THIS END USER LICENSE AGREEMENT (the “Agreement”) is entered into by and between Antidot SAS, a French corporation registered at the Registry of Trade and Companies of Lyon under the number 424 933 448, with its principal place of business at 58 avenue Debourg, Lyon, 69007 FRANCE (hereinafter, “Antidot”), and the customer (hereinafter, the “Customer”). Each of Antidot and Customer are referred to herein individually as a “Party” and collectively as the “Parties”. The Parties agree as follows:
1. SCOPE OF AGREEMENT
1.1 Scope of Services. The Fluid Topics software and related applications (the “Software”) constitute Antidot’s proprietary software solution for delivering content. The Software may be hosted remotely by Antidot and made available to Customer online as a software as a service offering (the “Remotely Hosted Software,” which may also be referred to as the “SaaS Version”), or alternatively may reside and be hosted locally on one or more servers controlled and operated by Customer (the “Locally Hosted Software,” which may also be referred to as the “On-premises License”). With respect to the Remotely Hosted Software offering, Antidot will be responsible for configuring and hosting of the computer hardware, software, communications systems, network and other infrastructure necessary to host and make Remotely Hosted Software available to Customer and its users. This Agreement sets forth the terms and conditions that will govern Antidot’s delivery or grant of access to the Software and the performance of Maintenance and Support (collectively referred to herein as, the “Services”).
1.2 Rights to Use. Subject to the terms and conditions of this Agreement, Antidot grants Customer:
For Remotely Hosted Software: a non-exclusive, non-sub-licensable, non-transferable, limited revocable license to use and access the hosted Software in accordance with this Agreement and any documentation accompanying the Software, during the Term of this Agreement.
For Locally Hosted Software: a non-exclusive, non-sub-licensable, non-transferable, worldwide, limited revocable license to (i) install the object code version of the Software, and all patches, bug fixes and updates thereto supplied by Antidot, on computer servers controlled by Customer; (ii) to use and access the Software in accordance with this Agreement and any documentation accompanying the Software; (iii) to integrate the Software with Customer’s hosted service offering, including the right to create modifications to the User Interface of the Software to incorporate Customer’s brand, look and feel, and logo (collectively “Customer Enhancements”); (iv) to market and make available the Software including the Customer Enhancements to Customer’s customers; and (v) to make up to one (1) copy of the Software solely for production and backup purposes, each during the Term of this Agreement.
1.3 Ownership. Nothing in this Agreement shall constitute a transfer of any proprietary right by Antidot to Customer. The Services are protected by patent, copyright and other intellectual property Laws. Antidot, its licensors and suppliers own and retain all right, title and interest in and to the intellectual property rights in the Software and any enhancements, modifications or derivative works thereof. As between the Parties, (i) each Party retains ownership to its Confidential Information (as hereinafter defined), and (ii) Antidot exclusively owns all right, title and interest in and to the Software, the Services and any derivative works and work product conceived, originated, or prepared in connection with the Services, and (iii) all right, title and interest in and to any materials, content, information and/or data submitted by or for Customer, or any third party end user of the Software (collectively, the “Customer Content”), shall remain exclusively owned by Customer and its licensors. To the extent that Customer has elected to receive the Remotely Hosted Software, Customer grants Antidot and its affiliates a worldwide, limited license to host, copy, transmit and display Customer Content during the Term, as necessary for Antidot to host and make the Services available to Customer in accordance with this Agreement. Subject to the limited licenses granted herein, Antidot acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Content and Antidot assumes no liability with respect to its hosting, copying, transmission or display of the Customer Content in accordance with this Agreement.
1.4 Third Party IP. The Services may link, interface and integrate with third party software applications. All such third-party software applications shall remain the property of their third-party providers. Antidot does not endorse or take responsibility for these third-party applications. Nor does this Agreement apply to such applications.
1.5 Reservation of Rights. All rights not specifically granted to Customer in this Agreement are retained by Antidot. Customer acknowledges the proprietary rights of Antidot and its licensors in the Services and that Antidot retains all right, title and interest in and to the Services. Customer further acknowledges and agrees that if Customer suggests any new features, functionality or performance for the Services that are subsequently incorporated into the Services such suggestions shall be the sole and exclusive property of Antidot and shall be free from any confidentiality restrictions that might otherwise be imposed upon Antidot.
1.6 Maintenance and Support. In the event that Customer purchases services for the provision of Software Maintenance and Support as defined in the Service Level Addendum, or if such services are included as part of the Services selected by the Customer, then Antidot may, from time to time, provide bug fixes, patches and updates to the Software as they are made available by Antidot, and Antidot shall provide Customer with Support related to Software and Service availability in accordance with the applicable provisions of the contracted Service Level Addendum.
1.7 Changes to Software. Antidot reserves the right at any time to alter any features, functionality, license terms and other characteristics of the Software; provided, however, that Antidot shall not materially diminish the features and functionality of the Software during the term of the Agreement. Any subsequent upgrade, enhancement or other change to the Software shall be owned by Antidot and subject to the terms of this Agreement. The Customer agrees to install the new versions or releases of the Software or patches as recommended and made available by Antidot from time to time and Customer will perform the installation, configuration and validation and make any necessary adaptations to its hardware and software environment at its own expense; provided that Antidot will provide reasonable support to Customer in such installation, configuration, and validation at no additional charge and Antidot agrees that Customer shall be entitled to a reasonable transition period to implement the Software updates. It is the Customer’s responsibility to verify that the corrections made are valid and compatible with the Customer’s environment and, with respect to the Locally Hosted Software, Customer shall be responsible for ensuring that Customer’s environment and systems comply with the list of operating systems and components, and for upgrading its servers accordingly to the versions listed in the Software release notes when installing patches and new versions of such Software. Customer will have sole responsibility for issuing the operation authorizations for its operating environment. A major Software version or release may contain new modules that significantly expand the Software’s functional scope by comparison with previous versions, and Customer hereby acknowledges that some of those modules may be subject to a separate purchase at the option of the Customer.
2. CUSTOMER DUTIES & RESTRICTIONS
2.1 Login and Password. With respect to the Remotely Hosted Software, Customer must provide Antidot with the email addresses and names for Customer’s designated end user managers and administrators (collectively, the “Designated Users”), and Antidot shall assign unique initial login credentials for such Designated Users in order to access the Software. The logins for the Designated Users may not be shared and shall only be used by the Designated User to whom the login is initially assigned. Customer is solely responsible for maintaining the confidentiality of the accounts and related passwords of Customer’s Designated Users and all use of such accounts.
2.2 Compliance. Customer shall: (a) ensure Customer’s Designated Users, employees, students, contractors, representatives and affiliates (collectively, “Representatives”) comply with this Agreement; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, (c) notify Antidot promptly of any such unauthorized access or use of the Services; and (d) use the Services only in accordance with applicable federal, state, local, municipal, domestic and foreign laws, rules and regulations (“Law”).
2.3 Restrictive Covenants. Customer shall not, and Customer will cause Customer’s Representatives to not: (i) alter, change, modify, adapt, translate, or make derivative works of the Services; (ii) use the Services in a manner that violates any applicable Law; (iii) knowingly transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system, data, or personal information; (iv) sublicense or use the Services for timesharing, rental, outsourcing, or a service bureau operation; (v) attempt to gain, or assist others with attempting to gain unauthorized access to Antidot’s network, systems or the Services; (vi) decipher, decompile, disassemble, or reverse engineer the Software or assist or encourage any third party to do so; (vii) take measures intended to bypass or elude the Software’s security systems or rules for use; (viii) delete, conceal or modify the copyright notices or brand names used by Antidot or other indications of property rights contained or directly or indirectly accessible in the Software or related documentation; (ix) in any way access, use, or copy any portion of the Software (including the code, logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Software; or (x) without having provided Antidot prior notice and obtained Antidot’s written approval, perform or attempt to perform any penetration test, load test, technical security integrity review, denial-of-service simulation or vulnerability scan on the Software.
2.4 Customer Obligations. Customer is responsible for the maintenance and management of Customer’s computer network(s), servers, operating systems, software and any hardware, equipment or services related to maintenance and management of the foregoing. Customer is responsible for correctly configuring Customer’s systems in accordance with any instructions provided by Antidot, as may be necessary for provision of access to the features and functions of the Services. The Customer further acknowledges that it has received from Antidot all the reasonably necessary information for determining whether the Software is appropriate for its needs, which Antidot is not in a position to assess or verify. The Customer will be solely responsible for any organizational changes that may be needed for the purpose of installing and using the Software and Antidot shall not be responsible for any delays to the extent that such delays are caused by or result from Customer’s delay or non-performance. With respect to the Locally Hosted Software, Customer agrees to provide Antidot with written notice in the event that Customer exceeds the applicable volume usage or hardware limits as selected by Customer. With respect to Remotely Hosted Software, Customer agrees to provide Antidot with written notice in the event that, due to changes in Customer’s circumstances, Customer becomes aware of a substantial and foreseeable increase in the use of such Software beyond the applicable limits selected by Customer on the Order Form. Any failure on the part of Customer to provide such notices shall suspend Antidot’s obligation by Antidot to meet the applicable Service Standards set forth in the Service Level Agreement attached hereto.
2.5 Acceptance. As of the date such Software is delivered, the Customer will have a period of thirty (30) days within which to conduct testing for compliance with the documentation and fitness for use, and to perform acceptance of such Software. If the Customer does not reject or otherwise report any anomalies within a period of thirty (30) days from the delivery of the Software, such silence will constitute Customer’s acceptance of such Software. Similarly, any commercial use or use in production by the Customer of the Service will constitute Customer’s acceptance thereof.
3. CONFIDENTIAL INFORMATION
3.1 Definition of Confidential Information. “Confidential Information” means all confidential or proprietary information, in whatever form, that is disclosed by a Party to the other Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, works, business activities, trade secrets, know-how, techniques, all financial information of a Party and its affiliates, and any other information of a similar nature, and all Customer information uploaded to Antidot.
3.2 Access and Use. Each Party receiving Confidential Information from the other Party shall: (i) use and reproduce the Confidential Information only for the purposes specified in this Agreement, and (ii) restrict disclosure of Confidential Information to its Representatives with a need to know the Confidential Information to enable the receiving Party to perform its obligations and exercise its rights under this Agreement, provided that such Representatives are bound by confidentiality obligations at least as strict as those contained in this Section 3, but in no case less than reasonable care. Additionally, to the extent that Customer’s Confidential Information includes personally identifiable information, Antidot agrees to use such Confidential Information in accordance with applicable Laws and in compliance with Antidot’s policies governing the dissemination and use of such Confidential Information.
3.3 Exclusions. Nothing in this Agreement will be construed to restrict or impair in any way the right of a receiving Party to disclose any information which: (i) is at the time of its disclosure hereunder generally available to the public; (ii) becomes generally available to the public through no fault of the receiving Party; (iii) can be reasonably demonstrated to be in the possession of a receiving Party prior to its initial disclosure hereunder; (iv) is acquired from a third party having a right to disclose the same to a receiving Party without breach of any confidentiality obligation; or (v) is independently developed by the receiving Party without use of or access to the disclosing Party’s Confidential Information. A receiving Party may disclose Confidential Information in accordance with a judicial or other governmental order, provided that such Party provides the disclosing Party with prompt notice of the same and cooperates with the disclosing Party with any actions taken by the disclosing Party to protect such Confidential Information, including without limitation the seeking of an appropriate protective order or other remedy.
4. WARRANTIES, DISCLAIMERS AND LIMITATIONS
4.1 Warranties. Each Party represents and warrants to the other that: (i) it is duly organized and existing under the Laws of the state of its formation; (ii) it has the right to enter into this Agreement; (iii) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with this Agreement, and (iv) its activities relating to this Agreement will not violate any applicable Law. Additionally, Antidot represents and warrants to Customer that: (v) it will perform any Maintenance and Support services in a professional and workmanlike manner consistent with applicable industry standards and practices; and (vi) the Software will not contain any “back door,” “time bomb,” “Trojan horse,” “worm,” “virus” or similar malicious code.
4.2 Limited Warranty. Antidot warrants to Customer that the Software shall perform substantially in accordance with accompanying documentation under normal use for a period of six (6) months from the date of Customer’s acceptance thereof in accordance with Section 2.5 (such period being referred to herein as, the “Warranty Period”). If, during the Warranty Period, Customer reasonably believes that the Software has failed in a material respect to perform in accordance with the accompanying documentation under normal use, then Customer shall notify Antidot thereof, and Antidot’s sole and exclusive obligation, shall be for Antidot to correct the defect or replace the Software at no additional cost to Customer. With respect to the Locally Hosted Software, following the Warranty Period, Antidot shall have no obligation to render Software maintenance Services if Customer has elected not to receive or fails to pay for Maintenance and Support Services.
4.3 Customer Content Warranty. Customer represents and warrants that any Customer Content submitted by or on behalf of Customer will not violate or infringe any trademark, copyright, patent, trade secret, or other personal, intellectual property or proprietary right of any third party.
4.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ANTIDOT MAKES NO WARRANTY, (EXPRESS, IMPLIED OR STATUTORY) AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ANTIDOT DOES NOT GUARANTEE THAT THE SOFTWARE WILL BE OPERATIONAL WHEN USED IN COMBINATION WITH OTHER EQUIPMENT, HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY ANTIDOT THAT THE CUSTOMER MAY CHOOSE TO USE. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL SERVICES PROVIDED BY ANTIDOT ARE PERFORMED AND PROVIDED ON AN “AS-IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. ANTIDOT DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR RENDERED WITHOUT DELAY.
4.5 Limitation of Liability. EXCEPT FOR A BREACH OF EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS OR A VIOLATION OF INTELLECTUAL PROPERTY RIGHTS BY EITHER PARTY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE APPLICABLE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE. EXCEPT FOR A BREACH OF EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS OR A VIOLATION OF ANTIDOT’S INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER, EACH PARTY’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO THE OTHER SHALL NOT EXCEED THE AMOUNT PAID TO ANTIDOT IN THE PRIOR TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM THAT GAVE RISE TO SUCH LIABILITY.
4.6 Prohibition of Claim. CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT OR RELATING TO THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
4.7 Application. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT AND THE PERFORMANCE OF ANY SERVICES TO BE RENDERED HEREUNDER.
5. INDEMNIFICATION
5.1 By Antidot. Antidot will indemnify, defend, and hold harmless Customer against any costs and expenses, including reasonable attorneys’ fees and expenses (whether incurred as the result of a third party claim or a claim to enforce this provision), and other damages that a court finally awards to a third party as a result of a claim, or which are payable to a third party as a result of a settlement of such claim (collectively, “Losses”) arising from (a) the breach by Antidot of any of the express representations, warranties, covenants, or obligations set forth herein, or (b) any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that Customer’s use of the Software in accordance with this Agreement and any accompanying documentation infringes or misappropriates such third party’s intellectual property rights; provided, however, that Antidot’ obligations under this indemnity will not apply to any Losses which result or arise from Customer’s: (i) modification of the Software or Services, (ii) breach of this Agreement, (iii) combination or use of the Software or Services with products or services not furnished by Antidot, or (iv) Customer’s failure to use the then current version of the Software if a later version has been made available to Customer and Customer’s use of such version would have prevented such Losses. Customer shall provide Antidot prompt written notice of such claim and permit Antidot to conduct the defense and all related settlement negotiations, provided, however, that Antidot shall not have the right to agree to a final settlement without Customer’s consent, which consent shall not be unreasonably withheld, delayed or conditioned. Antidot will have no obligation with respect to any claim that Customer settles without Antidot’s consent. If, in any suit the Software or Services or any portion thereof is held to constitute any infringement and its use enjoined, Antidot will undertake one of the following courses of action: (i) procure the right to continue to use the Software or Services or such infringing portion; (ii) modify the Software or Services or such infringing portion to render it non-infringing; or (iii) replace the Software or such infringing portion with a non-infringing replacement. If Antidot cannot procure the right to continue use of the modification offered under (ii) and the replacement under (iii) is not reasonably acceptable to Customer, Antidot will refund all unearned monies paid by Customer under this Agreement.
5.2 By Customer. Customer will indemnify, defend and hold harmless Antidot against any Losses arising from (a) the breach by Customer of any of Customer’s representations, warranties, covenants, or obligations herein, or (b) Antidot’s hosting, copying, transmission or display of the Customer Content in accordance with this Agreement. Antidot shall provide Customer prompt written notice of such claim and permit Customer to conduct the defense and all related settlement negotiations, provided, however, Customer shall not have the right to agree to a final settlement without the consent of Antidot, which consent shall not be unreasonably withheld.
6. TERMINATION
6.1 Termination for Cause. Either Party may immediately terminate this Agreement for cause, in the event of any of the following by the other Party: (i) a material breach of this Agreement by the other Party which is not cured within thirty (30) days after receipt of written notice in reasonable detail of the breach; (ii) the filing of a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy Laws by or on behalf of the other Party or an adjudication of bankruptcy of such Party; or (iii) the filing of a petition proposing the adjudication of the other Party pursuant to any federal or state bankruptcy Law and such Party consents to such filing or such petition is not dismissed within ninety (90) days after the filing thereof.
6.2 Effect of Termination. Immediately upon termination or expiration of this Agreement, Antidot’s obligation to provide the Services will cease, Customer shall discontinue its use of the Software. With respect to the Remotely Hosted Software, Antidot shall remove Customer Content, if any, from its servers and information systems and destroy such Customer Content. With respect to the Locally Hosted Software, Customer shall remove the Software, from its servers and information systems and destroy any copy.
7. GENERAL TERMS
7.1 Publicity. Antidot shall have the right to identify Customer as an Antidot customer for purposes of promotion and marketing of the Services.
7.2 Governing Law. This Agreement will be governed by and construed under the laws of the France, without reference to principles of conflict of laws.
7.3 Relationship. This Agreement does not create any agency, partnership, franchise, joint venture, or any other such relationship between the Parties. Neither Party is granted any express or implied right or authority to assume or create any obligation on behalf of or in the name of the other Party or to bind the other Party in any matter whatsoever.
7.4 Severability. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision will be automatically reformed and construed so as to be valid, legal, operative, and enforceable to the maximum extent permitted by applicable Law while preserving its original intent. The invalidity, illegality, or unenforceability of any part of this Agreement will not render invalid the remainder of this Agreement.
7.5 Survivability. Sections 1.3, 1.5, 2.2, 2.3, 3, 4.4, 4.5, 4.6, 4.7, 5, 6 and 7 shall survive and continue to bind the Parties after execution and delivery of this Agreement and its expiration or early termination to the extent and for as long as may be necessary to give effect to the rights, duties and obligations of the Parties pursuant to this Agreement, subject to any applicable statutes of limitation.
7.6 Waiver. Failure by a Party to insist upon strict performance of any provision herein by the other Party will not be deemed a waiver by the first Party of its rights or remedies or a waiver by it of any subsequent default by the other Party, and no waiver will be effective unless it is in writing and duly executed by the Party entitled to enforce the provision being waived.
7.7 Amendment. This Agreement may only be amended in a writing executed by both Parties.
7.8 Notice. All notices sent hereunder will be in writing, will be effective upon receipt (except as provided below), and may be: (i) personally delivered; or (ii) sent by a nationally recognized overnight commercial delivery service with provision for receipt, postage or delivery charges prepaid (effective upon receipt or refused delivery); and will be addressed to the Parties at the address set forth on the initial page of this Agreement or as updated in writing by a Party in accordance with this Section 7.
7.9 Force Majeure. Neither Party will be liable for any delays or failures in performance due to circumstances beyond its reasonable control. In the event any such delay continues for a period of thirty (30) or more days, then either Party may terminate this Agreement upon five (5) business days’ prior written notice.
7.10 Assignment. Neither Party has the right to assign, transfer, or pledge any of its rights, duties, or obligations hereunder without the prior written consent of the other Party, which consent may not be unreasonably withheld; provided, however, either Party may assign this Agreement to a successor in the event of a merger, sale of substantially all of its assets, acquisition or other change in control with respect to divisions of its business. The Agreement is binding upon and inures to the benefit of each Party and its respective successors and permitted assigns, subject to the restrictions against assignment provided in this section.
7.11 Headings. The headings used herein are for convenience only and do not describe, interpret, define, or limit the scope, extent, or intent of this Agreement.
7.12 Entire Agreement. The End User License Agreement and any applicable addenda and exhibits is the entire agreement between the Parties and supersedes all prior and contemporaneous undertakings and agreements between the Parties, whether written or oral, with respect to the Services.
