You (also referred to as the “End User”) have entered into an agreement (“License Agreement”) with Litmus Automation Inc. (“Litmus Automation”), or with a reseller, partner, or other third party who has the right to offer a license to the Litmus Automation software in accordance with a license from Litmus Automation (“Litmus Partner”) for a license to use certain software products identified in the License Agreement (“Software”) and any written materials provided by Litmus Automation in connection with the Software (“Documentation”). Any installation and use of the Software and Documentation is subject to the terms and conditions set out in this End User License Agreement (“EULA”), in addition to the terms and conditions of the License Agreement. For the purpose of this EULA, End User and Litmus Automation are each a “Party” and collectively, the “Parties”.
LITMUS AUTOMATION PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT END USER ACCEPTS AND COMPLIES WITH THEM. BY DOWNLOADING OR INSTALLING THE SOFTWARE, OR ACCESSING THE DOCUMENTATION, YOU (A) ACCEPT THIS EULA AND AGREE THAT END USER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF END USER AND BIND END USER TO ITS TERMS. IF END USER DOES NOT AGREE TO THE TERMS OF THIS EULA, LITMUS AUTOMATION WILL NOT AND DOES NOT PERMIT END USER TO USE THE SOFTWARE AND YOU MUST NOT DOWNLOAD OR INSTALL THE SOFTWARE, OR ACCESS THE DOCUMENTATION.
Litmus Automation grants End User a license to install and use the Software and Documentation, in accordance with the terms of the License Agreement, at the site(s) identified in the License Agreement, and using such data point allotment as identified in the License Agreement, or otherwise approved by Litmus Automation or Litmus Partner in writing. Such license shall, in any event:
i. be subject to this EULA;
ii. be non-exclusive, non-transferable, non-sublicensable, time-limited, and revocable; and
iii. only permit End User to use the Software in accordance with the Documentation and for its internal business purposes.
Notwithstanding anything to the contrary herein, this EULA shall not be construed as extending or expanding the license rights granted to End User under the License Agreement. No license is granted (whether expressly, by implication or otherwise) under this EULA, and this EULA expressly excludes any right concerning any software or materials that End User did not acquire via a License Agreement.
Except as expressly set forth in this EULA, End User shall not (and shall not permit any of its employees, contractors, agents or representatives (“Personnel”) to), directly or indirectly:
i. use the Software or Documentation beyond the scope of the license granted under the License Agreement and as set forth in this EULA;
ii. provide any person with access to the Software or Documentation, except those Personnel who require access to support End User’s authorized use of the Software and Documentation;
iii. 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;
iv. 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;
v. modify, alter, change, translate, or create derivative works based on the Software or Documentation;
vi. copy, rent, lease, sell, lend, distribute, pledge, assign, distribute, publish, transfer or otherwise commercialize or encumber rights to the Software or Documentation;
vii. use the Software or Documentation for the benefit of a third party;
viii. remove, delete, obscure or otherwise alter any proprietary notices or labels from the Software or Documentation;
ix. use the Software or Documentation to build an application or product that is competitive with any Litmus Automation product or service;
x. interfere or attempt to interfere with the proper working of the Software;
xi. bypass any measures Litmus Automation may use to prevent or restrict access to the Software or Documentation (or other accounts, computer systems or networks connected to the Software);
xii. use the Software or Documentation other than in accordance with this EULA and the License Agreement;
xiii. 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
xiv. use the Software or Documentation in a manner that violates any third party intellectual property, contractual or other proprietary rights.
End User is responsible for ensuring its Personnel comply with this EULA, and will be liable for all acts or omissions of its Personnel as if such acts or omissions were the acts or omissions of End User. Without limiting the generality of the foregoing, End User is responsible and liable for:
i. all uses of the Software and Documentation through access thereto provided to End User, directly or indirectly; and
ii. all acts and omissions with respect to the Software and Documentation by its Personnel or by any person to whom End User or End User’s Personnel may provide or permit access to the Software or Documentation, whether such access or use is permitted by or in violation of the License Agreement and this EULA.
“End User Data” shall mean any data, information or other material provided, uploaded, or submitted by End User to the Software or Litmus Automation in the course of using the Software, and all outputs generated in connection with End User’s use of the Software (“Output”). End User shall retain all right, title and interest in and to the End User Data, including all intellectual property rights therein. End User, not Litmus Automation, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all End User Data. Litmus Automation is not responsible or liable for unauthorized access to End User Data or the unauthorized use of the Software unless such access is due to Litmus Automation’s gross negligence or willful misconduct. End User acknowledges and agrees that Litmus Automation may internally use and modify End User Data for the limited purposes of providing the Software, and any related services to End User.
“Usage Data” means data submitted to, collected by, or generated by Litmus Automation in connection with End User’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. Litmus Automation may internally use and modify End User Data for the purpose of generating Usage Data, which Litmus Automation may use in aggregated and de-identified form for its business purposes (including without limitation, improving, testing, operating, promoting and marketing Litmus Automation’s products and services). Litmus Automation is hereby granted a non-exclusive, non-transferable, irrevocable license to use Usage Data for the purposes set out herein.
Nothing in this EULA shall confer any right of ownership in the End User Data or Usage Data to Litmus Automation.
The Software enables the deployment of third party tools, materials and services (“Third Party Tools”), including those that may have artificial intelligence capabilities. End User acknowledges that:
i. Output generated by artificial intelligence may be incorrect and should be verified for accuracy by the End User;
ii. The Software may contain open source components;
iii. Litmus Automation is not liable or responsible for any liability arising from End User’s use or reliance on Third Party Tools, open source components, and artificial intelligence-generated Outputs;
iv. Such Third Party Tools may be subject to license terms that are in addition to and/or different from those contained in this EULA (“Third Party License”); and
v. Ownership of all Third Party Tools remain with the respective owners thereof.
End User shall comply with all Third Party Licenses and any breach by End User of any Third Party License is also a breach of this EULA.
Litmus Automation reserves the right to audit End User’s use of the Software to ensure End User’s compliance with this EULA and the License Agreement, provided that (i) any such audit shall be conducted on not less than ten (10) days prior notice to End User, and (ii) no more than one (1) audit may be conducted in any twelve (12) month period, except where Litmus Automation has good cause to conduct audits more frequently. Litmus Automation may also, in its sole discretion, audit End User’s systems within twelve (12) months after the termination or expiration of this EULA to ensure End User has ceased use of the Software and Documentation, and removed all copies thereof from such systems. End User shall reasonably cooperate with Litmus Automation’s Personnel conducting such audits and provide all reasonable access requested by Litmus Automation to records, systems, equipment, information and End User Personnel. Litmus Automation shall only examine information directly related to the End User’s use of the Software. Litmus Automation will use commercially reasonable efforts to conduct audits during End User’s normal business hours and in a manner that does not unreasonably interfere with End User’s business operations. End User shall immediately remedy any non-compliance noted in any audit conducted by Litmus Automation.
End User is entitled to maintenance and support services, in accordance with Litmus Automation’s Support Policy, which can be found here: https://support.litmus.io. Litmus Automation’s Support Policy may be updated in Litmus Automation’s sole discretion from time to time.
From time to time, Litmus Automation may, at its sole discretion, provide End User with upgrades, patches, enhancements, or fixes in connection with the Software, at no additional charge (“Updates”). Such Updates will form part of the Software and be subject to this EULA; provided that, Litmus Automation shall have no obligation to provide any such Updates. End User understands that Litmus Automation may cease supporting old versions or releases of the Software at any time in its sole discretion. Litmus Automation will not be responsible for any issues or consequences resulting from End User’s delay or failure in installing Updates.
Litmus Automation retains all right, title, and interest in and to the Software and Documentation. End User acknowledges that it does not acquire any ownership interest in the Software or Documentation under this EULA or the License Agreement. No rights or licenses are granted to End User except as expressly and unambiguously set forth in this EULA or the License Agreement. End User shall use commercially reasonable efforts to safeguard all Software and Documentation from infringement, misappropriation, theft, misuse or unauthorized access. If End User becomes aware of any infringement, misappropriation, theft, misuse or unauthorized access to the Software or Documentation, it shall promptly notify Litmus Automation. End User agrees to fully cooperate with Litmus Automation, at Litmus Automation’s expense, in any legal action taken by Litmus Automation to enforce its intellectual property rights.
End User or its Personnel may from time to time provide suggestions, comment, ideas, enhancement requests, recommendations or other feedback to Litmus Automation with respect to the Software or Documentation (“Feedback”). End User shall (and in the case of Feedback by Personnel, shall procure the right to), and hereby does, grant to Litmus Automation a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose Litmus Automation, at its sole discretion, deems fit.
“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 EULA and End User’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 Automation’s 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 Section 9.
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 EULA; (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 End User’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 9 to which they are subject, and shall be liable for any breaches of this Section 9 by any person to whom the Receiving Party discloses the Disclosing Party’s Confidential Information to. End User shall promptly notify Litmus Automation of any unauthorized use or disclosure of Litmus Automation’s Confidential Information.
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.
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 EULA for so long as any Confidential Information is retained by the Receiving Party and for a period of five (5) years thereafter.
This EULA shall remain in effect from the date End User first downloads or installs the Software, or accesses the Documentation, until the expiration or termination of the License Agreement, unless terminated earlier in accordance with this Section 10. Litmus Automation may terminate this EULA, effective upon written notice to End User, if End User:
i. materially breaches this EULA and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for five (5) days after Litmus Automation provides written notice thereof; or
ii. files an assignment in bankruptcy or has a bankruptcy order made against it under any bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, receiver-manager, monitor, or custodian for all or a substantial part of its property.
Upon expiration or termination of this EULA, End User’s rights to download, install, access or use (as applicable) the Software and Documentation shall also terminate, and End User shall promptly cease using and destroy all copies of the Software and Documentation. No expiration or termination of this EULA shall affect End User’s obligation to pay all license fees that may be due under the License Agreement, or entitle End User to any refund. Any terms of this EULA which by their nature should survive expiration or termination of this EULA will survive such expiration or termination.
End User shall defend, indemnify, and hold harmless Litmus Automation, 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 End User Data or End User’s use of the Software or Documentation; (ii) End User’s material noncompliance with this EULA or the License Agreement; or (iii) the End User’s gross negligence or willful misconduct.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE AND DOCUMENTATION IS 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 AUTOMATION, 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 AUTOMATION PROVIDES NO CONDITION, WARRANTY, OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET THE END USER'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.
IN NO EVENT WILL LITMUS AUTOMATION OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, OR PERSONNEL BE LIABLE TO END USER OR ANY THIRD PARTY FOR: (i) ANY: (A) USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION; (B) LOST REVENUES OR PROFITS, OR THE COST OF PROCUREMENT OF SUBSITUTE GOODS OR SERVICES; (C) DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; (D) LOSS OR CORRUPTION OF DATA; (E) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; (F) FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; (G) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (H) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (I) BREACHES IN SYSTEM SECURITY; (J) FOR ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (K) LOSSES, ISSUES OR CLAIMS RESULTING FROM OR IN CONNECTION WITH END USER’S USE OR RELIANCE ON THIRD PARTY TOOLS OR OUTPUTS DERIVED FROM ARTIFICIAL INTELLIGENCE; (ii) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS EULA, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LITMUS AUTOMATION WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LITMUS AUTOMATION AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, OR PERSONNEL UNDER OR IN CONNECTION WITH THIS EULA OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY END USER TO LITMUS AUTOMATION PURSUANT TO THE LICENSE AGREEMENT FOR THE SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO A CLAIM. THIS LIMITATION OF LIABILITY IS AGGREGATE AND NOT PER INCIDENT. THIS LIMITATIONS WILL APPLY NOT WITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
If at any time a dispute or claim arises out of or in connection with this EULA (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 (except for Disputes relating to breaches of confidentiality or intellectual property, which may be resolved by court action) 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.
This EULA may be updated from time to time. In the event of any such update to this EULA, End User will be notified by e-mail or within the Software, and any continued use of the Software after such notification will be deemed to be End User’s acceptance of such updated EULA.
Each Party shall comply with all applicable laws in connection with their rights and obligations under this EULA.
This EULA and the License Agreement represent the entire agreement between End User and Litmus Automation with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between End User and Litmus Automation with respect thereto. In the event of any conflict or inconsistency between this EULA and the terms of a License Agreement between End User and Litmus Automation, the terms of this EULA will supersede.
This EULA shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules.
All notices under this EULA 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 Automation must be given to:
Litmus Automation Inc.
2350 Mission College Blvd #1020
Santa Clara, CA 95054
Attention: Chief Operating Officer
[email protected]
Neither Party may assign any of its rights or obligations hereunder without the other Party’s consent; provided that either Party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such Party’s business or assets relating to this EULA. This EULA is for the benefit of the Parties and their respective successors and assigns.
No agency relationship, partnership, joint venture, or employment relationship is created as a result of this EULA and neither Party has any authority of any kind to bind the other orally or in writing in any respect.
If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
The failure of either Party to act with respect to a breach of this EULA by the other Party shall not constitute a waiver and shall not limit such Party’s rights with respect to such breach or any subsequent breaches.
Litmus Automation will not be responsible or liable, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, hostilities, war, terrorist attack, embargo, natural disaster, epidemics, pandemics, acts of God, flood, tsunami, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or End User equipment, loss and destruction of property, or any other circumstances or causes beyond Litmus Automation’s reasonable control.
