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# Software License Agreement | ||
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The terms and conditions of this Software License Agreement (this | ||
"License Agreement") govern your use of the accompanying Bytewax Module | ||
software (the "Software") and constitute a binding legal contract | ||
between you and Bytewax, Inc. ("Bytewax"). Your download, installation | ||
or use of the Software constitutes acceptance of this License Agreement. | ||
If you do not agree to any part of this License Agreement, then you may | ||
not use the Software and must delete all copies of the Software in your | ||
possession or control. | ||
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If you are accepting the terms of this Agreement on behalf of a legal | ||
entity, you represent and warrant that you have the authority to bind | ||
that legal entity to the terms of this License Agreement, and, in such | ||
event, "you" and "your" will refer to that legal entity. If you do not | ||
have such authority, you must not accept this License Agreement, in | ||
which case you may not download or use the Software. | ||
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1. Subject to all terms and conditions of this License Agreement and | ||
your timely payment of all subscription fees due hereunder, Bytewax | ||
hereby grants you a limited, nonexclusive, nontransferable license | ||
(without right to sublicense) to: (i) install and use the object | ||
code version of the Software internally for the purpose of ingesting | ||
and processing data for your own internal business purposes; | ||
and (ii) incorporate the Software, solely in object code form or | ||
code artifact, as a component of software-as-a-service offering that | ||
is hosted by you ("Application"), provided that such Application | ||
provides material additional functionality and features in addition | ||
to that provided by the Software. | ||
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2. Subject to all terms and conditions of this License Agreement and | ||
your timely payment of all subscription fees due hereunder, Bytewax | ||
hereby grants you, a limited, nonexclusive, nontransferable license | ||
to internally use any documentation that may be provided by Bytewax | ||
regarding the Software ("Documentation") as reasonably necessary for | ||
your authorized use of the Software. You may make copies of the | ||
Documentation in connection with exercising the foregoing license. | ||
Without limiting any other terms and conditions of this License | ||
Agreement, you may not transfer or provide the Documentation to any | ||
third party. | ||
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3. You shall be entitled to download and use any updated versions of | ||
the Software that Bytewax may make available to similarly situated | ||
licensees in its sole discretion. Any such updated versions | ||
constitute the "Software" for all purposes hereunder. In addition, | ||
Bytewax will use commercially reasonable efforts to answer questions | ||
regarding use of the Software during Bytewax's normal business hours | ||
through such support channels as Bytewax may make available from | ||
time to time. | ||
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4. You have no rights or licenses with respect to the Software or | ||
Documentation except as expressly provided in this License | ||
Agreement. Without limiting the generality of the foregoing, you may | ||
not, except to the extent expressly provided for in Sections 1 and 2 | ||
above: (a) copy, distribute, rent, lease, lend, sublicense or | ||
transfer the Software or Documentation or use the Software or | ||
Documentation on a service bureau basis; (b) decompile, reverse | ||
engineer, or disassemble the Software or otherwise attempt to | ||
discover the source code of the Software, except solely to the | ||
extent such acts are authorized under applicable law notwithstanding | ||
this prohibition; (c) create derivative works based on the Software | ||
or Documentation; (d) modify, remove, or obscure any copyright, | ||
trademark, patent or other notices or legends that may appear on the | ||
Software or Documentation or during the use and operation | ||
thereof; (e) cause the Software to become subject to the terms of | ||
any open source license agreement; or (f) deploy your Application in | ||
a manner that allows the end user to directly access, download or | ||
use the Software other than as incorporated within your Application. | ||
You are not required to provide any ideas, feedback or suggestions | ||
regarding the Software (collectively, "Feedback") to Bytewax. To the | ||
extent you do provide any Feedback to Bytewax, you acknowledge that | ||
Bytewax may freely use, reproduce, modify, distribute, make, have | ||
made, sell, offer for sale, import and otherwise exploit in any | ||
manner such Feedback without payment of any royalties or other | ||
consideration to you. | ||
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5. As part of its operation, the Software may collect and send to | ||
Bytewax data regarding the system on which the Software is installed | ||
and relating to usage of the Software ("Collected Data"). Collected | ||
Data will not include the data that you ingest or process through | ||
use of the Software. Collected Data may be used by or on behalf of | ||
Bytewax for any lawful purpose, including without limitation to | ||
develop and improve Bytewax's products and services and for | ||
statistical analysis purposes. In addition, Bytewax will disclose | ||
Collected Data where Bytewax, in good faith, believes that the law | ||
or legal process (such as a court order, search warrant or subpoena) | ||
requires Bytewax to do so or in other circumstances where Bytewax | ||
believes it is necessary to protect the rights or property of | ||
Bytewax or third parties. | ||
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6. For the avoidance of doubt, you may not directly or indirectly | ||
utilize the Software as an embedded component of any device or | ||
system or as part of any software application that is distributed. | ||
The Software is licensed solely for your internal use or use in an | ||
Application as set forth in Section 1. If you wish to request a | ||
license for any other purpose, please contact Bytewax at | ||
sales@bytewax.io. | ||
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7. You may only make your Application available under terms and | ||
conditions that: (i) do not conflict with any provision of this | ||
License Agreement or Bytewax's rights in and to the Software; (ii) | ||
are not materially less protective of the Software and Bytewax's | ||
rights therein and thereto than the provisions of this License | ||
Agreement; (iii) do not make any representations, warranties or | ||
covenants regarding the Software or on behalf of Bytewax; (iv) state | ||
that the Application incorporates the Software and that Bytewax owns | ||
all copyright and other intellectual property rights in and to the | ||
Software; (v) disclaim any and all warranties and liability on | ||
behalf of Bytewax to the maximum extent allowable under applicable | ||
law; and (vi) are presented to and accepted by the Application end | ||
user in a manner sufficient to create a binding legal agreement | ||
under applicable law. | ||
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8. The Software and Documentation are licensed, not sold. The Software | ||
and Documentation provided hereunder are the property of Bytewax or | ||
its third-party licensors. Bytewax shall retain all right, title and | ||
ownership interest and all worldwide patent, copyright, trade | ||
secret, trademark and other intellectual property rights and other | ||
proprietary rights in and to the Software and Documentation and any | ||
copies, derivative works, upgrades, updates, improvements and | ||
modifications thereof, in, regardless of the form or media in which, | ||
or on which, the original and any other copies, derivative works, | ||
upgrades, updates, improvements or modifications may exist. | ||
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9. You agree to pay all subscription fees for the Software for the | ||
applicable subscription term you select ("Subscription Term"), as | ||
set forth on our website. Each Subscription Term shall automatically | ||
renew for a Subscription Term of equal length until you cancel the | ||
subscription on or before the end of the then current Subscription | ||
Term, unless otherwise terminated in accordance with this License | ||
Agreement. You agree to provide a valid credit card or other | ||
approved payment mechanism for paying subscription fees and other | ||
charges. You authorize us to charge your credit card or other | ||
payment mechanism for any subscription fees and charges that you may | ||
incur in connection with your account or use of the Software. We | ||
reserve the right to change the fee structure and fees charged for | ||
the Software at any time. We will provide you with thirty days | ||
advance notice (which may be by email) of changes to the fee | ||
structure and fees. By continuing use of the Software following that | ||
thirty day notice period, you agree to the updated fee structure and | ||
fees. You acknowledge that if you object to the proposed change(s), | ||
your sole remedy is to cancel your subscription. All fees are | ||
exclusive of any taxes required by applicable law, and you agree to | ||
pay or reimburse Bytewax for any all taxes relating to this License | ||
Agreement, other than taxes based on Bytewax's net income. | ||
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10. If you breach any provision of this License Agreement or cancel your | ||
subscription, this License Agreement (including all of your rights | ||
and licenses with respect to the Software and Documentation) shall | ||
immediately terminate without further notice from or action by | ||
Bytewax. Bytewax may decline to renew your subscription and | ||
terminate this License Agreement at the end of the Subscription Term | ||
for any or no reason upon notice (including by email) to you. Upon | ||
termination or expiration of this License Agreement, you agree to | ||
cease all use of the Software and Documentation (including by | ||
removing it from your Application) and to delete all copies thereof | ||
in your possession or control. The provisions of Sections 4, 5, 6, | ||
8, 9 (with respect to accrued but unpaid fees), 11 through 22 and | ||
this Section 10 shall survive any termination or expiration of this | ||
Agreement according to their terms. | ||
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11. You agree that Bytewax may state in the public domain that you are a | ||
user of the Software, and may include references to and screenshots | ||
of your Applications in Bytewax's marketing and publicity materials. | ||
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12. THE SOFTWARE AND DOCUMENTATION ARE FURNISHED "AS IS". BYTEWAX MAKES | ||
NO WARRANTIES, WHETHER EXPRESS OR IMPLIED WITH RESPECT TO THE | ||
SOFTWARE AND THE DOCUMENTATION, INCLUDING WITH RESPECT TO THEIR | ||
QUALITY, PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS | ||
FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND | ||
PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION IS WITH YOU. BYTEWAX | ||
HAS NO OBLIGATION TO PROVIDE ANY SUPPORT OR ASSISTANCE RELATING TO | ||
YOUR USE OF THE SOFTWARE. | ||
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13. IN NO EVENT SHALL BYTEWAX BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, | ||
SPECIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS | ||
LICENSE AGREEMENT OR YOUR USE OF THE SOFTWARE, EVEN IF BYTEWAX HAS | ||
BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE AND | ||
REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL BYTEWAX 'S | ||
AGGREGATE LIABILITY TO YOU IN RELATION TO THIS LICENSE AGREEMENT | ||
EXCEED FEES PAID BY YOU HEREUNDER DURING THE SIX MONTH PERIOD | ||
PRECEDING THE DATE OF THE CLAIM. THE FOREGOING LIMITATIONS OF | ||
LIABILITY AND EXCLUSIONS OF CERTAIN DAMAGES SHALL APPLY REGARDLESS | ||
OF THE EXISTENCE OF MULTIPLE CLAIMS OR THE THEORY OF LIABILITY, AND | ||
REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. | ||
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14. You agree to indemnify and hold Bytewax and its affiliated | ||
companies, and each of their directors, officers, employees, | ||
contractors, suppliers and partners, harmless from any claims, | ||
losses, damages, liabilities, costs and expenses, including | ||
attorney's fees, arising out of or relating to your use or misuse of | ||
the Software (including without limitation your commercialization of | ||
any Application), breach of this Agreement or violation of the | ||
rights of any other person or entity, except solely to the extent | ||
any of the foregoing arise out of the willful misconduct or gross | ||
negligence of Bytewax or an IP Claim for which Bytewax is obligated | ||
under Section 15 below. Bytewax reserves the right, at your expense, | ||
to assume the exclusive defense and control of any matter for which | ||
you are required to indemnify the Bytewax and you agree to cooperate | ||
with Bytewax's defense of these claims. | ||
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15. Subject to the terms and conditions hereof, Bytewax agrees to, at | ||
its own expense, defend and/or settle any claim, action or suit | ||
brought by a third party against you alleging that Software | ||
infringes such third party's intellectual property rights (an "IP | ||
Claim"), and Bytewax will pay those amounts finally awarded by a | ||
court of competent jurisdiction against the Company Indemnitees, or | ||
payable pursuant to a settlement agreed to by Bytewax with respect | ||
to the IP Claim, provided that you promptly notify Bytewax in | ||
writing of the IP Claim, tender sole control of the defense and | ||
settlement thereof to Bytewax and provide Bytewax with all | ||
reasonably requested information and assistance in connection with | ||
the IP Claim. If Bytewax, in its sole discretion, believes an IP | ||
Claim or an adverse judgment in connection with an IP Claim is | ||
likely, then Bytewax may, at its option, (a) obtain a license from | ||
such third party claimant that allows you to continue the use of the | ||
Software, (b) modify the Software so as to be non-infringing, or (c) | ||
terminate this License Agreement. Bytewax will have no obligation or | ||
liability relating to any IP Claim that: (x) is based on | ||
modification or customization of the Software by you or any person | ||
or entity other than Bytewax; (y) is based on the combination or use | ||
of the Software (or any component of either) with any software, | ||
hardware, system, method, device or materials not provided by | ||
Bytewax; or (z) results from your use of the Software in a manner | ||
that is inconsistent with its intended use or is in breach of this | ||
Agreement. This Section 15 sets forth the entire liability of | ||
Bytewax and your sole and exclusive remedy in the event of any claim | ||
that the Software infringes any third party intellectual property | ||
right. | ||
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16. Bytewax may make modifications, deletions and/or additions to this | ||
License Agreement ("Changes") at any time. Changes will be | ||
effective: (i) thirty (30) days after Bytewax sends notice of the | ||
Changes to the e-mail address associated with your account; or (ii) | ||
when you opt-in or otherwise expressly agree to the Changes or a | ||
version of this License Agreement incorporating the Changes, | ||
whichever comes first. In addition, this License Agreement may be | ||
modified by an amendment signed by authorized representatives of you | ||
and Bytewax. This License Agreement may not be modified or amended | ||
other than as set forth in this Section 16. | ||
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17. To the extent that you are an agency or instrumentality of the U.S. | ||
government, the parties agree that the Software and Documentation | ||
are commercial computer software and commercial computer software | ||
documentation, respectively, and that your rights therein are as | ||
specified in this License Agreement, per FAR 12.212 and DEARS | ||
227.7202-3, as applicable, or in the case of NASA, subject to NFS | ||
1852.227-86. | ||
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18. You may not assign your rights under this License Agreement without | ||
the express prior consent of Bytewax. If you are a legal entity, any | ||
merger involving you, acquisition of all or substantially all of | ||
your assets or change of control shall be deemed an assignment of | ||
this Agreement for which prior written consent is required. Bytewax | ||
may freely assign this License Agreement. | ||
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19. The Software may be subject to export laws and regulations. You | ||
agree to comply with any United States and international export laws | ||
and regulations that may apply. | ||
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20. This License Agreement shall be governed by and construed in | ||
accordance with the laws of the state of California, without giving | ||
effect to any principles of conflicts of law. Any action arising out | ||
of or relating to this License Agreement shall be filed only in the | ||
state or federal courts of the Northern District of California and | ||
you and Bytewax hereby consent and submit to the personal | ||
jurisdiction of such courts for the purposes of litigating any such | ||
action. | ||
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21. Notwithstanding anything to the contrary, Bytewax may apply to any | ||
court of competent jurisdiction for injunctive or other equitable | ||
relief. | ||
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22. This License Agreement and the User Agreement for Bytewax is the | ||
complete and final agreement of the parties with respect to the | ||
Software and Documentation. If any part of this License Agreement is | ||
found to be void, unenforceable or invalid, that part will be deemed | ||
stricken and will not affect the validity of the other provisions. | ||
Failure by Bytewax to enforce any provision of this License | ||
Agreement will not be deemed a waiver of future enforcement of that | ||
or any other provision. |
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