Dhuma AMI License Agreement
- ACCEPTANCE. This Contract for an AMI subscription on the AWS Marketplace sets forth the terms and conditions upon which Information Security Corporation (“ISC”) will license its Software listed in the AWS Marketplace Contract Listing. The offer of the Software and Customer’s purchase of a subscription on the AWS Marketplace constitutes each Party’s acceptance of these License Terms and their entry into this Agreement. No other terms or conditions, whether in Customer’s purchase order or other form of acceptance, payment form or otherwise, will apply. ISC and Customer are sometimes hereinafter referred to collectively as the “Parties” and individually as a “Party”. Each Subscription is a separate Agreement between ISC and the Customer
- LICENSE. Subject to the terms and conditions set forth herein, ISC hereby grants to Customer a limited, non-exclusive, non-transferable license during the term of the Subscription to use the software identified in the AWS Marketplace Contract Listing in AMI format (the “AMI Software”) and to deploy, operate and use the AMI Software under Customer’s own AWS Services account on AWS Services infrastructure in accordance with the applicable AWS Contract Listing.
- HOSTING AND ACCESS. ISC shall be responsible for having the AMI Software hosted by the AWS Marketplace in a manner that allows each Authorized User to access and use the AMI Software and any available documentation. Pricing model will be metered pricing at the rate stated in the AWS Marketplace Contract Listing. Upon subscription, Customer will designate the AMI Software to which Customer desires access. The Customer shall be exclusively responsible for the supervision, management and control of its use of the AMI Software, including without limitation; (i) assuring proper machine configurations, audit controls and operating methods: (ii) establishing adequate backup plans; and (iii) implementing sufficient recovery procedures and checkpoints to satisfy its requirements as well as system restart and recovery in the event of a malfunction.
- INTERNAL USE. The AMI Software may be used only in the furtherance of the internal operations of the Customer or its wholly owned or majority owned subsidiaries. No AMI Software or AMI image or documentation ( collectively, the “Licensed Materials”) shall be accessed or used by persons other than Authorized Users.
With respect to subsidiaries that Customer allows to use any Licensed Materials: (a) Customer remains responsible for all obligations hereunder arising in connection with such subsidiary’s use of the Licensed Materials; and (b) Customer agrees to be directly liable for any act or omission by such subsidiary to the same degree as if the act or omission were performed by Customer such that a breach by subsidiary of the provisions of this Agreement will be deemed to be a breach by Customer. The performance of any act or omission under this Agreement by a subsidiary for, by or through Customer will be deemed the act or omission of Customer In no event shall the Licensed Software be used to process information by or for the benefit of third parties.
- HIGH-RISK ACTIVITIES. The Licensed Materials are not designed or developed for use in high-risk, hazardous environments requiring fail-safe performance, including but not limited to operation of aircraft systems, weapons systems, air traffic control or nuclear facilities. Customer acknowledges that it will not use any of the Licensed Materials for such purposes.
- MODIFICATIONS. ISC may, in its sole discretion, make any changes to any AMI Software that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of ISC’s products or services to its customers, (b) the competitive strength of, or market for, ISC’s products or services, (c) such Licensed Software’s efficiency or performance, or (ii) to comply with applicable law.
- TRADEMARK AND TRADE NAME. Any and all trademarks and trade names which ISC uses in connection with the AMI Software, shall remain the exclusive property of ISC or its licensors. This Agreement gives Customer no rights therein except for a limited license to reproduce trademarks and trade names in connection with copies authorized hereunder.
- PRICING AND PAYMENT. Payment for the AMI Software shall be as stated in the AWS Contract Listing. Pricing shall be metered unless otherwise agreement in writing by Customer and ISC.
- TAXES. Customer’s payment obligation includes any federal, state, county, local or other governmental taxes, duties, fees, or excise taxes, now or hereafter due and payable in connection with the production, storage, sale, transportation, licensing or use of the AMI Software including sales tax, value added tax or any similar tax. Any taxes imposed by federal, state or any municipal government or any amount in lieu thereof, including interest and penalties thereon, paid or payable at any time by ISC in connection with the License, exclusive of taxes based on net income, shall be borne by Customer.
- NO TRANSFER OF TITLE. It is expressly understood and agreed that no title to, or ownership of, the Licensed Materials in any form or format or any related documentation, or any part thereof, is transferred to Customer or any end user.
- COPYING. Customer may make a reasonable number of copies of the AMI Software documentation. Except as otherwise expressly permitted herein, the Licensed Materials may not be copied, modified or reproduced in any way. Customer agrees to notify ISC promptly of any circumstances Customer has knowledge of relating to any unauthorized use or copying of any Licensed Materials by any person or entity not authorized to do so.
- RESTRICTIONS ON USE. Customer agrees, as a condition of the license granted herein, to (i) maintain appropriate records of the number and locations accessing the AMI Software and deliver such information to ISC from time to time upon request by ISC; and (ii) include all ISC proprietary rights notices on all such copies in the same manner as such notices appear on the original copy of the Licensed Software provided by ISC. Customer acknowledges that the existence of any copyright notice will not be construed as an admission or presumption that the Confidential Information (as defined in Paragraph 30 below) has been published.
Except as expressly permitted by this Agreement, Customer shall not, directly or indirectly, without the express, prior written consent of ISC: (i) use or permit the use of, reproduce or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, or transfer the Licensed Materials, any portion thereof, or any of Customer’s rights thereto (as granted by this Agreement); (ii) merge any AMI Software or any portion thereof with any other program or materials; (iii) reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of any AMI Software or any other compiled software provided or made available by ISC hereunder; (iv) adapt, translate, localize, port, or otherwise modify any AMI Software or any other compiled software provided or made available by ISC hereunder or make an derivative works therefrom; (v) remove, obliterate, or cancel from view any copyright, trademark, or other proprietary or confidentiality notice or legend appearing on or in the Service or any other materials provided or made available by ISC hereunder; and (vi) knowingly permit any other person or entity to engage in any of the foregoing conduct.
- RESTRICTED RIGHTS. The Licensed Software is commercial software developed exclusively at private expense and is licensed on the terms stated in this License Agreement. In no event shall those rights granted to any U.S. Government customer be greater than restricted rights as defined in DFARS Section 252.227-7014 and FAR Section 52.227-14(a). ISC’s standard marking procedures regarding the protection of technical data and licensed computer software shall be acceptable.
- EXPORT RESTRICTIONS. Customer agrees to comply with all applicable laws and regulations relating to the Licensed Materials, including without limitation all export and import laws and regulations. Each Party certifies that it and its personnel are not on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s list of Denied Persons. Neither Party will export, re-export, ship, or otherwise transfer the Licensed Materials, Services or data of the other to any country subject to an embargo or other sanction by the United States.
- PERFORMANCE WARRANTY. ISC warrants that during the Subscription period, the Licensed Software will perform substantially as described in the documentation. If Customer should determine during the Subscription period that the Licensed Software fails to perform substantially in such a manner, Customer shall immediately notify ISC in writing, identifying the defect. If ISC can reproduce the defect it may, at its option, either repair same or refund any Subscription fees prepaid by Customer prorated for the unused portion of the Subscription Such repair or replacement shall be Customer’s sole and exclusive remedy. In the event ISC does not or elects not to repair any defect in the AMI Software, Customer as its sole remedy may terminate the Subscription and received the prorated portion of any prepaid Subscription fee. Violation of Section 12, “Restrictions on Use” or Section 21, “Exclusions” will void all warranties relating to the AMI Software.
- LIMITATIONS. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NO EMPLOYEE OR AGENT OF ISC IS AUTHORIZED TO GIVE A GREATER OR DIFFERENT WARRANTY.
- WITHOUT LIMITING THE FOREGOING, CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR AUTHENTICITY, ACCURACY AND VALIDITY OF ANY AND ALL CREDENTIALS AND DIGITAL CERTIFICATES ISSUED, ADMINISTERED OR RELIED UPON BY IT OR ANYONE USING THE LICENSED MATERIALS. ISC BEARS NO RESPONSIBILITY FOR THE VALIDITY OR ACCURACY OF ANY CREDENTIAL OR DIGITAL CERTIFICATE, OR FOR THE SECURITY OR INTEGRITY OF ANY TRANSACTION OR COMMUNICATION AUTHENTICATED BY A DIGITAL CERTIFICATE. CUSTOMER, AT ITS OWN EXPENSE, WILL DEFEND AND INDEMNIFY ISC AGAINST ANY ACTION BROUGHT AGAINST ISC BASED ON A CLAIM THAT ANY CERTIFICATE IS INACCURATE, INVALID, EXPIRED OR DOES NOT PROPERLY REPRESENT THE IDENTITY OF ITS USER.
NOTWITHSTANDING THE FOREGOING, FEDERAL GOVERNMENT CUSTOMERS SHALL ONLY BE SUBJECT TO INDEMNIFICATION AS PER THE LANGUAGE OF FEDERAL ACQUISITION REGULATION (FAR)52.232-39 “UNENFORCEABILITY OF UNAUTHORIZED OBLIGATIONS” (DATED JUNE 2013) ALLOWS. FAR CLAUSE 52.232-39 IS AS FOLLOWS:
(A) EXCEPT AS STATED IN PARAGRAPH (B) OF THIS CLAUSE, WHEN ANY SUPPLY OR SERVICE ACQUIRED UNDER THIS CONTRACT IS SUBJECT TO ANY END USER LICENSE AGREEMENT (EULA), TERMS OF SERVICE (TOS), OR SIMILAR LEGAL INSTRUMENT OR AGREEMENT, THAT INCLUDES ANY CLAUSE REQUIRING THE GOVERNMENT TO INDEMNIFY THE CONTRACTOR OR ANY PERSON OR ENTITY FOR DAMAGES, COSTS, FEES, OR ANY OTHER LOSS OR LIABILITY THAT WOULD CREATE AN ANTI-DEFICIENCY ACT VIOLATION, (31 U.S.C. 1341), THE FOLLOWING SHALL GOVERN:
(1) ANY SUCH CLAUSE IS UNENFORCEABLE AGAINST THE GOVERNMENT.
(2) NEITHER THE GOVERNMENT NOR ANY GOVERNMENT AUTHORIZED END USER SHALL BE DEEMED TO HAVE AGREED TO SUCH CLAUSE BY VIRTUE OF IT APPEARING IN THE EULA, TOS, OR SIMILAR LEGAL INSTRUMENT OR AGREEMENT. IF THE EULA, TOS, OR SIMILAR LEGAL INSTRUMENT OR AGREEMENT IS INVOKED THROUGH AN “I AGREE” CLICK BOX OR OTHER COMPARABLE MECHANISM (E.G., “CLICK-WRAP” OR “BROWSE-WRAP” AGREEMENTS), EXECUTION DOES NOT BIND THE GOVERNMENT OR ANY GOVERNMENT AUTHORIZED END USER TO SUCH CLAUSE.
(3) ANY SUCH CLAUSE IS DEEMED TO BE STRICKEN FROM THE EULA, TOS, OR SIMILAR LEGAL INSTRUMENT OR AGREEMENT.
(B) PARAGRAPH (A) OF THIS CLAUSE DOES NOT APPLY TO INDEMNIFICATION BY THE GOVERNMENT THAT IS EXPRESSLY AUTHORIZED BY STATUTE AND SPECIFICALLY AUTHORIZED UNDER APPLICABLE AGENCY REGULATIONS AND PROCEDURES.
- INFRINGEMENT WARRANTY. ISC warrants that (i) it may lawfully grant the rights granted herein; and (ii) neither the Licensed Software or the use thereof within the scope of the license rights granted herein, infringes a patent or copyright or is claimed to be a trade secret of any person who has not consented to the granting of the License.
- INDEMNIFICATION. ISC, at its own expense, will defend and indemnify against any action brought against the Customer based on a claim that any AMI Software infringed a United States patent, copyright or trademark provided that (i) ISC shall be notified promptly in writing by the Customer of any notice of such claim; (ii) ISC shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; and (iii) the Customer shall permit ISC, at ISC’s option and expense, either to procure for the Customer the right to continue using the AMI Software or modify the AMI Software so that it becomes non-infringing.
- LIABILITY. ISC’S LIABILITY FOR DAMAGES TO THE CUSTOMER FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE LICENSE FEES PAID BY THE CUSTOMER HEREUNDER WITH RESPECT TO THE AFFECTED AMI SOFTWARE. IN NO EVENT WILL ISC BE LIABLE FOR ANY LOST PROFITS, GOODWILL, OR OTHER CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES SUFFERED BY THE CUSTOMER IN CONNECTION WITH OR ARISING FROM THE PERFORMANCE OF THE AMI SOFTWARE, EVEN IF ISC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM AGAINST THE CUSTOMER BY ANY OTHER PARTY.
- EXCLUSIONS. The warranties in this License Agreement shall not apply if (i) the Licensed Materials were altered, modified or converted by Customer or other third party (other than a customer-configurable feature of the AMI Software; (ii) Customer’s computer(s) malfunctioned and the malfunction caused the defect; (iii) use of the Software in combination with third-party equipment or software not provided or made accessible by ISC or contemplated by the AWS Contract Listing or Documentation; or (iv) use by Customer of AMI Software in conflict with the documentation, to the extent that such nonconformity would not have occurred absent such use or modification by Customer.
- COMPLIANCE WITH LAWS. Each Party represents and warrants that it will comply with all applicable international, national, state and local laws, ordinances, rules, regulations and orders, as amended from time to time (“Laws”) applicable to such Party in its performance under this Agreement.
- POWER AND AUTHORITY. Each Party represents and warrants that: (a) it has full power and authority to enter in and perform this Agreement and that the execution and delivery of this Agreement has been duly authorized; and (b) this Agreement and such Party’s performance hereunder will not breach any other contract for AWS Marketplace agreement to which the Party is a party or is bound or violate any obligation owed by such Party to any third party.
- TERM. This Agreement will continue in full force and effect until conclusion of the Subscription, unless terminated earlier by either Party as provided by this Agreement.
- CUSTOMER TERMINATION FOR CONVENIENCE. Customer may terminate the Subscription or this Agreement without cause at any time upon notice to ISC or using the termination or cancellation functionality available through the AWS Services. Customer will pay for all Software usage up to the time of termination. If a Subscription with Entitlement Pricing, Customer will not be entitled to refund of fees nor relieved of any future payment obligations for any unused portion of the Subscription.
- TERMINATION FOR CAUSE. Either Party may terminate the Subscription or this Agreement if the other Party materially breaches this Agreement and does not cure the breach within fourteen (14) days following its receipt of written notice of the breach from the non-breaching Party.
- EFFECTS OF TERMINATION. Upon termination or expiration of the Subscription or this Agreement, Customer’s right to use the Software licensed under such Subscription will terminate, and Customer’s access to the AMI Software and Service provided under such Subscription may be disabled and discontinued. Termination or expiration of any Subscription purchased by Customer from ISC will not terminate or modify any other Subscription purchased by Customer from ISC.
- DUTIES UPON TERMINATION. Upon termination of this Agreement for any reason, the parties agree to continue their cooperation for up to 45 days in order to effect an orderly termination of their relationship. Customer agrees not to use, license or distribute additional copies of the AMI Software
- NON- SOLICITATION. The Parties agree that neither party shall solicit or hire the other party’s employees involved directly in the relationship established by this Agreement until one year has passed from the date the last goods or services were rendered by ISC to Customer.
- CONFIDENTIAL INFORMATION. ISC and Customer acknowledge that, in the course of dealings between the parties, Customer may acquire information about ISC, its business activities and operations, its technical information and trade secrets, of a highly confidential and proprietary nature. Customer acknowledges that all technical information relating to the Software including but not limited to routines, subroutines, source code and flow charts constitute confidential information of ISC. Customer shall hold such information in strict confidence and shall not use the information for its own purposes or reveal the information to any third party, except for any information which is: generally available to or known to the public; known to such party prior to the negotiations leading to this Agreement; independently developed by such party outside the scope of this Agreement; or lawfully disclosed by or to a third party or tribunal. It is expressly understood that ISC will not solicit or accept, receive or store, any confidential or proprietary information of Customer, its personnel or its users and that Customer will not deliver or disclose any such information to ISC.
- FORCE MAJEURE. Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting, directly or indirectly, from acts of God, civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, epidemics, pandemics, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation or any causes beyond the reasonable control of such party. If a Force Majeure Event continues for more than 14 days for any Subscription with Entitlement Pricing, Customer may cancel the unperformed portion of the Subscription and receive a pro rata refund of any fees prepaid by Customer to ISC for such unperformed portion.
- SURVIVAL. Provisions of this Agreement that may reasonably be interpreted or construed as surviving expiration or termination, including but not limited to Section 28 “Duties Upon Termination”, 29 “Non-Solicitation”, 30 “Confidential Information” will survive the expiration or termination of this Agreement for any reason; but the nonuse and nondisclosure obligations of Section 6 will expire five years following the expiration or termination of this Agreement, except with respect to, and for as long as, any Confidential Information constitutes a trade secret.
- ENTIRE AGREEMENT. This Agreement, including any Schedules attached hereto, if any, the AWS Marketplace Contract Listing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, negotiations, representations, commitments, writings and all other communications between the parties, both oral and written. This Agreement may not be changed or modified except by an instrument in writing signed by a duly authorized representative of each of the parties. The terms of this Agreement shall prevail in the event that there shall be any variance with the terms and conditions of any purchase order or any other such document submitted by Customer.
- NOTICE. Any notice required to be given by either party to the other shall be deemed given if in writing and actually delivered or deposited in the United States mail in registered or certified form, return receipt requested, postage prepaid, or sent by overnight courier, addressed to the party to whom notice is being given at the address of such party set forth above or to such other address to which the sending party has been directed to send notices by the addressee.
- ASSIGNMENT. This Agreement is not assignable by either party hereto without the consent of the other, except that ISC may assign it to a successor in interest to its business. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors.
- SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.
- RELATIONSHIP OF PARTIES. The relationship of the Parties will be that of independent contractors, and nothing contained in this Agreement will create or imply an agency relationship between Customer and ISC, nor will this Agreement be deemed to constitute a joint venture or partnership or the relationship of employer and employee between Customer and ISC. Each Party assumes sole and full responsibility for its acts and the acts of its Personnel. Neither Party will have the authority to make commitments or enter into contracts on behalf of, bind, or otherwise oblige the other Party.
- NO THIRD-PARTY BENEFICIARIES. Nothing express or implied in this Agreement is intended to confer, nor will anything herein confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations or liabilities whatsoever
- RELATIONSHIP OF PARTIES. The relationship of the Parties will be that of independent contractors, and nothing contained in this Agreement will create or imply an agency relationship between Customer and ISC, nor will this Agreement be deemed to constitute a joint venture or partnership or the relationship of employer and employee between Customer and ISC. Each Party assumes sole and full responsibility for its acts and the acts of its personnel. Neither Party will have the authority to make commitments or enter into contracts on behalf of, bind, or otherwise oblige the other Party.
- GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the State of Illinois giving no effect to its conflicts of laws provisions. The Parties agree that any and all proceedings shall be held in the federal or state courts of Illinois. Each party hereby consents to the jurisdiction of such courts. The U.N. Convention on the International Sale of Goods shall have no application to this Agreement.
- HEADINGS. The headings herein are for convenience of reference and shall have no effect on the interpretation of the provisions hereof.
- WAIVER. No waiver by any party of any breach of any provision hereof shall constitute a waiver of any other breach of that or any other provision hereof.
43.1 “AMI Software” means the ISC Software listing in the AWS Marketplace Contract Listing.
43.2 “Subscription” means a subscription ordered by Customer in the AWS Marketplace and fulfilled by ISC for licensing and provision of AMI Software as stated in the AWS Marketplace Contract Listing.
43.4 “Authorized User” means personnel of Customers or its subsidiaries whose use is authorized by Customer and metered.
43.5 “AWS Marketplace Contract Listing” means the offer by ISC to license Software for a specific use, subject to the terms of this Agreement and the Customer’s AWS Customer Agreement.
43.6 “Licensed Materials” means the AMI Software, AMI image and related documentation.