VITRIA TECHNOLOGY, INC. (“VITRIA”) IS WILLING TO LICENSE ACCESS TO AND USE OF THE SERVICE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE SERVICES AGREEMENT, THE DEFINITIONS IN EXHIBIT A, AND ANY ADDITIONAL TERMS (“AGREEMENT”). PLEASE READ THE ENTIRE AGREEMENT CAREFULLY. BY ACCESSING THIS SERVICE, YOU ACCEPT THE TERMS OF THE AGREEMENT.
1. MODIFICATIONS TO THIS AGREEMENT
1.1. You agree that Vitria may modify this Agreement and any portion of the Agreement from time to time by posting the revised terms. Revisions to any general terms or policies will take effect immediately upon posting.
1.2. By continuing to access the Service after Vitria posts revised terms, You are agreeing to the revised terms and the Agreement. It is Your responsibility to check frequently for revised terms.
1.3. This Agreement will be amended by You upon Your acceptance of additional terms and conditions for products and services offered by Vitria to You to supplement the Service.
1.4. This Agreement may be amended by You only by written document signed by both of Us.
2. VITRIA’S OWNERSHIP AND YOUR RIGHTS TO USE SERVICE AND VITRIA CONTENT.
2.1. Other than the limited use and access rights and licenses expressly set forth in this Agreement, as between Vitria and You, the Services and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Vitria or its licensors.
2.2. Subject to Your compliance with the terms and conditions of this Agreement, Vitria will grant to You a limited, non-exclusive, non-transferable, non-assignable right and license to access and use the Service.
2.3. Portions of the Service’s underlying software may be provided with notices and open source licenses that govern the use of those portions, and any licenses granted hereunder do not alter any rights and obligations You may have under such open source licenses, however, the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to all portions of Service.
2.4. Other products and services may be made available to You to supplement the Service. Other products and services may be subject to separate agreements with independent terms and conditions, or by amendment to this Agreement.
3. RESTRICTIONS ON THE USE OF SERVICE
3.1. You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Service.
3.2. You may not (i) use the Service for purposes that would be in violation of any laws, including export laws, or government regulations of the United States of America, or other applicable local law, or (ii) contravene existing Service policies (as updated from time to time), or for the purposes of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other prohibited use activities.
3.3. You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right designation appearing on or contained within the Service.
3.4. Subject to the terms and conditions of this Agreement, you may generally publicize your use of the Service; however, you may not issue any press release with respect to the Service or this Agreement without our prior written consent.
3.5. You may not rent, lease, or provide access to the Service to third parties.
4. YOUR RESPONSIBILITIES AND OBLIGATIONS
4.1. In instances where You choose to submit information pertaining to You to the Service, You are responsible for maintaining up-to-date records with Vitria on You.
4.2. In instances where You choose to submit Content to the Service, You must have secured appropriate rights for the use of all third party content that are part of Your Content. You will not use, and will not authorize any third party to use, any material in Your Content that in any manner would require that any portion of the Service be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients.
4.3. You are solely responsible for Your Content and Your use of the Service. Actions taken using Your credentials shall be deemed to be actions taken by You. As such, You should protect each unique user name-password associated with You.
4.4. During and after the term of the Agreement, with respect to Service, You will not assert, nor will You authorize, assist, or encourage any third party to assert, against Vitria or any of our customers, end users, vendors, business, licensors, sublicensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
5. YOUR OWNERSHIP AND VITRIA’S RIGHT TO USE YOUR CONTENT
5.1. As between Vitria and You, Your Content and the Intellectual Property Rights therein, are and shall remain the exclusive property of You or Your licensors.
5.2. In the event You choose to contribute Content to the Service, You hereby grant to Vitria a world-wide, perpetual, irrevocable, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, or publicly display Your Content. Prior to submitting Your Content, You must have secured appropriate rights for Vitria to use all third party content that is part of Your Content.
5.3. In the event you choose to communicate Feedback to Vitria, Vitria shall own all right, title, and interest in and to Feedback, even if you have designated the Feedback as confidential, and Vitria shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to Vitria and agree to provide Vitria such assistance as Vitria may require to document, perfect, and maintain Vitria’s rights to the Feedback.
6. TERM, TERMINATIONS, AND SUSPENSION
6.1. This Agreement shall take effect on the Effective Date and shall continue until terminated as provided for in the Agreement.
6.2. You may terminate this Agreement at any time for Your convenience by ceasing use of the Service and closing Your account.
6.3. Vitria, at its sole discretion, may either (i) suspend Your use of the Service or (ii) terminate the Service and Agreement with or without cause immediately upon issuance of a notice to You or by denying You access to the Service.
7. EFFECTS OF TERMINATION AND SUSPENSION
7.1. In the event of suspension or termination of the Your use of the Service, You will immediately cease use of the Service, Data, and Applications. Vitria will not take action to remove or destroy Your Applications, unless such inaction would be a violation of law or government regulation or otherwise expose Vitria to any liability.
7.2. In the event of suspension of Service or termination of this Agreement for cause, Vitria shall have no obligations to You, including the storage of Your Applications and Data.
8. SERVICE INTERRUPTIONS AND SUSPENSIONS
8.1. In addition to Vitria’s rights to terminate or suspend Service, You acknowledge that: (i) Your access to and use of the Service may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Service for any reason, including as a result of power outages, system failures or other interruptions; and
(ii) Vitria shall also be entitled, without any liability to You, to suspend access to any portion or all of the Service at any time, on a Service-wide basis: (a) to schedule downtime to permit us to conduct maintenance or make modifications to any Service;
(b) if an event occurs that we determine, in our sole discretion, may create a risk to the applicable Service or You if the Service were not suspended; or (c) Vitria determines that is prudent to suspend service to comply with applicable laws or other governmental regulations.
9.1. In the course of performance of this Agreement, We may find it necessary to exchange or make available Confidential Information. Unless expressly permitted by this Agreement and whether during or after the Agreement’s term, We agree that We shall not use Confidential Information, or disclose Confidential Information, to any third person, including to any employee or contractor, who does not have a need to access the Confidential Information. Notwithstanding any terms to the contrary within this Agreement, We shall have the right to disclose Confidential Information to contractors and consultants as necessary for Our internal business purposes, provided such independent contractors and consultants agree to be bound by these confidentiality restrictions. Confidential Information does not include information which can be shown by to be (a) already in the possession of the receiver without an obligation of confidentiality, (b) hereafter rightfully furnished to the receiver by a third party without a breach of any legal or contractual obligation, (c) that is or becomes publicly available without breach of this Agreement, (d) furnished by the discloser to a third party without restriction on subsequent disclosure, or (e) independently developed by the receiver without reliance on the Confidential Information.
9.2. We shall use the same degree of care as used to protect Our own confidential information of a similar nature, but in no event less than reasonable care to avoid disclosure of Confidential Information.
9.3. Notwithstanding the foregoing, the receiver shall not be in breach of this section with regard to a disclosure that
was in response to a valid order by a court or other government entity, provided that the receiver provides the discloser with prior written notice of such disclosure in order to permit the receiver to seek confidential treatment of such information.
10. REPRESENTATIONS AND WARRANTIES
10.1. You represent and warrant that you will not use the Service or Vitria’s Confidential Information in a manner that: (i) infringes, violates or misappropriates any rights of Us or any third party; (ii) breach this Agreement; or (iii) would violate or promote a violation of any laws or government regulations.
10.2. You represent and warrant that: (i) You are solely responsible for the development, operation, security, and maintenance of Your Content; (ii) You have the necessary rights and licenses, consents, permissions, waivers and releases to use Your Content in conjunction with the Services; (iii) Your Content does not (a) violate, misappropriate or infringe any rights of Vitria or any third party, (b) constitute defamation, invasion of privacy or publicity, or otherwise violate any rights of any third party, (c) promote illegal activities or (d) contain malicious or harmful code; and (iv) Your Content is not (a)
designed for use in any illegal activity or (b) discriminatory in any way.
10.3. You represent and warrant that You will not use, and will not authorize any third party to use, any third party software in connection with the Services in any manner that requires portions of the Services to be (i) disclosed or distributed in source code form, (ii) made available free of charge to recipients, or (ii) modifiable without restriction by recipients.
10.4. You represent and warrant that You have all the necessary rights in Feedback to assign ownership of Feedback to Vitria, and the act of assigning ownership to Vitria does not violate, misappropriate or infringe any intellectual property rights of any third party.
10.5. You represent and warrant that You have all the necessary rights in Your Content to license Your Content to Vitria as provided for in this Agreement, and the act of licensing Your Content to Vitria does not violate, misappropriate or infringe any intellectual property rights of any third party.
10.6. You represent and warrant that: (i) if You choose to register for a portion of the Service, the information You provide in connection with Your registration for the Services is accurate and complete; and (ii) You have the legal capacity to enter into this Agreement.
10.7. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
11. YOU INDEMNIFY VITRIA
11.1. You agree to indemnify, defend and hold Vitria, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of
(i) Your use of the Services not authorized by this Agreement, and/or in violation applicable law,
(ii) Your Content, including any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Your Content,
(iii) Your breach of this Agreement, including without limitation, Your representations and warranties, or
(iv) Your negligence or willful misconduct.
11.2. Vitria agrees to promptly notify You of any claim subject to this indemnification obligation; provided that Vitria’s failure to promptly notify You shall not affect your obligations hereunder except to the extent that Vitria’s failure to promptly notify You delays or prejudices Your ability to defend the claim. At Vitria’s option, You will have the right to defend against any such claim with counsel of Your own choosing (subject to our written consent) and to settle such claim, provided that You shall not enter into any settlement without Vitria’s prior written consent and provided that Vitria may, at any time, elect to take over control of the defense and settlement of the claim.
12. LIMITATION OF LIABILITY
12.1. EXCEPT FOR BREACHES OF WARRANTY, IN NO EVENT WILL VITRIA OR VITRIA’S SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOSS OF PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF VITRIA HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. VITRIA’S LIABILITY FOR DAMAGES SHALL BE LIMITED TO DIRECT DAMAGES ONLY AND VITRIA AND ITS SUPPLIERS’ TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SERVICES PURSUANT TO THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID TO VITRIA FOR THE PORTION OF THE SERVICE GIVING RISE TO THE LIABILITY. YOU ACKNOWLEDGE THAT THE FEES PAID BY YOU REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT VITRIA WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
13. MISCELLANEOUS TERMS
13.1. In the event that Vitria or You retains an attorney as a result of any dispute over, or to enforce any provisions of, this Agreement, the “prevailing party,” as that term is defined in California Code of Civil Procedure Section 1032(a)(4), in any litigation, arbitration or other formal or informal resolution of any such dispute or enforcement of, this Agreement shall be entitled to all of its reasonable costs, and any reasonable attorneys’ fees incurred as a result of said dispute or enforcement.
13.2. You will comply with all applicable laws and regulations in Your use of the Service, including but not limited to export and import controls and the United States Foreign Corrupt Practices Act. You will defend, indemnify and hold harmless Vitria, its suppliers, agents, directors, officers and employees, from and against any violation of such laws or regulations by You or any of Your agents, officers, directors, or employees.
13.3. During the term of this Agreement, Vitria may include Your name in Vitria’s customer listings. Vitria may place Your name and logo on Vitria’s web site and in collateral marketing materials relating to Vitria’s Products and Services. You acknowledge that it is the intent of Vitria to issue a press release regarding its relationship with You and You agree not to unreasonably withhold Your consent to such press release.
13.4. You may not assign or transfer, by operation of law or otherwise, any of Your rights under this Agreement (including Your licenses with respect to the Product) to any third party without Vitria’s prior written consent. Nothing in this Agreement shall constitute a consent by Vitria to Your assumption, or assumption and assignment, of any license set forth herein pursuant to 11 U.S.C. §365 or otherwise, and specifically shall not constitute a consent pursuant to 11 U.S.C. §365(c)(1)(B). Vitria further expressly reserves all of its rights to object to any assumption or assumption and assignment of any license set forth herein.
13.5. This Agreement may be executed in any number of counterparts or duplicate originals.
13.6. This Agreement (including any and all Additional Terms) constitutes the entire agreement between Us regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications between Us, whether written or oral.
13.7. In the event of any ambiguity or conflict between any of the terms and conditions contained in the Agreement and the terms and conditions contained in Additional Terms, the terms and conditions of the Additional Terms shall control with respect to that portion of the Service to which the Additional Terms apply.
13.8. Neither of Us will be responsible for failure of performance, other than for an obligation to pay money, due to causes beyond its control, including, without limitation, acts of God or nature; labor disputes; sovereign acts of any federal, state or foreign government; or shortage of materials.
13.9. This Agreement will be governed by the laws of the State of California as such laws apply to contracts between California residents performed entirely within California, and shall be deemed to be executed in Sunnyvale, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.10. We are independent contractors and will so represent and conduct Ourselves in all regards. Except as specifically provided for in this Agreement, neither of Us may bind the other in any way. Nothing in this Agreement will be construed to make either of Us the agent or legal representative of the other or to make the Parties partners or joint venturers.
13.11. Any legal action or proceeding relating to this Agreement may only be instituted in any state or federal court in San Francisco or Santa Clara County, California. We agree to submit to the jurisdiction of, and agree that venue is proper in, the aforesaid courts in any such legal action or proceeding.
13.12. Except as provided in the Sections relating to Limitation of Liability and Indemnification, the rights and remedies
under this Agreement are cumulative. You acknowledge that portions of the Service may contain valuable trade secrets and Confidential Information of Vitria and its suppliers, and that any actual or threatened breach of the Agreement may constitute immediate, irreparable harm to Vitria for
which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach without necessity of posting bond or security, which necessity is expressly waived.
13.13. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, You agree that Vitria’s Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision relating to Vitria’s obligation to indemnify You.
13.14. The Service is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “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 use the Service with only those rights set forth therein.
13.15. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of such or any other provision on any other occasion.
EXHIBIT A; DEFINITIONS
1. “Additional Terms” means any exhibits, amendments, attachments or policies related to the Service or portions of the Service that alter the terms and conditions of the Agreement.
2. “Confidential Information” means (i) all information identified by Vitria as confidential, whether in oral, written, graphic or electronic form, and provided to the receiving party hereto, and any third party proprietary information rightfully held and disclosed by the disclosing party, and any other information (whether or not identified as confidential) in any form generally understood to be confidential, proprietary or trade secret, or by its nature or circumstances surrounding its disclosure should be
reasonably regarded as confidential; and (ii) Your unique personal information that could be used to identify You. Confidential Information specifically excludes Your Content and Feedback.
3. “Content” means the information, manuals, operating instructions, application programming interfaces (API’s), specifications, tools, digital content, data, text, images, logos, user interface designs and other creative designs, audio and video content provided by Vitria and displayed to You as part of the Service whether added to the Service by Vitria, You, or third parties.
4. “Effective Date” means the date you first use the Service and accept this Agreement.
5. “Feedback” means performance test results and suggestions for improvements to the Service.
6. “Intellectual Property Rights” means all copyrights, all rights of authorship, all patent rights, all rights of inventorship, all trademark and service mark rights, all rights in trade secret and proprietary information, all rights in data and compilations of data, all rights of attribution and integrity and other moral rights, and all other intellectual property rights of any type under state or federal law of the United States or any other nation or international treaty or law, as well as all rights in applications for registration of these rights and all licenses to these rights.
7. “Mark” means trademarks, service marks, service or trade names, logos, and other designations of Vitria and its affiliates, licensors and/or other third parties.
8. “Service” means the Content and computing functions made available to You by Vitria supported by underlying hardware and software and any supplemental related product offerings made available to You.
9. “You” and “Your” means the individual using the Services and thereby agreeing to this license.
10. “We”, “Us”, or “Ours” means You and Vitria or Yours and Vitria’s.