The following provisions, terms and conditions (the “Master Terms”) govern the provision of a license to the Licensed Software and/or access to and use of the Hosted Software ordered in an Order Form to be provided or made available by Fiddler Labs, Inc. (“Fiddler”) to the entity identified in the applicable Order Form and agreeing to these Master Terms (“Customer”) (each of Fiddler and Customer, a “Party”). By entering into a physical or digital order form with Fiddler (each, a “Order Form”, and all Order Forms, together with these Master Terms and the relevant Addenda, the “Agreement”)), Customer and the individual submitting the Order Form or accepting the Master Terms on Customer’s behalf represent that: (i) Customer agrees to be bound by this Agreement; and (ii) such individual has the authority to enter into this Agreement on behalf of Customer, and to bind Customer to this Agreement. If Customer does not agree to be bound by this Agreement, Customer may not access and use the Hosted Software and/or Licensed Software, as applicable.
These Master Terms contain the general terms and conditions governing the general legal relationship between Fiddler and Customer relating to the mutual covenants and obligations of the Parties set forth in an addendum to this Agreement, if any, including, without limitation, Fiddler’s standard form of Hosted Services Addendum, On-Premise Addendum or Self-Hosted Services Addendum (each, an “Addendum”). Fiddler’s provision of licenses to its proprietary software (“Licensed Software”), or access to a hosted, online version of such software (“Hosted Software”), and the provision of services related to such licenses or services (“Hosted Services”), are subject to the terms and conditions contained in this Agreement and any applicable Addenda. However, Customer acknowledges and understands that these Master Terms do not, absent execution of such an Addendum, impose any obligation upon Fiddler to provide any such license, access or services.
ORDER OF PRECEDENCE
In the event of a conflict between these Master Terms and any Addendum, these Master Terms shall govern unless the provisions of the relevant Addendum explicitly state the Parties’ intention that the particular relevant portion of the Addendum should supersede these Master Terms.
FEES AND PAYMENTS
Customer acknowledges that Fiddler and its licensors own all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and other intellectual property rights (“Intellectual Property Rights”) in and to the Licensed Software and the Hosted Services (including all components thereof), and Fiddler expressly reserves all rights not expressly granted to Customer in this Agreement. Customer shall not engage in any act or omission that would impair Fiddler’s and/or its licensors’ Intellectual Property Rights in the Licensed Software, the Hosted Services and any other materials, information, processes or subject matter proprietary to Fiddler.
6.1 Representations and Warranties. Each Party represents and warrants to the other that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including terms relating to covenants not to compete and confidentiality obligations.
6.2 No Other Warranties. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THIS AGREEMENT (INCLUDING IN ANY ADDENDA HERETO), THE LICENSED SOFTWARE, HOSTED SERVICES, AND ANY OTHER MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY FIDDLER ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND FIDDLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY FIDDLER ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. FIDDLER DOES NOT WARRANT THAT THE LICENSED SOFTWARE, THE HOSTED SERVICES OR ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT FIDDLER’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CUSTOMER ONLY.
LIMITATION OF LIABILITY
8.1 Indemnification by Fiddler
8.2 Indemnification by Customer. Customer shall indemnify, hold harmless, and, at Fiddler’s option, defend Fiddler from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with Customer Indemnity Responsibilities, Customer’s breach of this Agreement, or any data, information or other content or materials provided to Fiddler by Customer under this Agreement. Fiddler agrees to give Customer (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as Customer may reasonably request, at Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Customer shall not settle any third-party claim against Fiddler unless such settlement completely and forever releases Fiddler with respect thereto or unless Fiddler provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Fiddler, Fiddler may participate in such defense at its own expense by counsel of its choice.
TERM AND TERMINATION
9.1 Agreement. This Agreement will begin on the date Customer accepts it and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with this Section 9(“Term”).
9.2 Termination for Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches this Agreement and thereafter (i) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within thirty (30) days after receiving written notice thereof; or (ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof.
9.3 Termination Upon Bankruptcy, Insolvency, Etc. Either Party may terminate this Agreement immediately upon written notice after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other Party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such other Party, which proceeding or petition has not been dismissed, vacated, or stayed within 30 days.
9.4 Termination of Individual Addenda. In addition to each Party’s rights under Sections 9.1 and 9.2, each Party may terminate any particular Addendum according to any provision therein permitting such termination, provided that this Agreement (including these Master Terms and any other Addenda) shall remain in full force and effect in accordance with its terms.
9.5 Accrued Obligations. Termination of this Agreement and/or any particular Addendum shall not release the Parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement and/or any applicable Addendum to survive termination. Notwithstanding the foregoing, the Party terminating this Agreement or any Addenda as permitted by any provision in this Section 9 shall incur no additional liability merely by virtue of such termination.
9.6 Cumulative Remedies. Termination of this Agreement and/or any applicable Addendum, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage occasioned thereby.
9.7 Effect of Termination. Upon any termination of this Agreement, each Party shall (i) immediately discontinue all use of the other Party’s Confidential Information; (ii) delete the other Party’s Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; (iii) shall return to the other Party or, at the other Party’s option, destroy, all copies of such other Party’s Confidential Information then in its possession; and (iv) shall promptly pay all amounts due and remaining payable hereunder.
9.8 Survival of Obligations. The provisions of Sections 3, 4, 5, 6.2, 7, 8, 9.5, 9.6, 9.7, 9.8 and 10, as well as Customer’s obligations to pay any amounts due and outstanding hereunder, shall survive termination or expiration of this Agreement.
10.1 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ITS RULES REGARDING CONFLICTS OF LAWS. CUSTOMER AGREES THAT ANY AND ALL CAUSES OF ACTION BETWEEN THE PARTIES ARISING FROM OR IN RELATION TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN THE STATE OF CALIFORNIA.
10.2 Arbitration. ANY CLAIM OR CONTROVERSY ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR ANY BREACH THEREOF BETWEEN THE PARTIES SHALL BE SUBMITTED TO FINAL AND BINDING ARBITRATION BEFORE JAMS IN THE STATE OF CALIFORNIA, COUNTY AND CITY OF SAN FRANCISCO, PURSUANT TO THE JAMS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. ALL PARTIES FURTHER AGREE THAT THE ARBITRATION SHALL BE CONDUCTED BEFORE A SINGLE ARBITRATOR WHO SHALL BE AN INDEPENDENT RETIRED CALIFORNIA OR FEDERAL JUDGE OR JUSTICE WHO CURRENTLY IS, OR WAS AT THE TIME OF RETIREMENT, IN GOOD STANDING. SUBJECT TO THE FOREGOING, THE ARBITRATOR SHALL BE SELECTED THROUGH THE PROCEDURE SET FORTH IN RULE 15, SUBSECTIONS (b) – (f) OF THE JAMS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. The Parties further agree that, upon application of the prevailing party, any Judge of the Superior Court of the State of California, for the County of San Francisco, may enter a judgment based on the final arbitration award issued by the JAMS arbitrator, and the Parties expressly agree to submit to the jurisdiction of this Court for such a purpose. THE PARTIES UNDERSTAND THAT BY AGREEMENT TO BINDING ARBITRATION THEY ARE GIVING UP THE RIGHTS THEY MAY OTHERWISE HAVE TO TRIAL BY A COURT OR A JURY AND ALL RIGHTS OF APPEAL, AND TO AN AWARD OF PUNITIVE OR EXEMPLARY DAMAGES.
10.3 Force Majeure. Fiddler shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Fiddler. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
10.4 Notices. All notices required by or relating to this Agreement shall be in writing and shall be sent by means of electronic mail, if to Customer, as set forth on the applicable Order Form, or if to Fiddler, at firstname.lastname@example.org. Customer hereby consents to receiving electronic communications from Fiddler relating to this Agreement. Customer agrees that any notices, agreements, disclosures, or other communications that Fiddler sends to Customer electronically will satisfy any legal communications requirements, including that such communications be in writing.
10.5 Publicity. Fiddler may publicly refer to Customer, including on Fiddler’s website and in sales presentations, as a Fiddler customer and may use Customer’s logo for such purposes. Customer hereby grants to Fiddler a limited, worldwide license to use Customer’s logo in conformance with Customer’s trademark usage guidelines and solely for the purposes of fulfilling its obligations or exercising its rights hereunder.
10.6 Assignment. Neither Party shall assign its rights or delegate its obligations under this Agreement without the other Party’s prior written consent, and, absent such consent, any purported assignment or delegation shall be null, void and of no effect. Notwithstanding the foregoing, either Party may assign this Agreement, without requiring such prior consent, in connection with a merger or sale of all or substantially all of its assets, provided that the assignee agrees in writing to assume the assignor’s obligations under this Agreement. This Agreement shall be binding upon and inure to the benefit of Fiddler and Customer and their successors and permitted assigns.
10.7 Independent Contractors. Customer and Fiddler acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.
10.8 Amendment. No amendment to this Agreement or any Addendum shall be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties.
10.9 Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of that right.
10.10 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
10.11 Causes of Action. No action arising from or related to this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued, except that an action for non-payment may be brought within two (2) years after the date such amount was due.
10.12 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
10.13 U.S. Government End-Users. Each of the components that constitute the Licensed Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and/or “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Licensed Software with only those rights set forth herein.
10.14 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement.
10.15 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
10.16 Entire Agreement. This Agreement (together with any Addenda) sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties shall be bound by any conditions, inducements or representations other than as expressly provided for herein.