INCREDIBUILD LICENSE AGREEMENT
PLEASE READ THE FOLLOWING CAREFULLY BEFORE ACCEPTING THESE TERMS AND REGISTERING FOR, ACCESSING AND/OR USING THE INCREDIBUILD SOFTWARE (“SOFTWARE”).
BY SELECTING THE BOX “I AGREE”, OR OTHERWISE DOWNLOADING, ACCESSING AND/OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU, ON YOUR OWN BEHALF AS AN INDIVIDUAL AND ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY (COLLECTIVELY “LICENSEE”), HAVE READ AND UNDERSTOOD AND AGREE TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT (THE “AGREEMENT”), AND ARE ENTERING INTO A BINDING LEGAL AGREEMENT WITH INCREDIBUILD SOFTWARE LTD. (“INCREDIBUILD”). LICENSEE REPRESENTS AND WARRANTS THAT LICENSEE IS AT LEAST 18 YEARS OLD AND, IF LICENSEE IS ENTERING INTO THIS AGREEMENT ON BEHALF OF ITS EMPLOYER OR OTHER LEGAL ENTITY, THAT LICENSEE HAS FULL AUTHORITY TO BIND SAID EMPLOYER OR OTHER LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT OR DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER OR OTHER LEGAL ENTITY, PLEASE DO NOT ACCEPT THIS AGREEMENT OR ACCESS OR USE THE SOFTWARE. LICENSEE HEREBY WAIVES ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.
The specific use rights granted to Licensee are as follows, depending on the type of license Licensee has acquired under the applicable Quote. For the purpose of this Agreement Quote means, any written or electronic order form (i) issued by IncrediBuild and agreed to by Licensee by execution, or (ii) issued by Licensee pursuant to a proposal made by IncrediBuild to Licensee.
1.1. Subscription License. Subject to Licensee’s compliance with the terms and conditions of this Agreement (including payment obligations), IncrediBuild grants to Licensee a non-exclusive, non-sublicensable, non-transferable license to use the Software during the License Term for Licensee’s internal business purposes. The license to the Software is limited to the number of agents and solutions and any other software editions or modules as designated in the Quote.
1.2. Evaluation License. Subject to Licensee’s compliance with the terms and conditions of this Agreement, IncrediBuild may grant Licensee, at its sole discretion, a non-exclusive, non-sublicensable, non-transferable, free of charge limited license to use IncrediBuild Free Dev Software for a period of 30 days (unless terminated earlier by either party according to Section 11 below) (“Evaluation Period”), for Licensee’s internal trial use and evaluation purposes in order evaluate if to purchase a subscription license. The evaluation license to the Software is limited to 5 agents and solution for VS, Make&Build and Dev Tools. At any time during the Evaluation Period, or upon expiration of the Evaluation License, IncrediBuild and Licensee may agree in writing by execution of an applicable Quote to enter into a License to the Software, subject to payment of the applicable License Fee, the terms of this Agreement and the term set forth in the said Quote.
1.3. FreeDev License. Subject to Licensee’s compliance with the terms and conditions of this Agreement, IncrediBuild may grant Licensee, at its sole discretion, a non-exclusive, non-sublicensable, non-transferable, free of charge limited license to use 1 agent of up to 16 logical cores and certain solutions of the Software as defined by IncrediBuild for a period specified by IncrediBuild, provided the terms of Section 11 below, for Licensee’s internal business purposes. The free license to the Software is limited to one copy of the Software into a single computer of the Licensee per corporation.
FOR THE AVOIDANCE OF DOUBT THE SOFTWARE PROVIDED UNDER THE EVALUATION AND/OR FREEDEV LICENSE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. INCREDIBUILD DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL INCREDIBUILD BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF INCREDIBUILD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Prohibited Uses. Except as specifically permitted herein, without the prior written consent of IncrediBuild, Licensee must not, and shall not allow any Permitted User (as defined below) or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Software (including by incorporation into its products) other than expressly permitted by law notwithstanding a contractual obligation to the contrary; (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Licensee’s rights under this Agreement with any third party; (iii) use the Software in connection with any “open source” or “copyleft” software in a manner that would require IncrediBuild to disclose the source code of the Software to any third party; (iv) disclose the results of any testing or benchmarking of the Software to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Software’s source code or underlying algorithms other than expressly permitted by law notwithstanding a contractual obligation to the contrary; (vi) knowingly use the Software in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (vii) remove or alter any trademarks or other proprietary notices related to the Software; (viii) circumvent, disable or otherwise interfere with security-related features of the Software or features that enforce use limitations; (ix) export, make available or use the Software in any manner prohibited by applicable laws (including without limitation export control laws); and/or (x) knowingly transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Software.
The usage of the Software is subject to usage limits as defined in Quote. If Licensee wishes to exceed its contractual usage limit, Licensee shall request additional usage scope of the applicable service of the Software and submit such request to IncrediBuild through email or the online store. IncrediBuild may approve or reject the submission at its sole discretion in 7 days. Any extra charges and fees shall be provided by IncrediBuild and Licensee shall pay the invoice for excess usage.
Licensee will prevent unauthorized access to or use of the Software and notify IncrediBuild promptly of any such unauthorized access or use.
3. Permitted User. The Software may be used only by Licnesee’s employees who are explicitly authorized by Licensee to use the Software (each, a “Permitted User”). Licensee will ensure that the Permitted Users comply with the terms of this Agreement; and will be fully responsible for any breach of this Agreement by a Permitted User. Unauthorized access or use of the Software must be immediately reported to IncrediBuild.
4. Intellectual Property Rights. The Software is not for sale and is the IncrediBuild’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Software and any and all improvements and derivative works thereof are and shall remain owned solely by IncrediBuild or its licensors. This Agreement does not convey to Licensee any interest in or to the Software other than a limited right to use the Software in accordance with Section 1. Nothing herein constitutes a waiver of IncrediBuild’s intellectual property rights under any law.
If IncrediBuild receives any feedback (e.g., questions, comments, suggestions or the like) regarding the Software (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to IncrediBuild and that such shall be considered IncrediBuild’s Confidential Information and Licensee hereby irrevocably and unconditionally transfers and assigns to IncrediBuild all intellectual property rights it has in such Feedback and waives any and all moral rights that Licensee may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that IncrediBuild in no way shall be obliged to make use of any kind of the Feedback or part thereof.
Portions of the Software include third party open source software that is subject to third party terms and conditions (“Third Party Terms”). A list of any third party open source software and related Third Party Terms is available at https://incredibuild.atlassian.net/wiki/spaces/IUM/pages/477102132/List+of+Open+Sources as may be updated from time to time. If there is a conflict between any Third Party Terms and the terms of this Agreement, then the Third Party Terms shall prevail but solely in connection with the related third party open source software. Notwithstanding anything in this Agreement to the contrary, Company makes no warranty or indemnity hereunder with respect to any open source software.
Any generic and anonymous information, which is derived from the use of the Software (i.e., metadata, aggregated and/or analytics information) which is not personally identifiable information is IncrediBuild’s exclusive property and may be used for any purpose including, but not limited to for development and/or for statistical purposes.
5.1 License Fee. Licensee’s use of the Software is subject to up-front payment in full of the license fees set forth in the Quote. Licensee acknowledges that the license fee during any Renewal Term will, unless set forth in the Quote, be determined by IncrediBuild’s then-current license fees.
All fees are stated, and shall be paid, in US Dollars, are non-refundable and are exclusive of all taxes, levies, or duties, which are Licensee’s responsibility. The payment methods are set forth in the Quote.
5.2 Late Payment. If Licensee does not pay by the due date, the overdue amount shall be subject to a late fee equal to 1% per month or, if less, the maximum amount allowed by applicable law and/or IncrediBuild may also stop providing the services through the Software until the whole amount is paid and require guarantee at its discretion as a condition for continuing the provision of the services.
Taxes. All amounts payable hereunder shall not be subject to any set-off or deduction. All fees are exclusive of any applicable taxes, duties and similar governmental charges, and, except with respect to income taxes of IncrediBuild, Licensee is responsible for payment of all such amounts, including sales tax, value added tax (VAT), withholding taxes, export, import and other duties imposed by any governmental agency in connection with this Agreement. Licensee agrees to hold harmless IncrediBuild from all claims and liability arising from Licensee’s failure to report or pay such taxes, duties or other governmental charges.
6. Mutual Warranties. Each party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
7. Confidentiality. Each party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each party shall take measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other party’s Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section, with respect to any Confidential Information of the disclosing Party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. Neither party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party’s Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving Party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing party of such required disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
8. LIMITED WARRANTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ALL RELATRED SERVICES ARE PROVIDED ON AN “AS IS” BASIS. INCREDIBUILD HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. INCREDIBUILD DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
9. LIMITATION OF LIABILITY. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. INCREDIBUILD ASSUMES NO LIABILITY FOR THE COST OF ANY SERVICE OR REPAIR IF THE SOFTWARE IS DEFECTIVE. INCREDIBUILD SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, OR PROFITS, DATA, OR DATA USE.
EXCEPT FOR THE INCREDIBUILD’S INDEMNIFICATION OBLIGATION UNDER SECTION 10,; INCREDIBUILD’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO INCREDIBUILD IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO INCREDIBUILD UNDER THIS AGREEMENT.
THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO LICENSEE.
10. Indemnification. IncrediBuild agrees to defend, at its expense, any third party action or suit brought against the Licensee alleging that the Software, when used as permitted under this Agreement, infringes intellectual property rights of a third party (“IP Infringement Claim”); and IncrediBuild will pay any damages awarded in a final judgment against the Licensee that are attributable to any such claim, provided that (i) the Licensee promptly notifies IncrediBuild in writing of such claim; and (ii) Licensee grants IncrediBuild the sole authority to handle the defense or settlement of any such claim and provides IncrediBuild with all reasonable information and assistance, at IncrediBuild’s expense. IncrediBuild will not be bound by any settlement that the Licensee enters into without IncrediBuild’s prior written consent.
If the Software becomes, or in IncrediBuild’s opinion is likely to become, the subject of an IP Infringement Claim, then IncrediBuild may, at its sole discretion: (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite IncrediBuild’s reasonable efforts, then IncrediBuild may terminate this Agreement and in such event accept return of the affected Software and provide a refund for any amount pre-paid by Licensee for such returned Software for the remaining unused period of the license.
Notwithstanding the foregoing, IncrediBuild shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Software made by a party other than IncrediBuild or its designee; (ii) the Licensee’s failure to implement software updates provided by IncrediBuild specifically to avoid infringement; or (iii) combination or use of the Software with equipment, devices or software not supplied by IncrediBuild or not in accordance with its documentation.
This Section states IncrediBuild’s entire liability, and Licensee’s exclusive remedy, for claims or alleged or actual infringement.
This Section shall not apply to Licensee for Evaluation License and/or FreeDev License.
11. Term and Termination. This Agreement shall enter into force and effect on the earlier of: (i) the date that Licensee commences access to or use of the Software; or (ii) the date that IncrediBuild receives payment of any applicable License Fee, and, unless terminated earlier in accordance with the terms of this Section, shall continue until expiration of the initial license period specified in the Quote (the “Initial License Term”). Thereafter, this Agreement shall automatically renew for successive license of one (1) year periods (each a “Renewal Term”, and together with the Initial Term, the “License Term”) unless IncrediBuild or Licensee provides written notice to the other party within sixty (60) days prior to the expiration of the then current term of its intention not to renew this Agreement. If Licensee continues to use the Software past any license period renewal date, Licensee shall be deemed to have renewed this Agreement for the corresponding Renewal Term.
Notwithstanding the above, the duration of the Evaluation License and the FreeDev License shall be in accordance with the provisions of Section 1 provided that IncrediBuild may at any time terminate the Evaluation License and the FreeDev License immediately upon notice to Licensee (email acceptable).
Either Party may terminate this Agreement with immediate effect if: (a) the other party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof; or (b) the other party is unable to pay its debts or becomes insolvent, is the subject of an order made or a resolution passed for its administration, winding-up or dissolution (otherwise than for the purpose of a solvent amalgamation or reconstruction), or is the subject of any events or circumstances analogous to the foregoing; or (c) Licensee has received the Software pursuant to an Evaluation and/or FreeDev License.
Upon termination or expiration of this Agreement Licensee will: (i) immediately cease use of the Software; (ii) return the Software and all copies thereof, as well as the Documentation to IncrediBuild; (iii) erase or otherwise destroy all copies of the Software in its possession, which is fixed or resident in the memory or hard disks of its computers; and (iv) return to IncrediBuild any and all Confidential Information then in its possession. Termination of this Agreement shall be without prejudice to the rights and remedies of either Party which have accrued up to the date of termination. Sections 4 (Intellectual Property Rights), 7 (Confidentiality), 8 (Limited Warranties), 9 (Limitation of Liability), 13 (Verifying Compliance) and 15 (Miscellaneous) shall survive the termination of this Agreement.
12. Use of Data. Upon registration to use the license to the Software, IncrediBuild may request that Licensee provide, inter alia, contact information, full name, organization name, phone number, valid email address. IncrediBuild uses this information to provide Licensee with the license file to the Software and contact Licensee to provide Licensee with important information, software updates, required notices and marketing promotions. IncrediBuild also reserves the right to use Licensee name and logo to present Licensee as a customer in IncrediBuild’s website and other social media advertising or marketing promotions IncrediBuild makes from time to time.
13. Verifying Compliance. Licensee agrees to keep all usual and proper records relating to the Software Licensee runs. IncrediBuild may request that Licensee conduct an internal audit of all copies of the Software in use throughout Licensee’s organization, comparing the number of copies of the Software in use to the number of effective licenses issued in Licensee’s name under the Quote, at any time up to one year after the termination or expiration of the applicable License granted. Following any audit, Licensee agrees to deliver to IncrediBuild a written statement signed by Licensee’s authorized representative, certifying that either (i) Licensee has sufficient licenses to permit all usage disclosed by the audit or (ii) Licensee has ordered sufficient licenses to permit all usage disclosed by the audit. By requesting an audit, IncrediBuild does not waive its rights to enforce this Agreement or to protect our intellectual property by any other means permitted by law.
14. Export Control. Licensee acknowledges that the laws and regulations of the United States, as well as other foreign authorities, may restrict the export and re-export of certain commodities and technical data, including the Software and documentation. Licensee agrees not to export or re-export the Software and documentation in any form without the appropriate United States and foreign governmental licenses.
15. Miscellaneous. This Agreement represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both parties. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Any use of the Software by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Licensee but may be assigned by IncrediBuild without restriction or notification. Any assignment in breach of this Agreement shall be null and void. This Agreement shall be governed by and construed under the laws of the State of Israel. The competent courts of Tel- Aviv, Israel shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties. IncrediBuild will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of the Company.
LICENSEE EXPRESSLY ACKNOWLEDGES THAT LICENSEE HAS READ THE TERMS OF THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY SIGNING THIS AGREEMENT, OR CLICKING “I AGREE”, “ACCEPT” OR SIMILAR BUTTON, AND/OR CONTINUING TO DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE (AS APPLICABLE), LICENSEE EXPRESSLY CONSENTS TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
This EULA was last updated on 1.3.19