SOFTWARE LICENSE SUBSCRIPTION AND SUPPORT AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SOFTWARE OR CLICKING AGREE, CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S OR THAT THIRD PARTY’S BEHALF.
This agreement is between Liquibase Inc. a Delaware corporation (Liquibase) and you, the customer entering into this agreement (Customer). All Liquibase software, updates, documentation and license keys provided to Customer (Software) are licensed and are not sold. Software currently includes Liquibase Pro, Liquibase Business and Liquibase Enterprise (Products).
Scope. This agreement describes the licensing of the Software and Support provided to the Customer under an order. Third-party contractors and majority-owned affiliates of Customer can use and access the Software under the terms of this agreement, and Customer is responsible for each of their compliance with such terms.
1. LICENSE. Subject to the other terms of this agreement, Liquibase grants Customer, under an order, a term based non-exclusive, non-transferable license up to the license capacity purchased to use the Software only in Customer’s internal business operations. Third-party licenses delivered with the Software may be subject to additional license rights and restrictions set forth at https://www.liquibase.com/licenses.
2. RESTRICTIONS. Customer may not:
- Transfer, assign, sublicense, rent the Software, create derivative works of the Software, or use it in any type of service provider environment;
- Reverse engineer, decompile, disassemble, or translate the Software; or
- Evaluate the Software for the purpose of competing with Liquibase Software or operate the Software other than in accordance with its technical documentation.
3. PROPRIETARY RIGHTS AND MUTUAL CONFIDENTIALITY.
- Proprietary Rights. The Software, workflow processes, user interface, designs and other technologies provided by Liquibase as part of the Software are the proprietary property of Liquibase and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Liquibase and its licensors. The Software is protected by copyright and other intellectual property laws. Customer may not remove any product identification, copyright, trademark or other notice from the Software. Liquibase reserves all rights not expressly granted.
- Mutual Confidentiality. The recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this agreement.
Confidential Information means all information that is disclosed to the recipient (Recipient) by the discloser (Discloser), and includes, among other things:
- any and all information relating to products or services provided by a Discloser, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts;
- as to Liquibase, the Software and the terms of this agreement, including without limitation, all pricing information.
Confidential Information excludes information that:
- was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser;
- is or becomes a matter of public knowledge through no fault of Recipient;
- is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or
- is independently developed by or for Recipient without use or access to the Confidential Information.
Recipient may disclose Confidential Information if required by law, but it will attempt to provide notice to the Discloser in advance so it may seek a protective order. Each party acknowledges that any misuse of the other party’s Confidential Information may cause irreparable harm for which there is no adequate remedy at law. Either party may seek immediate injunctive relief in such an event.
4. WARRANTY, REMEDY and DISCLAIMER. For new license purchases, Liquibase warrants that the Software will perform in substantial accordance with its accompanying technical documentation for a period of 60 days from the date of the order. This warranty will not apply to any problems caused by software not licensed to Customer by Liquibase, use other than in accordance with the technical documentation, or misuse of the Software. The warranty only covers problems reported to Liquibase during the warranty period or 30 days after. The customer will cooperate with Liquibase in resolving any warranty claim.
EXCLUSIVE REMEDY and SOLE LIABILITY. Liquibase will use commercially reasonable efforts to remedy covered warranty claims within a reasonable period of time or replace the Software, or if Liquibase cannot do so it will refund to Customer the license fee paid. This remedy is customer’s exclusive remedy, and Liquibase’s sole liability for these warranty claims.
DISCLAIMER OF WARRANTIES. Liquibase disclaims all other express and implied warranties, including without limitation the implied warranty of merchantability and fitness for a particular purpose. Customer understands that the Software may not be error-free, and use may be interrupted.
5. Termination. This agreement expires at the end of the license period specified. Either party may terminate this agreement upon a material breach of the other party after a 30 days’ notice/cure period if the breach is not cured during such a time period. Upon termination of this agreement or a license, the Customer must discontinue using the Software, de-install and destroy or return the Software and all copies, within 5 days. Upon Liquibase’s request, Customer will provide written certification of such compliance.
6. SUPPORT. Liquibase’s standard support and maintenance services (Support) are included with the license fees for each Product as described at www.liquibase.com/support. Liquibase may change its Support terms, but Support will not materially degrade during any Support term. Premium support is available at additional cost.
7. LIMIT ON LIABILITY. There may be situations in which (as a result of a material breach or other liability) Customer is entitled to make a claim against Liquibase. In such situation (regardless of the form of the legal action (e.g. contract or tort claims)), Liquibase is not responsible for any damage and does not have any liability beyond the greater of the amount paid or payable by Customer to Liquibase within the 12 months prior to the event that gave rise to the claim and in no event is Liquibase responsible for any: loss of data or information; lost profits, revenue, or productivity; or other special, consequential, incidental or indirect damages.
8. Intellectual Property Indemnity
- Defense of Third Party Claims. Liquibase will defend or settle any third party claim against Customer to the extent that such claim alleges that the Software violates a copyright, patent, trademark or other intellectual property rights, if Customer, promptly notifies Liquibase of the claim in writing, cooperates with Liquibase in the defense, and allows Liquibase to solely control the defense or settlement of the claim. Costs. Liquibase will pay infringement claim defense costs incurred as part of its obligations above, and Liquibase negotiated settlement amounts, and the court awarded damages. Process. If such a claim appears likely, then Liquibase may modify the Software, procure the necessary rights, or replace it with the functional equivalent. If Liquibase determines that none of these are reasonably available, then Liquibase may terminate the Software and refund any prepaid and unused fees. Exclusions. Liquibase has no obligation for any claim arising from Liquibase’s compliance with Customer’s specifications; A combination of the Software with other technology where the infringement would not occur but for the combination; or Technology not provided by Liquibase. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND LIQUIBASE’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
- GOVERNING LAW AND EXCLUSIVE FORUM. This agreement is governed by the laws of the State of Texas (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Travis County, Texas, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in litigation is entitled to recover its attorneys’ fees and costs from the other party.
9. OTHER TERMS.
- Entire Agreement. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding.
- Non-Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger, or sale of all or substantially all of the business or assets, of a party.
- Independent Contractors. The parties are independent contractors with respect to each other.
- Enforceability. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
- Survival of Terms and Force Majeure. All terms that by their nature survive termination of this agreement for each party to receive the benefits and protections of this agreement, will survive. Neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
- Modification Only in Writing. No modification or waiver of any term of this agreement is effective unless signed by both parties.
- Export Compliance. Customer must comply with all applicable export control laws of the United States, foreign jurisdictions and other applicable laws and regulations.
- US GOVERNMENT RESTRICTED RIGHTS. If Customer is a United States government agency or acquired the license to the Software hereunder pursuant to a government contract or with government funds, then as defined in FAR §2.101, DFAR §252.227-7014(a)(1) and DFAR §252.227-7014(a)(5) or otherwise, all Software provided in connection with this agreement are “commercial items,” “commercial computer software” or “commercial computer software documentation.” Consistent with DFAR §227.7202 and FAR §12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution by or for the United States government is governed solely by the terms of this agreement and is prohibited except to the extent permitted by the terms of this agreement.
- No PO Terms. Liquibase rejects conflicting terms of a Customer’s form-purchasing document.
- Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.