Delve License Agreement
Last updated April 16, 2018
THESE TERMS AND CONDITIONS (“TERMS”) APPLY TO YOUR USE OF THE PRODUCT (AS DEFINED BELOW) PROVIDED BY TWENTY TO NINE LLC (“TWENTYTONINE”).
PLEASE READ THESE TERMS CAREFULLY.
If you (“you” or “Customer”) plan to use any of the products on behalf of a company or other entity, you represent that You are the employee or agent of such company (or other entity) and you have the authority to accept all of the terms and conditions set forth in an accepted request (as defined below) and these terms (collectively, the “agreement”) on behalf of such company (or other entity).
By using the product, you acknowledge and agree that:
You have read all of the terms and conditions of this agreement;
You understand all of the terms and conditions of this agreement;
You agree to be legally bound by all of the terms and conditions set forth in this agreement
If you do not agree with any of the terms or conditions of these terms, you may not use any portion of the products.
The “Effective Date” of this agreement is the earlier of the date access is granted to or the product is installed for the customer.
1. Product. For the purpose of this Agreement, “Product” shall mean the TwentyToNine Delve software product comprised of:
The software including but not limited to user interface, scripts, models, deployment scripts and other files comprising the product Delve;
All related user documentation, in written, electronic or other format, which describes the Product and its operation and which TwentyToNine makes generally available to its licensed customers for use with the Product (“Documentation“); and
All updates and modifications to the foregoing items, including but not limited to the code base, documentation, feature list, and product roadmap, any trial software, and any software related to the foregoing.
2. License. Access to TwentyToNine’s Product is licensed and not sold. TwentyToNine grants to Customer a nonexclusive, nontransferable, limited license, revocable at will with or without notice at any time, to access and use the applicable Product as defined above in Section 1 solely for Customer’s internal business purposes, all other rights reserved by TwentyToNine.
3. License Restrictions. Unless expressly otherwise set forth in this Agreement, Customer will not:
Modify, translate or create derivative works of the Product without prior consent from TwentyToNine;
Decompile, reverse engineer or reverse assemble any portion of the Product or attempt to discover any source code or underlying ideas or algorithms of the Product;
Use or access the Product in any manner or for any purpose other than as expressly permitted herein;
Sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Product without prior consent and approval from TwentyToNine;
Remove or alter any trademark, logo, copyright or other proprietary notices associated with the Product; or
Cause or permit any other party to do any of the foregoing.
4. Customer Submitted Data. TwentyToNine does not own any of the data, information or material that you upload in your use of the Product (“Customer Submitted Data”). You agree to the following restrictions on Customer Submitted Data, and that any breach of the following restrictions is grounds for termination of this license and suspension of Customer access to the Product:
TwentyToNine does not collect, use or disclose personal information from children under the age of 18. Children under the age of 18 may not use the Product, and personal information of children under the age of 18 shall not be submitted to us in the course of using the Product;
You will obtain any and all third-party consents required by applicable laws and regulations for the transmission and storage of that party’s personally identifiable, private or confidential information, you will comply with all applicable local, state, federal, and foreign laws (including laws regarding privacy and protection of personal or consumer information), and you will follow customary best practices for conducting research on human subjects, including but not limited to ethical obligations and Institutional Review Board guidelines;
You will use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Product and notify us promptly of any unauthorized use or security breach; and
You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Submitted Data that you submit to the Product.
You understand that you are fully liable if such Customer Submitted Data are infringing upon third-party rights, violates any law or regulation or violates any third-party rights. You accordingly agree to indemnify TwentyToNine for all claims and losses related to such infringement and/or violation. If TwentyToNine on its own or if any third party notifies TwentyToNine that data stored by the User is in violation of any law, regulation, third party rights or infringes third party rights, TwentyToNine shall have the unfettered right to and without liability to the User immediately bar access to such data without prior notice to the Customer.
5. Data Security. Customer data, which includes Customer Submitted Data and any automatically collected user data, such as automatically logged usage data for debugging purposes, may be used internally within TwentyToNine solely to understand how our Product is being used and to improve the operation, functionality or use of our Product and future services. TwentyToNine may also apply customer data to external, third party services such as data indexing and search services (for instance, Bonsai Elasticsearch), solely to understand how our Product is being used and to improve the operation, functionality or use of our Product and future services. TwentyToNine does not sell data to third parties, nor does TwentyToNine provide customer data to any third party services that sell data to third parties.
Certain personal data may be collected from you when you voluntarily provide such information such as when you register for access to the product (for example, your name and email address), contact us with inquiries or respond to one of our surveys. We may use the aforesaid personal data to contact you from time to time to provide you with important information, required notices and marketing promotions, or to assist you in using the Product.
TwentyToNine may disclose customer related data and information if required to do so by law or in the good faith belief that such action is necessary to (i) comply with a legal obligation, (ii) protect and defend the rights or property of TwentyToNine, (iii) act in urgent circumstances to protect the personal safety of users of the Product or the public, or (iv) protect against legal liability.
All data is stored either on TwentyToNine’s servers or third party servers such as Amazon Cloud licensed by TwentyToNine. Without limiting your obligations under this Agreement, we implement reasonable and appropriate measures designed to secure data against accidental or unlawful loss, access or disclosure however TwentyToNine shall not be responsible or liable for the deletion, correction, destruction, damage, loss, unauthorized disclosure or failure to store any Customer Submitted Data. It is your sole responsibility to make backup copies of Customer Submitted Data.
6. Intellectual Property Rights. As between TwentyToNine and Customer and subject to the grants under this Agreement, TwentyToNine owns all rights, title and interest in and to: (a) the Product (b) all ideas, inventions, discoveries, improvements, information, creative works and any other works discovered, prepared or developed by TwentyToNine in the course of or resulting from Customer’s use of the Product; and (c) any and all Intellectual Property Rights embodied in the foregoing.
For the purpose of this Agreement, “Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing. As between the parties and subject to the terms and conditions of this Agreement, Customer owns all right, title and interest in and to the data generated by the use of the Products by Customer.
There are no implied licenses in this Agreement, and TwentyToNine LLC reserves all rights not expressly granted under this Agreement. No licenses are granted by TwentyToNine LLC to Customer under this Agreement, whether by implication, estoppels or otherwise, except as expressly set forth in this Agreement.
7. Feedback and Analytics. Customer may choose to, but is not required to, provide suggestions, data, feedback and other information to TwentyToNine regarding possible improvements in the operation, functionality or use of TwentyToNine’s licensed products. Customer hereby grants to TwentyToNine without charge, the right to use, copy, modify and create derivative works of any such suggestions, data, feedback and information solely for the purpose of (i) improving the operation, functionality or use of its existing and future product offerings and commercializing such offerings; and (ii) publishing aggregated information about TwentyToNine’s software, such as, but not limited to software usage, quality, data, etc., provided that no data in any such publication can be used to specifically identify Customer. Further, TwentyToNine will be free to use, disclose, reproduce, license and otherwise distribute, and utilize the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
8. Warranty Disclaimer. Customer represents warrants and covenants that: (a) all of its employees and consultants will abide by the terms of this Agreement; (b) it will comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of this Agreement. Notwithstanding any terms to the contrary in this Agreement, Customer will remain responsible for acts or omissions of all employees or consultants of Customer to the same extent as if such acts or omissions were undertaken by Customer.
THE PRODUCT IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. TWENTYTONINE DOES NOT WARRANT THAT ANY OF THE PRODUCTS WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. TWENTYTONINE DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE PRODUCTS WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE INCLUDING ANY AND ALL (I) WARRANTIES OF MERCHANTABILITY, (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT TWENTYTONINE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS RELIED ON NO WARRANTIES.
9. Indemnification. Customer will indemnify, defend and hold TwentyToNine and its directors, officers, employees, suppliers, consultants, contractors, and agents (“TwentyToNine Indemnitees”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) resulting from any claim (including third-party claims), suit, action, or proceeding against any TwentyToNine Indemnitees, whether successful or not, caused by, arising out of, resulting from, attributable to or in any way incidental to:
Any breach of this Agreement (including, but not limited to, any breach of any of Customer’s representations, warranties or covenants);
The negligence or willful misconduct of Customer; or
The data and information used in connection with or generated by the use of the Products.
10. Limitation of Liability. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL: (A) TWENTYTONINE BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY FOR ANY LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY INDIRECT, SPECIAL LLCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS (INCLUDING RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCTS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF TWENTYTONINE HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) TWENTYTONINE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF THE AGGREGATE OF THE AMOUNTS PAID OR PAYABLE TO TWENTYTONINE, IF ANY, UNDER THIS AGREEMENT OR FIVE U.S. DOLLARS. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
11. Termination. The term of this Agreement commences on the Effective Date and continues until the termination of the license granted in Section 2. In the event of a breach of Sections 3 or 4, TwentyToNine may immediately terminate this Agreement. Notwithstanding any terms to the contrary in this Agreement, this sentence and any restrictions and obligations of the Customer pursuant to Sections 3 through 10 will survive any termination or expiration of this Agreement.
12. Miscellaneous. This Agreement is the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof.
This Agreement will be governed by and construed in accordance with the laws of the state of New York. The parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state or Federal courts located in New York, and the parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement.
Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless made in an agreement clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
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