For subscription-based
Licensees, subject to the Licensee having paid and continuing to pay the
applicable License Fees, ThoughtWorks will allow Licensee access to Maintenance
and Support for the Product during the Term of the license.
For perpetual Licensees, subject to the Licensee having paid the
applicable License Fees and the applicable annual Maintenance and Support Fee
set forth in the Additional Terms, if any, ThoughtWorks will allow Licensee
access to Maintenance and Support for the Product on an annual basis. Annual
Maintenance and Support for perpetual Licensees will commence on the Effective
Date and automatically renew each year unless at least sixty (60) days prior to
such renewal date, either party provides written notice of termination. The
Maintenance and Support Fee for such renewal period will be set by ThoughtWorks
in accordance with its then-current fees, but ThoughtWorks will not increase
such fees (as applicable to the current version to which Licensee has a license)
by more than twenty percent (20%) from one year to the next.
For Community Licensees, no Maintenance and Support is provided by
ThoughtWorks unless specifically agreed otherwise in the Additional Terms, if
any.
6. LICENSEE’S OBLIGATIONS
Licensee will ensure its compliance with this Agreement and prevent unauthorized
use and distribution of the Product. Licensee shall keep exclusive possession
and control over the Product. Licensee shall ensure that the Product is used
only by Authorized Users for the Authorized Use. Licensee shall take reasonable
security measures to prevent any prohibited activities under Section 3 of this
Agreement.
7. INTELLECTUAL PROPERTY & CONFIDENTIALITY
ThoughtWorks hereby reserves all rights not explicitly granted in this
Agreement. The Product contains copyrighted material, trade secrets and other
valuable confidential and proprietary information owned exclusively by
ThoughtWorks. This license confers no right, title, or ownership interest in or
to any copyright, trademark, logo, or trade name of ThoughtWorks or in the
Product itself and all associated intellectual property rights are retained by
ThoughtWorks.
8. LIMITED WARRANTY & LIABILITY
8.1 Because the Product is available for evaluation purposes and licensed free
of charge to teams of 5 users or less, there is no warranty granted in relation
to it. ThoughtWorks provides the Product "as is" without warranty of any kind,
either express or implied, including but not limited to, the implied warranties
of merchantability, satisfactory quality, and fitness for a particular purpose.
ThoughtWorks does not warrant that the functions contained in the Product will
meet Licensee’s requirements, or that the operation of the Product will be
uninterrupted or error or defect free, or that the defects in the Product will
be corrected.
8.2 Under no circumstances, including negligence, shall ThoughtWorks be liable
for any incidental, special or consequential damages and lost profits, loss of
data, cost of procurement of substitute software, goods or services, or other
special, indirect, incidental or consequential loss or damages, either in
contract or tort, arising out of or in connection with this Agreement or that
result from the use or inability to use the Product, even if ThoughtWorks is
advised of the possibility. In addition, in no event shall ThoughtWorks’ total
liability for all damages, losses and causes of action exceed the amount paid
Licensee under this Agreement.
8.3 To the extent the foregoing warranty disclaimer or limitation of liability
are not allowed by applicable law, then the liability of ThoughtWorks, and
Licensee’s remedy, shall be limited to: (i) the re-supply of any defective
Product; or (ii) the refund of any license fees paid by Licensee for the
defective Product.
9. INTELLECTUAL PROPERTY INDEMNIFICATION
a) ThoughtWorks will defend or settle, at its expense, any action brought
against Licensee based upon the claim that the Product, when used in accordance
with this Agreement, directly infringes a known U.S. patent or copyright;
provided, however, that: (i) Licensee notifies ThoughtWorks promptly in writing
of any such claim; (ii) Licensee does not enter into any settlement related to
any claim without ThoughtWorks' prior written consent; (iii) ThoughtWorks has
sole control of any claim and all related settlement negotiations; and (iv) as
requested, Licensee provides ThoughtWorks with all information and assistance
necessary to settle or defend the claim.
(b) If the Product becomes, or may, in the opinion of ThoughtWorks, become the
subject of a claim of infringement of any third party intellectual property
right, ThoughtWorks may, at its option, and as Licensee’s exclusive remedy: (i)
procure the right for Licensee to use the Product; (ii) replace or modify the
Product to make it non-infringing; or (iii) refund any license fees for the
Product paid by Licensee.
(c) Licensee will defend or settle, at Licensee’s expense, any action brought
against ThoughtWorks based upon the claim that any modifications Licensee makes
to the Product or any combination of the Product with software or other items
not approved by ThoughtWorks infringes or violates any third party intellectual
property right; provided, however, that ThoughtWorks comply with the same
requirements outlined in subsections (i)-(iv) of Subparagraph (a).
(d) Notwithstanding anything herein to the contrary, ThoughtWorks shall have no
obligation to defend Licensee or to pay Licensee’s costs, damages or attorney’s
fees, or have any liability whatsoever, for any claim based upon any
modifications to the Product or any combination of the Product with other with
products or other items not approved by ThoughtWorks.
10. BREACH, CURE, AND TERMINATION OF THE AGREEMENT
This Agreement can be terminated by ThoughtWorks in the event of breach by
Licensee. Breach by Licensee includes: 1) the failure to prevent unauthorized
use or distribution of the Product; 2) accessing, using, modifying, or
distributing Third-Party Software independently of the Product and without
permission; 3) nonpayment, or 4) any other activity that violates this
Agreement. ThoughtWorks may terminate this Agreement within 7 days of giving
Licensee written notice that it is in breach of the Agreement, provided that
during such 7 day period Licensee fails to cure the breach; except that in the
case of Licensee’s failure to pay License Fees, ThoughtWorks reserves the right
to terminate this Agreement immediately and without notice or opportunity to
cure. In the event of termination of this Agreement: 1) all outstanding License
Fees and any other amounts owed by Licensee are immediately due and payable; and
2) all license rights granted to Licensee under this Agreement and in relation
to the Product are revoked.
Subscription based Licensees may not terminate this Agreement
during the Term but may terminate any renewal period under this Agreement by
providing ThoughtWorks with written notice of termination at least sixty (60)
days prior to the applicable renewal date.
Perpetual Licensees may terminate any annual Maintenance and
Support period by providing ThoughtWorks with written notice of termination at
least ninety (90) days prior to the close of the then current calendar year.
11. TAX
Licensee is responsible for all taxes, other than taxes levied on ThoughtWorks’
income. License fees do not include any applicable taxes. If ThoughtWorks is
required to pay any sales, use, Goods & Services, Value Added, or other taxes in
relation to Licensee’s purchase, those taxes will be billed to and paid by
Licensee.
12. EXPORT
Licensee acknowledges that this Product may be subject to export controls or
restrictions by the United States or other countries or territories and Licensee
hereby certifies that Licensee is not located in Cuba, Iran, North Korea, Sudan,
or Syria. Additionally, Licensee affirms that, to Licensee’s knowledge, Licensee
is not included on any list that would cause ThoughtWorks' export of this
Product to Licensee to be prohibited by the laws or regulations of the United
States, including the Department of Commerce’s ("DOC") Denied Persons, Entities,
and Unverified Lists; the U.S. Department of State’s Debarred List; or on the
U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially
Designated Narcotics Traffickers, or Specially Designated Terrorists. Licensee
agrees to comply with all applicable export and re-export control laws and
regulations, including the Export Administration Regulations ("EAR") maintained
by the U.S. Department of Commerce. Specifically, Licensee agrees that Licensee
will not -- directly or indirectly -- sell, export, re-export, transfer, divert,
or otherwise dispose of the Product received from ThoughtWorks to any
destination, entity, or person prohibited by the laws or regulations of the
United States, without obtaining prior authorization from the competent
government authorities as required by those laws and regulations. Licensee
agrees to indemnify, to the fullest extent permitted by law, ThoughtWorks from
and against any fines or penalties that may arise as a result of any breach of
this provision.
13. ASSIGNMENT
Licensee may not assign its rights under this Agreement except in the case of a
change in control of Licensee, including merger or sale. Licensee must give
ThoughtWorks 60 days written notice of any such assignment. ThoughtWorks may
assign its rights and obligations under this agreement for any reason and
without the consent of Licensee.
14. PUBLICITY
Licensee grants ThoughtWorks the right to identify Licensee as a user in Product
promotional material. At any point, Licensee can submit a written request via
email to
studiospublicity@thoughtworks.com to have ThoughtWorks remove Licensee’s
name, within thirty days, from any future promotional material.
15. SEVERABILITY
Each provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. The invalidity or unenforceability of
any provision of this Agreement shall in no way affect the validity or
enforceability of any other provision hereof. Any invalid or unenforceable
provision shall be deemed severed from this Agreement and the balance of this
Agreement shall be construed and enforced as if this Agreement did not contain
the particular provisions(s) held to be invalid or unenforceable and so as to
effect the original intent of the parties hereto.
16. GOVERNING LAW
This Agreement shall be deemed executed in Chicago, Illinois and shall be
governed by and construed in accordance with the laws of the State of Illinois,
U.S.A., without regard to choice of law or conflict of law principles. For
purposes of enforcement of arbitration awards, equitable relief, or if for any
other reason litigation is permissible under this agreement, each party hereby
irrevocably agrees to the exclusive personal jurisdiction and venue of any court
located in Cook County, Illinois.
17. NO WAIVER
No failure or delay by either party in exercising any right, power, or privilege
granted under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power or privilege granted under this
Agreement. The knowing waiver of a Breach of this Agreement or the failure of a
party to exercise any right under this Agreement shall in no event constitute a
waiver as to any other Breach, whether similar or dissimilar in nature, or
prevent the exercise of any right under this Agreement.
18. SURVIVAL
The provisions of Sections 2, 6, 7, 8, 9, 12, 14, 15, 16, 18 and 19 shall
survive the cancellation or termination of this Agreement. All other provisions
of this Agreement, which by their terms or import are intended to survive such
cancellation or termination, shall survive..
19. NO THIRD-PARTY BENEFICIARIES
This Agreement may only be enforced by the parties hereto and their respective
successors and assigns and there are no third-party beneficiaries to this
Agreement.
20. AMENDMENT
This Agreement can only be modified by mutual written assent of the parties.
21. ENTIRE AGREEMENT
This Agreement, the applicable Order Review and Submit page (if any), the
License Key email (if any), and Schedule A attached hereto (if any), constitute
the entire agreement between the parties with respect to the use of the Product,
and supersedes all prior or contemporaneous understandings, representations,
communications, or agreements, written or oral, regarding the Product or in any
way related to ThoughtWorks intellectual property rights in the Product.
