NodeSource License and Service Terms and Conditions
Definitions. The following words will have the meaning indicated for purposes of this Agreement.
“Company” means the entity named when you established your NodeSource account.
“Services” means the NodeSource Certified Module Service which include a NodeSource registry containing 3rd party modules that have been curated and certified by NodeSource to work on Node v4 LTS and Node v6 LTS. The Services may include software components distributed by NodeSource to Company that are licensed under open source or proprietary licenses, some of which Company may be required to install on its computers or servers in order to utilize the Services.
“Order” means the number of NodeSource Certified Module Service purchased, the price for such Services, the Term of the Service and if it is a trial purchase, as indicated on the order confirmation page.
Evaluation License. During the term of this Agreement and subject to the terms and conditions contained herein, NodeSource hereby grants to Company a limited, non-transferrable, non-sublicensable, non-exclusive, worldwide, license to access and use the Services. The rights granted to Company under this Section 2 will be limited to those expressly granted in this Section 2, and are personal and may not be assigned or transferred to any other party, by operation of law or otherwise.
Open Source Components. Use, reproduction and distribution of software components of Services licensed under an open source software license are governed solely by the terms of that open source software license and not this Agreement.
Restrictions. Company will not: (a) modify, disassemble, decompile or reverse engineer any the Services; (b) copy (except for backup purposes) or otherwise reproduce the Services, in whole or in part or modify, adapt, alter, translate or incorporate into or with other software or create a derivative work of any part of the Services except as expressly permitted herein; (c) remove, modify or otherwise tamper with notices or legends on the Services or any labeling on any physical media; (d) use the Services in any manner to provide service bureau, time sharing or other computer services to third parties; (e) distribute any software or device incorporating a part of the Services; or (g) disclose the results of any performance benchmarks or similar testing of the Services to any third party without NodeSource’s prior written consent.
Ownership. Title to and ownership of the Services will remain exclusively in NodeSource or its licensors at all times. Company acknowledges that the Services are licensed and not sold. Company will keep the Services free from all liens, attachments, encumbrances or judicial processes. Company will immediately notify NodeSource of any claim which may be adverse to NodeSource's interest in the Services. The Services will be used only by Company, unless NodeSource authorizes other parties in advance in writing to use the Services under supervision of Company.
Feedback. Company may, during the term, provide NodeSource with oral feedback and/or written feedback related to Company’s use of the Services, including, but not limited to, a report of any errors which Company may discover in the Services or related documentation. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by Company to NodeSource concerning the Services and any information reported automatically through the Services to NodeSource (“Feedback”) will be the property of NodeSource. Company agrees to assign, and hereby assigns, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to NodeSource and agrees to assist NodeSource, at NodeSource’ expense, in perfecting and enforcing such rights.
Reporting. During the term of this Agreement, Company agrees to provide reporting to NodeSource regarding its experience with the Services. The reporting will be in a form and format supplied by NodeSource at a frequency to be mutually agreed. The contents of all such reporting will be, for purposes of this Agreement, Feedback, and will be owned exclusively by NodeSource.
Company agrees and acknowledges that the Services contain proprietary and trade secret information that is the sole and exclusive property of NodeSource and that Company may obtain information relating to NodeSource, and the Services which Company knows, or has reason to know is of a confidential and/or proprietary nature (“Confidential Information”). Confidential Information will include, without limitation, the specific design and structure of the Services and any Services or any materials created by Company from the Services. Company will, at all times, both during the term of this Agreement and at all times thereafter, use its best efforts to keep in strict confidence and trust all of the Confidential Information provided to Company. Company will not use the Confidential Information other than as necessary to exercise its rights under this Agreement. Company will take all reasonable steps to prevent unauthorized disclosure or use of the Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons. Company will not disclose Confidential Information to any person or entity other than its officers, employees and consultants who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into written confidentiality agreements with Company which protect the Confidential Information containing terms and conditions at least as protective of NodeSource’s rights as the terms and conditions herein. These obligations will not apply to the extent that Confidential Information includes information which Company can show by clear and convincing evidence: (a) is, or, through no act or failure to act of Company, becomes publicly known; or (b) is approved for release by written authorization of NodeSource. A disclosure by Company of Confidential Information: (x) in response to a valid order by a court or other governmental body; or (y) otherwise required by law, will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that Company will provide prompt written notice thereof to NodeSource to enable NodeSource to seek a protective order or otherwise prevent such disclosure. Company further agrees not to disclose test or benchmark results to any third party without NodeSource’s prior written consent. Company recognizes and acknowledges that any use or disclosure of the Confidential Information in a manner inconsistent with the provisions of this Agreement will cause NodeSource irreparable damage for which remedies at law may be inadequate. Accordingly, NodeSource will have the right to seek an immediate injunction in respect of any breach of these confidentiality obligations to obtain such relief. Notwithstanding the foregoing, this paragraph will not in any way limit the remedies in law or equity otherwise available to NodeSource.
Relief. Company acknowledges that a breach by Company of its obligations under this Agreement would cause NodeSource irreparable harm, in the event Company breaches or threatens to breach its obligations under this Agreement, NodeSource will be entitled to specific performance, injunctive and other appropriate equitable relief (such as, but not limited to, immediate termination of this Agreement) without posting bond or proving that damages would not be an adequate remedy.
Support and Training. During the term of this Agreement, NodeSource will provide reasonable product and technical support to address questions concerning use of the Services. NodeSource will also make commercially reasonable efforts to resolve any Issues submitted by Customer. In addition, NodeSource will provide Company limited training on the Services as mutually agreed.
Term and Termination. This Agreement is effective as of the Effective Date and will continue until the end of the Term specified on the Order Confirmation Page or Renewal Confirmation Page. Either party may terminate this Agreement at any time and for any reason, with or without cause, and without penalty, and without compensation of any kind, except as expressly set forth herein, effective five (5) days after giving written notice of termination to the other party. Upon any termination of this Agreement: (a) Company will immediately cease the use of all of the Services; (b) Company will immediately destroy all copies of documentation relating to the Services and any derivative work created by Company based on the Services as part of Company’s evaluation; and (c) Company will return to NodeSource or destroy all copies of the Confidential Information in its possession and/or control within fifteen (15) days after the effective date of such termination and certify in writing that Company has complied with its obligations hereunder. The provisions of Sections 1, 3 through 6, inclusive, and 9 through 11 inclusive, and 14 through 16, inclusive, of this Agreement will survive any termination or expiration of this Agreement.
No Warranty. All Services is provided to Company solely for the purpose of evaluation on an "AS IS" basis and without warranty of any kind. NODESOURCE DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, RELATING TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
No Liability for Consequential Damages. IN NO EVENT SHALL NODESOURCE BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) ARISING OUT OF THE USE OF THE SERVICES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF NODESOURCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Company and NodeSource agree that the foregoing limitation of liability and warranty disclaimer in Section 8, fairly allocate the risks in the Agreement between the parties. Company and NodeSource further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations will apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.
Export. Company acknowledges and agrees that it will not import, export, or re-export, directly or indirectly, any commodity (including, without limitation, the Services or related information) to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, without limitation, the export regulations of the United States.
US Government Rights. The Services are a “commercial item” as that term is defined at FAR 2.101. If Company is the US Federal Government (Government) Executive Agency (as defined in FAR 2.101), NodeSource provides the Services, including any related software, technology, technical data, and/or professional services in accordance with the following: If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with NodeSource to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
Governing Law and Attorneys’ Fees. This Agreement will be construed, interpreted, applied and governed in all respects in accordance with the laws of the United States of America and the substantive and procedural laws of the State of California, notwithstanding any choice-of-law principle that might dictate a different governing law. The prevailing party in any dispute will be entitled to recover from the non-prevailing party its costs, including without limitation, attorneys’ fees and court costs.
General Provisions. This Agreement is not assignable or transferable, in whole or in part, by Company, whether involuntarily, by merger, operation of law or otherwise without NodeSource’s prior written consent. A waiver of any default hereunder or of any of the terms and conditions of this Agreement will not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but will apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. Captions in this Agreement are for the convenience of the parties only and will not affect the interpretation or construction of this Agreement. In the event any provision of this Agreement is held to be invalid or unenforceable, such provision will be severed from the remainder of this Agreement, and such remainder will remain in force and effect. Any notice provided for or permitted under this Agreement will be in writing and will be treated as having been given (a) when delivered personally, (b) one (1) business day after being sent by nationally recognized overnight courier with written verification of receipt, or (c) three (3) business days after being mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified, at the address provided with your online NodeSource Account. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior and/or simultaneous representations, discussions, negotiations and agreements, whether written or oral.