Last Updated: June 21, 2016
This ENTERPRISE LICENSE AGREEMENT ("Agreement") is entered into and made effective as of the earlier of the date of the executed Order Form or first use of the N|Solid Software (the "Effective Date") by and between the person or entity using the N|Solid Software ("Customer" or "Licensee") and NodeSource, Inc. , a Delaware corporation, whose address is 700 N Valley St., Suite B #22925, Anaheim, CA 92801 ("NodeSource") (each, a "Party" and together, the "Parties").
1.1. License Grant and Restrictions. NodeSource provides the N|Solid Software under both a paid subscription model ("Subscription License") and royalty-free model for non-production use ("Development License").
1.1.1 For Subscription Licensees: Subject to the terms and conditions set forth in this Agreement and in the Order Form, Licensee is granted a limited, non-exclusive, nontransferable and non-sublicensable license to install and run the N|Solid Software for the purpose of developing, analyzing, and testing Licensee applications and other Licensee software for the time period specified in the Order Form (the "Subscription Period"). Licensee will also be provided Support for the N|Solid Software in accordance with NodeSource's N|Solid Product Support Policy.
1.1.2 For Development Licensees: Subject to the terms and conditions set forth in this Agreement, Licensee is granted a limited, non-exclusive, nontransferable and non-sublicensable license to install and run the N|Solid Software for the purpose of developing, analyzing, and testing Licensee applications and other Licensee software strictly for non-production purposes. Licensee will not be provided support for the N|Solid Software.
1.1.3 Licensee may only make copies of the N|Solid Software for internal use, may only make and distribute copies to Employees as is reasonably necessary to use the N|Solid Software as provided for in this Agreement, and must include this Agreement and all copyright or other notices contained in the original.
1.2. Transfer; Use By Others. Licensee is prohibited from transferring, renting, leasing, lending, selling, sublicensing, or otherwise redistributing the N|Solid Software to another party or exploiting any services provided by or through the N|Solid Software in any unauthorized way.
1.3. Ownership. The N|Solid Software is licensed, not sold, to Licensee by NodeSource for use only in accordance with the terms of this Agreement. NodeSource and/or NodeSource's licensors retain ownership of the N|Solid Software and reserve all rights not expressly granted to Licensee by this Agreement. The terms of this Agreement will govern the N|Solid Software and any additional software or material provided as an upgrade, addition, or modification to the N|Solid Software unless such upgrade, addition, or modification is separately licensed.
1.5.Third-Party Material. Portions of the N|Solid Software may include software, code, and copyrighted material from third parties, including open source projects. Acknowledgments, licensing terms, and disclaimers for such material are contained in the N|Solid Software and Licensee's use of the N|Solid Software is governed by such respective terms, in addition to the terms of this Agreement. A non-exhaustive list of such third-party material and their respective licenses is included in the N|Solid End User License Agreement (" N|Solid EULA"), and such list may change from time to time based upon ongoing product development. Please contact NodeSource for the most updated list of included third-party material.
1.6. Reverse Engineering. Licensee may not, and agrees not to allow or enable others to, copy (except as expressly permitted by this Agreement), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the N|Solid Software or any services provided by or through the N|Solid Software or any part thereof, except as and only to the extent that any foregoing restriction is prohibited by applicable law.
1.7.Compliance with Applicable Laws. Licensee agrees to use the N|Solid Software and related services in compliance with all applicable laws, including local laws of the country or region in which Licensee resides or uses the N|Solid Software or services.
1.8. Commercial Computer Software. The N|Solid Software and any related modifications were fully developed at private expense and are commercial computer software as defined in FAR 2.101. Any related documentation, technical data, or services are also commercial. In accordance with FAR 12.212 and DFARS 227.7202, all rights conferred in the N|Solid Software, related documentation, technical data, services, or any deliverable to the United States Government are specified in this Agreement. All other uses are prohibited and no ownership rights are conferred.
2.1. Payment. Licensee agrees to pay all fees specified in the relevant order form or agreement to purchase the N|Solid Software Subscription License ("Order Form") no later than thirty (30) days from the date of invoice, unless otherwise specified in said order form or agreement. The terms of the Order Form are herein incorporated into this Agreement by reference. Unless otherwise provided, any fees quoted do not include any taxes, and Licensee is responsible for payment and reimbursement of all taxes associated with its purchase of the N|Solid Software hereunder. Unless otherwise provided, all fees paid for the N|Solid Software are nonrefundable.
3.1. Definition. "Confidential Information" means any information disclosed by one Party (the "Discloser") to the other Party (the "Recipient"), whether disclosed verbally, in writing, or by inspection of tangible objects and either designated by Discloser as confidential or that Recipient knows or has reason to know is confidential or proprietary based upon its treatment by Discloser. Confidential Information shall not include any information that: (a) was in Recipient's lawful possession prior to the disclosure, as clearly and convincingly corroborated by written records, and had not been obtained by Recipient either directly or indirectly from Discloser; (b) is lawfully disclosed to Recipient by a third party without actual, implied or intended restriction on disclosure through the chain of possession, (c) is independently developed by Recipient without use of or access to the Confidential Information, as clearly and convincingly corroborated by written records, or (d) is or becomes generally available to the public (other than as a result of a disclosure by Recipient or its Affiliates in violation of this Agreement).
3.2. Requirements. Recipient agrees that it shall not disclose to third parties or use in any way Discloser's Confidential Information, other than in accordance with the terms of this Agreement. Recipient will disclose Confidential Information only to Recipient's Employees having a need-to-know in order to use the N|Solid Software as provided for in this Agreement, provided Recipient shall have entered into confidentiality agreements with any such Employees having obligations of confidentiality as strict as those herein prior to the disclosure to such Employees and shall cause all such Employees to adhere to said confidentiality obligations. Recipient shall not, and shall not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Confidential Information. Recipient will promptly upon discovery of any loss or unauthorized use or disclosure of Confidential Information notify Discloser in writing and take all necessary steps to mitigate the loss or unauthorized use or disclosure of Confidential Information. The foregoing prohibition on disclosure of Confidential Information shall not apply to the extent certain Confidential Information is required to be disclosed by Recipient as a matter of law or by order of a court, provided that Recipient provides Discloser with prior written notice of such obligation to disclose and reasonably assists in obtaining a protective order. Upon termination of this Agreement or earlier as requested by Discloser and at Discloser's option and as applicable, Recipient shall deliver to Discloser, or destroy and certify in writing said destruction of, any and all materials, documents or other media (whether maintained electronically or otherwise) containing Confidential Information, together with all copies thereof in whatever form. Licensee may, from time to time, provide suggestions, enhancement or feature requests, or other feedback to NodeSource with respect to the N|Solid Software or other NodeSource products, services, or related materials (whether or not such information is disclosed or delivered by NodeSource to Licensee under this Agreement) ("Feedback"). Licensee agrees that all Feedback is and shall be given by Licensee entirely voluntarily. NodeSource shall be free to use, disclose, reproduce, license, or otherwise distribute and exploit the Feedback at its discretion, without restriction or obligation of any kind or nature. Feedback, even if designated as confidential by Licensee, shall not create any obligation of confidentiality for NodeSource, unless NodeSource expressly agrees so in writing.
4.1. Retained Rights. NodeSource retains all right, title and interest in and to all Intellectual Property rights, including any patent, copyright, trademark, and trade secret rights, in the N|Solid Software and any derivative works created therefrom. Nothing in this Agreement should be construed to grant Licensee any of the foregoing Intellectual Property rights. Subject to Section 3.2, nothing in this Agreement shall be construed to inhibit, hamper, encumber, or otherwise impede NodeSource's freedom to create modifications of, improve, or extend the N|Solid Software or any other NodeSource product.
4.2. Derivative Works. Licensee is prohibited from enhancing, modifying, or preparing a derivative of the N|Solid Software.
4.3. Branding. This Agreement does not grant Licensee permission to use the trade names, trademarks, service marks, or product names of NodeSource, except as required for reasonable and customary use in describing the origin of the N|Solid Software and reproducing the content of this Agreement. Licensee may not mark or brand the N|Solid Software with any trade name, trademark, service mark, or product name other than the original mark or brand (if any) provided by NodeSource.
5.1. Indemnification by Licensee. Licensee shall fully indemnify, defend and hold harmless NodeSource, its Affiliates, and their Employees, successors and assigns ("NodeSource Indemnitees") from and against any and all third-party claims and resulting damages, liabilities, losses, and expenses (including reasonable attorney fees, expenses and costs) incurred by or asserted against the NodeSource Indemnitee of whatever kind or nature due to (a) a breach or alleged breach by Licensee of any obligation, representation or warranty made by Licensee in this Agreement, or (b) negligent or willful acts of the Licensee or Licensee Employees. NodeSource shall promptly notify Licensee of any such claims, suits and actions, and Licensee shall not enter into any settlement or compromise related thereto that contains an admission on NodeSource's part or otherwise negatively impacts NodeSource in any manner without the prior written consent of NodeSource.
5.2. Indemnification by NodeSource. Subject to Section 5, NodeSource shall fully indemnify, defend and hold harmless Licensee, its Affiliates, and their Employees, successors and assigns ("Licensee Indemnitees") from and against any and all third-party claims and resulting damages, liabilities, losses, and expenses (including reasonable attorney fees, expenses and costs) incurred by or asserted against the Licensee Indemnitee of whatever kind or nature due to (a) a breach or alleged breach by NodeSource of any obligation, representation or warranty made by NodeSource in this Agreement, or (b) negligent or willful acts of NodeSource or NodeSource Employees. Licensee shall promptly notify NodeSource of any such claims, suits and actions, and NodeSource shall not enter into any settlement or compromise related thereto that contains an admission on Licensee's part or otherwise negatively impacts Licensee in any manner without the prior written consent of Licensee. If any portion of the N|Solid Software is held by a court of competent jurisdiction to infringe any third-party intellectual property rights and Licensee incurs a liability or expense as a result of such holding, then Licensee's sole remedy shall be, and NodeSource will, at its option (1) obtain the right for Licensee to continue to use the N|Solid Software consistent with this Agreement, (2) modify the N|Solid Software so that it is non-infringing, (3) replace the infringing component with a non-infringing component, or (4) refund all of Licensee's money paid in the then-current calendar quarter under this Agreement and all of Licensee's rights and licenses under this Agreement shall automatically terminate.
5.3. Requirements for Indemnification. Each Party's indemnification obligations are contingent upon receipt from the indemnified party of: (a) prompt notice of such claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) all reasonable necessary cooperation of the indemnified party. The indemnified party may participate in the defense and settlement of such claim with counsel at its own expense. The indemnified party shall not settle or make any admissions with respect to a claim without the indemnifying party's prior written consent. The indemnifying party shall not settle any claim without the indemnified party's consent if such settlement involves an admission of liability on the part of the indemnified party or requires the indemnified party to take or refrain from taking any action.
5.4. LIMITATION OF LIABILITY. IN NO EVENT WILL NODESOURCE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, LICENSEE'S USE OR INABILITY TO USE THE N|SOLID SOFTWARE, OR LICENSEE'S DEVELOPMENT, ANALYSIS, AND TESTING EFFORTS, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, INFRINGEMENT, OR OTHERWISE, EVEN IF NODESOURCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL NODESOURCE'S TOTAL LIABILITY TO LICENSEE UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE LESSOR OF THE AMOUNT PAID BY LICENSEE TO NODESOURCE UNDER THIS AGREEMENT OR $25,000. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
6.1. NodeSource Representations and Warranties. Subject to Section 5, NodeSource represents and warrants that (a) it is the lawful owner or licensor of the N|Solid Software, that the N|Solid Software has been lawfully developed or acquired by NodeSource, and NodeSource has the right to grant Licensee the rights to the N|Solid Software under this Agreement; (b) the N|Solid Software does not infringe any patent, copyright, trademark, mask work, or trade secrets of third parties, or violate the privacy of any third party from whom NodeSource may obtain any information in connection therewith; (c) NodeSource will use commercially reasonable efforts to scan the N|Solid Software for, and will remove from the then-current version of the N|Solid Software, any computer virus, worm, trap door, back door, timer, clock, counter, or other limiting routine, instruction, or design that would cause damage to or otherwise adversely affect any Licensee system; and (d) the N|Solid Software will operate and conform to any and all documentation and specifications provided with the N|Solid Software.
6.2. Exclusions. The indemnity and warranties provided for in this Agreement by NodeSource do not extend to claims arising from or related to: (1) use of or modification of the N|Solid Software in a manner not authorized in writing by NodeSource, (2) use of the N|Solid Software under a Development License, (3) use of the N|Solid Software in combination with data, software, or hardware not provided by NodeSource or authorized in writing by NodeSource to the extent that the alleged infringement would not have occurred without the combination, or (4) allegedly infringing activities that took place related to the N|Solid Software after NodeSource provided Licensee with a version of the N|Solid Software that would have avoided the alleged infringement.
6.3. DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE N|SOLID SOFTWARE IS PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND NODESOURCE EXPRESSLY DISCLAIMS AND MAKES NO OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. NODESOURCE DOES NOT WARRANT OR GUARANTEE THAT THE USE OF THE N|SOLID SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. ANY GUARANTEE OR WARRANTY SET FORTH IN THIS AGREEMENT, BUT NOT THE EXCLUSIONS, WAIVERS, OR LIMITATIONS OF REMEDIES CONTAINED HEREIN, SHALL BECOME NULL AND VOID IF LICENSEE MODIFIES THE N|SOLID SOFTWARE.
7.1. Term. This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with Section 7.2.
7.2. Termination. This Agreement may be terminated as follows:
7.2.1 For Subscription Licensees: The earlier of (1) the expiration of Licensee's Subscription Period and nonrenewal of the Subscription, as outlined in Section 7.3; or (2) either Party's breach of any material term(s) of this Agreement and failure to cure the breach after the nonbreaching party has provided 30 days' written notice of the breach.
7.2.2 For Development Licensees: By NodeSource, in its sole discretion.
7.3. Renewal. Unless either Party provides the other Party written notice of nonrenewal at least thirty (30) days prior to the end of the Subscription Period, this Agreement will renew automatically for Subscription Licensees for an additional twelve months at NodeSource's then-current list price for the N|Solid Software.
7.4. Consequences of Termination; Survival. Upon termination of this Agreement, Licensee agrees to immediately cease all use of the N|Solid Software and erase and destroy all copies, full or partial, of the N|Solid Software and all copies of NodeSource Confidential Information in Licensee's and Licensee's Employees' possession. Licensee agrees to provide written certification of such destruction to NodeSource. Any outstanding payment obligations and Sections 1, 2.5, 3.3, and 4-11 of this Agreement shall survive any termination of this Agreement.
The following terms shall have the meanings set forth below:
8.1.1 "N|Solid Software" means the software, tools, utilities, sample or example code, documentation, interfaces, content, data, and any other materials provided by NodeSource and accompanying this Agreement in any form, including disk, print, or electronic. N|Solid Software does not include software provided to Licensee by any source other than NodeSource.
8.1.2."Intellectual Property" means all worldwide rights in and to intellectual property, including without limitation rights to inventions, trade secrets, know-how, technology, research tools, data, software, improvements and rights of authorship and attribution, whether or not protected by patents or copyrights, and including, without limitation, patent applications, patents, trade secret rights, copyrights, trademarks, and other exclusive or non-exclusive rights pertaining to intellectual property owned or controlled by a Party.
8.1.3."Affiliates" means with respect to a Party hereto any legal entity, whether existing now or in the future, that either directly or indirectly controls, is controlled by or is under common control with such Party. "Control," as used in the immediately preceding sentence, shall mean the ownership, directly or indirectly, of more than 50 percent of the voting stock or analogous interest in such corporation or other entity.
8.1.4."Employee" means a Party's officers, directors, shareholders, employees, agents, advisors, counsel, agents, contractors, representatives, or Affiliates.
8.1.5."Support" means the services described in the NodeSource N|Solid Product Support Policy, available at, as amended from time to time.
8.2. Diagnostic Data. In order to assist in improving NodeSource's products and services and as part of your license to use the N|Solid Software, you agree to allow NodeSource and its subsidiaries and agents to use, store, process, and analyze (collectively, "Analyze") diagnostic, technical, usage, and other related information from the N|Solid Software and from computers and systems that use the N|Solid Software. The information Analyzed includes, but is not limited to, general diagnostic and usage data, hardware and software details, operating system specifications, performance statistics, usage case statistics, and networking data.
8.3. Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its choice or conflict of laws provisions. Client hereby consents to exclusive jurisdiction and venue in the state and federal courts sitting in New York, New York. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
8.4. Entire Agreement. This Agreement, the N|Solid EULA, and any URL referenced herein contain the full and complete understanding and agreement between the Parties relating to the subject matter hereof and supersede all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. The terms located at a URL referenced herein are hereby incorporated by reference into this Agreement. Any modification or amendment to this Agreement shall be effective only if in writing and signed by both Parties. Notwithstanding the foregoing, NodeSource may provide Licensee with an updated URL in place of any URL in this Agreement.
8.5. Notice. Any and all notices permitted or required to be given hereunder shall be deemed duly given: (i) upon actual delivery, if delivery is by hand; or (ii) one (1) day after being sent by overnight courier, charges prepaid. Notices to Licensee shall be sent to such address which Licensee provides to NodeSource for notice purposes or, absent such provision, for which Licensee gives notice hereunder, or to Licensee's last known address. Notices to NodeSource shall be sent to the address first written above, or at such other address for which NodeSource gives notice hereunder.
8.6. Assignment. This Agreement may not be assigned, in whole or in part, by Licensee without NodeSource's consent. Any attempted assignment or delegation by Licensee without such consent will be void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each Party hereto and its respective successors and assigns.
8.7. Arbitration and Conflict Resolution. Any disputes that arise between the Parties with respect to this Agreement shall first be addressed by a meeting between the Parties and an attempt to resolve the issue in good-faith. If such a meeting is not successful, the Parties agree that the transactions contemplated in this Agreement have a substantial nexus to interstate commerce and, in lieu of judicial proceedings and except for instances where the sole remedy sought is emergency injunctive relief, the Parties will submit to binding arbitration by a panel of three (3) arbitrators of the American Arbitration Association under its rules and procedures in effect at the time of submission. The costs of such arbitration, including reasonable attorney's fees, shall be borne by the predominantly non-prevailing Party in such arbitration. Each Party shall choose one arbitrator, and the third arbitrator shall be chosen by the two arbitrators selected by the Parties. The location of the arbitration shall be in New York, New York. The final arbitration decision shall be enforceable by a court of competent jurisdiction.
8.8. Export. Licensee shall comply with all United States, foreign and local laws and regulations including, without limitation, export control laws and regulations.
8.9. Waiver, Modification. The failure of either Party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either Party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that Party's right to enforce such provisions or exercise such option.
8.10. Severability. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) shall remain in full force and effect.
8.11. Captions. Section titles or captions contained herein are inserted only as a matter of convenience and for reference.
8.12. Counterparts. This Agreement may be executed in one or more counterparts and by exchange of signed counterparts transmitted by facsimile, email, or other electronic means, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument. In the event of any inconsistency between this Agreement and the Order Form, the terms of the Order Form shall take precedence.