Ambisafe License Agreement

Effective October 12, 2015

This Ambisafe License Agreement (the “Agreement”) is between you and Ambisafe, Inc. (“Ambisafe”), located at 1341 Stanford St., Santa Monica, CA 90404. If you are agreeing to this Agreement not as an individual but on behalf of your company, then “you” means your company, and you are binding your company to this Agreement. Ambisafe may modify this Agreement from time to time, subject to the terms in Section 18 (Changes to this Agreement) below.

By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by using or accessing Ambisafe products, you indicate your agreement to be bound by the terms of this Agreement.

  1. Scope of the Agreement. This Agreement governs your purchase as well as any future purchases made by you that reference this Agreement, as well as any evaluation software made available to you pursuant to the terms of this Agreement.

  2. Types of Ambisafe Products. This Agreement governs (a) Ambisafe’s commercially available downloadable software (“Software”), including evaluation versions thereof, and (b) any related support services provided by Ambisafe. Software, together with related documentation (“Documentation ”), is referred to as “Products”. The Products and their permitted uses are further described in the Documentation on Ambisafe’s website at http://www.ambisafe.co/.

  3. Account Registration. You will need to register for an Ambisafe website account in order to place orders for, or access or receive, any Products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your Ambisafe website account.

  4. Orders. Ambisafe’s [Product Schedule, License Fee and Standard Product Feature List Order] (“Order”) will specify your Software product, its features and the authorized scope of use for the Product, which may include: (a) number and type of Authorized Users (as defined below), (b) numbers of licenses, copies or instances (for Software), (c) the monthly or annual license fees and other restrictions or billable units, and (d) the term of the license for such Software product (the “License Term” and subsections (a) through (d) together, the “ Scope of Use”). The term Order also includes any applicable support services or purchases you make to increase or upgrade your Scope of Use.

  5. Software Terms.

    1. Your License Rights. Subject to the terms and conditions of this Agreement, Ambisafe grants you a non-exclusive, non-sublicenseable and non-transferable license to install and use the Software during the License Term in accordance with this Agreement, your applicable Scope of Use, and the Documentation. Your License Term will end upon any termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is specified in your Order.

    2. Number of Instances. Unless otherwise specified in your Order, for each Software license that you purchase, you may install one Production Instance of the Software on systems owned or operated by you (or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement). A “Production Instance” shall mean use in commerce, whether externally available through a website, or internally available through an intranet. For each Software license that you purchase, only up to that number of individual users specified in your Order may access the Software (each an “Authorized User”). You may increase the number of Authorized Users on your account by placing a new Order. In all cases, you must pay the applicable fee for the increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your customers. You may make additional non-production instances available for staging or QA purposes.

    3. Evaluation License . Ambisafe may make the Software or Products available to you free of charge, solely for evaluation purposes (the “ Evaluation Product”). You may use the Evaluation Product, free of charge, only to evaluate the suitability of the Evaluation Product for licensing, and subject to the terms and conditions of this Agreement. You are not authorized to use the Evaluation Product for commercial purposes under any circumstances. Notwithstanding anything to the contrary herein, Ambisafe has no warranty, indemnification or other obligation or liability with respect to your or your customers’ use of the Evaluation Product, and you shall not represent otherwise to your customers. You shall indemnify, defend and hold Ambisafe harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against Ambisafe by a third party relating to your use of the Evaluation Product (including but not limited to any representations or warranties you make about the Evaluation Product, or any access you provide to your customers related to the Evaluation Product) or your breach of this Section.

    4. License Key. The Software requires a license key in order to operate, which will be delivered as described in Section 7.1 (Delivery).

  6. Support. Subject to timely payment of fees therefor, as applicable, Ambisafe will provide the support services for the Products as set forth in Ambisafe Support Guidelines, which can be found on the Ambisafe website at http://support.ambisafe.co/ (“Support”). Support is available for Evaluation Products, but response times may vary based on support agent availability. Ambisafe’s Support Guidelines may be modified by Ambisafe from time to time to reflect process improvements or changing practices. Support for Software includes access to Updates (as defined therein), if and when available. You may use any Updates that we provide to you during a valid support term in the same way that you use Software, and Updates are included in the definition of Software in that case.

  7. Financial Terms.

    1. Delivery. We will deliver the applicable license keys to the email addresses specified in your Order when we have received payment of the applicable fees. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of any Software, and you acknowledge that Ambisafe has no further delivery obligation with respect to the Software after delivery of the license keys.

    2. Payment. You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars at the time you place your Order. Other than as expressly set forth in Section 12.2 (Limited Warranty) and Section 14 (IP Indemnification by Ambisafe), all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or any Product upgrades or feature enhancements. If you add Authorized Users during your License Term such that you have entered into a new Product license category, we will charge you the difference between your current license fee and the license fee reflecting the additional Authorized Users, pro-rated based on the number of months remaining in your License Term, pursuant to the then-applicable rates. You agree that we may bill your credit card for renewals, additional Authorized Users, and unpaid fees, as applicable.

    3. Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Ambisafe, you must pay to Ambisafe the amount of such taxes or duties in addition to any fees owed under this Agreement.

  8. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (b) create derivative works based on any Product, (c) remove or obscure any proprietary or other notices contained in any Product, (d) reproduce, sell, sublicense, transfer, or interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, or (e) publicly disseminate information regarding the performance of the Products.

  9. Ownership and Feedback. Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Ambisafe and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all Evaluation Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Ambisafe, including without limitation as they may incorporate Feedback (“ Ambisafe Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Ambisafe, or in the course of receiving Support (“Feedback”). Ambisafe may, in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Ambisafe's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

  10. Confidentiality. Except as otherwise set forth in this Agreement, you agree that all code, inventions, know-how, business, technical and financial information disclosed to you by Ambisafe constitute the confidential property of Ambisafe ("Confidential Information"). Any Ambisafe Technology and any performance information relating to the Products shall be deemed Confidential Information of Ambisafe without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any Confidential Information. Your nondisclosure obligation shall not apply to information which you can document: (a) was rightfully in your possession or known to you prior to receipt of the Confidential Information from Ambisafe; (b) is or has become public knowledge through no fault of yours; (c) is rightfully obtained by you from a third party without breach of any confidentiality obligation; or (d) is independently developed by your employees who had no access to such information. You may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to Ambisafe). You acknowledges that disclosure of Confidential Information of Ambisafe would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the you Ambisafe shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

  11. Term and Termination. This Agreement is in effect for as long as you have a valid License Term, unless sooner terminated as permitted in this Agreement.

    1. Termination for Breach. Ambisafe may terminate this Agreement before the expiration of the License Term if you materially breach any of the terms of this Agreement and do not cure the breach within thirty (30) days after written notice of the breach.

    2. Termination for Insolvency. Either party may terminate this Agreement with immediate effect before the expiration of the License Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations, provided that, if a party is subject to an involuntary bankruptcy petition, such petition shall not have been dismissed within 30 days.

    3. Termination by Ambisafe. Ambisafe may terminate this Agreement with immediate effect if (a) you enter into an agreement relating to your acquisition by an unaffiliated third party or a majority of your equity interests is obtained by an unaffiliated third party within any twelve (12) month period or (b) you assign or transfer this Agreement or any of your rights or obligations without Ambisafe’s prior written consent.

    4. Termination by You. You may terminate this Agreement at any time prior to the end of the License Term with prior written notice to Ambisafe, but you will not be entitled to any credits or refunds as a result of termination pursuant to this Section 11.4 for prepaid but unused Software or Support.

    5. Remedies. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

    6. Effect of Termination; Survival.

  1. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Ambisafe Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request.

  2. The following provisions will survive any termination or expiration of this Agreement: Sections 7.2 (Payment), 7.3 (Taxes), the indemnification provisions and use restrictions of 5.3 (Evaluation License), 8 (Restrictions), 9 (Ownership and Feedback), 10 (Confidentiality), 11 (Term and Termination), 12.3 (Warranty Disclaimer), 13 (Limitation of Liability), 16 (Dispute Resolution), 17 (Export Restrictions), and 19 (General Provisions).

  1. Warranty and Disclaimer.

    1. Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.

    2. Limited Warranty. Ambisafe warrants that the Products shall perform substantially in accordance with the applicable Documentation during the License Term. In the event that you notify Ambisafe in writing specifying in reasonable detail how the Product fails to meet such warranty, Ambisafe shall, at Ambisafe’s discretion, repair or replace the Product at no additional charge. Repair and replacement services provided under this warranty shall not be considered Support services. This limited warranty shall not apply to Evaluation Products.

    3. WARRANTY DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12.2, ALL PRODUCTS ARE PROVIDED “AS IS,” AND AMBISAFE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. AMBISAFE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF AMBISAFE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AMBISAFE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

  2. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF EVALUATION PRODUCTS SHALL BE US$20. THIS SECTION 13 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (A) AMOUNTS OWED BY YOU UNDER ANY ORDERS, OR (B) YOUR BREACH OF SECTION 8 (RESTRICTIONS). The parties agree that the limitations specified in this Section 13 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

  3. IP Indemnification by Ambisafe. Subject to Section 13 (Limitation of Liability), Ambisafe will indemnify you against any claim brought against you by a third party alleging that a Product, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a “Claim”). If your use of a Product is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (a) procure a license for your continued use of the Product in accordance with this Agreement; (b) substitute a substantially functionally similar Product; or (c) terminate your right to continue using the Product and refund the license fee paid by you on a pro-rated basis from the license purchase date. Ambisafe’s indemnification obligations above do not apply: (i) if the Product is modified by any party other than Ambisafe, but solely to the extent the alleged infringement is caused by such modification; (ii) if the Product is used in combination with any non-Ambisafe product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (iii) to unauthorized use of Products; (iv) to any unsupported release of the Software; or (v) if you settle or make any admissions with respect to a claim without Ambisafe’s prior written consent. THIS SECTION 14 (IP INDEMNIFICATION BY AMBISAFE), SUBJECT TO SECTION 13 (LIMITATION OF LIABIILTY) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY AMBISAFE UNDER THIS AGREEMENT.

  4. Publicity Rights. We may identify you as an Ambisafe customer in our promotional materials.

  5. Dispute Resolution.

    1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in San Francisco, CA (USA). All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.

    2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 16.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in San Francisco, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Francisco, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Ambisafe may bring a claim for equitable relief in any court with proper jurisdiction.

    3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 16.1 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

    4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.

  6. Export Restrictions. The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.

  7. Changes to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, through your Ambisafe account, or in the Product itself). If we modify the Agreement during your License Term, the modified version will be effective upon your next renewal of a License Term or Support term. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to Evaluation Products, accepting the updated Agreement is required for you to continue using the Evaluation Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use Evaluation Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.

  8. General Provisions. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to Ambisafe, Inc., 1341 Stanford St., Santa Monica CA. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. The Products are commercial computer software. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited. This Agreement is the entire agreement between you and Ambisafe relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder 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 hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.