Terms of Services
Last updated: February 1, 2023
CASABASE SOFTWARE EXOINSIGHT SOFTWARE USAGE LICENSE AGREEMENT
IMPORTANT – READ THIS CAREFULLY BEFORE INSTALLING, USING OR ELECTRONICALLY ACCESSING THIS PROPRIETARY PRODUCT.
THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN CASABASE SOFTWARE LLC (“CASABASE SOFTWARE”) AND THE BUSINESS ENTITY LISTED ON THE SIGNATURE LINE BELOW (“CUSTOMER”) AS THE END USER OF THE CASABASE SOFTWARE PRODUCT ACCOMPANYING THIS AGREEMENT, WHICH INCLUDES: (i) THE OBJECT CODE VERSION OF THE SOFTWARE; (ii) ALL ASSOCIATED MEDIA, PRINTED MATERIALS AND DOCUMENTATION; AND (iii) ALL REPLACEMENTS, REPAIRS, SUBSTITUTIONS, MODIFICATIONS, UPDATES AND UPGRADES THERETO (COLLECTIVELY, THE “SOFTWARE”).
CUSTOMER IS ENTERING INTO THIS AGREEMENT TO USE THE SOFTWARE FOR CUSTOMER’S OWN BUSINESS PURPOSES. THE INDIVIDUAL SIGNING ON BEHALF OF CUSTOMER BELOW HAS THE AUTHORITY TO BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
CASABASE SOFTWARE IS WILLING TO LICENSE THE SOFTWARE TO CUSTOMER AND CUSTOMER’S END USERS ONLY ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS IN THIS AGREEMENT. BY INSTALLING, DOWNLOADING, CONFIGURING, ACCESSING, OR OTHERWISE USING THE SOFTWARE, INCLUDING ANY UPDATES, UPGRADES, OR NEWER VERSIONS, ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTAND THIS AGREEMENT, AND THAT CUSTOMER AGREES TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.
- LICENSE GRANT. Subject to the terms of this Agreement, CASABASE SOFTWARE grants to Customer, during the Usage Period and any Renewal Period, as defined below, a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to install and use the Software for a period of one (1) year after downloading of the Software (the “Usage Period”) for the sole purpose of using the Software. Customer may only use the Software for Customer’s own internal business purposes in accordance with the terms and conditions of this Agreement. CASABASE SOFTWARE will contact Customer sixty (60) days prior to the end of the then-current license term to determine if Customer wants to extend or renew the Software license. Customer’s right to use the Software shall lapse at the end of the Usage Period unless the parties renew this Agreement or enter into a new licensing agreement, provided Customer pays the applicable fees for such extension or renewal license within 60 days of its receipt of the invoice. Any extension of this Agreement shall be for at least a one-year period (each a “Renewal Period”). A single license is required for each production ExoInsight server. A single Customer support point-of-contact is required for each license.
- RESTRICTIONS ON USE. Customer acknowledges that the Software and the structure, organization, and source code thereof constitute valuable trade secrets of CASABASE SOFTWARE. Accordingly, except as expressly permitted in Section 1 or as otherwise authorized by CASABASE SOFTWARE in writing, Customer will not, and will not permit any third party to (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Software to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (d) otherwise use or copy the Software except as expressly allowed under Section 1 above. Customer may not disclose to third parties or through publication the results of performance/benchmark tests run on the Software without the prior written consent of CASABASE SOFTWARE. Notwithstanding the foregoing, Customer may make additional copies of the Software for “back-up,” archive or disaster recovery purposes only. All copies will retain the electronic copyright information contained within the software. Customer’s right to use the Software is expressly conditioned upon such use being solely in compliance with this Agreement and with the procedures and guidelines regarding such use as set forth in the documentation provided by CASABASE SOFTWARE regarding the Software.
- DELIVERY AND ACCEPTANCE. The Software will be delivered electronically pursuant to CASABASE SOFTWARE standard download procedures. The Software is deemed accepted upon downloading by Customer.
- OWNERSHIP. As between the parties, the Software and all modifications and improvements to the Software, and all worldwide intellectual property rights and proprietary rights relating thereto or embodied therein, are the exclusive property of CASABASE SOFTWARE and its suppliers. CASABASE SOFTWARE and its suppliers reserve all rights in and to the Software not expressly granted to Customer in Section 1, and no other licenses or rights are granted by implication, estoppel or otherwise.
- IMPLEMENTATION AND SUPPORT. CASABASE SOFTWARE will provide Customer with certain support and consultation free of charge to assist in the implementation and the usage activities of Customer under this Agreement. The furnishing of such support or consultation will not subject CASABASE SOFTWARE to any additional liability not provided for in this Agreement, whether in contract, tort or otherwise. CASABASE SOFTWARE is responsible only for support of the Software; under no circumstances is CASABASE SOFTWARE responsible for support, training, debugging, or compatibility with any other third-party software, including all software by Microsoft Corporation, Oracle Corporation, Alteryx Corporation, Tableau Corporation, or any other third-party software vendor that EXOINSIGHT software integrates with. CASABASE SOFTWARE will notify Customer, prior to implementation, of any third-party software required for the operation of the Software. Customer is responsible for providing all applicable hardware and any third-party software or required installation and configuration services required for the operation of the Software. Any third-party software license agreements will be the sole responsibility of Customer and the applicable third-party software vendor.
- TERM AND TERMINATION. This Agreement is effective upon acceptance by Customer and shall continue until expiration of the Usage Period unless sooner terminated by CASABASE SOFTWARE as provided herein. Customer may terminate this Agreement at any time by destroying the Software and notifying CASABASE SOFTWARE at: email@example.com. If Customer breaches any provision of this Agreement, this Agreement will automatically terminate. Upon the expiration of the Usage Period, the license granted to Customer will terminate. Notwithstanding anything to the contrary in this Agreement, if termination occurs after payment in full of the license fee for the Usage Period or Renewal Period, as applicable, Customer shall have a fully paid-up license to the Software and shall not be obligated to cease using, remove or return the Software until the expiration of such period, and CASABASE SOFTWARE shall be responsible for maintenance and support services for the Software. The provisions of Sections 2, 4, 5, 6, 7, 8, 9, 10, and 11 shall survive termination or expiration of this Agreement for any reason.
- WARRANTIES. CASABASE SOFTWARE hereby represents and warrants that:
- CASABASE SOFTWARE has screened and will screen subsequent deliveries of the Software and all replacements, repairs, substitutions, modifications, updates and upgrades of the Software with a commercially-available virus detection program prior to delivery, and to the best of CASABASE SOFTWARE’s knowledge, the Software as delivered does not and will not contain any virus, worm, trojan horse, ransom ware, spyware, adware or other malware or malicious programs (collectively, “Malware”) that may delete, disable, interfere with or otherwise harm the Software or Customer’s system or any other program interacting with the Software. If Customer discovers any Malware in the Software as delivered, Customer will not install the Software and will promptly notify CASABASE SOFTWARE and return the infected Software. CASABASE SOFTWARE will promptly provide an uninfected replacement of the Software without charge to Customer.
- any support or maintenance provided under this Agreement shall be provided in a good and workmanlike manner consistent with professional standards customary in the industry.
- CASABASE SOFTWARE represents and warrants that it has the sole and exclusive right to grant a license to Customer and agrees to defend, indemnify and hold Customer harmless against all third party claims against Customer to the extent based on a claim that the license infringes a United States patent, a United States copyright, or is a misappropriation of any trade secret protected under the laws of the United States, provided that Customer gives CASABASE SOFTWARE notice of such claim and all applicable information in Customer’s possession with respect thereto and reasonable assistance at CASABASE SOFTWARE’s request and expense in connection therewith and, provided further, that CASABASE SOFTWARE shall have sole authority to control, defend and settle the matter.
- If Customer is precluded or in the judgment of CASABASE SOFTWARE may become precluded from using the Software as a result of a claim of infringement covered under this Agreement, CASABASE SOFTWARE shall at its option and expense: (a) procure for Customer the right to continue to use the Software or (b) replace or modify the Software so that it becomes non-infringing without materially and adversely affecting the functionality thereof; and if, despite CASABASE SOFTWARE’s good faith efforts, CASABASE SOFTWARE is unable to effect either of the foregoing actions, CASABASE SOFTWARE shall have the right to immediately terminate this Agreement on notice and as its sole liability for such termination refund to Customer the license fees paid by Customer on a pro rata basis.
- CASABASE SOFTWARE has no plans to discontinue the Software.
8.1 Protection of Software. Customer shall hold the Software (including all accompanying documentation and materials) in strictest confidence to be used solely for the authorized use in accordance with the license, using no less than the same degree of care which Customer applies to its proprietary software and similar confidential information, and Customer agrees not to take any action in derogation of such confidentiality. Customer shall maintain the Software in a secure limited access location when it is not in use. Customer is permitted to make copies of the Software appropriate to standard backup and recovery procedures as described in Section 10 and to store such copies in locations consistent with the standard operating procedures of Customer, including, but not limited to, offsite storage locations and disaster recovery sites. Except as otherwise provided herein, without the prior written consent of CASABASE SOFTWARE, Customer shall not disclose, divulge, distribute, publish, transmit, or transfer all or any part of the Software by any means or in any form to any third party other than its employees, provided such employees are subject to use and disclosure restrictions applicable to the Software which are no less protective of the Software than those assumed by Customer hereunder. Customer reserves the right to hire temporary staff as part of its ongoing operations, and this temporary staff will have access to the software under same terms and conditions as employees and will be subject to the same non-disclosure requirements as employees. This Section 8.1 shall not apply to any portion of the Software that (a) has become publicly known through no fault of Customer, (b) has been disclosed to Customer by a third party having legitimate possession thereof and the unrestricted legal right to make such disclosure, or (c) that Customer can demonstrate was within its legitimate possession prior to the time of the disclosure of the Software by CASABASE SOFTWARE.
8.2 Protection of Confidential Information.
(a) For all purposes of this section, the following definitions shall apply:
(i) “Confidential Information” of a party shall mean information in any form or media that relates to a party’s business and that, pursuant to this Agreement, is provided or made available by either party to the other party. “Confidential Information” shall include, but not be limited to, proprietary software and other intellectual property, code, algorithms, schematics, tools, know-how, methodologies, techniques, processes, inventions (whether patentable or not), financial plans and data, business plans and strategies, agreements, products, pricing, charges, fees, compensation, customer information, and any other information that reasonably should be understood to be confidential to the disclosing party. “Confidential Information” specifically includes, but is not limited to, the category of Customer-provided “sensitive personal information” pertaining to any individual, as that term, or equivalent term, is defined by applicable federal or state laws and regulations. “Confidential Information” specifically includes, without limitation, “Protected Health Information,” personally identifiable information and other sensitive personal information pertaining to any individual, as those terms or similar terms are defined by applicable federal and state laws and regulations. Confidential Information shall also include the terms of this Agreement and information and data from time to time resident on the Software or on the Customer’s systems which interface with the Software. “Confidential Information” shall not include information which (a) the Receiving Party can demonstrate is at the time of disclosure already known to the Receiving Party, (b) is or becomes generally known to the public or is otherwise deemed to be in the public domain through no wrongful act of the Receiving Party, (c) is received from a third party that has the legal right to so furnish such Confidential Information without restriction or (d) is not treated confidentially by the Disclosing Party.
(ii) “Disclosing Party” shall mean with respect to any information disclosed by one party to the other, the party which, directly or through one of its agents, discloses such information.
(iii) “Receiving Party” shall mean with respect to any information disclosed by one party to the other, the party which receives such information.
(b) Each Receiving Party with respect to Confidential Information received by it hereunder shall: (i) hold such Confidential Information in strict confidence and protect it in accordance with a standard of care which shall be no less than the care it uses to protect its own information of like sensitivity and in no event less than reasonable care; (ii) not use such Confidential Information for any purpose except as is necessary for the purposes of this Agreement or as otherwise authorized in writing by the Disclosing Party of such Confidential Information in advance; (iii) not disclose such Confidential Information to any person other than to the Receiving Party’s directors, officers, employees, representatives, consultants or agents (collectively called “Representatives”) who need to know such Confidential Information for the purposes of this Agreement, provided that each Representative shall be informed, directed and obligated by the Receiving Party to treat such Confidential Information in accordance with the obligations of this agreement and the Receiving Party shall be liable for any breach of any such obligation by any of its Representatives; and (iv) except as otherwise expressly permitted hereunder, not copy or otherwise duplicate such Confidential Information, or knowingly allow anyone else to copy or otherwise duplicate any such Confidential Information without the Disclosing Party’s prior written approval.
(c) Each Receiving Party shall notify the Disclosing Party if any Confidential Information of the Disclosing Party is required to be disclosed by the Receiving Party by judicial, administrative, or other governmental order. Such notification shall be made reasonably promptly so that the Disclosing Party, at its expense, may seek a protective order or other appropriate remedy. Provided such notification is given and no protective order or other remedy is forthcoming by the deadline by which the Receiving Party must comply, the Receiving Party is hereby authorized to comply with such judicial, administrative, or governmental order. The Receiving Party shall provide the Disclosing Party reasonable cooperation (at the expense of the Disclosing Party) in connection with any protective order or other remedy sought by the Disclosing Party in connection with such order.
(d) The obligations imposed on a Receiving Party with respect to Confidential Information and the term “Confidential Information” shall not apply to information disclosed to such Receiving Party which (a) the Receiving Party can demonstrate is at the time of disclosure already known to the Receiving Party, (b) is or becomes generally known to the public or is otherwise deemed to be in the public domain through no wrongful act of the Receiving Party, (c) is received from a third party that has the legal right to so furnish such Confidential Information without restriction or (d) is not treated confidentially by the Disclosing Party.
(e) Upon termination of this Agreement for any reason, each Receiving Party shall return to the Disclosing Party all the Confidential Information furnished to the Receiving Party and all copies and extracts in whole or in part thereof or, with the written permission of the Disclosing Party, effect the destruction of the same and certify such destruction in writing to the Disclosing Party. Notwithstanding the foregoing, the Receiving Party shall not be obligated to return or destroy any Confidential Information of the Disclosing Party if it has been electronically archived by Receiving Party in accordance with its record retention, information security and/or disaster recovery procedures in effect from time to time, and the removal, destruction or return of the Confidential Information would be unreasonably expensive or burdensome; provided that the Confidential Information remains subject to the non-disclosure requirements of this Agreement.
(f) Nothing contained in this agreement shall be construed as granting to either party any right, title, or interest in or to any information disclosed hereunder to it, except for the limited right to use and disclose such information as expressly permitted hereunder.
(g) Each Receiving Party shall on any copies it may make of any information received hereunder maintain all copyright patent or trademark notices which may appear on such information when so received.
(h) Each party represents that the disclosure by it of information hereunder to the other party does not violate the rights of any other person or entity.
- DISCLAIMER. EXCEPT AS PROVIDED IN SECTION 7, CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S USE OF THE SOFTWARE IS ENTIRELY AT ITS OWN RISK AND THE SOFTWARE PROVIDED BY CASABASE SOFTWARE TO CUSTOMER IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. CASABASE SOFTWARE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. TO THE EXTENT THAT, AS A MATTER OF APPLICABLE LAW, ANY IMPLIED OR STATUTORY WARRANTY MAY NOT BE DISCLAIMED, THE DURATION AND SCOPE OF SUCH WARRANTY SHALL BE THE MINIMUM PERMISSIBLE UNDER SUCH APPLICABLE LAW.
- LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN SECTION 8 ABOVE (CONFIDENTIALITY), AND SO LONG AS CASABASE SOFTWARE HAS NOT ENGAGED IN ANY FRAUDULENT CONDUCT, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE RELATING TO ITS OBLIGATIONS UNDER THIS AGREEMENT AND HAS NOT BREACHED ITS OBLIGATIONS UNDER SECTION 8 ABOVE, CASABASE SOFTWARE SHALL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTALDAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE SOFTWARE OR THIS AGREEMENT, EVEN IF CASABASE SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THIS PROVISION REFLECTS THE AGREED UPON ALLOCATION OF RISK FOR THIS AGREEMENT AND THAT CASABASE SOFTWARE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
- COMPLIANCE WITH LAWS. Both parties shall comply with applicable laws, regulations, riles, ordinances, and orders relating to the use, licensure, or distribution of the Software. Without limiting the foregoing, Customer shall comply with the relevant export administration and control laws and regulations, as may be amended from time to time, including, without limitation, the United States Export Administration Act, to ensure that the Software is not shipped, transferred, or exported (directly or indirectly) in violation of U.S. law.
- MISCELLANEOUS. Customer may not assign or delegate, directly or indirectly, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement (including the license rights granted to Customer to the Software) to any third party without the prior approval of CASABASE SOFTWARE. Any attempted assignment or transfer in violation of the foregoing will be null and void and of no effect. This Agreement will be subject to and governed by the laws of the State of Georgia and the United States of America without regard for its conflicts of law principles that would require application of the laws of a different state or country. The federal and state courts for Dekalb County Georgia shall have jurisdiction over any disputes, claims or controversies arising out of or relating to this Agreement, and Customer hereby irrevocably waives any objection to the jurisdiction of such courts over any such dispute, claim or controversy. All modifications, waivers and amendments to this Agreement must be in writing and signed by both parties. 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. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions hereof shall be unaffected and continue in full force and effect, provided that such holding of invalidity or unenforceability does not materially affect the essence of this Agreement and the parties shall use their respective best efforts to replace the invalid or unenforceable provision with a provision which to the maximum degree possible effects the purpose of such invalid or unenforceable provision. All trademarks, trade names, service marks, logos, and other identifiers of Customer (“Company Marks”) will remain the sole and exclusive property of Customer. No license or other rights therein or related thereto are granted to CASABASE SOFTWARE under this Agreement. CASABASE SOFTWARE acknowledges the exclusive right of Customer to its Company Marks and CASABASE SOFTWARE agrees it will not in any manner represent that it has any ownership in Customer’s Company Marks. CASABASE SOFTWARE will not do or cause to be done anything impairing Customer’s right in and to the Company Marks or the value thereof. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral.