LUCIDUM COMMUNITY VERSION
SOFTWARE LICENSE AGREEMENT
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE (AS DEFINED HEREIN), AS THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) GOVERN YOUR USE OF THE SOFTWARE.
Lucidum, Inc. (“Lucidum”) is willing to license the Software to you only upon the condition that you accept all the terms contained in this Agreement. By clicking downloading, installing or using the Software, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then Lucidum is unwilling to license the Software to you, and you must destroy all copies of the Software. This Agreement shall be effective as of the date you first download the Software (“Effective Date”).
- “Documentation” means the standard user documentation for the Software that Lucidum makes generally available to its customers.
- “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
- “Software” means the Lucidum Community Version software products, in executable code form, and related Documentation, including any error corrections, modifications and updates thereto provided by Lucidum to you under this Agreement.
- Grant of License. Subject to your compliance with the terms and conditions of this Agreement, Lucidum grants to you a non-exclusive, personal, non-sublicensable and non-transferable license: (a) to use the Software only for your internal business purposes; and (b) to copy the Software as reasonably necessary to exercise the license rights granted in subsection (a), including making a reasonable number of copies for backup and archival purposes.
- License Restrictions. Except as expressly specified in this Agreement, you may not (a) copy (except in the course of loading or installing) or modify the Software, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Software; (b) transfer, sublicense or otherwise distribute the Software to any third party; (c) lease, lend or rent the Software, or otherwise make the functionality of the Software available to third parties; (d) access the Software for the purposes of building a competitive product or service or copying its features of user interface; or (e) use the Software for monitoring or assessing the internal control systems of any third party including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party without the written consent of Lucidum. You acknowledge and agree that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Lucidum and its licensors. Accordingly, you agree not to (a) disassemble, decompile or otherwise reverse engineer the Software, in whole or in part, (b) attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of any Software by any means whatsoever, or (c) permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
- Ownership. Your rights in the Software will be limited to those expressly granted in this Agreement. Lucidum reserves all rights and licenses in and to the Software not expressly granted to you under this Agreement. You expressly acknowledge that, as between Lucidum and you, Lucidum and its licensors owns all worldwide right, title and interest in and to the Software, including all worldwide Intellectual Property Rights therein. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on the Software as delivered to you. You will reproduce such notices on all copies it makes of the Software.
- Changes to the Software. Lucidum reserves the right to make changes to any Software whenever such changes, (a) are required for safety, (b) facilitate performance in accordance with specifications, or (c) are deemed necessary at the sole discretion of Lucidum.
- Definition. “Confidential Information” means: (a) the Software; (b) any business or technical information of Lucidum or you that, if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the other party within thirty (30) days of such disclosure; and (iii) the specific terms and pricing set forth in this Agreement.
- Exclusions. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
- Use and Disclosure Restrictions. Each party will not use the other party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Agreement: (a) as required under applicable securities regulations; and (b) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
- Disclaimer. THE SOFTWARE AND SERVICES THAT ARE OR MAY BE PROVIDED BY LUCIDUM IN CONNECTION WITH THE SOFTWARE ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND LUCIDUM DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE. WITHOUT LIMITING THE FOREGOING, LUCIDUM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM LUCIDUM OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
- Infringement Indemnity. Lucidum will defend or settle any action brought against you to the extent that it is based upon a claim that the Software, as provided by Lucidum to you under this Agreement and used within the scope of this Agreement, infringes any U.S. patent or any copyright or misappropriates any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against you, provided that you: (a) promptly notify Lucidum in writing of the claim; (b) grants Lucidum sole control of the defense and settlement of the claim; and (c) provides Lucidum, at Lucidum’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.
- Use Indemnity. You will defend and hold Lucidum harmless against any action brought against Lucidum to the extent that it is based upon a claim that results from your use of the Software other than in accordance with this Agreement or the Documentation.
- Exclusions. Notwithstanding the terms of Section 5(a), Lucidum will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (a) the combination, operation or use of the Software with equipment, devices, software or data not supplied by Lucidum; or (b) if a claim would not have occurred but for such combination, operation or use, or your failure to use updated or modified Software provided by Lucidum to avoid a claim.
- Sole Remedy. THE PROVISIONS OF THIS SECTION 5 SET FORTH LUCIDUM’S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
6. LIMITATION OF LIABILITY.
- Exclusion of Damages. IN NO EVENT WILL LUCIDUM BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR the cost of procuring substitute products OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT LUCIDUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
- Total Liability. LUCIDUM’S TOTAL CUMULATIVE LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED $100.
7. TERM AND TERMINATION.
- Term. This Agreement will begin on the Effective Date and will remain in effect thereafter unless terminated earlier in accordance with the terms of this Agreement. You may terminate the license at any time by destroying all copies of the Software in your possession or control. The license granted under this Agreement will automatically terminate, with or without notice from Lucidum, if you breach any term of this Agreement.
- Effect of Termination. In the event of termination of this Agreement for any reason, you shall promptly (a) discontinue all use of the Software; (b) erase or destroy any Software contained in the computer memory or data storage apparatus under your control, (c) return to Lucidum all copies of the Software provided by Lucidum in your possession, and (d) certify in writing to Lucidum, within thirty (30) days of termination of this Agreement, that you have complied with the foregoing. Upon termination of this Agreement, all licenses granted in this Agreement shall terminate.
- Survival. The rights and obligations of the parties contained in Sections 2(c), 3, 4, 6, 7(b), 7(c) and 8 will survive the termination of this Agreement or of any individual Software license granted hereunder.
- Export Law. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
- Government Rights. The Software and Documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software and Documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Software and Documentation will be only those specified in this Agreement.
- Miscellaneous. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein. The United Nations Convention on Contracts for the International Sale of Goods will not apply. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Lucidum’s prior written consent, and any attempt by you to do so, without such consent, will be void. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses provided in connection with the download of the Software or to such other address as may be specified by either party to the other. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Lucidum have executed a separate agreement. Any terms or conditions contained in another document that are inconsistent with or in addition to the terms and conditions of this Agreement (including, without limitation, purchasing terms on a purchase order or other ordering document) are hereby rejected by Lucidum and will be deemed null. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
9. Contact Information.
If you have any questions regarding this Agreement, you may contact Lucidum at firstname.lastname@example.org