Effective Date: April 13, 2016
These terms of service govern your use of and access to the cloud-based service and related application software for analyzing database traffic and advising on database scalability and performance (the "Service"). The Service is accessible through the AgilData software application that enables access to the Service ("Licensed Software") which is available for download on the AgilData website (the "AgilData Website"). Unless otherwise indicated, the term "Service" also includes the Licensed Software and the AgilData Website.
These terms are intended to form a binding contract between CodeFutures Corporation (dba "AgilData") ("AgilData") and you as the user of the Service, including the organization or entity on behalf of which you are acting, and all other individuals (or their agents) that use the Service on your behalf (collectively, "you" or "User").
2. USE OF LICENSED SOFTWARE AND THE SERVICE.
(a) License Grant. Subject to the terms and conditions of this Agreement, AgilData grants to User, the limited, nonexclusive, nontransferable, revocable right to use the Licensed Software, in object code form only (except as otherwise indicated below), solely to generate and upload Usage Data and access and use the Service for User's personal or internal business purposes, subject to the terms and conditions of this Agreement. User's access to the Service is subject to any Service-level restrictions posted on the AgilData Website from time-to-time. For purposes of this Agreement, the term "Licensed Software" includes any future versions of the Licensed Software or the related documentation that AgilData may, in its sole discretion, provide under this Agreement.
(b) Open Source Software. AgilData may release all or portions of the Licensed Software in source code form, which may include third party software code that is subject to "open source" or "free software" licenses (the "Open Source Software"). To the extent AgilData releases any part of the Licensed Software as Open Source Software, then such software is licensed under the terms of the GNU General Public License the terms of which can be found at http://www.gnu.org/licenses/gpl-3.0.en.html ("Open Source Terms") which terms are incorporated by reference in this Agreement, and your use of such source code is expressly made subject to those terms. Any third party Open Source Software is licensed under the terms of the applicable end-user license(s) that accompanies such Open Source Software and such terms govern in the event of any conflict with this Agreement. A listing of third party Open Source Software included within the Software and a copy of the applicable license terms for the Open Source Software is included with the Licensed Software documentation.
(c) Rights to Service IP. All right, title and interest in and to (i) the Licensed Software, (ii) the Service and all content, information or data included as part of the Service and all software and technology used to create Database Reports other than the Database Reports themselves, (the "Service Content"), (iii) the entire contents of the AgilData Website, and (iv) any and all enhancements, improvements, or innovations to any of the foregoing, regardless of whether created or conceived by User or its employees or agents (except to the extent otherwise provided in the Open Source Terms), including all intellectual property rights in the foregoing belong exclusively to AgilData. Except for the limited use rights provided in this Agreement, no licenses or other rights are granted to User by AgilData by implication, estoppel or otherwise.
3. USE RESTRICTIONS AND USER CONDUCT POLICIES.
(a) Restrictions on Use. User shall not, and shall not authorize or enable any third party to,
(i) reverse engineer, decompile, or disassemble the Licensed Software or any other component of the Service or otherwise attempt to discover any source code of the Licensed Software or such Service components other than any Open Source Software (if any);
(ii) rent, lease, loan, resell, transfer, sublicense, or distribute the Licensed Software, the Service Content or any other component of the Service or documentation to any third party or authorize any third party to do so;
(iii) use any component of the Service, including the Licensed Software or Service Content in order to build or operate any product or service which is made available to any third party;
(iv) transmit any viruses, worms, Trojan horses or any other software or items of a destructive nature;
(v) except as permitted under the Open Source Terms, modify the Licensed Software or any portion thereof or copy any features, functions, or interfaces included within or accessible through the Service, including the Service Content; or
(vi) use the Services or the Licensed Software in any manner that exceeds the scope of the licenses granted under Section 2(a) of this Agreement or the Open Source Terms.
(b) Protection of Account Information. User must use commercially reasonable efforts to prevent unauthorized access to the Service. User is responsible for all activities that occur under User's Accounts. User is responsible for maintaining the security and confidentiality of all User usernames, passwords and other Account access information. User agrees to notify AgilData promptly of any unauthorized use of any Service username or password or Account access information or any other known or suspected breach of security.
4. USAGE DATA AND DATABASE REPORTS. All Usage Data generated through use of the Licensed Software and the Database Reports generated through the Service will remain the sole property of User to the full extent provided by law, subject to the licenses granted to AgilData herein. Subject to the terms and conditions of this Agreement, User grants to AgilData a non-exclusive license to use, copy, store, transmit and display Usage Data to the extent reasonably necessary to provide and maintain the Service. AgilData may aggregate anonymous statistical data regarding use and functioning of the Service, including information contained in User's Usage Data and/or Database Reports. Such aggregated statistical data will be the sole property of AgilData and may be used for any purpose not prohibited by law.
5. SUBSCRIPTION FEES. As of the effective date of this Agreement, the Services and access to the Licensed Software is provided without charge to the User.
6. TERM AND TERMINATION OF AGREEMENT. The term of this Agreement shall commence on the date upon which your Account was established and shall continue in force thereafter unless terminated as provided herein. You may cancel your Account upon written notice to AgilData; and AgilData may terminate or suspend the Service at any time upon notice to you. You agree that that AgilData will not be liable for any termination of the Account or access to the Service. Upon the termination of this Agreement for any reason (a) all license rights granted to User will automatically terminate; (b) you must immediately delete the Licensed Software and copies thereof in its possession; and (c) AgilData will delete all Usage Data and Database Reports in its possession but may retain any aggregated data described in Section 4. Sections 4 and 7, 8, 9, 10 and 12 survive termination of this Agreement for any reason.
8. NO WARRANTY OR SERVICE OBLIGATION. User expressly understands and agrees that AgilData makes no warranties whatsoever as to the operational performance of the Licensed Software, the Service or the content and usefulness of the Database Reports. AgilData is providing the Licensed Software and the Service to User "AS IS" without warranty of any kind, and AgilData will have no responsibility to provide any maintenance or support services with respect to the Licensed Software or the Service. AgilData expressly disclaims any and all warranties, express or implied, including but not limited to any implied warranties of merchantability or fitness for a particular purpose or noninfringement, as well as any warranties alleged to have arisen from custom, usage, or past dealings between the parties. Without limiting the generality of the foregoing, AgilData makes no warranty that the Licensed Software or the Service will function with User's Database Systems or that the Licensed Software, the Service or access thereto or the Database Reports will be error free, complete, accurate, uninterrupted or that the Licensed Software, the Service or the Database Reports will meet User's needs or requirements. AgilData disclaims any liability for loss of data or damage to User's Database Systems that may result from use of the Licensed Software, Service Content or Database Reports downloaded or otherwise accessed through the Service.
9. LIMITATION OF LIABILITY. To the maximum extent permitted by law, AgilData shall have no liability for damages of any kind (including without limitation direct, indirect, special, incidental, consequential, or tort damages, lost profits, or lost data) in connection with (a) the use or inability to use the Service, (b) unauthorized access to Usage Data, the Database Report or user's Account, (c) third party services or products accessible through the AgilData Website, (d) viruses or other damaging licensed software introduced into User's computer systems in connection with the downloading, use of or access to the Licensed Software or the Service, or (e) any other matter arising from this Agreement or use of the Service, even if AgilData has been advised or is aware of the possibility of such damages. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations of Sections 8 and 9 may not apply to you.
10. INDEMNIFICATION. User agrees to indemnify and hold harmless AgilData, and its affiliates, officers, agents, and employees, advertisers, licensors, and partners, from and against any third party claim arising from or in any way related to User's use of the Licensed Software, the Service or the Database Reports, or any violation or breach of this Agreement, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, AgilData will provide User with written notice of such claim, suit or action.
11. UPDATES AND MODIFICATIONS. AgilData may, at its sole discretion, release subsequent versions of the Licensed Software and require you to obtain and use the most current version. In addition, AgilData may modify this Agreement at any time with or without notice. User is encouraged to review the most updated version of this Agreement online at: <LINK>. If a subsequent version is unacceptable to you, you may cease your use of the Licensed Software and the Service at any time and terminate this Agreement. If you continue to use Licensed Software and the Service, you will be deemed to have accepted any modifications.
12. GENERAL PROVISIONS. The parties agree to the following provisions:
(a) User may not assign or transfer its rights or delegate its duties or obligations under this Agreement, whether by operation of law or otherwise, without AgilData's prior written consent. Any such assignment not expressly authorized by AgilData is void and of no force or effect.
(b) If a court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes any and all prior agreements and understandings, oral or written, and all other communications between the parties relating to its subject.
(c) This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, U.S.A., excluding its conflict of law rules. User agrees to exclusive jurisdiction in any state or federal court located in Denver, Colorado for any and all claims or proceedings brought by you relating to this Agreement, and User consents to the jurisdiction of such courts in connection with such legal or equitable action. Notwithstanding the foregoing, AgilData may commence and prosecute any legal or equitable action relating to the use of the Service or to enforce its rights under this Agreement in any other court of competent jurisdiction (state, federal or foreign). User acknowledges that a violation of this Agreement may cause irreparable harm to AgilData for which monetary damages would be inadequate, and agrees that, in addition to any other remedies provided by law, AgilData shall be entitled to seek injunctive relief against any such violation without having to post bond.
(d) User may not use or otherwise export or re-export the Licensed Software except as authorized by United States law and the laws of the jurisdiction in which the Licensed Software was obtained. In particular, but without limitation, the Licensed Application and/or Service may not be exported or re-exported (i) into any U.S. embargoed countries, or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Licensed Software and/or Service, User represents and warrants that User is not located in any such country or is named on any such list. User also agrees not to use the Licensed Software and/or Service for any purposes prohibited by United States law.