SPRINKLE MASTER LICENSE AGREEMENT
THE TERMS OF THIS MASTER LICENSE AGREEMENT ("AGREEMENT") GOVERN YOUR USE OF THE SOFTWARE (AS DEFINED BELOW) OF SPRINKLEDATA TECHNOLOGY PVT LTD ("SPRINKLE"). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OR INSTALL SPRINKLE'S SOFTWARE. BY ACCEPTING THESE TERMS BELOW OR BY USING SPRINKLE'S SOFTWARE IN ANY MANNER, YOU, THE ENTITY YOU REPRESENT AND ANY AFFILIATE OF SUCH ENTITY (COLLECTIVELY, "CUSTOMER") AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS.
1.1. "Affiliate" means an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided such entity is not a competitor to Sprinkle or in the business of developing and offering products or technologies that are substantially similar to the Software.
1.2. "Customer Data" means (a) all data in Customer's databases, (b) other Customer Confidential Information used to provision the Software and to create Data Models for Customer's Software implementation, and (c) all analytical results generated by the Software.
1.3. "Customer Modifications" means versions of Data Models that have been adapted by Customer using the Software. Customer Modifications are made up of Customer Data, which Customer owns, and the underlying Software, which Sprinkle owns. Customer Modification are configurations of the Software and not works for hire. Sprinkle disclaims all warranties and obligations to indemnify Customer as to Customer Modifications.
1.4. "Deployment Attributes" means the quantified usage of the Software as defined on an Order Form, which may include the number of Instances, Users, computer servers, database connections and types, or other licensing attributes that may be defined by the Scope of Use.
1.5. "Documentation" means the user guides and manuals for Software provided by Sprinkle to Customer for Customer's own internal business purposes.
1.6. "External Business Purposes" means the use of the Software by or for the benefit of Customer's clients and their users, or other third parties, which may be referred to as "Powered by Sprinkle".
1.7. "Instance" means a copy of Software installed within a single operating environment.
1.8. "Internal Business Purposes" means the use of the Software by or for the benefit of the Customer's internal operations.
1.9. "Data Models" means the logic & data processing methods programmed using SQL and Sprinkle web interface used to configure the Software. Data Models are made up of Customer Data, which Customer owns, and the underlying Software, which Sprinkle owns.
1.10. "Order Form" means an online or written order for the Software or Service that is mutually agreed between the Parties, which incorporates this Agreement by reference.
1.11. "Scope of Use" means the specific extent or limitation of Software use for Internal Business Purposes and/or External Business Purposes as defined in a related Order Form.
1.12. "Services" means the professional services, technical support and other services described herein and on an Order Form.
1.13. "Software" means the subscription software described on an Order Form, related Documentation, Data Models, and updates and enhancements made to the foregoing pursuant to Services, if and when made available by Sprinkle.
1.14. "User" means an individual who has been provisioned directly in the Software or indirectly in another system with Software privileges or privileged access to data via the Software. The Order Form will identify applicable User types, definitions, rights, restrictions, and pricing.
2. SOFTWARE LICENSE RIGHTS:
2.1. License Grant:
a) Sprinkle grants Customer a fee-bearing non-exclusive, non-transferable, non-sublicensable license (except in connection with a permissible sublicense per Section 2.1(b)) to install and use the Software for the defined Scope of Use and related Deployment Attributes on each executed Customer Order Form. Customer may permit subcontractors to use the Software within the defined Scope of Use and related Deployment Attributes on an Order Form, so long as Customer remains responsible for their compliance hereunder.
b) Customer may permit third parties to use the Software as licensed Users for an associated Scope of Use that includes External Business Purposes, so long as the third parties have executed agreements (manually or electronically) with Customer at least as protective of Sprinkle's rights in the Software as this Agreement. Customer will be solely responsible to third parties for any warranties or other terms provided to them in excess of the warranty and support obligations in this Agreement.
c) In all cases, Customer's use is subject to the applicable Deployment Attributes, Scope of Use and other restrictions described on the Order Form. If Customer exceeds the Deployment Attributes, Customer will promptly notify Sprinkle and pay Sprinkle the additional fees due in accordance with pricing on the Order Form.
2.2. License to Make Customer Modifications: Sprinkle further grants to Customer the right to modify and adapt Data Models for use as part of the Software. In all cases, Customer owns all Confidential Information used to prepare Data Models and Customer Modifications. Sprinkle owns the underlying code as part of the Software.
2.3. License Term: Each Software license is granted for the time period specified in the Order Form pursuant to which the Software is provided to Customer, subject to the provisions of this Agreement.
2.4. Renewal: The subscription term will automatically renew for the same term as previous unless either party notifies the other in writing at least 30 days prior to expiration of the then-current term, so long as Sprinkle makes the Products available. Sprinkle will invoice Customer for the subscription fees at the list prices in effect at the time of renewal.
2.5. Restrictions: Customer shall not, and shall not allow others to: (a) cause or permit the reverse engineering, disassembly, or decompilation of any portion of any Software; (b) remove any copyright notices or other proprietary notices or restrictions from the Software; (c) knowingly disclose results of any benchmark or other performance tests to any third party; or (d) except as permitted by Section 2.1(b) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or similar purposes.
2.6. Ownership Rights: The Software constitutes proprietary works of Sprinkle and its licensors, protected by copyright and other intellectual property laws. Except for the rights granted herein, Sprinkle and its licensors retain all rights, title and interest, including all intellectual property rights, in the Software and the Documentation. The terms "purchase" and "sale" in reference to the Software notwithstanding, it is expressly agreed by the parties that title to the Software does not pass to Customer and Customer's rights with respect to the Software will only be that of a licensee.
What Sprinkle Owns: The Software constitutes proprietary works of Sprinkle and its licensors, protected by copyright and other intellectual property laws. Except for the rights granted herein, Sprinkle and its licensors retain all rights, title and interest, including all intellectual property rights, in the Software and the Documentation. The terms "purchase" and "sale" in reference to the Software notwithstanding, it is expressly agreed by the parties that title to the Software does not pass to Customer and Customer's rights with respect to the Software will only be that of a licensee.
What Customer Owns: Customer retains all rights to Customer Data. Sprinkle disclaims all ownership and other rights as to Customer Data, except any limited rights granted by Customer to allow the Software to analyze Customer Data.
2.7. No Transfers: The Software may not be transferred or redistributed to any third party.
2.8. Customer Reference. Customer agrees that Sprinkle may use Customer’s name and logo on the website located at www.sprinkledata.com and for the purpose of marketing the Service, and to identify Customer as a customer of Sprinkle in a press release. Customer agrees to do a Case Study.
3.1. Enablement and Support Terms: Sprinkle will provide the setup, training and installation Services as identified on the Order Form, and the technical support Services.
3.2. Professional Services: If Customer requests that Sprinkle provide other Services not described on an Order Form or in this Agreement, the parties will execute a separate Order Form or SOW to describe such Services, applicable fees and other relevant provisions.
4. INVOICING, PAYMENT AND REPORTING
4.1. Fees and Payment: Unless otherwise stated in the order form, all fees are due 30 days from the date of Sprinkle's invoice, all fees are non-cancelable and non-refundable.
4.2. Embedded Reporting: Customer acknowledges that Sprinkle Software may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Products and/or the systems on which they are installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith), and provide e-mail and other reports to Sprinkle; this includes, without limitation, information on usage that Sprinkle uses for billing purposes. Sprinkle will be entitled to inspect the installation and configuration of such Products and systems from time to time on reasonable notice. Provided it does not identify Customer, Sprinkle will be free to use for development, diagnostic and corrective purposes any data and information it so collects relating to diagnosis, problems, systems, performance, use or functionality, and may allow others to do so. Notwithstanding anything else, Customer agrees that Sprinkle may freely exploit and make available any and all feedback, suggestions, ideas, enhancement requests, recommendations or other information provided by Customer any other party relating to the Software.
5.1. Confidential Information: Subject to the limitations set forth in Section 5.2, all information disclosed by one party to the other party during the term of this Agreement, whether in oral, written, graphic or electronic form, shall be deemed to be "Confidential Information". Customer authorises Sprinkle personnel to access Customer internal systems and information for installation, implementation, professional services and support purposes; all information so accessed is Customer's Confidential Information subject to the use and disclosure restrictions below.
5.2. Exceptions: Information will not be considered Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (a) lawfully available through no act or omission of the receiving party; (b) in the receiving party's lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (c) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) independently developed by the receiving party.
5.3. Nondisclosure: The parties agree, both during the term of this Agreement and for a period of five years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other's Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and service providers performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall, to the extent permitted, promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 5.3 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.
6. LIMITED WARRANTIES AND EXCLUSIVE REMEDIES
6.1. Authority: Each of Sprinkle and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation and shall continuously remain in good standing during the term of this Agreement.
6.2. Compliance with Laws: Each of Sprinkle and Customer covenants that, at its sole respective cost and expense, it shall comply with all present and future national, state and local laws, ordinances, rules, regulations, directives and guidelines applicable to its performance or use, as applicable, of the Software (collectively "Laws") including, without limitation, all data privacy and processing Laws.
6.3. Software Warranty: Sprinkle warrants to Customer that during the term of the Agreement, Software will perform the material functions described in the applicable Documentation when operated on the hardware and operating system platform generally supported by Sprinkle. Sprinkle will use procedural, technical, and administrative safeguards on its Software designed to ensure the confidentiality, security, integrity, availability, and privacy of Customer Confidential Information stored in the Software Instance. Notwithstanding any other provision of this Agreement or any other agreement related to the Software and Services, Sprinkle will not be responsible for any breach or loss resulting from Customer's security configuration or administration of the Software, and will not be responsible for Software unavailability resulting from: (a) non-Sprinkle owned equipment or software, or connectivity errors arising from Customer's network or databases (b) Software maintenance; (c) events outside Sprinkle's control, including any force majeure event, Internet node or facility outage, Cloud provider maintenance or outage, or problems beyond the demarcation point of Sprinkle-managed Software hosting environments; or (d) a suspension or remedial action described in this Agreement.
6.4. Warranty Exclusions: Sprinkle is not obligated to correct errors caused by unauthorized modification to Software, by using Software other than as described in the Documentation, by non-Sprinkle software, or by combining Software with any hardware or software not authorized by Sprinkle in writing.
6.5. Services Warranty: For breach of its Services obligations, Customer's exclusive remedy and Sprinkle's entire liability will be reperformance of the applicable Service at issue.
6.6. NO IMPLIED WARRANTIES: THE WARRANTIES ABOVE ARE THE EXCLUSIVE WARRANTIES REGARDING THE SOFTWARE, TECHNICAL SUPPORT AND SERVICES AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES OF SPRINKLE, WHETHER EXPRESS OR IMPLIED, INCLUDING NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.7. DISCLAIMER: SPRINKLE DOES NOT WARRANT THAT ANY SOFTWARE OR SERVICE WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE OR WITH ANY NON-SPRINKLE PROGRAMS USED BY CUSTOMER, THAT THE OPERATION OF ANY PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE OR THAT ALL ERRORS IN THE SOFTWARE OR DOCUMENTATION WILL BE CORRECTED. SPRINKLE SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER'S PROPOSED USE OF THE SERVICE COMPLIES WITH APPLICABLE LAWS IN CUSTOMER'S JURISDICTION(S).
7. INFRINGEMENT INDEMNITY
7.1 Indemnification by Sprinkle: Sprinkle at its own expense will defend or settle any claims, actions and demands brought by anyone other than a Customer Related Party (as defined below) against Customer and its Related Parties (collectively, the "Claims") where the third party expressly asserts that the Software infringes such third party's trademark or copyright, or Sprinkle misappropriated such third party's trade secrets in the development of the Software. "Related Parties" means Affiliates, successors, assigns, members, shareholders, officers, directors and agents of Sprinkle or Customer, as applicable. In the event that Sprinkle believes the Software, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section 7.1 applies, then Sprinkle may, in its discretion and at its sole expense: (1) procure for Customer the right to continue using such Software or any applicable part thereof, (2) replace such Software, or infringing part thereof, with a non-infringing version (or part thereof), (3) modify such Software, or infringing part thereof, so as to make it non-infringing, or (4) in the event that (1), (2) or (3) are not commercially feasible, then Customer shall have the right to terminate this Agreement solely with respect to the infringing Software or Services, and have Sprinkle refund to Customer the pro rata unused portion of any pre-paid fees for such Software or Services. THIS SECTION 7.1 STATES SPRINKLE'S SOLE LIABILITY TO, AND CUSTOMER'S EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS OF ANY KIND IN CONNECTION WITH THE SOFTWARE OR SERVICES DELIVERED UNDER OR IN CONNECTION WITH THIS AGREEMENT.
7.2 Indemnification by Customer: Customer at its own expense will defend, indemnify and hold Sprinkle and its Related Parties harmless against any liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorney's fees and disbursements) arising out of Claims made or brought by anyone other than a Sprinkle Related Party alleging misappropriation, misuse or breach of applicable law related to Customer Data.
7.3 Indemnification Exclusions: Sprinkle shall not have any indemnification obligation pursuant to this Agreement to the extent a claim is: based upon use of any version of Software other than the then-current, unaltered version, if infringement would have been avoided by use of a current, unaltered version thereof that has been made available to Customer; combination, operation or use of Software with software not supplied by Sprinkle if infringement would not have occurred but for such combination; use of the Software in violation of this Agreement; modifications to the Software made by Customer; where Customer continues to use the Software after being notified of allegedly infringing activity or being informed of modifications that would have avoided the alleged infringement; or third party software, Customer software or Customer Data.
7.4 ENTIRE LIABILITY: THIS SECTION 7 STATES THE ENTIRE LIABILITY OF THE INDEMNIFYING PARTY, AND THE INDEMNIFIED PARTY'S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM BY A THIRD PARTY DESCRIBED IN THIS SECTION.
8. LIMITATION OF WARRANTIES AND LIABILITIES
8.1. NO INDIRECT DAMAGES: EXCEPT FOR EACH PARTY'S INDEMNIFICATION OBLIGATIONS AND CUSTOMER'S BREACH OF SECTION 2.6, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF THE PARTY AND/OR ITS LICENSORS HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. LIMIT ON DIRECT DAMAGES: EXCEPT FOR EACH PARTY'S INDEMNIFICATION OBLIGATIONS AND CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO SPRINKLE DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM.
9. RESTRICTED AREAS OF THE SOFTWARE
9.1. Certain parts of the Software, including administration features, may be password-restricted to registered users or other authorized persons ("Password-Protected Areas"). If Customer is authorized to gain access to any Password-Protected Areas, Customer agrees that Customer is entirely responsible for maintaining the confidentiality of Customer's password, and agrees to notify Sprinkle if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Customer agrees that Customer is entirely responsible for any and all activities that occur under Customer's account, whether or not Customer undertakes such activities. Customer agrees to immediately notify Sprinkle of any unauthorized use of Customer's account or any other breach of security in relation to Customer's password or the Software that is known to Customer.
10.1. Termination for Breach: Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
10.2. Termination for Convenience: Customer may terminate this Agreement (including all related Order Forms) for convenience by giving Sprinkle an advance notice of 30 days.
10.3. Effect of Termination: Immediately on termination of this Agreement, Customer shall cease all use of the Software. Within ten business days following the termination date Customer shall return to Sprinkle or destroy (and certify to Sprinkle in writing as to such destruction) all copies of the Software and Documentation and any other materials embodying the Software. Customer will not be entitled for any refunds of any remaining subscription term or any other fee.
10.4. Survival: Sections 2.5 through 2.8 and 4 through 12 of this Agreement shall survive any termination of this Agreement; provided that Sections 6 and 7 shall only survive to the extent applicable to a claim, other than with respect to confidentiality obligations, arising prior to the termination date.
11.1. Integration: This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof, including any NDAs or confidentiality agreements entered previously. If any provision of this Agreement is adjudicated invalid or unenforceable, the remaining provisions will remain in effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by Sprinkle in lieu of or in addition to Sprinkle's Order Form, Customer's purchase order shall be binding only as to the following terms: (a) the Software and Services ordered and (b) the appropriately calculated fees due. Other terms shall be void.
11.2. Assignment: This Agreement may not be assigned by either party without the other party's prior written consent, whether by operation of law or otherwise, except that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party. Any other purported assignment shall be void. An assignee of Customer may use the Software only subject to the Deployment Attributes, Scope of Use and other restrictions in effect prior to the assignment date. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns.
11.3. Force Majeure: Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.
11.4. Amendment; Counterparts: No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
11.5. Notices: All notices under this Agreement shall be sent in writing and shall be addressed to the other Party at its address at the top of this Agreement. Any notice or communication to be given under the terms of this Agreement is sufficiently served if it is personally delivered or sent by first class prepaid post, air mail or facsimile machine to the other Party at its address at the top of this Agreement or at any other address for notices which the other Party has notified to the sender in writing.
12. GOVERNING LAW
If you are a resident of the United States or Canada, this Agreement shall be governed by and interpreted in all respects by the laws of the State of California, without reference to conflict of laws' principles, as such laws are applied to agreements entered into and to be performed entirely within California between California residents. If you are a resident of any other country, this Agreement shall be governed by and interpreted in all respects by the laws of the Republic of India without reference to conflict of laws' principles, as such laws are applied to agreements entered into and to be performed entirely within the Republic of India between residents of the Republic of India. If you are a resident of the United States or Canada, you agree to submit to the personal jurisdiction of the courts in the Northern District of California. If you are a resident of any other country, you agree to submit to the personal jurisdiction of the courts in Bangalore, India. This Agreement constitutes the entire agreement between the parties, and supersedes all prior communications, understandings or agreements between the parties. Any waiver or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto. If any part of this Agreement is found invalid or unenforceable, the remainder shall be interpreted so as to reasonable effect the intention of the parties. You shall not export the Licensed Software or your application containing the Licensed Software except in compliance with United States export regulations and applicable laws and regulations.