YOU ARE ACCEPTING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS DOCUMENT, YOU ARE NOT AUTHORIZED TO INSTALL OR USE THIS SOFTWARE
This Software End User License Agreement (“Agreement”), effective as of (the “Effective Date”), is made and entered into by and between Baffle, Inc., a Delaware corporation whose principal address is 3979 Freedom Circle, Suite 970, Santa Clara, CA 95054 (“Baffle”) and (“Customer”), you.
WHEREAS, Baffle has developed software for an advanced data protection service.
WHEREAS, Customer wishes to license the software from Baffle on the terms and conditions set forth herein.
THE PARTIES HEREBY AGREE AS FOLLOWS:
- This Agreement sets forth the exclusive terms and conditions under which Baffle grants a limited license to the Customer of Baffle’s software listed on Schedule I in object code form only (the “Software”). The Software may include or be loaded on media with certain open source software (“Open Source Software”), which is licensed to Customer pursuant to the terms of the applicable open source license for such Open Source Software and not the terms of this Agreement. For the avoidance of doubt, no references to “Software” shall be construed to include any Open Source Software. Any conflicting term or condition, whether written or oral, including those that may be embedded in any purchase order, order acknowledgment, invoice, or other forms used by the parties, shall be of no force or effect and is hereby rejected unless agreed to in a writing by the party against which any such term or condition is asserted.
- This Agreement, including the attached Schedule II - Terms and Conditions, all of which are hereby incorporated into and made a part of this Agreement, constitutes the entire understanding between the parties and supersedes all prior arrangements and understandings, whether written or oral, with respect to the subject matter hereof.
SCHEDULE II – TERMS AND CONDITIONS
The Software may only be used by no more than the number of database instances specified in Schedule I – Pricing. The Customer may increase the number of database instances licensed at any time during the subscription period set forth in Schedule I – Pricing (“Subscription Period”) at the same pricing as that for the pre-existing licenses thereunder, prorated for the remainder of the Subscription Period. Customer will provide Baffle quarterly reports showing the number of database instances used. Customer may only reduce database instances licensed on renewal. There is no refund for database instances dropped during a Subscription Period.
The Customer is required to ensure it has the hardware as set forth in Baffle’s Install and User Guide (“User Guide”). In addition to the hardware requirements specified in the User Guide, Customer must also ensure and is responsible for, all networking equipment (switches, routers, or cables) and server racks, none of which are included in the pricing or provided by Baffle. Customer will also be responsible for any charges related to facilities (such as for racks, power, and cooling) and network traffic.
Key Payment and Other Terms:
- Once this Agreement is signed by both parties, delivery, and implementation of the Software will occur within forty-five (45) days thereafter or within forty-five (45) days following the date all of the specified hardware has been acquired by Customer, whichever is later. Standard implementation includes configuration and testing of the Software on such hardware.
- The Subscription Period for such Software, as well as the associated period of maintenance and support, shall commence upon the earlier of the following to occur (the “Subscription Commencement Date”): (i) delivery and implementation of the Software, or (ii) forty-five (45) days following the date this Agreement is signed by both parties.
- The first Subscription Period of the Software, including the first term of maintenance and support, will be invoiced in full when this Agreement is signed by both parties (notwithstanding the Subscription Commencement Date), unless Baffle issues a separate invoice. Subscription Periods for all database instances shall automatically renew for additional periods equal to the expiring Subscription Period unless one party informs the other by written notice of its desire not to renew this Agreement at least thirty (30) days prior to the expiration of the Subscription Period as set forth in this Agreement. The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Baffle has given Customer written notice of a pricing increase at least sixty (60) days prior to the expiration of the then current Subscription Period, in which case the pricing increase shall be effective upon the first day of the renewed Subscription Period. Baffle will issue appropriate invoices for renewal periods and/or additional products or services delivered thereafter hereunder.
- Payment by Customer shall be in accordance with the payment terms in the Terms and Conditions.
- This Agreement and all pricing information are confidential to Baffle in accordance with and under the terms of Section 13 (Confidential Information) of Schedule II – Terms and Conditions. Customer may use it only for the purpose of determining whether to proceed with the proposed purchases. Customer may disclose it only to those individuals within Customer’s organization who have a need to know it for the stated purpose.
- Grant of License. Baffle hereby grants Customer a nonexclusive, nontransferable license, without the right to sublicense, to install and internally use the Software for the term as set forth in Schedule I - Pricing, and for use solely in conjunction with Customer’s information technology network and for no other purpose. Customer must limit access to and use of the Software to only its employees with the need to use the Software for the foregoing purpose (“Authorized Users”), and by the number of subscriptions to database instances it has purchased.
- Ownership. All right, title, and interest in and to the Software and all modifications and derivatives thereof, including all patent, copyright, trade secret, and other intellectual property rights therein resides and will reside in Baffle and its licensors as applicable. The Software is licensed (not sold) to Customer by Baffle. All rights not expressly granted to Customer are reserved to Baffle. Customer acknowledges and agrees that the Software is copyrighted and contains materials that are valuable trade secrets of Baffle and are protected by copyright, trade secret, and other laws and international treaty provisions relating to proprietary rights. Customer may not remove, deface, or obscure any of Baffle’s or its suppliers’ proprietary rights notices on or in the Software or on output generated by the Software. Customer may not, nor may Customer permit, any third party to: (a) decompile, reverse engineer, disassemble, or otherwise attempt to derive the source code, algorithms or underlying ideas, design, or architecture of the Software; (b) modify, translate, or create derivative works of the Software; or (c) rent, lease, loan, distribute, transmit, assign, or transfer the Software to any third party, or provide access to or allow use of the Software by any third party, including any agent of Customer other than Authorized Users. Without Baffle’s prior written consent, Customer shall not disclose any information relating to features, performance, or operation of the Software (including any benchmarking or other testing results) to any third party, nor use any of such information other than for purposes permitted under the section titled Section 1 (Grant of License) above. Customer acknowledges and agrees that any unauthorized use, transfer, sublicensing, or disclosure of the Software, or other violation of this Agreement, would cause irreparable injury to Baffle, and under such circumstances, Baffle shall be entitled to seek equitable relief, without posting bond or other security, including but not limited to, preliminary and permanent injunctive relief.
- Feedback. All questions, comments, or feedback provided by Customer to Baffle regarding the Software and any other products, services, or materials provided by Baffle (collectively, “Feedback”) will be deemed the property of Baffle. Baffle will have no obligation to Customer or any third party with respect to such Feedback, and be free to use and exploit such Feedback in any form or manner and for any purpose and without payment of any consideration to Customer or any third party. All rights, title, and interest in and to the Software, the Feedback, accompanying materials, and all proprietary information contained therein, are owned by Baffle and are protected by copyright, trademark, patent and trade secret law, and international treaties. Customer will transfer and assign, and hereby does irrevocably transfer and assign, to Baffle all rights, title, and interest to the Feedback, including all intellectual property rights that Customer may have or acquire in the Feedback, and Customer will provide reasonable assistance to Baffle to affect such assignment. All rights not specifically granted in these Terms and Conditions are reserved by Baffle. Customer acknowledges that any violation of the foregoing restrictions will cause Baffle irreparable harm entitling Baffle to seek injunctive relief without posting bond or other security. Baffle may upon written notice terminate this grant if the forgoing restrictions are violated or the fees specified in Schedule I - Pricing hereof are not paid when due.
- Delivery. Baffle will deliver the Software to Customer or make the Software available for download to Customer from a secure server. The Software will be deemed accepted upon delivery and may not be rejected by Customer.
- Consent to Use of Data. Customer agrees that Baffle may collect and use technical data and related information, including but not limited to technical information about Customer’s computer system, application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services related to the Software. Baffle may use this information, as long as it is in a form that does not personally identify Customer, to improve its products or to provide services or technologies.
- Fees. The license granted hereunder is subject to Customer’s timely payment of fees as specified in Schedule I – Pricing above. Customer shall pay Baffle the fee due under this Agreement within thirty (30) days after the Effective Date of this Agreement and each anniversary thereafter. All late payments shall bear interest at the lesser of one percent (1%) per month, compounded monthly, or the highest rate permitted by law. Unless otherwise agreed in writing, all payments hereunder shall be paid in U.S. dollars, and shall be in the form of wire transfer or direct deposit into a bank account designated by Baffle. Customer is responsible for payment of all sales, use, VAR, import, and all other transaction taxes and all duties, and all similar charges and fees (except for taxes based on Baffle’s net income), which shall be paid or reimbursed by Customer. If Customer is required by a governmental taxing authority to withhold an amount from any payment due hereunder and pay such amount to the governmental authority, the prices will be grossed-up so that the net payment equals the original price.
- Audit. Upon reasonable notice and during Customer’s normal business hours, Baffle shall have the right to audit (either directly or indirectly through an independent third party) Customer’s books of account and business records as necessary to verify Baffle’s compliance with its obligations and restrictions under the Agreement. Customer shall promptly pay the difference (plus interest) if such audit reveals an underpayment. If such audit reveals an underpayment of more than 5%, Customer shall also reimburse Baffle for the reasonable costs and expenses of such audit.
- IP Indemnity. Baffle will defend at its own expense any third-party claim, suit, or proceeding brought against Customer insofar as it is based on a claim that the Software, as provided by Baffle, constitutes an infringement of a valid United States patent or a valid United States copyright. Baffle will pay all damages, costs, and expenses finally awarded to third parties as a result of a final judgment against Customer or settlement of such claim negotiated by Baffle, but shall not be responsible for any compromise made without its consent. To qualify for such defense and payment, Customer must: (i) give Baffle prompt written notice of any such claim, and (ii) allow Baffle to control, and fully cooperate with Baffle in, the defense and all related settlement negotiations. Upon notice of an alleged infringement, or if, in Baffle’s opinion, such a claim is likely, Baffle shall have the right, at its option, to (x) obtain the right for the Customer to continue to use the Software free of the infringement claim or (y) modify the Software so that it is no longer subject to the infringement claim. In the event that none of the above options are commercially practicable in Baffle’s sole discretion, Baffle may terminate this Agreement and all licenses. This Section states Baffle’s entire liability for the infringement or misappropriation of the intellectual property rights of third parties. Baffle shall not be responsible for any claim of infringement that arises from (a) unauthorized modifications to the Software, (b) use of the Software in a manner or in combination with software, firmware or hardware not provided by Baffle to the extent such claim would not have occurred except for such modifications or use, (c) use of other than the latest available version of the Software made available by Baffle to Customer, or (d) any use of the Software not in accordance with this Agreement or the applicable documentation or specifications.
- Marketing. During the term of this Agreement, with prior written consent, each party hereby authorizes the other party to refer to the relationship established pursuant to this Agreement for advertising, marketing, and promotion purposes, including without limitation, issuing press releases that refer to grant of license and use of Software by Customer. During the term of this Agreement, the Customer shall provide reasonable support to Baffle for its marketing activities, including by provision of case studies, and being available for interviews or speaking with media and research organizations. Customer hereby grants to Baffle, during the term of this Agreement, a non-exclusive, worldwide, royalty-free license to use and display the Customer’s name, logo, and other trademarks for advertising, marketing, and publicity purposes, and subject to the aforesaid, Customer will retain all intellectual property and other rights that it may have in its trademarks.
- Maintenance and Support. Subject to the terms and conditions of this Agreement, Baffle shall (i) deliver to Customer any updates to the Software developed by or on behalf of Baffle during the term of this Agreement that are generally available for distribution to Baffle’s other customers at no additional cost (as determined by Baffle); and (ii) shall provide to Baffle the Software support services set forth on Schedule I - Pricing hereof during the term of this Agreement. Any updates received by Customer pursuant to this Section 10 shall be subject to the license granted under Section 1 (Grant of License). In the event Baffle provides any additional services to the Customer which are not expressly included in this Agreement, Customer shall pay Baffle for such additional services at agreed upon market rates, and enter into appropriate additional agreements for such services.
- WARRANTY DISCLAIMER. CUSTOMER’S USE OF THE SOFTWARE IS AT ITS SOLE RISK. THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND BAFFLE AND BAFFLE’S LICENSOR(S) EXPRESSLY EXCLUDE AND DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT UNDER THE UCC. IN ADDITION, BAFFLE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE NOT ENTERED INTO THESE TERMS IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION. BAFFLE PROVIDES NO WARRANTY OF ANY KIND ON ANY OPEN SOURCE SOFTWARE.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL BAFFLE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) OR FOR THE COST OF PROCURING OTHER SOFTWARE PRODUCTS OR SERVICES, EVEN IF BAFFLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BAFFLE ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT, NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
- Confidentiality. “Confidential Information” means the information of a party (“Disclosing Party”) that is disclosed to the other party (“Receiving Party”) under this agreement that the Receiving Party knows or reasonably should know is confidential to the Disclosing Party. Confidential Information may be disclosed in written, visual, oral, or other forms. Confidential Information also includes all summaries or abstracts of Confidential Information. Baffle’s Confidential Information includes the Software and the terms of this Agreement. Each party acknowledges that in the course of performing this Agreement, it may obtain the Confidential Information of the other party. Subject to Baffle’s rights under Section 5 (Consent to Use of Data), the Receiving Party shall, at all times both during the term of this Agreement and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it, and the Receiving Party shall not use the Confidential Information of the Disclosing Party other than as reasonably required to perform this Agreement. The Receiving Party shall take reasonable steps to prevent unauthorized disclosure or use of the Disclosing Party’s Confidential Information and to prevent it from becoming publicly available or falling into the possession of unauthorized persons, but in no event will the Receiving Party use less care than it would in connection with its own confidential information of like kind. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and consultants who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into confidentiality agreements or are bound by professional responsibility obligations which protect the Confidential Information of the Disclosing Party sufficient to enable the Receiving Party to comply with its obligations of confidentiality under this Agreement. The confidentiality obligations set forth herein do not apply to information which is: (a) now or hereafter, through no unauthorized act or failure to act on the Receiving Party’s part, in the public domain or publicly available; (b) known to the Receiving Party without an obligation of confidentiality at the time the Receiving Party receives the same from the Disclosing Party; (c) hereafter furnished to the Receiving Party by a third party without restriction on disclosure; or (d) independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any law or governmental investigative or judicial agency pursuant to proceedings over which that agency has jurisdiction, on condition that, prior to the disclosure, the Receiving Party (i) asserts the confidential nature of the Confidential Information; (ii) immediately notifies the Disclosing Party in writing of the requirement, order or request to disclose; and (iii) cooperates fully with the Disclosing Party in protecting against any the disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
- Return of Confidential Information. Within thirty (30) days of the expiration or termination of this Agreement, each party shall return to the other party or destroy (as requested by the other party) all Confidential Information provided under this Agreement to such party and an officer of the returning party shall certify completion of such return or destruction in writing to the other party. All documents, memoranda, notes, and other tangible embodiments, in electronic or non-electronic form, prepared by or on behalf of the Receiving Party based on or which include Confidential Information required to be destroyed or returned under this Section shall be destroyed to the extent necessary to remove all such Confidential Information.
- Term. The term of this Agreement commences on the Effective Date and continues until the expiration or termination of all Subscription Period(s), unless earlier terminated as provided in this Agreement. The licenses to the Software will end at the end of the applicable Subscription Period.
- Termination for Non-Performance.
Customer may within ninety (90) days from the date the Software is delivered provide a written notice to terminate this Agreement solely if with all commercially reasonable efforts of Customer and Baffle, Customer is unable to use Software or Services due to non-performance/underperformance of Software or Services. Baffle shall refund the amount of Software paid and a pro-rated amount for Support Services.
- Termination for Non-Performance.
- Termination. If Customer breaches any of its obligations under this Agreement and fails to cure such breach within fifteen (15) days from the date of receipt of notice of such breach, this Agreement and all of Customer’s license rights hereunder will terminate automatically. Immediately upon any termination, Customer must promptly destroy the Software, including all copies and portions thereof, in its possession or under its control and an officer of Customer shall certify completion of such destruction in writing to Baffle. Customer shall not receive any refund of prepaid fees for the remainder of the terminated Subscription Periods after the effective termination date. The termination or expiration of this Agreement for any reason shall not affect a party’s rights or obligations that expressly or by their nature continue and survive (including, without limitation, the payment terms and the provisions concerning ownership, use of data, audit, confidentiality, limitation on liability, indemnity and the warranty disclaimers).
- Export Controls. The Software is subject to U.S. Export Administration Regulations. Customer shall not export, re-export, import, or transfer the Software in violation of U.S. or other applicable laws, whether directly or indirectly, and shall not assist or facilitate others in doing any of the foregoing. Customer represents and warrants that Customer is not located in, a resident of, or a citizen of any country to which the United States has embargoed goods. Customer acknowledges that it is Customer’s responsibility to comply with any and all export and import laws.
- Notices. All notices required or permitted to be given under this Agreement shall be in writing, and shall be deemed to have been given when (i) delivered personally, (ii) sent via an internationally recognized overnight courier, (iii) sent via registered mail return receipt requested, or (iv) sent via email with a copy sent by an internationally recognized overnight courier, as specified below:If to Baffle:
3979 Freedom Circle, Ste 970, Santa Clara, CA 95054
Attn: Contracts Administrator email ([email protected])
If to Customer:
To the contact information provided by Customer to Baffle
- Independent Contractors. The relationship of the parties is that of independent contractors. Neither party shall be deemed to be an agent or joint venture partner of the other for any purpose as a result of this Agreement or the transactions contemplated by this Agreement.
- Severability. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
- No Assignment. Except as expressly set forth in this Agreement, Customer may not assign or otherwise transfer any of Customer’s rights hereunder without Baffle’s prior written consent, and any such attempt will be void. For purposes of this Agreement, an assignment shall be deemed to occur if Customer undergoes a merger, change of control, sale of stock or assets, by operation of law or otherwise.
- Injunctive Relief. Customer acknowledges and agrees that a material breach of this Agreement adversely affecting Baffle’s proprietary rights would cause irreparable harm to Baffle for which a remedy at law would be inadequate and that Baffle shall be entitled to seek injunctive relief in addition to any remedies it may have hereunder or at law without posting bond or other security.
- Force Majeure. Except for payment obligations, neither party shall be responsible for any delays caused by acts of God or any other cause beyond its reasonable control, including but not limited to such things as riots, acts of war or terrorist acts, restricting legislation, embargo, blockage, work stoppage, or major outage of a public communications carrier.
- Governing Law. This Agreement will be governed by the laws of the State of California, without giving effect to the principles of conflict of laws. The United Nations Convention on the International Sale of Goods will not apply to this Agreement. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in Santa Clara County in the State of California (or in the event of exclusive federal jurisdiction, the courts of the Northern District of California).
- Entire Agreement; Amendments; Waivers. This Agreement sets forth the entire agreement and understanding between the parties relating to the subject matter hereof and supersedes all prior discussions and agreements (whether oral or written) between the parties with respect thereto. No modification or amendment of this Agreement will be effective unless in writing and accepted and agreed by an authorized representative of Baffle. Failure of a party to enforce any provision of this Agreement shall not constitute and shall not be construed as a waiver of such provision or of the right to enforce such provision.