During the Term, and subject to Licensee having paid and continuing to pay the applicable Support Fees set forth in the Go Support Schedule, and complying with the terms and conditions of this Agreement, ThoughtWorks hereby grants Licensee a non-exclusive, non-transferable, non-assignable limited license to use the Product for the Authorized Use. With respect to the Product, the terms of this Agreement supersede and replace any terms contained in any preexisting agreement between ThoughtWorks and Licensee. With respect to Third-Party Software, the terms of the third-party licenses applicable to the Third-Party Software govern the use of such Third-Party Software by Licensee.
Licensee may make additional copies of the Product as necessary for archival or backup purposes, provided that Licensee reproduces and includes all copyright, trademark, logo or other proprietary notices on every copy in the same form in which they appear in or on the original copies provided to Licensee by ThoughtWorks.
Licensee may not distribute, sub-license, translate, reverse-engineer, decompile, or disassemble the Product (including Third-Party Software) or the source code, or attempt to derive the source code in any other way, save and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the terms of the licenses applicable to the Third-Party Software; modify the Product or merge all, or any part, of the product or the code into another program; or remove, modify or alter any ThoughtWorks copyright, trademark, logo, or other proprietary mark or notice from any part of the Product or source code.
This license shall begin on the Effective Date of the applicable Go Support Schedule and continue for the Term subject to earlier termination by either ThoughtWorks or Licensee in accordance with this Agreement.
Licensee shall ensure that its use of the Product is only for the Authorized Use. Licensee shall not distribute the Product. Licensee shall take reasonable security measures to prevent any prohibited activities under Section 2 of this Agreement.
ThoughtWorks hereby reserves all rights not explicitly granted in this Agreement. The Product contains copyrighted material, trade secrets and other valuable confidential and proprietary information owned by ThoughtWorks. This license confers no right, title, or ownership interest in or to any copyright, trademark, logo, or trade name of ThoughtWorks and all associated intellectual property rights are retained by ThoughtWorks.
a) ThoughtWorks provides the Product “as is” and “as available” without warranty of any kind, either express or implied, including but not limited to, the implied warranties of merchantability, satisfactory quality, and fitness for a particular purpose. ThoughtWorks does not warrant that the functions contained in the Product will meet Licensee’s requirements, or that the operation of the Product will be uninterrupted or error or defect free, or that defects in the Product will be corrected.
b) Under no circumstances, including negligence, shall ThoughtWorks be liable for any lost profits, loss of data, cost of procurement of substitute software, goods or services, or special, indirect, incidental or consequential loss or damages, either in contract or tort, arising out of or in connection with this Agreement or that result from the use or inability to use the Product, even if ThoughtWorks is advised of the possibility. In addition, in no event shall ThoughtWorks’ total liability for all damages, losses and causes of action exceed the amount paid by Licensee under the applicable Go Support Schedule. To the extent that liability for death or personal injury caused by its negligence, caused by fraudulent misrepresentation or deceit, or any other liability that may not be excluded or limited by applicable law, ThoughtWorks does not exclude or limit its liability.
c) The Parties agree that the limitations on and exclusions of liability listed in this Section 6 were freely negotiated and are an integral part of the bargain, in that the Product would not have been available for the same price and under the same terms and conditions had such limitations on and exclusions of liability not been included in this Agreement.
d) To the extent the foregoing warranty disclaimer or limitation of liability is not allowed by applicable law, then the liability of ThoughtWorks, and Licensee’s remedy, shall be limited to, at ThoughtWorks’ option: (i) the re-supply of any defective Product; or (ii) the payment to Licensee of US$50.00 (fifty United States Dollars).
a) ThoughtWorks will defend or settle, at its expense, any action brought against Licensee based upon the claim that the Product, when used in accordance with this Agreement, knowingly and directly infringes an issued U.S. patent or registered copyright; provided, however, that: (i) Licensee notifies ThoughtWorks promptly in writing of any such claim; (ii) Licensee does not enter into any settlement related to any claim without ThoughtWorks' prior written consent; (iii) ThoughtWorks has sole control of any claim and all related settlement negotiations; and (iv) as requested, Licensee provides ThoughtWorks with all information and assistance necessary to settle or defend the claim.
(b) If the Product becomes, or may, in the opinion of ThoughtWorks, become the subject of a claim of infringement of any third party intellectual property right, ThoughtWorks may, at its option, and as Licensee’s exclusive remedy: (i) procure the right for Licensee to use the Product; (ii) replace or modify the Product to make it non-infringing; or (iii) make a payment to Licensee of US$50.00 (fifty United States Dollars).
(c) Licensee will defend or settle, at Licensee’s expense, any action brought against ThoughtWorks based upon the claim that any modifications Licensee makes to the Product or any combination of the Product with software or other items not approved by ThoughtWorks infringes or violates any third party intellectual property right; provided, however, that ThoughtWorks comply with the same requirements outlined in subsections (i)-(iv) of Subparagraph (a).
(d) Notwithstanding anything herein to the contrary, ThoughtWorks shall have no obligation to defend Licensee or to pay Licensee’s costs, damages or attorney’s fees, or have any liability whatsoever, for any claim resulting from or attributable to any modifications to the Product or any combination of the Product with other with products or other items not approved by ThoughtWorks or any failure to implement an update to the Product or if Licensee is otherwise not using the Product in accordance with this Agreement.
ThoughtWorks can terminate this Agreement in the event of breach by Licensee. Breach by Licensee includes: 1) the failure to prevent unauthorized use or distribution of the Product; 2) accessing, using, modifying, or distributing Third-Party Software independently of the Product and without permission; 3) nonpayment, or 4) any other activity that violates this Agreement. ThoughtWorks may terminate this Agreement immediately upon giving notice to Licensee if after giving Licensee written notice that it is in breach of the Agreement, Licensee fails to cure the breach within seven (7) days of receipt of the notice; except that in the case of Licensee’s failure to pay Support Fees or comply with Section 2, ThoughtWorks reserves the right to terminate this Agreement immediately and without notice or opportunity to cure. In the event of termination of this Agreement: a) all outstanding License Fees and any other amounts owed by Licensee are immediately due and payable; and b) all license rights (including without limitation the perpetual license) granted to Licensee under this Agreement and in relation to the Product are revoked and the Licensee must destroy all copies of the Product. If Licensee terminates the applicable Go Support Schedule, then this Agreement shall automatically terminate.
Licensee acknowledges that this Product may be subject to export controls or restrictions by the United States or other countries or territories and Licensee hereby certifies that Licensee is not located in Cuba, Iran, North Korea, Sudan, or Syria. Additionally, Licensee affirms that, to Licensee’s knowledge, Licensee is not included on any list that would cause ThoughtWorks' provision of this Product to Licensee to be prohibited by the laws or regulations of the United States, including the Department of Commerce’s ("DOC") Denied Persons, Entities, and Unverified Lists; the U.S. Department of State’s Debarred List; or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists. Licensee agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce.
Licensee may not assign its rights under this Agreement except in the case of a change in control of Licensee, including merger or sale. Licensee must give ThoughtWorks 60 days written notice of any such assignment. ThoughtWorks may assign its rights and obligations under this agreement for any reason and without the consent of Licensee.
Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular provisions(s) held to be invalid or unenforceable and so as to effect the original intent of the parties hereto.
This Agreement shall be deemed executed in the State of Delaware, U.S.A., and shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to choice of law or conflict of law principles. For purposes of enforcement of arbitration awards, equitable relief, or if for any other reason litigation is permissible under this agreement, each party hereby irrevocably agrees to the exclusive personal jurisdiction and venue of any court located in the State of Delaware.
No failure or delay by either party in exercising any right, power, or privilege granted under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege granted under this Agreement. The knowing waiver of a Breach of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.
The provisions of Sections 4, 5, 6, 7, 9, 11, 12, 14, 15, 17, 18 and 19 shall survive the cancellation or termination of this Agreement. All other provisions of this Agreement, which by their terms or import are intended to survive such cancellation or termination, shall survive.
This Agreement may only be enforced by the parties hereto and their respective successors and assigns and there are no third-party beneficiaries to this Agreement.
This Agreement can only be modified by mutual written assent of the parties. The parties agree that the terms on either party’s purchase order, invoice or other business forms are not binding on the other party and shall not be of any effect whatsoever and may not affect, alter, or modify the terms and conditions of this Agreement unless they are expressly incorporated into a formal written agreement signed by both parties.
PURSUANT TO FAR 52.212-5(E) AND/OR FAR 52.244-6, FOR ANY ORDER DOCUMENTS REFERENCING A SPECIFIC U.S. GOVERNMENT PRIME CONTRACT, ALL APPLICABLE PROCUREMENT REGULATIONS REQUIRED BY FEDERAL STATUTE OR REGULATION TO BE INSERTED IN U.S. GOVERNMENT SUBCONTRACTS APPLY, INCLUDING BUT NOT LIMITED TO 52.203-13, CONTRACTOR CODE OF BUSINESS ETHICS AND CONDUCT, FAR 52.203-15, WHISTLEBLOWER PROTECTIONS UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009, FAR 52.219-8 - UTILIZATION OF SMALL BUSINESS CONCERNS, FAR 52.222-26 - EQUAL OPPORTUNITY, FAR 52.222-35 - EQUAL OPPORTUNITY FOR SPECIAL DISABLED VETERANS, VETERANS OF THE VIETNAM ERA, AND OTHER ELIGIBLE VETERANS, FAR 52.222-36 - AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES, FAR 52.222-39 - NOTIFICATION OF EMPLOYEE RIGHTS CONCERNING PAYMENT OF UNION DUES OR FEES, FAR 52.222-41 - SERVICE CONTRACT ACT OF 1965, FAR 52.222-50 – COMBATING TRAFFICKING IN PERSONS, FAR 52.222-51, EXEMPTION FROM APPLICATION OF THE SERVICE CONTRACT ACT TO CONTRACTS FOR MAINTENANCE, CALIBRATION, OR REPAIR OF CERTAIN EQUIPMENT – REQUIREMENTS, FAR 52.222-53, EXEMPTION FROM APPLICATION OF THE SERVICE CONTRACT ACT TO CONTRACTS FOR CERTAIN SERVICE – REQUIREMENTS, FAR 52.222-54, EMPLOYMENT ELIGIBILITY VERIFICATION, FAR 52.226-6, PROMOTING EXCESS FOOD DONATION TO NONPROFIT ORGANIZATIONS, FAR 52.247-64 - PREFERENCE FOR PRIVATELY OWNED U.S. FLAG COMMERCIAL VESSELS (AS REQUIRED IN ACCORDANCE WITH PARAGRAPH (D) OF FAR CLAUSE 52.247-64. THESE PROVISIONS HAVE THE SAME FORCE AND EFFECT AS IF THEY WERE STATED IN THEIR FULL TEXT.
IF YOU ARE A US GOVERNMENT ENTITY THEN YOU SHOULD BE AWARE THAT THE SOFTWARE IS A “COMMERCIAL ITEM,” AS THAT TERM IS DEFINED IN 48 CFR 2.101, CONSISTING OF “COMMERCIAL COMPUTER SOFTWARE” AND “COMMERCIAL COMPUTER SOFTWARE DOCUMENTATION,” AS SUCH TERMS ARE USED IN 48 CFR 12.212. CONSISTENT WITH 48 CFR 12.212 AND 48 CFR 227.7202-1 AND 227.7202-4, ALL SUCH CUSTOMERS ACQUIRE THE SOFTWARE WITH ONLY THOSE RIGHTS SET FORTH HEREIN. THE TERMS OF THIS LICENSE ARE SUBJECT TO 48 CFR 52.227-19. THE USE, DUPLICATION, OR DISCLOSURE BY THE US GOVERNMENT OF THE SOFTWARE IS SUBJECT TO RESTRICTIONS AS PROVIDED IN 48 CFR 12.211 AND 12.212, 48 CFR 52.227-19, 48 CFR 252.227-7015, AS APPLICABLE.
THIS COMMERCIAL SOFTWARE AND COMMERCIAL COMPUTER SOFTWARE DOCUMENTATION WAS DEVELOPED ENTIRELY AT PRIVATE EXPENSE AND IS PROVIDED WITH RESTRICTED RIGHTS TO UNITED STATES GOVERNMENT AGENCIES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, FAR 12.212 AND DFARS 227.7202 FOR COMMERCIAL TECHNICAL DATA. THE RESTRICTIONS SET FORTH IN FAR 12.211 AND FOR DOD AGENCIES DFARS 252.227-7015 SHALL ALSO APPLY. DATA FIRST PRODUCED IN THE PERFORMANCE OF WORK UNDER THIS AGREEMENT IS PROVIDED TO U.S. GOVERNMENT AGENCIES IN ACCORDANCE WITH FAR 52.227-14(B)(1)(I). THESE PROVISIONS HAVE THE SAME FORCE AND EFFECT AS IF THEY WERE STATED IN THEIR FULL TEXT.
This Agreement, the Go Support Schedule and the applicable Order Documents (if any), constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings, representations, communications, or agreements, written or oral, including any additional or contrary terms contained in any Licensee purchase order or other procurement document, regarding the Product or in any way related to ThoughtWorks intellectual property rights in the Product. In the event of a conflict between the terms of this ThoughtWorks Go Extensions End User License Agreement and the ThoughtWorks Support Services General Terms located at http://www.thoughtworks.com/products/go-continuous-delivery/thoughtworks-support-services-general-terms, then solely with respect to ThoughtWorks’ supply and Licensee’s use of the Product, the terms of this ThoughtWorks Go Extensions End User License Agreement shall control.