Supervisely OÜ a company incorporated under the laws of Estonia with its business at Tallinn, Kesklinna linnaosa, Ahtri tn 12, hereinafter referred to as Licensor, and end-user of Licensor's Products and Services, hereinafter referred to as You or Licensee, and hereinafter jointly referred to as the Parties.
Licensor wishes to grant a non-exclusive non-transferable license to Licensee in respect of some of its computer programs.
The Parties hereby entered into this Agreement and agreed as follows:
1. The "Agreement Effective Date" is the earlier of the date that you either you sign and accept to the terms and conditions of this Agreement, or that you first place an order for Software or Services.
"Documentation" means any manuals, documentation and other supporting materials related to the Software that we generally provide to you. Documentation is considered part of the Software.
"Fees" means both: (i) the fees you're required to pay us to use the Software during the applicable License Term; and (ii) the fees you're required to pay us for any Services you engage us to perform, as such fees are reflected on each applicable SOW.
"License Server" means a server utilized by the Software's access control mechanism that allows you to use the Software during the License Term.
"License Term" means one (1) year and commencing on the Effective Date set forth in agreement.
"Seats" mean the number of User accounts for the Software that you're authorized to create. Only one User can use a Seat at a time. Multiple Users aren't allowed to use the same Seat.
"Services" means support, training, consulting, or implementation services that we provide to you pursuant to a mutually executed Statement of Work.
"Software" (Supervisely platform) means the object-code/obfuscated source code version of our proprietary enterprise software application. Software includes all neural networks modules, any applicable Documentation, as well as any Updates to the Software that we provide you or that you can access under this Agreement.
"Statement of Work" or "SOW" means a mutually executed statement of work detailing the Services we'll perform for you, their price, and your related obligations (if any).
An "Update" is a Software release that we make generally available to our customers, along with any corresponding changes to Documentation. An Update may include, but is not limited to an error correction or bug fix.
A "User" is a single person or machine account that initiates the execution of the Software and/or interacts with or directs the Software in the performance of its functions. The number of Users shouldn't exceed the number of Seats you've licensed from us.
2. License Grant. Subject to your compliance with the terms of this Agreement (including, among other things, paying the Fees you owe us), we hereby grant you a non-exclusive, non-transferable, worldwide, royalty-free, limited-term license to install, execute, and use a single production instance of the Software for your internal business purposes during the applicable License Term, in accordance with the Documentation, and only for the number of Seats that you've requested and only for a functionality that you've requested. You can not make copies of the Software. You may not reverse engineer, decompile or disassemble the Software, or otherwise attempt to derive the source code for the Software.
3. Restrictions. The Licensee has no right to sell the Software. The Parties agree that the Licensor has the title and interest in and to the Software, and any intellectual property rights associated with it. The Licensor reserve all rights in and to the Software that are not expressly granted to the Licensee under this Agreement. The Licensee agrees not to, nor permit nor authorize any third party to: (i) sublicense, sell, rent, lease, transfer, assign, or distribute the Software to third parties; (ii) host the Software for the benefit of third parties; (iii) disclose or permit any third party to access the Software; (iv) hack or modify the License Server, or try to avoid or change any license registration process we may implement; (v) modify or create derivative works of the Software, or merge the Software with other software; (vi) disassemble, decompile, bypass any code obfuscation, or otherwise reverse engineer the Software or attempt to derive any of its source code, in whole or in part (vii) modify, obscure, or delete any proprietary rights notices included in or on the Software or Documentation; (viii) otherwise use or copy the Software in a manner not expressly permitted by this Agreement; or (ix) use any Software that we license to you beyond its applicable License Term. Software should be installed only on a single computer (server).
4. Seats. The Parties agreed that the only one User can use a Seat at a time. Multiple Users aren't allowed to use the same Seat, and only one human being can be associated with a particular User account. If the Licensee want to swap out, delete, or suspend a User, the Licensee can do that, and then assign a new User to the open Seat. If the Licensee find that it needs more Seats, the Licensee should submit the new request to the Licensor, and pay for the additional Seats. If and when the Licensee adds additional Seats to the Licensee's subscription, the Licensee shall pay Fees for those seats at the price, prorated for the balance of the applicable License Term. When the time comes to renew the Licensee's Seats for another period License Term, the Licensor shall invoice the Licensee for all of the Seats at once, at the price. The Licensor reserves the right to change the prices at any time, but the new prices will not come into force renewal of the Licensee's license for another period. The Licensee agree that any orders that it will make (or that the Licensee authorizes the Licensor to make on behalf of the Licensee) for additional Seats during the term of this Agreement will be governed by this Agreement.
5. Verification. From time to time, the Licensor may have reason to make sure that the Licensee do not using extra Seats without paying for them. The Licensee agrees to cooperate with the Licensor to achieve that goal. The Licensee agrees to promptly give the Licensor any usage files and reports that the Licensee's instance of the Software generates, if and when the Licensor asks for them. If the Licensee is using more Seats than it have paid for, the Licensee agrees to pay the Licensor the Fees for the additional using Seats, starting from the date the Licensee began using each Seat.
6. Delivery. Promptly after the Agreement Effective Date, the Licensor will make the Software and the License Server available for the Licensee to download on a secure, password-protected website. The Licensee is responsible for maintaining the confidentiality of all of usernames and passwords used in the Software. The Licensee agrees to be responsible for any activity that takes place using the Licensee's usernames and passwords.
7. Services. The Licensor may provide the Services to the Licensee. Should the Licensee require the Services, it shall submit a respective request for the Services to the Licensor. The Parties shall develop a SOW that describes the date, time, location, and objectives of the Services, as well as the price for these Services. Each SOW will be binding once the Parties sign it, The Licensee agrees that any Services that Licensor provides (whether pursuant to a SOW or not) will be governed exclusively by the terms of this Agreement. In the event of any conflict between the terms of this Agreement and any SOW, the terms of this Agreement shall prevail. Provided the Licensee complies with the terms of this Agreement (including, among other things, paying the Fees), the Licensor shall perform the Services described in each SOW, according to the timeframes set forth in that SOW. The Licensor reserves the right to engage subcontractors for performance of the services provided that the Licensor remains responsible for all of acts and omissions of such subcontractors. Engaging subcontractors for provision of the Services is subject to prior approval with the Licensee. The Parties agree that the Licensor will retain all right, title and interest in and to anything the Licensor uses or develops in connection with performing Services, including, among other things, software programs, tools, specifications, ideas, concepts, inventions, processes, techniques, and know-how. To the extent the Licensor delivers anything to the Licensee during the course of performing Services, the Licensor grants to the Licensee a non-exclusive, non-transferable, worldwide, royalty-free, limited-term license to use those deliverables during the term of this Agreement, solely in conjunction with use of the Software.
8. Term and Termination.
8.1 Term. This Agreement starts on the Agreement Effective Date and will continue in effect for the License Term (the "Initial Term").
8.2 Termination for Convenience; Automatic Expiration. Either of the Parties can terminate this Agreement at the end of the Initial Term by providing written notice to the other party at least five (5) days before. This Agreement will automatically expire without the requirement of notice if, at the end of the Initial Term.
8.3 Termination for Breach. The Licensor can terminate this Agreement immediately upon notice to the Licensee if the Licensee breaches any part of it.
8.4 Effect of Termination. When this Agreement terminates or expires: (i) the License Term for any Software in possession of the Licensee will immediately end, and any outstanding SOWs will immediately terminate; (ii) the Licensee will no longer have the right to use the Software, and any licenses the Licensor granted to the Licensee under this Agreement will automatically cease to exist as of the date of termination/expiration; (iii) the Licensee shall destroy all copies of the Software in its' possession or control, and certify about that to the Licensor in writing; and (iv) the Parties will promptly return to the other (or, if the other party requests it, destroy) all Confidential Information belonging to the other.
9.1 Exclusions. The Parties appreciate that support for the Software shall be provided by the Licensor to the Licensee for a Fee. The Licensor will use reasonable efforts to correct any material, reproducible errors in the Software that the Licensee will require to correct. The Licensor will not be responsible for supporting the Licensee in the circumstances, which include, among other things: (i) someone (other than the Licensor) modifying the Software; (ii) changing operating system or environment of the Licensee in a way that adversely affects the Software or its performance; (iii) using the Software in a manner for which it was not designed, or other than as authorized under this Agreement; or (iv) accident, negligence, or misuse of the Software. The Licensor is only required to support a given version of the Software within the License Term.
10. Payment. The Licensee agrees to pay the Fees to the Licensee in full, without deduction or setoff of any kind, in U.S. Dollars, within 30 days of the date of the invoice related to the applicable SOW. Amounts payable under this Agreement are nonrefundable, except as provided in Section 11.1. The Licensee is solely responsible for all taxes, fees, duties and governmental assessments that are imposed or become due in connection with the subject matter of this Agreement.
11. Limited Warranties
11.1 Limited Warranties. The Licensor offer you (and only you) the following limited warranties: (i) that the unmodified Software, at the time we make it available to The Licensee for download, will not contain or transmit any malware, viruses, or worms (otherwise known as computer code or other technology specifically designed to disrupt, disable, or harm your software, hardware, computer system, or network); (ii) that any Services the Licensor performs under this Agreement will be performed in a good and workmanlike manner, by appropriately qualified personnel. The Licensor does not warrant that the Software will be uninterrupted, or that the operation of the Software will be error-free.
11.2 Disclaimer. THE LIMITED WARRANTIES DESCRIBED ABOVE ARE THE ONLY WARRANTIES THE LICENSOR MAKES WITH RESPECT TO THE SOFTWARE, SERVICES AND TECHNICAL SUPPORT OF THE LICENSOR. THE LICENSOR DOES NOT GRANT ANY OTHER WARRANTIES, AND THE LICENSOR HEREBY SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
12. LIMITATION OF LIABILITY.
12.1 Waiver of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO THE LICENSEE OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE'VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 Limitation of Total Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSOR'S TOTAL CUMULATIVE LIABILITY TO THE LICENSEE OR ANY THIRD PARTY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES THE LICENSEE HAVE ACTUALLY PAID US DURING THE LICENSE TERM.
13.1 Definition of Confidential Information. For the purposes of this Agreement, "Confidential Information" means any business or technical information that either one of us discloses to the other, in writing, orally, or by any other means, and including things like computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. For the purposes of this Agreement, except as expressly set forth in Section 17.2 below, the source code of our Software will be deemed to be the Licensor's Confidential Information, regardless of whether it is marked as such.
13.2 Restrictions on Use and Disclosure. Neither of us will use the other party's Confidential Information, except as permitted under this Agreement. Each of us agrees to maintain in confidence and protect the other party's Confidential Information using at least the same degree of care as it use for its own information of a similar nature, but in all events at least a reasonable degree of care. The Parties agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other's Confidential Information, including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors (collectively, "Representatives") (i) with a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this Section 15, and (iii) who are informed of the nondisclosure obligations imposed by this Section 15. The foregoing obligations won't restrict either of the Parties from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable them to contest such order or requirement. The restrictions set forth in this Section 15 will survive the termination or expiration of this Agreement.
13.3 Exclusions. The restrictions set forth in Section 15.2 will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party who has a right to disclose it; (iii) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (iv) the receiving party independently develops without access to or use of the other party's Confidential Information.
14. Governing Law and Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the England and Wales, without giving effect to any principles of conflict of laws.
15.1 Assignment. The Licensee isn't allowed to assign or transfer any of its rights or obligations in this Agreement, in whole or in part, by operation of law or otherwise, without the Licensor prior written consent, and any attempt by the Licensee to do so without the Licensor consent will be null and void. The Licensor can assign this Agreement in its entirety, upon notice to the Licensee but without the requirement to obtain consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our business or assets.
15.2 Availability of Source Code. The Software includes and is distributed with certain open-source components whose licenses require the Licensor to make the source code for those components available. The source code for such components will be provided upon request.
15.3 Severability. In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to that provision. Any provision that can't be modified or reformed in this way will be deemed deleted, and the remaining provisions of this Agreement will continue in full force and effect.
15.4 Waiver. A party's obligations under this Agreement can only be waived in a writing signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.5 Force Majeure. The Licensor will be excused from performing under this Agreement to the extent that we're unable to perform due extraordinary causes beyond our reasonable control. That might include things like acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures.
15.6 Independent Contractors. The Parties are each independent contractors with respect to the subject matter of this Agreement. Nothing contained in this Agreement will be deemed or construed in any manner whatsoever to create joint venture, employment, agency, fiduciary, or other similar relationship between the Parties, and neither of the Parties can bind the other contractually.
15.7 Amendments; Entire Agreement. No modification, change, or amendment of this Agreement will be binding upon the parties, unless the Parties both agree to the change in a writing signed by each of our authorized representatives. This Agreement, including SOW, constitutes the entire agreement and understanding of the parties with respect to its subject matter, and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties with respect to its subject matter.
15.8 Referring to the Licensee. The Licensor may refer to the Licensee as to the customer for the purpose of promoting and marketing the Licensor's products and the Services. The Licensee agrees that Licensor may use the Licensee name and logo in its' advertising or marketing materials.