METAFORM SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS METAFORM SOFTWARE LICENSE AND SERVICES AGREEMENT (this “Agreement”) is made and entered into between METAFORM, a Delaware limited liability company, with its principal place of business at 240 West Main Street, Suite 100, Charlottesville, Virginia 22902 USA (“METAFORM”) and the entity identified on the Order Form for METAFORM’s Software (“Customer”).
By executing an Order Form or other agreement referencing and incorporating the terms and conditions of this Agreement, by installing or using the Software, or by taking other action (e.g., clicking “I Agree” below) manifesting assent to the terms and conditions of this Agreement, Customer is agreeing to the terms and conditions of this Agreement. Customer’s right to install and use the Software is expressly conditioned on Customer’s acceptance of this Agreement. If Customer does not agree to any of the terms of this Agreement, Customer may not install or use the Software or any part thereof. Notwithstanding the foregoing, if Customer and METAFORM have entered into a master agreement governing the license of the Software, then this Agreement is without prejudice to Customer’s rights under such master agreement.
1. APPLICABILITY OF AGREEMENT
This Agreement governs Customer’s use of the Software and the Support Services provided by METAFORM to Customer. If Customer has issued or executed a purchase order or any other document for the license of the Software or acquisition of Support Services, such purchase order or other document is expressly conditioned on Customer’s assent to the terms of this Agreement, to the exclusion of all additional, different or conflicting terms in such purchase order or other document. As used herein, “Software” means, collectively, (a) the object code form of the METAFORM software products identified in an Order Form or otherwise made available to Customer pursuant to this Agreement, and (b) any updates, upgrades and/or new releases thereto that METAFORM or its authorized reseller may provide to Customer for purposes of supplying modifications, error corrections, bug fixes, or new or different functionality (but only to the extent such updates, upgrades and/or new releases are not provided under conflicting license terms); and “Order Form” means a document by which Customer orders node licenses to the Software and is executed by Customer and either METAFORM or an authorized reseller of the Software. Each Order Form will incorporate this Agreement by reference and should include, where applicable, (i) the term of the license during which Customer is authorized to use the Software pursuant to the terms set forth in this Agreement (“License Term”); (ii) the particular Software licensed; and (iii) the number of Nodes Customer may install the Software on. To the extent any terms and conditions contained in this Agreement conflict or are inconsistent with the terms and conditions of an Order Form, the terms and conditions of the Order Form will prevail.
2. LICENSE
2.1 Grant of License to Customer. Subject to the terms and conditions of this Agreement and Customer’s payment of the Fees as set forth in the applicable Order Form, METAFORM hereby grants Customer, during the License Term, a limited, non-exclusive, non-sublicensable and non-transferable license, solely for its own internal business operations, to: (a) use and display the Software on the number of Nodes specified in the Order Form, in accordance with METAFORM’s then-current end-user documentation for the Software as made available to Customer from time to time (or published by METAFORM at https://docs.metaform.com/) (“Documentation”); (b) use the Documentation and any materials provided by METAFORM in the course of performing Support Services solely for the purpose of using the Software in accordance with this Agreement; (c) install, integrate and implement the Software or have third parties do so for Customer; (d) copy the Software and Documentation as reasonably necessary to support the number of licensed Nodes; and (e) make a reasonable number of additional copies of the Software and Documentation solely for archival and emergency back-up purposes. With respect to any and all copies of the Software and Documentation, Customer shall ensure that each copy contains all trademarks and copyright or other proprietary rights notices. All such copies will be subject to the terms and conditions of this Agreement. Customer will comply with all applicable laws and regulations in connection with its use of the Software. As used herein, “Node” means a single physical or virtual machine that is actively allocated to operate the METAFORM Software, whether in an on-premises, cloud-based, or hybrid computing environment. As used herein, “Core” means an individual processing unit, either physical or virtual, that is actively allocated to operate the METAFORM Software. In bare-metal environments, a Core refers to a physical CPU core recognized by the host operating system. In virtualized or cloud environments, a Core includes each virtual CPU (vCPU) provisioned to a compute instance running the METAFORM Software, regardless of the physical hardware or hypervisor configuration.
2.2 License Restrictions. The Software is licensed to Customer for internal use only and must be used only on servers owned or controlled by Customer (including, for avoidance of doubt, virtual servers that are provisioned by cloud providers, if Customer exercises virtual control over such servers). Customer shall not (and the rights granted in Section 2.1 are subject to Customer’s agreement that it shall not): (a) reverse engineer, disassemble, decompile or otherwise attempt to derive the source code of the Software (except to the extent this restriction is expressly prohibited by applicable law or the applicable open source licenses (with respect to the respective Open Source Components governed thereby) and then only upon advance written notice to METAFORM); (b) sublicense or use the Software for commercial time-sharing, rental, outsourcing or service bureau use; (c) publish or otherwise disclose the results of benchmark tests of the Software to third parties without METAFORM’s prior written consent; (d) attempt to circumvent any use limitations built into the Software; or (e) use the Software to develop a competing product or service. In the event Customer violates the terms set forth in this Section 2, METAFORM will have the right immediately to terminate the license granted to Customer under this Agreement upon written notice to Customer.
3. EVALUATION OF THE SOFTWARE
If METAFORM provides Customer any Software for evaluation purposes, Customer may use such Software, during an evaluation period of 30 days following delivery of the Software (or such other period specified by METAFORM or otherwise set forth in the Order Form), solely for trial non-production purposes, in order to determine whether Customer wishes to obtain a commercial license to the Software. Customer’s right to use such Software will be: (a) subject to the terms of this Agreement (and the applicable Order Form); (b) on an “AS IS” basis, without warranties of any kind (including to the extent permitted by applicable laws, any warranties implied by statute or otherwise); and (c) without any Support Services of any kind (unless otherwise expressly provided in the Order Form). Upon the end of the evaluation period, Customer will cease using and will delete any such trial Software from its computer systems.
4. PROPRIETARY RIGHTS
4.1 Proprietary Rights. Customer acknowledges and agrees that: (a) except for the license specifically granted to Customer under this Agreement, METAFORM and its licensors retain all rights, title and interest in and to the Software, Documentation and all materials developed or provided by METAFORM in the course of performing Support Services; (b) any configuration or deployment of the Software will not affect or diminish METAFORM’s or its licensors’ rights, title and interest in and to the Software, Documentation or any materials developed or provided by METAFORM in the course of performing Support Services; and (c) nothing in this Agreement will limit in any way METAFORM’s right to develop, use, license, create derivative works of, or otherwise exploit the Software, Documentation or any materials developed or provided by METAFORM in the course of performing Support Services, or to permit third parties to do so. Provided it does not identify Customer, METAFORM will be free to use for development, diagnostic and corrective purposes any data and information it collects from Customer relating to diagnosis, problems, performance, use or functionality of the Software.
4.2 Feedback. If Customer recommends to METAFORM or its authorized reseller additional features, functionality or performance or other changes or additions that Customer believes will improve the Software, then Customer agrees that (a) METAFORM will be free to use and incorporate such recommendations into the Software (or other METAFORM software), without any obligation to account to Customer, and (b) acknowledges that the Software (or other METAFORM software) incorporating such new features, functionality or performance will be the sole and exclusive property of METAFORM.
5. PAYMENT, TAXES, AND USAGE REVIEW
5.1 Payment. In consideration of the licenses granted and the Support Services provided under this Agreement, Customer shall pay all fees set forth in the Order Forms (“Fees”) to METAFORM or its authorized reseller (as appropriate). All Fees are nonrefundable, except as otherwise provided in this Agreement or the applicable Order Form. All payments will be due and payable in accordance with the terms set forth in the applicable Order Form. Customer will reimburse METAFORM for all reasonable travel and other related expenses incurred by METAFORM in its performance of Support Services, provided, however, that such expenses will have been pre-approved by Customer.
5.2 Taxes. The Fees do not include, and Customer will be responsible for and pay (or, if applicable, reimburse METAFORM for) any tax payable with respect to the Fees, or any payment or other transaction contemplated by this Agreement, including, without limitation, any goods and services tax, value-added tax, customs duty, sales tax, excise duty, stamp duty, other duty, governmental charge, fee, levy or impost (together with any fine, penalty or interest payable because of a default of Customer). This Section will not apply to taxes based on METAFORM’s or its reseller’s net income or payroll taxes.
5.3 Usage Review. METAFORM or its designated agent may audit Customer’s use of the Software for purposes of ensuring compliance with this Agreement. METAFORM shall provide a written notice of such audit at least ten (10) days prior to the audit. Customer agrees to cooperate with any such audit, including by providing access to its relevant systems, records and personnel. The audit will be conducted during Customer’s regular business hours. If an audit reveals that Customer has underpaid fees to METAFORM as a result of Customer’s use of the Software that was not specified in the applicable Order Form, Customer shall promptly pay to METAFORM such fees at the prices previously agreed to for such Software commencing on the date set forth in the Order Form for the properly licensed Software, as well as fully reimburse METAFORM for the cost of performing the audit.
6. OPEN SOURCE AND THIRD PARTY SOFTWARE
6.1 Open Source and Third Party Components. The Software may contain or be provided together with certain third party software components, including open source software components (“Open Source Components”), (collectively, “Third Party Code”). Copyrights to any Third Party Code are held by the copyright holders, Documentation or the applicable license, help, notice, “about” or source files. Third Party Code may be subject to additional or different license terms. Any fees charged by METAFORM in connection with the Software do not apply to any Open Source Components for which fees may not be charged under their applicable open source licenses. With respect to each Open Source Component, (a) to the extent there are any conflicts between any terms of this Agreement and any terms of the respective open source license (as may be found either in the Software documentation or the applicable help, notices, “about” or source files), which the open source license does not permit, such conflicting terms of this Agreement will not apply; (b) to the extent expressly required by the respective open source license, the terms of such open source license will apply to such Open Source Component in lieu of the terms of this Agreement; and (c) to the extent the terms of the respective open source license entitle the Customer to receive a copy of the source code of such Open Source Component, that source code may be available from METAFORM upon Customer’s request (a nominal fee may be charged by METAFORM for processing such request).
6.2 METAFORM Open Source Components. METAFORM may, in its sole discretion, designate any portion of the Software as licensed by METAFORM under an open source license. In such case, the license grants and restrictions in this Agreement will not be construed to limit Customer’s independently granted rights in such portion of the Software, taken separately from the remainder of the Software.
7. TERM AND TERMINATION
7.1 Term. Unless earlier terminated as set forth herein, this Agreement will commence as of the Effective Date, and will continue in full force and effect for so long as there is any Order Form in effect. The term of each Order Form (and the corresponding License Term) will be as set forth in the applicable Order Form.
7.2 Termination. Either party may terminate this Agreement or an applicable Order Form upon written notice if the other party materially breaches this Agreement or the Order Form and fails to cure such breach within thirty (30) days following receipt of written notice from the other party specifying the breach in detail.
7.3 Effect of Termination. Upon any termination or expiration, Customer shall immediately cease all use of all Software and return or destroy all copies of all Software and all portions thereof and so certify to METAFORM. Termination of this Agreement or any Order Form will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer of its obligation to pay all Fees that have accrued or are otherwise owed by Customer under this Agreement. The parties’ rights and obligations under Sections 4 (Proprietary Rights), 5.3 (Usage Review), 7.3 (Effect of Termination), 8.2 (Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11 (Confidentiality) and 12 (General Terms) will survive termination of this Agreement.
8. SUPPORT SERVICES AND DISCLAIMER
8.1 Maintenance and Support Services. To the extent set forth in the applicable Order Form, METAFORM will provide to Customer (a) maintenance and support services pursuant to METAFORM’s then-current support policy (“Support Policy”) during the License Term, and (b) any training and deployment and implementation assistance specified in the applicable Order Form (collectively, “Support Services”). METAFORM warrants that any Support Services performed by METAFORM pursuant to this Agreement will be performed in a professional and workmanlike manner.
8.2 Disclaimer. METAFORM does not warrant that (a) the Software will meet Customer’s requirements, (b) the Software will operate in combinations with other hardware, software, systems or data not provided by METAFORM (except as expressly specified in writing by METAFORM in the Documentation), (c) the operation of the Software will be uninterrupted or error-free, or (d) all Software errors will be corrected. The warranties set forth in section 8.1 above are exclusive and in lieu of all other warranties, whether express, implied or statutory, and METAFORM and its licensors hereby disclaim all implied warranties, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, non-infringement, title, and quality of service, whether such warranty is alleged to arise by operation of law, by reason of custom or usage in the trade or by course of dealing. Each party acknowledges that it has not relied on any other term, condition, representation or warranty, matter, statement or conduct in entering this agreement.
9. INDEMNIFICATION
9.1 Indemnification. If a third party makes a claim against Customer that the Software directly infringes any U.S. patent, copyright or trademark or misappropriates any trade secret (“IP Claim”), METAFORM will (a) defend Customer against the IP Claim at METAFORM’s cost and expense, and (b) pay all damages, costs and expenses (including reasonable legal fees) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement signed by METAFORM arising out of such IP Claim; provided that: (i) Customer promptly notifies METAFORM in writing after Customer’s receipt of notification of a claim (or potential claim); (ii) Customer allows METAFORM to assume sole control of the defense of such IP Claim and all related settlement negotiations; and (iii) Customer provides METAFORM, at METAFORM’s request and expense, with the assistance, information and authority necessary to perform METAFORM’s obligations under this Section.
9.2 Exclusions; Remedies. Notwithstanding the foregoing, METAFORM will have no liability for any IP Claim based on (a) the use of a superseded or altered release of Software if the infringement would have been avoided by the use of a current or unaltered release of the Software, (b) the modification of the Software other than by METAFORM, (c) the use of the Software other than in accordance with the Documentation and this Agreement, or (d) use of the Software in combination with products or services not provided by METAFORM. If the Software is held to infringe, or METAFORM believes it is likely the Software will infringe a third party’s intellectual property rights, METAFORM will have the option, at its expense, to (i) replace or modify the Software to be non-infringing, or (ii) obtain for Customer a license to continue using the Software. If it is not commercially reasonable to perform either of the options specified in the preceding sentence, then METAFORM may terminate the license for the infringing Software and, upon return of the Software by Customer, give Customer a refund of the prepaid, unused Fees applicable to the remaining portion of the License Term following the effective date of termination. This Section 9 states METAFORM’s entire liability and Customer’s sole and exclusive remedy for any claim of infringement.
10. LIMITATION OF LIABILITY
In no event will METAFORM or its licensors be liable for any loss of profits, loss of revenue, loss of business, loss of goodwill, loss of or damage to reputation, loss of management time, loss of or damage to any property or materials, loss of savings, loss of data, or any claim based upon a third party claim, or for any indirect, incidental, punitive, special or consequential damages, however caused, under any cause of action and regardless of the theory of liability, whether under breach of contract, tort (including negligence), breach of warranty, strict liability, breach of statute or otherwise, or whether arising out of the use of or inability to use the Software, the Support Services or otherwise and even if METAFORM or its licensors or authorized resellers have been advised of the possibility of such damages. In no event will METAFORM’s or its licensors’ aggregate liability for damages hereunder, whether in contract (including indemnity) or tort (including negligence), under statute or otherwise, exceed the total fees paid by Customer in the twelve-month period immediately preceding the event giving rise to the liability. Some jurisdictions do not allow the limitation or exclusion of incidental, consequential or other types of damages, so some of the above limitations may not apply to Customer.
11. CONFIDENTIALITY AND DATA PROTECTION
11.1 Confidential Information. “Confidential Information” means the Software and any non-public information of METAFORM provided or made available to Customer. Customer shall protect all Confidential Information from unauthorized dissemination and use with the same degree of care that it uses to protect its own information of similar nature. Customer shall not use any Confidential Information for purposes other than those expressly licensed under this Agreement. Customer shall not disclose the Confidential Information to third parties without the prior written consent of METAFORM. Customer acknowledges that Confidential Information is unique and valuable to METAFORM and that the unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to METAFORM, for which monetary damages alone would not be an adequate remedy. Accordingly, and notwithstanding Section 12.2 (Governing Law; Venue) below, Customer agrees that in the event of a breach or threatened breach of this Section, METAFORM will be entitled to seek specific performance and injunctive or other equitable relief as a remedy for such breach or anticipated breach without the necessity of posting a bond. Any such relief will be in addition to, and not in lieu of any other remedies available to METAFORM, including but not limited to monetary damages.
12. GENERAL TERMS
12.1 Assignment. Customer may not assign, novate or otherwise transfer, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of METAFORM. METAFORM may assign, novate or otherwise transfer this Agreement to an affiliate or in connection with a re-organization, merger, sale of all or substantially all of METAFORM’s assets, or a similar corporate transaction, and Customer shall take any step(s) and execute any document(s) reasonably required by METAFORM for the purpose of the assignment, novation or transfer of METAFORM’s rights or obligations under this Agreement. Any attempted or purported assignment, novation or other transfer not complying with the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the successors and permitted assigns of both parties.
12.2 Governing Law; Venue. This Agreement and all matters arising out of or relating to this Agreement (including non-contractual disputes or claims) will be governed by the laws of the Commonwealth of Virginia, excluding conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The federal or state courts located in Albermarle County, Virginia, will have exclusive jurisdiction to hear any dispute under this Agreement (including non-contractual disputes or claims) and both parties hereby consent to exclusive personal jurisdiction in such courts.
12.3 Force Majeure. Except for the obligation to make all payments due under this Agreement on a timely basis, neither party will be liable in damages or otherwise, or have the right to terminate this Agreement, for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, without limitation, acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections or any other cause beyond the reasonable control of the party whose performance is affected.
12.4 Publicity. Unless otherwise instructed by Customer in writing, METAFORM may refer to Customer as a customer of METAFORM and include Customer’s name and logo in a list of its customers that it publicizes in standard marketing materials and on its web site.
12.5 Export Controls. Customer agrees to comply fully with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations (collectively, “Export Controls”). Without limiting the generality of the foregoing, Customer expressly agrees that it shall not, and shall cause its representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer the Software, Documentation or any direct product thereof to any destination, company or person restricted or prohibited by Export Controls.
12.6 Government Users. The Software is a “commercial item,” as defined at 48 C.F.R. §2.101, and constitutes “commercial computer software,” as defined in 48 C.F.R. §252.227-7014(a)(1) and as used in 48 C.F.R. §12.212 and §227.7202. This commercial computer software and related documentation are provided to end users for use on Customer’s behalf, with only those rights as are granted pursuant to the terms and conditions set forth in this Agreement. The terms of this Agreement apply to Customer except to the limited extent Customer is prohibited by the laws of Customer’s jurisdiction from accepting such terms.
12.7 Entire Agreement; Severability. This Agreement, together with the attached exhibits (if any) that are incorporated by reference, constitutes the entire agreement of the parties and supersedes all prior or contemporaneous communications, understandings and agreements relating to the subject matter hereof, whether oral or written, except in the event the parties have signed a master agreement that governs the subject matter hereof. If any provision or provisions of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired by such holding and the parties shall negotiate in good faith a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement.
12.8 Amendment; Waiver of Contractual Right. No modification or claimed waiver of any provision of this Agreement will be valid except by written amendment signed manually or by way of electronic signature by authorized representatives of METAFORM and Customer. Waiver of any provision under this Agreement will not be deemed a future waiver of that or any other provision herein, nor will waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
12.9 Notices. All notices given pursuant to this Agreement must be in writing and will be deemed to have been duly given when: hand delivered, sent by email (with written confirmation of receipt), or when received by the addressee (with written confirmation of receipt) in each case to the appropriate address set forth below or in the applicable Order Form (or to such other address or e-mail address as a party may designate by notice from time to time).
If to METAFORM, to:
METAFORM LLC
240 West Main Street
Suite 100
Charlottesville, Virginia 22902
Attention: Legal Department
Email: [email protected]
If to Customer, to the address specified in the Order Form or otherwise provided by Customer to METAFORM.
12.10 Relationship between the Parties. METAFORM is an independent contractor; nothing in this Agreement shall be construed to create a relationship of employer and employee, partnership, joint venture or agency relationship between the parties.
12.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
