BLOOMBASE
SOFTWARE LICENSE AGREEMENT
(Perpetual License Version)
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE").
THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT") GOVERN USE OF THE SOFTWARE UNLESS YOU AND BLOOMBASE, INC. ("BLOOMBASE") HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING USE OF THE SOFTWARE.
Bloombase is willing to license the Software to you only upon the condition that you accept all the terms contained in this Agreement. By clicking on the "I accept" button below or by downloading, installing, or using the Software, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, "you" and "your" will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then Bloombase is unwilling to license the Software to you, and you must return the Software to Bloombase for a full refund, if you have paid for the license to the Software, or, if Bloombase has made the Software available to you without charge, you must destroy all copies of the Software. Your right to return the Software for a refund expires 30 days after the date of purchase.
1. Grant of License
Conditioned upon your compliance with the terms and conditions of this Agreement, Bloombase grants you a non-exclusive, non-transferable, revocable license, during the term of this Agreement, to Execute (as defined herein) the executable form of the Software on the maximum number of virtual processors for hypervisors, processor-cores for multi-core processors, or processor-units for single-core processors for which you have purchased licenses and are granted licenses in your license key, solely for your internal business purposes, which may include without limitation: (i) developing, prototyping, and running your applications for your internal data processing operations; and (ii) providing demonstrations and training internally or to third parties regarding the Software. You may make a single copy of the Software for backup purposes, provided that you reproduce on it all copyright and other proprietary notices that are on the original copy of the Software. Bloombase reserves all rights in the Software not expressly granted to you in this Agreement. For purposes of this Agreement, "Execute" and "Execution" means to load, install, and run the Software in order to benefit from its functionality as designed by Bloombase.
2. Restrictions
Except as expressly specified in this Agreement, you may not: (a) copy (except in the course of loading or installing) or modify the Software, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Software; (b) transfer, sublicense, lease, lend, rent, or otherwise distribute the Software to any third party; or (c) make the functionality of the Software available to multiple users through any means, including without limitation: (i) by permitting use of the Software on virtual processors, processor-cores, or processor-units in excess of the number for which you have purchased licenses; or (ii) by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS), or any other type of services. You acknowledge and agree that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Bloombase and its licensors. Accordingly, you agree not to disassemble, decompile, or reverse engineer the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
3. No Use of Software with Open Source
You agree not to use the Software in connection with any software or other materials that are distributed as "free software," "open source software" or similar licensing or distribution terms in a way that would create, or purport to create, obligations for Bloombase to grant, or purport to grant, to any third party any rights in the Software, including but not limited to, requiring the Software to be disclosed or distributed in source code form, licensed for the purpose of making derivative works, or redistributed at no charge.
4. Verification and Audit
At Bloombase's written request, you will furnish Bloombase with a certification signed by you (if you enter into this Agreement as an individual) or by an officer of your company or other legal entity (if you enter into this Agreement on behalf of your company or other legal entity) verifying that the Software is being used pursuant to the terms of this Agreement and any applicable orders. Upon at least thirty (30) days' prior written notice, Bloombase may audit your use of the Software to ensure that you are in compliance with the terms of this Agreement and any applicable order. Any such audit will be conducted during regular business hours at your facilities and will not unreasonably interfere with your business activities. You will provide Bloombase with access to the relevant records and facilities. If an audit reveals that you have underpaid fees to Bloombase during the period audited, then Bloombase will invoice you, and you will promptly pay Bloombase, for such underpaid fees based on Bloombase's price list in effect at the time the audit is completed. If the underpaid fees exceed five percent (5%) of the license fees paid by you for the Software, then you will also pay Bloombase's reasonable costs of conducting the audit.
5. Ownership
The copy of the Software is licensed, not sold. You own the media on which the Software is recorded, if any, but Bloombase retains ownership of the copy of the Software itself, including all intellectual property rights therein. The Software is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software or Documentation as delivered to you. Bloombase does not grant you the right to use any Bloombase trademarks, service marks, trade names, or logos.
6. Term
The license granted under this Agreement remains in effect for a period of 75 years, unless earlier terminated in accordance with this Agreement. You may terminate the license at any time by destroying all copies of the Software in your possession or control. The license granted under this Agreement will automatically terminate, with or without notice from Bloombase, if you breach any term of this Agreement. Upon termination, you must at Bloombase's option either promptly destroy or return to Bloombase all copies of the Software in your possession or control.
7. Limited Warranty
Bloombase warrants that, for sixty (60) days following the date of purchase, delivery, or download, whichever is earlier, the Software will perform in all material respects in accordance with the Documentation. As your sole and exclusive remedy and Bloombase's entire liability for any breach of this limited warranty, Bloombase will at its option and expense promptly correct or replace the Software so that it conforms to this limited warranty. Bloombase does not warrant that the Software will meet your requirements, that the Software will operate in the combinations that you may select for Execution, that the operation of the Software will be error-free or uninterrupted, or that all Software errors will be corrected. The warranty set forth in this Section 7 does not apply to the extent that Bloombase provides you with the Software (or portions of the Software) for beta, evaluation, testing, or demonstration purposes. The Bloombase Software has not been tested in all situations under which they may be used. Bloombase will not be liable for the results obtained through use of the Bloombase Software and you are solely responsible for determining appropriate uses for the Bloombase Software and for all results of such use. In particular, Bloombase Software is not specifically designed, manufactured or intended for use in (a) the design, planning, construction, maintenance, control, or direct operation of nuclear facilities, (b) aircraft control, navigation, or communication systems (c) weapons systems, (d) direct life support systems (e) or other similar hazardous environments.
8. DISCLAIMER
THE LIMITED WARRANTY SET FORTH IN SECTION 7 IS IN LIEU OF, AND BLOOMBASE EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BLOOMBASE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
9. Technical Support
Upon Bloombase's acceptance of a written purchase order for technical support services and your payment of applicable fees, Bloombase will provide the technical support services purchased by you pursuant to Bloombase's Standard Technical Support Service Terms and Conditions, available at https://supportal.bloombase.com.
10. Limitation of Liability
BLOOMBASE'S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE AMOUNTS PAID TO BLOOMBASE BY YOU FOR THE SOFTWARE OR, IN THE EVENT THAT BLOOMBASE HAS MADE THE SOFTWARE AVAILABLE TO YOU WITHOUT CHARGE, BLOOMBASE'S TOTAL LIABILITY WILL BE LIMITED TO $500. IN NO EVENT WILL BLOOMBASE BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS, OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT BLOOMBASE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11. U.S. Government End Users
The Software and Documentation are "commercial items" as that term is defined in FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software and Documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government's rights in the Software and Documentation will be only those specified in this Agreement.
12. Export Law
You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
13. General
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Bloombase's prior written consent, and any attempt by you to do so, without such consent, will be void. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either party to the other in accordance with this section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Bloombase have executed a separate agreement. Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Bloombase and will be deemed null.
14. Contact Information
If you have any questions regarding this Agreement, you may contact Bloombase at licensing@bloombase.com or +1.855.256.6622.
BY DOWNLOADING OR INSTALLING THE SOFTWARE, YOU AGREE TO THE FOREGOING TERMS AND CONDITIONS.
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