This Litmus Automation Inc. Software Developer Edition License Agreement is by and between Litmus Automation Inc. (“Litmus”) a corporation incorporated under the laws of Delaware and the entity that has requested access to the Software (defined below) ("Licensee"). Each of Litmus and Licensee are a "party" and collectively, the "parties". This Agreement is effective once Licensee boots up or activates the Software, or otherwise initiates the developer edition license on the license management page on their account ("Activation") for the Software ("Effective Date"). The individual responsible for Activation represents and warrants that they have sufficient permission, power and authority to bind the Licensee to this Agreement. By Activating the Software, Licensee agrees to be bound and comply with the terms of this Agreement. If Licensee does not accept the terms of the Agreement, it shall not Activate the Software, or otherwise access or use the Software or Documentation.
(a) "Agreement" means this Litmus Automation Inc. Software Developer Edition License Agreement and the Litmus Automation Inc. End User License Agreement (see here: litmus.io/legal/eula, which is incorporated herein by reference.
(b)“Confidential Information” means information, whether written or oral, and whether or not marked as confidential, which is disclosed or made available by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement and Licensee’s use of the Software or Documentation that is considered to be proprietary and/or confidential to the Disclosing Party (including, without limitation, computer programs, technical drawings, specifications, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), research and development, documents, schematics and other technical, business, financial, customer and product development information and/or plans, forecasts, strategies and information, trade secrets, customer lists). Without limiting the generality of the foregoing, the Software and Documentation are Litmus’ Confidential Information. Confidential Information does not include information which: (a) is or becomes (through no improper action or inaction by any third party, or the Receiving Party or its Personnel) generally available to the public; (b) was in its possession or known by Receiving Party or its Personnel prior to receipt from or on behalf of the Disclosing Party; (c) was disclosed Receiving Party or its Personnel by a third party that was not prohibited from disclosing such Confidential Information; or (d) is or was independently developed by Receiving Party or its Personnel without violating any of the Receiving Party’s obligations under this Agreement.
(c)"Documentation" means the user manuals, handbooks, and guides relating to the Software provided by Litmus to Licensee either electronically or in hard copy form/end user documentation relating to the Software.
(d)"License Period" means a period of two hours from the Activation.
(e)"Personnel" means employees, contractors, agents or representatives.
(f)"Software" means the trial version of the Litmus Edge software application.
(g)“Usage Data” means data submitted to, collected by, or generated by Litmus in connection with Licensee's use of the Software, including information gathered from or about equipment on which the Software is installed or through which it is otherwise accessed or used.
Subject to the terms and conditions of this Agreement, Litmus hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable license for the License Period to:
(a)use the Software solely for Licensee's internal, non-production, purposes; and
(b)use the Documentation solely for Licensee's internal purposes in connection with Licensee's use of the Software.
Licensee will not use the Software for any purpose other than evaluating and trialing such Software internally in a non-production environment in connection with assessing whether Licensee desires to enter into a license agreement with Litmus for the non-trial version of the Software. Licensee's use of the non-trial version of the Software is subject to the parties' entering into and executing a separate license agreement. Licensee shall not attempt to extend or reset the License Period without Litmus' authorization or consent.
For the avoidance of doubt, the Software may only be used within Licensee's own business environment and must not be used in production systems or with production data. The Software is not meant for production or live-system use and Litmus shall not be liable for any damages arising out of or in connection with Licensee's use of the Software in a production environment.
Without limiting any other restrictions set out in the Agreement, Licensee shall not at any time, directly or indirectly: (a) provide any person with access to the Software or Documentation, except those Personnel who require access to support Licensee's evaluation of the Software and Documentation; (b) use the Software in a production environment; (c) reverse engineer, reverse assemble, decompile, disassemble, reverse compile, decrypt, or otherwise attempt to discover, obtain or extract the source code, object code, or underlying structure, ideas, or algorithms of the Software; (d) attempt to remove, disable, bypass, circumvent, or otherwise create or implement any workaround to any technological protection measures designed to prevent unauthorized use of the Software or Documentation; (e) modify, alter, change, translate, or create derivative works based on the Software or Documentation; (f) copy, rent, lease, sell, lend, distribute, pledge, assign, distribute, publish, transfer or otherwise commercialize or encumber rights to the Software or Documentation; (g) use the Software or Documentation for the benefit of a third party; (h) remove, delete, obscure or otherwise alter any proprietary notices or labels from the Software or Documentation; (i) interfere or attempt to interfere with the proper working of the Software; (j) use the Software or Documentation in any manner that violates applicable laws and regulations, including but not limited to any privacy laws, export laws and laws or regulations concerning intellectual property; or (k) use the Software or Documentation in a manner that violates any third party intellectual property, contractual or other proprietary rights.
Licensee is responsible and liable for all uses of the Software and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of its Personnel, and any act or omission by its Personnel that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall take reasonable efforts to make all Personnel aware of this Agreement's provisions as applicable to such Authorized User's use of the Software and shall cause Personnel to comply with such provisions.
(a)Litmus has no obligation under this Agreement to provide support, maintenance, upgrades, or modifications of the Software or Documentation to Licensee.
(b)Licensee acknowledges and accepts that the Software licensed hereunder may not have the same functionality as the non-trial version of the Software offered by Litmus under a production, enterprise or other license agreement.
The parties agree that no license fees or other fees will be payable under this Agreement in exchange for the licenses granted under this Agreement. Licensee acknowledges and agrees that this fee arrangement is made in consideration of the mutual covenants set forth in this Agreement, including, without limitation, the disclaimers, exclusions, and limitations of liability set forth herein.
(a)The Receiving Party agrees: (i) to hold the Disclosing Party’s Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own Confidential Information of a similar nature); (ii) not to divulge, disclose, release, provide access to, distribute, sell, market or publish in any manner any Confidential Information to any person without the Disclosing Party’s prior written consent (unless otherwise expressly permitted herein); (iii) not to make any use whatsoever at any time of such Confidential Information except pursuant to this Agreement; (iv) not to copy or reverse engineer any such Confidential Information; and (v) not to export or reexport (within the meaning of U.S. or other export control laws or regulations) any such Confidential Information. The Receiving Party will only disclose Confidential Information to its Personnel on a need-to-know basis to the limited extent required in connection with Licensee's authorized use of the Software or Documentation. The Receiving Party will advise each relevant Personnel of the nature, existence and importance of the obligations contained in this Section 8 to which they are subject, and shall be liable for any breaches of this Section 8 by any person to whom the Receiving Party discloses the Disclosing Party’s Confidential Information to. Licensee shall promptly notify Litmus of any unauthorized use or disclosure of Litmus’s Confidential Information.
(b)If required by a court of competent jurisdiction to disclose any of Disclosing Party’s Confidential Information, Receiving Party shall first provide the Disclosing Party with reasonable prior notice of such required disclosures (if legally permitted to do so) so that Disclosing Party may seek a protective order or other remedy. If a protective order or other remedy cannot be obtained, the Receiving Party may make disclosures required by law or compelled by court order provided the Receiving Party limits disclosure to the minimum amount of Confidential Information required to be disclosed and uses its best efforts to obtain confidential treatment of the Confidential Information.
(c)Upon a request by the Disclosing Party at any time, the Receiving Party will promptly destroy (and certify the destruction of), and/or turn over to the Disclosing Party, all Confidential Information of the Disclosing Party and all documents or media containing any such Confidential Information and any and all copies, versions or extracts thereof (whether or not created by the Disclosing Party). Notwithstanding anything to the contrary herein contained, the obligations and restrictions herein contained shall continue to apply, and shall survive the termination or expiration of this Agreement for so long as any Confidential Information is retained by the Receiving Party and for a period of five (5) years thereafter.
(a)Litmus retains all right, title, and interest in and to the Software and Documentation. Licensee acknowledges that it does not acquire any ownership interest in the Software or Documentation under this Agreement. Litmus reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to (b)Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Software. Licensee shall use commercially reasonable efforts to safeguard all Software and Documentation from infringement, misappropriation, theft, misuse or unauthorized access. If Licensee becomes aware of any infringement, misappropriation, theft, misuse or unauthorized access to the Software or Documentation, it shall promptly notify Litmus.
Licensee and its Personnel may from time to time provide suggestions, comment, ideas, enhancement requests, recommendations or other feedback to Litmus with respect to the Software or Documentation (“Feedback”). Licensee shall (and in the case of Feedback by Personnel, shall procure the right to), and hereby does, grant to Litmus a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose Litmus, at its sole discretion, deems fit.
Litmus may generate Usage Data, which Litmus may use in aggregated and de-identified form for its business purposes (including without limitation, improving, testing, operating, promoting and marketing Litmus’s products and services). Litmus is hereby granted a non-exclusive, non-transferable, irrevocable license to use Usage Data for the purposes set out herein.
THE LICENSEE'S USE OF THE SOFTWARE AND DOCUMENTATION IS AT ITS OWN RISK. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LITMUS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, LITMUS PROVIDES NO CONDITION, WARRANTY, OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Licensee shall defend, indemnify, and hold harmless Litmus, its affiliates and each of its and its affiliates’ Personnel from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that arises from or relates to: (i) the Licensee’s use of the Software or Documentation; (ii) Licensee's material noncompliance with this Agreement; or (iii) the Licensee’s gross negligence or willful misconduct.
IN NO EVENT WILL LITMUS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LITMUS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. LITMUS SHALL NOT BE LIABLE FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE. WHERE LITMUS' LIABILITY CANNOT BE SO EXCLUDED IN ACCORDANCE WITH APPLICABLE LAW, ITS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE SHALL NOT EXCEED FIFTY (50) DOLLARS. THIS LIMITATION OF LIABILITY IS AGGREGATE AND NOT PER INCIDENT. THIS LIMITATIONS WILL APPLY NOT WITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
This Agreement is effective as of the Effective Date and, unless terminated earlier pursuant to this Section 14, will continue in effect until the expiration of the License Period, unless Litmus terminates the Agreement earlier upon notice. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate and Licensee shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to Litmus that the Software and Documentation has been deleted or destroyed.
This Section 15 (Survival), Section 5 (Licensee Responsibilities), Section 8 (Confidential Information), Section 9 (Intellectual Property), Section 11 (Disclaimer of Warranties), Section 12 (Indemnification), Section 13 (Limitation of Liability), and Section 16 (Miscellaneous) survive any termination or expiration of this Agreement.
(a)Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
(b)Notice. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices to Litmus must be given to:
Litmus Automation Inc.
2350 Mission College Blvd #1020
Santa Clara, CA 95054
Attention: Chief Operating Officer
[email protected]
(c)Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(d)Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(e)Governing Law. This Agreement, and all matters arising out of or relating to this Agreement, whether in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the state of California.
(f)Dispute Resolution. If at any time a dispute or claim arises out of or in connection with this Agreement (whether in contract, tort or otherwise) (“Dispute”), either party shall give written notice to the other party, specifying the nature of the Dispute with sufficient details (“Dispute Notice”). The parties shall negotiate in good faith to resolve the Dispute. If the Dispute is not resolved via good faith negotiations within sixty (60) days from the date of the Dispute Notice, or such longer period of time as may be agreed by the parties, then the Dispute may be finally and exclusively settled by arbitration by a single arbitrator selected by joint agreement of the parties. If the parties cannot agree on a single arbitrator within ten (10) days of either party’s decision to refer the Dispute to arbitration, then each party shall select an arbitrator and the arbitrators shall select a third arbitrator. Any such arbitration shall be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The foregoing shall not apply to the extent a Dispute relates to breaches of confidentiality or intellectual property, which may be resolved by court action.
(g)Assignment. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Litmus. Litmus may assign this Agreement to any third party without consent.
(h)Equitable Relief. Licensee acknowledges and agrees that a breach or threatened breach of any of its obligations under Sections 8 or 9, would cause Litmus irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Litmus will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(i)Order of Precedence. In the event of a conflict or inconsistency between the terms in the body of this Agreement and the Litmus Automation Inc. End User License Agreement, the terms in the body of this Agreement will govern.
(j) Relationship of the Parties. No agency relationship, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other orally or in writing in any respect.
Relationship of the Parties. No agency relationship, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other orally or in writing in any respect.
