Last updated: July 13, 2020
SOFTWARE END USER LICENSE AGREEMENT
TERMS AND CONDITIONS
The Software License Terms contained herein (the “License Terms”) shall apply to all quotations made and purchase orders accepted by Orchestral.ai, Inc. (referred to herein as “Orchestral” or the “Company”) with respect to the license of Orchestral software (the "Product") to the end user customer (“Customer” or "Licensee") as also identified on the form to which these License Terms are attached. Orchestral’s acceptance of the purchase order, invoice or sales acknowledgement to which these License Terms are attached (“Quotation”) is conditioned upon Customer’s consent to these License Terms.
The License Terms constitute a legal agreement between Customer and Orchestral. By clicking the “I Accept” or “I Agree” button and/or installing and using the Product, Customer accepts the Product and agrees to the terms of this agreement. Read it carefully before completing the installation process and using the Product. By installing and/or using the Product, Customer is confirming acceptance of the Product and agreeing to become bound by the terms of this agreement. If Customer does not agree to be bound by these terms, or the person or entity installing and/or using the Product does not have authority to bind Customer to the License Terms, then do not install and/or use the Product.
1. Grant of License and Restrictions. Subject to the License Terms and payment of all fees as provided on the Quotation, Company grants Customer a nonsublicensable, nonexclusive right to use the Product strictly in accordance with the related user documentation and specification sheets (collectively the “Documentation”) and any terms and procedures Licensor may prescribe from time to time. The Product shall be provided to Customer as a term-based license. Customer may possess only the number of copies of any Product set forth in the Quotation and only in accordance with the License Terms. Company retains ownership of all Products and copies. Customer will maintain the copyright notice and any other notices that appear on the Product on any copies and any media. Customer will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Product (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use a Product for the benefit of any third party, or (iii) use any Product, or allow the transfer, transmission, export, or re-export of any Product or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency. All the limitations and restrictions on Products in these License Terms also apply to the Documentation.
Certain elements of the Product are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user licenses that accompany such Open Source Software (the “Open Source Software Licenses”). The terms of each Open Source Software License are available at https://orchestral.ai/open-source-disclosure/. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any Open Source Software License. If required by any Open Source Software License, Orchestral makes such Open Source Software, and Orchestral’s modifications to that Open Source Software, available by written request to Orchestral at the email or mailing address listed below.
2. Customer Support and Maintenance. While the license for a particular Product remains effective and the applicable license fees have been paid, Company will use reasonable commercial efforts to provide the support and maintenance services for that Product as described in the Orchestral.ai, Inc. Support Services Terms and Conditions (“Support Services”), subject to Section 3.
3. Fees and Payment. Customer shall pay Company the License Fee set forth in the Quotation in accordance with the terms set forth therein. Customer shall also promptly pay any applicable Support Services Fees as and when specified in the Quotation; provided that Company may elect on sixty (60) days notice effective on any Support Services Fee payment date with respect to a Product, to change the Support Services Fee and Support Services terms for that Product to its then standard fees and terms. All payments shall be made inside the U.S., in U.S. dollars. Any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. In addition, Customer will pay all taxes, shipping, duties, withholdings and the like, as well as all out of pocket expenses incurred by Company in connection with consulting and/or Support Services, promptly upon invoice. Customer will maintain, and Company will be entitled to audit, any records relevant to Company’s use of the Products hereunder; Company may audit such records on reasonable notice at Company’s cost (or if the audits reveal material non-compliance with these License Terms, at Customer’s cost).
4. Term and Termination. This Agreement will continue in effect for the Term as specified in the Quotation. If Customer materially breaches this Agreement, Company shall have the right to terminate this Agreement (and all licenses) upon thirty days (ten in the case of non-payment and immediately in the case of a breach of Section 1) written notice of any such breach, unless such breach is during such notice period. Upon termination, Customer shall immediately cease all use of all affected Products and return or destroy all copies of all affected Products and all portions thereof and so certify to Company. Except as otherwise expressly provided herein, the terms of the Agreement shall survive termination. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
5. Indemnification. Company shall hold Customer harmless from liability to third parties resulting from infringement by a Product of any United States patent or copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to a Product or portions or components thereof (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of such Product is not strictly in accordance with this Agreement. Customer will indemnify Company from all damages, settlements, attorneys' fees and expenses related to (i) any claim of infringement or misappropriation excluded from Company's indemnity obligation by the preceding sentence, or (ii) any other claim in connection with the Product or the use thereof.
6. Limited Warranty and Disclaimer. Company warrants for a period of thirty (30) days from Customer’s first acquisition of a Product that such Product will materially conform to Company’s then current Documentation for such Product. This warranty covers only problems reported to Company during the warranty period. ANY LIABILITY OF COMPANY WITH RESPECT TO A PRODUCT OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPAIR OR REPLACEMENT OR, IF, IN COMPANY’S OPINION, REPAIR OR REPLACEMENT IS IMPRACTICAL, TO REFUND OF THE LICENSE FEE. EXCEPT FOR THE FOREGOING, ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, COMPANY DOES NOT WARRANT RESULTS OF USE OF THAT THE PRODUCTS ARE BUG FREE OR THAT THEIR USE WILL BE UNINTERRUPTED.
7. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, COMPANY SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE LICENSE FEES PAID TO IT HERE¬UNDER WITH RESPECT TO THE APPLICABLE PRODUCT DURING THE SIX MONTH PERIOD PRIOR TO THE CAUSE OF ACTION; OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
8. Confidentiality. Any technical, financial, business or other information provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) and designated as confidential or proprietary (“Confidential Information”) shall be held in confidence and not disclosed and shall not be used except to the extent necessary to carry out the Receiving Party’s obligations or express rights hereunder. For clarity, the Products and related Documentation and information shall be deemed Confidential Information of Company whether or not otherwise designated as such. This obligation will not apply to information that (i) is generally and freely publicly available through no fault of the Receiving Party, (ii) the Receiving Party otherwise rightfully obtains from third parties without restriction, or (iii) is independently developed by employees of the Receiving Party with no knowledge of or access to the Confidential Information.
9. U.S. Government Restricted Rights. If any Product is used or accessed by or on behalf of the United States government, such use or access is subject to the following provision. The Products and any related Documentation are deemed "commercial computer software" and "commercial computer software documentation," respectively, within the meaning of the applicable civilian and military Federal acquisition regulations and any supplement thereto. If the user of the Product is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, including technical data, manuals or other accompanying documentation, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies and use of the Product by any Government agency, department or other agency of the Government is further restricted as set forth in this Agreement.
10. Miscellaneous. Neither the Agreement nor the licenses granted hereunder are assignable or transferable by Customer without the prior written consent of Company; any attempt to do so shall be void. Company may assign this Agreement in whole or in part. Any notice, report, approval or consent required or permitted hereunder shall be in writing. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any waivers or amendments shall be effective only if made in writing. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. In the event of a conflict between this Agreement and the terms of an Quotation, the terms of this Agreement shall govern. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney’s fees and costs in connection with such action. Customer represents that it is not a government agency and it is not acquiring the license pursuant to a government contract or with government funds.