Software License
Terms
of Service
The
following Software License Terms of Service (“Agreement”) governs Subscriber’s
use of the software as a service provided by Agile Dragon Group LLC (“ADG”)
and identified in the Service Order which is an add-on tool to enhance Subscriber’s
Birst business intelligence software. This agreement is between ADG and the Subscriber
entity whose details are set out on the Service Order form (“Order”). By
signing the Order that describes the subscription fees, Subscriber accepts the
terms of this Agreement.
1. Definitions
1.1
“Agreement” means this User License
Agreement, as it may be amended from time to time, and the corresponding Order.
1.2
“Authorized User” means an
individual subscriber or the authorized employees of an organization with a
Birst license and subscription to the Service, who have been added to the
account as users or discovered by ADG while monitoring the user count.
1.3
“Confidential Information” means the
User Data (defined in Section 1.6) and any information, technical data, or
know-how considered proprietary or confidential by either party to this
Agreement including, but not limited to, either party’s research, services,
inventions, processes, specifications, designs, drawings, diagrams, concepts,
marketing, techniques, documentation, source code, personally identifiable
information, pricing information, procedures, business and marketing plans or
strategies, financial information, and business opportunities disclosed by
either party before or after the Effective Date of this Agreement, either
directly or indirectly in any form whatsoever, including in writing, orally,
machine-readable form or through access to either party’s premises.
1.4
“Service” means any software or
services provided by ADG, including but not limited to Dragon Grid.
1.5
“Subscriber” refers to the entity licensee
of the Service identified in the Order and any present or former agent,
representative, employee, and any entity or person who had authority to act on
your behalf.
1.6
“User Data” means Authorized User
data stored in Birst and used by the Service.
2. Use
of the Service
2.1
Subscriber is granted a
non-exclusive, non-transferable, limited license to access and use the Service
as an add-on to Subscriber’s Birst subscription. Authorized Users agree not to
modify, reverse engineer, adapt or otherwise tamper with the Service or modify
another website so as to falsely imply that it is
associated with the Service or ADG. Subscriber acknowledges and agrees that all
ownership, license, intellectual property and other rights and interests in and
to the Service shall remain solely with ADG.
2.2
ADG does not review the User Data
and ADG claims no intellectual property rights with respect to the User Data.
Authorized Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service,
or any portion of the Service.
2.3
ADG reserves the right at any time,
and from time to time, to modify or discontinue, temporarily or permanently,
any feature associated with the Service, with or without notice, except that
ADG shall provide Subscriber with 30-day’s notice of any modification that
materially reduces the functionality of the Service. Continued use of the
Service following any modification constitutes Subscriber’s acceptance of the
modification.
2.4
ADG reserves the right to
temporarily suspend access to the Service for operational purposes, including,
but not limited to, maintenance, repairs or
installation of upgrades, and will endeavor to provide no less than two
business day’s notice prior to any such suspension.
Such notice shall be provided to you in advance through by way of notification
within the Service, email or other notification method deemed appropriate by
ADG. Further, ADG shall endeavor to confine planned operational suspensions
with a best effort to minimize disruption to the Subscriber,
but reserves the ability to temporarily suspend operations without
notice at any time to complete necessary repairs.
2.5
ADG does not have access to and does
not store any User Data. All User Data is stored on Subscriber’s own instance
of Birst and User Data security is governed by the
Birst subscription.
2.6
Subscriber grants to ADG a
non-exclusive, royalty-free right during Subscriber’s use of the Service, to
use Subscriber’s User Data and any Confidential Information it may contain for
the sole purpose of the Service performing for Subscriber. Subscriber further
grants ADG the right to capture anonymized Service usage data to monitor,
maintain and improve the Service and monitor the user counts. Subscriber also consents to ADG communications
and marketing its products and services and offers to Subscriber.
3. Access
to the Service
3.1
Subscriber is only permitted to
access and use the Service if he/she is an Authorized User.
3.2
All access to and use of the Service
via mechanical, programmatic, robotic, scripted or any other automated means
not provided as part of the Service is strictly prohibited.
4. Confidentiality
4.1
Each party agrees to treat all
Confidential Information as confidential and not to use or disclose such
Confidential Information except as necessary to perform its obligations under
this Agreement.
4.2
If ADG is required by law to make
any disclosure of the Confidential Information that is prohibited or otherwise
constrained by this Agreement, then ADG will provide Subscriber with prompt
written notice (to the extent permitted by law) prior to such disclosure so
that the Subscriber may seek a protective order or other appropriate relief.
Subject to the foregoing sentence, ADG may furnish that portion (and only that
portion) of the Confidential Information that it is legally compelled or
otherwise legally required to disclose.
5. Payment,
Refunds, and Subscription Changes
5.1
Subscriber agrees to pay the
subscription fees in the amount and frequency detailed in the Order unless
otherwise increased pursuant to Section 5.2 below. All subscription fees are
exclusive of taxes and similar assessments. Subscriber is responsible for all
sales, use and excise taxes, and any other similar taxes, duties and charges of
any kind imposed by any federal, state or local
government or regulatory agency on any amounts payable by Subscriber under this
Agreement, other than taxes imposed on ADG’s income. In addition to subscription
fees, Subscriber understands that it may still incur charges incidental to
using the Service, for example, internet access, data roaming, and other data
transmission charges.
5.2
Subscribers with paid subscriptions
will begin being charged at the end of any applicable free trial period.
Subscriptions cancelled prior to the expiration of any trial period, will not
be charged. After the trial period ends, Subscribers will be charged as
detailed in the Order unless an audit of users identifies more concurrent users
in which case the additional users will be add and charged as Authorized Users.
All charges are final and non-refundable, including payments made by
Subscribers, setup fees, and other professional service charges.
5.3
No refunds or credits will be issued
for partial periods of service, upgrade/downgrade refunds, or refunds for
periods unused with an active subscription, including, but not limited to,
instances involving the removal of a Subscriber.
5.4
There are no charges for cancelling
a subscription and paid subscriptions which are cancelled prior to the end of
their current billing cycle will not be charged again in the following cycle.
5.5
The amount charged on the next
billing cycle will be automatically updated to reflect any changes to the
subscription, including upgrades or downgrades, and including the addition or
removal of discounts included for the purchase of suite services. Adding
subscription upgrades will trigger prorated charges in the current billing
cycle. Subscription changes, including downgrades, may result in loss of access
to User Data, features, or an increase or reduction in the amount of available
capacity for User Data provided by the Service.
5.6
All prices are subject to change
upon notice after the initial subscription period shown in the Order. Notice
may be by an email message, or in the form of an announcement on the Service.
6. Term
and Termination
6.1
This Agreement is effective once the
Order is signed. The Order will indicate
the initial term of the subscription and whether subscription fee payments will
be due annually or monthly.
6.2 Subscriber may terminate this Agreement
and cancel the subscription at any time by written notice to ADG by email or
visiting the Subscriber’s account management section.
6.3
ADG, in its sole discretion, has the
right to suspend or discontinue providing the Service to any Subscriber with
notice for actions that are in material violation of this Agreement and may
undermine the security of the Service. If Authorized Users use the Service to
materially violate this Agreement in a way that does not undermine the security
of the Service and ADG provides Subscriber with reasonable notice of the
violation, uses commercially reasonable efforts to discuss and resolve the
violation with Subscriber; and the violation is not resolved to ADG reasonable
satisfaction within 30 days of such notice, then ADG reserves the right to
suspend access to the Service.
7. Limitation
of Liability
7.1
Except for its obligations under
Section 4 above (“Confidentiality”) and Section 9 below (“Indemnification”),
ADG shall not be liable for and Subscriber waives the
right to claim any loss, injury, claim, liability or damage of any kind
resulting in any way from the Service provided to Subscriber by ADG.
7.2
SUBSCRIBER AGREES THAT THE LIABILITY
OF ADG ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT
EXCEED THE TOTAL AMOUNT RECEIVED BY ADG FOR THE SERVICE WITHIN THE THREE-MONTH
PERIOD BEFORE THE DATE THE CLAIM AROSE. SUBSCRIBER FURTHER AGREES THAT ADG IS
NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION,
ATTORNEY FEES) RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF RECOVERY
OR WHETHER THOSE DAMAGES ARE FORESEEABLE OR ADG HAD BEEN ADVISED OF THE
POSSIBILITY OF THOSE DAMAGES. THESE DISCLAIMERS ALLOCATE THE RISKS OF THIS
AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING
OFFERED BY ADG TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN
THE PARTIES.
7.3
Subscriber will solely be
responsible for any damage and/or loss of User Data.
8. Disclaimer
of Warranties
8.1
ADG DISCLAIMS ALL WARRANTIES,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE. THE SERVICE IS PROVIDED “AS IS” WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND.
8.2
ADG makes no warranty that the
Service will be error free. Nor does ADG make any warranty as to any results
that may be obtained from the use of the Service.
9. Indemnification
9.1
Subscriber agrees to indemnify and
hold harmless ADG, its manager, members, employees and
agents, from and against any claim, action, proceeding, loss, liability,
judgment, obligation, penalty, damage, cost or expense, including attorneys’
fees, which arise from or relate to: (a) Subscriber’s breach of this Agreement,
(b) Subscriber’s negligence or intentional misconduct; or (c) Subscriber’s use
or inability to use the Service. The ADG indemnitee will provide prompt notice
to Subscriber of any indemnifiable claim or loss and reasonably assist in the
defense. The indemnitee may participate in the defense of the claim, suit, or
proceeding, at its expense, with counsel of its choosing.
9.2
ADG agrees to indemnify and hold
harmless Subscriber, its officers, directors, employees and agents, from and
against any claim, action, proceeding, loss, liability, judgment, obligation,
penalty, damage, cost or expense, including attorneys’ fees, which arise from
or relate to any third-party claim against Subscriber alleging that the Service,
or use of the Service as contemplated in this Agreement, infringes its U.S.
copyright, patent, or a trademark of a third party or involves the
misappropriation of any trade secret of a third party. Subscriber will provide prompt notice to ADG
of any indemnifiable claim or loss and reasonably assist in the defense.
Subscriber may participate in the defense of the claim, suit, or proceeding, at
its expense, with counsel of its choosing.
9.3 ADG shall not be required to indemnify
Subscriber its indemnitees in the event of: (a) modification of the Service by
Subscriber in conflict with Subscriber’s obligations or as a result of any activity
prohibited by this Agreement to the extent that the infringement or
misappropriation would not have occurred but for such modification; (b) use of
the Service in combination with any other product or service not provided by
ADG to the extent that the infringement or misappropriation would not have
occurred but for such use; or (c) use of the Service in a manner not otherwise
contemplated by this Agreement to the extent that the infringement or
misappropriation would not have occurred but for such use.
10. Miscellaneous
10.1
Subscriber acknowledges and agrees
that ADG may use third party vendors and hosting partners to provide the
necessary hardware, software, networking, and technology required to run the
Service.
10
.2 The failure of either party to
enforce any provision of this Agreement shall not constitute or be construed as
a waiver of such provision or of the right to enforce it at a
later time.
10.3
This Agreement constitutes the entire
agreement between the Subscriber, its Authorized Users and ADG, and governs
Authorized Users use of the Service, superseding any prior agreements between
Authorized Users and ADG (including, but not limited to, any prior versions of
this agreement).
10.4 ADG reserves the right to amend this
Agreement. In the event of material changes to the Agreement, ADG will notify
Subscribers, by email, or by other reasonable means of these changes prior to
their enactment. Continued use of the Service by the Subscriber after
reasonable notice will be considered acceptance of any new terms.
10.5
Neither party may assign any of its
rights or obligations, whether by operation of law or otherwise, without the
prior written consent of the other party (which will not be unreasonably
withheld). However, either party may assign this Agreement in its entirety
without consent as part of a merger, acquisition, reorganization, or sale of
its assets where the assignee will be bound by this Agreement.
10.6
Governing Law and Venue. This
Agreement and your relationship with ADG shall be governed exclusively by, and
will be enforced, construed, and interpreted exclusively in accordance with,
the laws of the State of Illinois and shall be considered to have been made and
accepted in Illinois, without regard to its conflict of law provisions. All
disputes under this Agreement will be resolved by the Illinois courts nearest
ADG and Subscriber consents to the jurisdiction of and venue in such courts. In
any action or proceeding to enforce rights under this Agreement, the prevailing
party shall be entitled to recover costs and legal fees.
10.7 Notices.
The parties
will primarily communicate by email, however, any and all formal notices
required by this Agreement shall be in writing to the party’s email and street
address shown in the Order and shall be deemed delivered: (a) when personally
delivered to the party to whom it is addressed; (b) 1 business day after
placing with a national overnight carrier (e.g., FedEx, UPS); or (c) 5 business
days after deposit in the United States mail, first class, postage prepaid,
addressed to such party at the appropriate address as set forth in this
Agreement. Either party may change its
address by written notice of such change.
10.8 Promotional
Identification. Subscriber agrees that during the term of
this Agreement, ADG may publicly identify Subscriber as a ADG customer,
including using Subscriber’s logo.
Similarly, ADG grants Subscriber the right to publicly identify ADG as a
provider of services to Subscriber.
Neither party shall publicly disparage the other in any forum or media.