Percussion Standard Agreement
Software License and Subscription Agreement
Effective January, 2019
ATTENTION: Carefully read this Software License and Subscription Agreement BEFORE you use, or download and install the Software and/or use the Service
BEFORE USING, OR DOWNLOADING AND INSTALLING THE PERCUSSION SOFTWARE, INC. (“PERCUSSION”) SOFTWARE OR SERVICE (“REFERENCED HEREIN AS THE “SOFTWARE” AND/OR “SERVICE” AS APPLICABLE”) YOU (ALSO REFERRED TO AS “CUSTOMER”) SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AND SUBSCRIPTION AGREEMENT (REFERRED TO HEREIN AS “AGREEMENT”) THAT APPLIES TO THE SOFTWARE AND SERVICE. CLICK “I AGREE” IF YOU FULLY ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT. OTHERWISE, CLICK “CANCEL.” CLICKING “I AGREE” OR OTHERWISE DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE AND/OR SERVICE ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AS THE PERSON LICENSING THE SOFTWARE AND/OR UTILIZING THE SERVICE, EITHER ON BEHALF OF YOURSELF OR ANY THIRD PARTY ENTITY (THE "LICENSEE") AND PERCUSSION SOFTWARE, INC. (“PERCUSSION”). IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, YOU SHALL HAVE NO RIGHT TO DOWNLOAD, INSTALL AND/OR USE THE SOFTWARE AND/OR SERVICE AND MUST DELETE THE SOFTWARE AND ASSOCIATED FILES IMMEDIATELY. THE RIGHT TO USE THE SOFTWARE AND/OR SERVICE IS ONLY ON THE CONDITION THAT YOU AGREE TO THE FOLLOWING LICENSE.
BY INSTALLING AND/OR BY USING THE SOFTWARE AND/OR SERVICE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO ENTER INTO A BINDING AGREEMENT TO ADHERE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND THAT THE SOFTWARE AND/OR SERVICE WILL BE USED ONLY IN ACCORDANCE WITH THESE TERMS AND CONDITIONS AND WITH ALL APPLICABLE LAWS. IF AN INDIVIDUAL IS REGISTERING OR USING THE SOFTWARE AND/OR SERVICE ON BEHALF OF AN ENTITY OR ORGANIZATION, THAT INDIVIDUAL WARRANTS, REPRESENTS, AND COVENANTS TO PERCUSSION THAT SUCH INDIVIDUAL IS DULY AUTHORIZED TO AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF THE ORGANIZATION AND TO BIND THE ORGANIZATION TO THEM.
IN ORDER TO USE THE SOFTWARE OR THE SERVICE, YOU MAY BE REQUIRED TO COMPLETE THE DESIGNATED ACTIVATION PROCESS WITHIN THE SERVICE OR THROUGH A LINK PROVIDED WITHIN THE SOFTWARE.
1. Grant of License. Percussion grants to Customer a non-exclusive, non-transferable, limited license to use the Software provided by Percussion to Customer and as listed on the Percussion Quote Form (the “Quote”) provided directly to Customer, and all updates, enhancements, bug fixes and new releases thereto, which are considered part of the Software, in accordance with the information published at http://help.percussion.com describing the capabilities, features, operation and use of the Software (the “Documentation”), for the term set forth in the Quote, or if not set forth in the quote, pursuant to the restrictions set forth in your signed sales agreement.
2. Term and Termination. This Agreement will be effective for a period of twelve (12) months from the Effective Date, and shall automatically renew for a subsequent 12 month period beginning on the Effective Date and every year thereafter, unless either party provides the other of written notice of its intent not to renew within thirty (30) days of expiration of the then-current term. Either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement, including non-payment by Licensee of fees due, and fails to cure such breach within thirty (30) days after receipt of written notice of the same. Upon the expiration or effective date of termination of this Agreement for any reason, Percussion will cease providing the Software.
Upon termination of the Agreement for cause or upon expiration of the subscription, the Customer agrees to return, or destroy and certify the destruction of the Software and all Documentation, as well as all Confidential Information of Percussion. Sections 5, 6, 9, 10, and 12 will survive any termination or expiration of this Agreement for any reason.
3. Ownership of the Software; Feedback. Percussion is the owner or licensor of the Software, Documentation and all modifications, derivative works, features and enhancements, which constitute trade secrets and proprietary data of Percussion. Customer is provided only the specific license rights expressly granted in this Agreement. Customer will not allow the removal or modification of any proprietary notice made part of the Software or Documentation and must reproduce all proprietary rights notices on any copies of the Software and Documentation made pursuant to this Agreement. During the term of this Agreement, Customer may periodically provide to Percussion information describing the results of all evaluations and tests performed by Customer on the Software, including a description of how the tests and evaluations were conducted. Such tests and results may include: (i) interoperability and usability of the Software, (ii) design concepts for the user-interface and functional aspects of the Software, and (iii) problems, difficulties and bugs encountered while installing and utilizing the Software (the “Feedback”). Customer agrees that all intellectual property rights and all other ownership in any ideas, modifications, enhancements, improvements, inventions, works of authorship or any other suggestion it or any of its personnel proposes, creates, authors or develops relating to the Software or the Feedback are hereby assigned to Percussion and shall be the sole and exclusive property of Percussion. Customer agrees to take any action Percussion may reasonably request to perfect Percussion’s ownership in any Feedback and shall treat Feedback as Percussion’s Confidential Information.
4. Terms Applicable to Software as a Service (“SaaS”) Use.
(a) Subject to the terms and conditions of this Agreement and during the term of this Agreement, Percussion grants you a non-exclusive, non-transferable, non-sublicensable license to use the Software, hosted by Percussion (the “Service”), for your internal business purposes only, within the use restrictions set forth herein. The Service provides the capability to store and retrieve your Data (as defined below) on Percussion’s systems via the Internet during the Service Period (as defined below). The Service is an internet control product that may consist of client software installed on your personal computer that interacts with Percussion’s or its third party providers’ servers and/or interacts with Percussion’s or its third party providers’ servers through Software and/or third party applications. The client software on your computer connects to a server network infrastructure that is deployed via the Internet and operated as a managed service by Percussion and other service providers. All or portions of the Service provided hereunder may be provided by a third-party provider. You are responsible for providing your own Internet access and computer equipment needed to access the Service. The Service is provided “as is” and “as available” and Percussion shall not be liable for any downtime of the Service.
The “Service Period” shall begin on the date the Service is activated and shall continue for a period of twelve (12) months, at which time you may renew by written request, or in accordance with Percussion’s then-current license activation process for successive twelve (12) month renewal terms.
(b) You understand that the technical processing and transmission of electronic communications is fundamentally necessary to your use of the Service. Percussion has taken reasonable actions, including encryption and firewalls, to ensure that your information and Data (as defined below) is disclosed only to those designated by you. You expressly consent to Percussion’s interception and storage of electronic communications and/or your Data, and you acknowledge and understand that your electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Percussion. You acknowledge and understand that changes to your electronic communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. You further acknowledge that the Internet is an open system and Percussion cannot and does not warrant or guarantee that any information or Data will not be intercepted by third parties. Percussion disclaims any liability for interception of any information, Data or electronic communications. Notwithstanding anything herein to the contrary, Percussion may decrypt or otherwise disclose information or Data submitted by you to Percussion if required by law or in the event that Percussion, in good faith, believes disclosure is necessary to (i) troubleshoot the Service, (ii) comply with legal process or any subpoena, warrant, order, or regulation, or (iii) protect the rights or property of Percussion or others. Percussion may also provide access to your Data to government authorities if Percussion suspects or believes that the Data contain a prohibited data or that the Data are being used for illegal purposes. You acknowledge that Percussion, its third party service providers or Percussion affiliates may use servers and other equipment to provide the Software or Service that are located in the United States or in other countries where litigants, law enforcement, courts, and other agencies of the government may have the right to access data stored within their jurisdictions upon terms and conditions provided by local law, and that as a result, they may gain access to your data as provided by applicable local law.
(c) In addition to information regarding compliance with use restrictions, the Software and Service may collect certain non-personally identifiable information that resides on your computer, including, without limitation, performance metrics relating to the Software, and configuration settings. This information collected will be sent to Percussion and may be used by Percussion or its third party service providers without restriction. The collected information is necessary for the purpose of delivering the functionality of the Software and Service. When you use the Service, you agree that we and our third party service providers may copy and store your Data as part of the Service. You understand that electing to access your Data from a third party computer may cause the contents of the Data to become accessible to individuals other than you and that you accept this risk. You further acknowledge that depending upon the Software or Service you use or the features of the Software or Service you use that accessing your Data from any Internet enabled computer many not be possible. In addition, any Data that you transmit or store through the Service may be transferred to a Percussion entity in the United States or other countries that may have less data protection laws than the region in which you are situated (including outside the European Economic Area).
(d) You shall be and remain the sole and exclusive owners of any and all data entered into the Service including, without limitation, all your proprietary data and information or materials provided or submitted by you to Percussion in the course of utilizing the Service (the "Data"). Percussion shall treat your Data as confidential, and shall not disclose your Data to any third party other than as necessary to perform the Services. Upon termination of this Agreement, all of your Data retained by Percussion in the system database files shall be made available to you for a period of three (3) days after the termination of this Agreement. Percussion assumes no responsibility for the deletion of your Data, loss of data or the failure to store Data. You acknowledge and agree that in connection with Service, Percussion as part of its standard offering makes tape back up copies of you Data in you account and stores and maintains such data for such period of time as it deems necessary. Percussion shall also own all rights in all metadata, defined as data generated by Percussion in connection with Percussion’s delivery and analysis of Data created during the performance of Percussion’s obligations hereunder. Percussion has no obligation to monitor the use of the Service and/or Data transmitted or stored through the Service. You agree to indemnify, defend, and hold harmless Percussion, its officers, directors, employees and its suppliers from any and all loss, cost, liability, and expense arising from or related to your Data or your use of the Service.
(e) A current Percussion account is required to access and use the Service. You agree to provide accurate and complete information when you register for the Service and you agree to keep such information accurate and complete during the entire time that you use the Service. You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of your username and/or password. You may access the Service only through the interfaces and protocols provided or authorized by Percussion. You agree that you will not access the Service through unauthorized means, such as unlicensed software clients. If you lose your password or the encryption key for your Percussion account, you may not be able to access your Data. You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer. You are solely responsible for your (and your employees, consultants and affiliates) conduct, use of the Services and Data under the Percussion account.
5. Fees and Taxes. Fees for the Software, Service and Support and Maintenance (the “Services”) are specified on the Quote, are due and payable as set forth therein and the resulting invoices, and are non-refundable. Customer is responsible for payment of all taxes imposed by governmental authorities resulting from this Agreement or Customer’s purchase, operation and use of the Software, Service and Support and Maintenance, whether such taxes are now or hereafter imposed.
6. Restrictions on Customer Use. Customer may not copy the Software under any circumstances, except for one copy solely for backup or archival purposes. Customer may not distribute, lease or transfer the Software, including any backup or archival copy, or any Documentation, and may not reverse engineer, decompile, disassemble or otherwise attempt to determine source code or protocols from, or create derivate works or copies of, the Software, and Customer may not tamper with, bypass or alter any security features of the Software or attempt to do so. Customer may not use any third-party embedded technology separately from the Software except under a separate license with the owner or licensor of that third party technology. Customer may not remove, obscure, or alter Percussion’s or any third party's trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software. Customer shall be responsible for timely backing-up of, and otherwise safeguarding, its data and storage files, and for backup software, hardware and systems. Customer shall be responsible for all virus protection and maintaining its computer systems free of computer viruses. Customer shall bear sole responsibility and expense for correcting problems or defects arising from changes in Customer hardware or software configuration impacting compatibility with the Software. Further, Customer may not use the Software if it is a citizen, national, or resident of, or are under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, or any other country to which the United States has prohibited export. Customer will not use nor allow the Software to be used for, any purposes prohibited by United States federal or state law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical, or biological weapons of mass destruction, nor will the Software or Services be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or any other restrictions that may be imposed by applicable law from time to time.
7. Indemnification of Customer. If a third party claims that the Software infringes a United States patent, copyright, trademark or trade secret, Percussion will (i) defend Customer against that claim at Percussion's expense, and (ii) pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction or the amount stated in a written settlement signed by Percussion. Customer will promptly notify Percussion in writing of the claim, and allow Percussion to control, and cooperate with Percussion in, the defense of the claim or any related settlement. If such a claim is made, Percussion agrees to enable Customer to continue to use the Software, or to modify or replace with non-infringing software, or if such options are not available to Percussion, refund a pro rata portion of the license fee for the remainder of the subscription term. Percussion shall have no liability under this Section 7 to the extent that the alleged infringement arises out of or relates to: (A) the use or combination of the Software with third party products or services, (B) use for a purpose or in a manner for which the Software was not designed, or (C) any unauthorized use of the Software. The foregoing states the entire liability of Percussion with respect to any claim of infringement.
8. Limited Warranty. Percussion warrants that the Software will perform substantially in accordance with the Documentation for a period of ninety (90) days from the date of delivery of the Software and will be free of viruses at the time of shipment. PERCUSSION'S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTY SET FORTH IN THIS SECTION 8 SHALL BE EITHER, AT PERCUSSION’S OPTION (i) RETURN OF THE FEES PAID OR (ii) REPAIR OR REPLACEMENT OF THE SOFTWARE. This limited warranty is void if failure of the Software has resulted from modification, abuse, or misapplication by Customer. PERCUSSION AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OF IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. PERCUSSION DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE. FURTHERMORE, PERCUSSION DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN REPRESENTATIONS MADE BY PERCUSSION OR AN AGENT THEREOF SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. PERCUSSION DOES NOT WARRANT ANY SOFTWARE THAT HAS BEEN OPERATED IN EXCESS OF SPECIFICATIONS, DAMAGED, MISUSED, NEGLECTED, OR IMPROPERLY INSTALLED.
9. Confidentiality. Each party hereby agrees that it shall maintain in confidence all proprietary, financial, marketing, research and development, organizational, technical, business policies or practices, the terms and conditions of this Agreement, and any non-public personal or financial information relating to clients or customers of the other party (hereinafter collectively referred to as “Confidential Information”). Recipient shall not permit the disclosure of any Confidential Information to any third party, except when, after and to the extent such Confidential Information (i) was already known to said recipient prior to the disclosure of same hereunder, as evidenced by recipient's written records prepared prior to such disclosure, without obligation of confidentiality; (ii) was in or hereafter comes within the public domain, other than by recipient's failure to fulfill its obligations hereunder; or (iii) is made available to recipient by a third party who has lawfully obtained the information and does not have any obligation of secrecy to the disclosing party. Recipient shall limit the disclosure of Confidential Information received by it hereunder to those of its affiliates, employees or agents on a need to know basis, and shall ensure that any such persons or entities agree in writing to be bound by confidentiality and use terms similar to those in this Agreement. In the event that a party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other party, recipient shall promptly notify the disclosing party and tender to it the defense of such demand. Upon request of the disclosing party, recipient shall cooperate in the defense of the demand. Unless the demand shall have been timely limited, suppressed or extended, the recipient shall thereafter be entitled to comply with such demand to the extent required by law. In addition, Customer may not publish, or provide any results of benchmark tests, or other evaluations of the Software without Percussion’s prior written consent.
10. Limitation of Liability. IN NO EVENT WILL PERCUSSION BE LIABLE FOR ANY LOSS OF PROFITS, OPERATIONS OR DATA, OR OTHER INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF CUSTOMER’S USE OR OPERATION OF THE SOFTWARE OR SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except for the third party indemnification of Percussion set forth in Section 7 above, Percussion's total liability to the Customer for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement, regardless of the legal or equitable form of action, shall not exceed the license fees paid to Percussion under the applicable Quote.
11. Support and Maintenance. Support and Maintenance services fees are set forth in the Quote. Customer may access customer support through the “Customer Support Center” upon registration of Customer license at support.percussion.com. Customer Support is available between the hours of 9:00 AM and 6:00 PM, Eastern Time, Monday through Friday, and excludes Percussion’s holidays. Percussion provides Customer access to the latest product information and documentation and to participate in an on-line user community through the Customer Support Extranet. Use of the Customer Support Extranet is governed by the terms and conditions posted on the Customer Support Extranet.
12. Server Usage; Audit. Percussion may audit Customer’s usage on a daily basis, whether the Software is installed by Customer or used as part of the Service pursuant to Section 3 above, to determine the total number of active sites, number of pages published, API calls, storage usage, bandwidth usage and compute usage. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Percussion for all reasonable expenses related to such audit in addition to any other liabilities you may be responsible for as a result of such non-compliance. Customer shall maintain such records for two (2) years from the date Customer ceases to use the Software. Such records shall be available for inspection by Percussion from time to time upon its reasonable request and at its expense; provided, however, that if any inspection determines that usage by Customer is exceeding the rights permitted under this Agreement and any relevant Quote, the Customer shall purchase from Percussion the additional Software instances or Sites at the published list price at that time and the Customer shall pay the reasonable expenses associated with the audit inspection.
13. Miscellaneous Contractual Provisions. This Agreement is governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. Any dispute relating to the terms, interpretation, or performance of this Agreement may only be instituted in the Commonwealth of Massachusetts. If any action is brought by either party against the other party, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of the action. Should any term of this Agreement be declared void or unenforceable, such declaration shall have no effect on the remaining terms. Section headings are for convenience only and shall not affect the construction or interpretation of this Agreement. Customer acknowledges it has read this Agreement and agrees that it is the complete and exclusive statement of the agreement between the Parties, and supersedes all prior proposals and understandings, oral and written, relating to the subject matter of this Agreement. Failure or delays by Percussion in the performance of any obligation hereunder shall be excused if such failure or delay is due to causes beyond Percussion's reasonable control, including, without limitation, fire, strike, war, riots, acts of any civil or military authority, acts of God, acts of terrorism, or endemic failures on the World Wide Web, denial-of-service attacks, or interruptions of telecommunications service or access. The failure of either party to enforce any rights contained in this Agreement, or to take action against the other party in the event of a breach, shall not be deemed to be a waiver by that party as to the subsequent enforcement of rights. Customer acknowledges that, in the event of a breach of the provisions of this Agreement, Percussion will not have an adequate remedy in money or damages, and Percussion shall be entitled to seek an injunction against such breach (without the necessity of posting a bond). Percussion's right to seek injunctive relief shall not limit its right to seek other remedies. Customer acknowledges that the Software may be subject to export controls under applicable export control regulations, including without limitation, the U.S. Export Administration Regulations, and agrees to comply with any such regulations. Customer may not assign or transfer any of its rights or obligations under this Agreement to a third party without the prior written consent of Percussion. Any attempted assignment or transfer in violation of the foregoing will be void from the beginning. Percussion may freely assign this Agreement.
14. Family Educational Rights and Privacy Act. In accordance with Title 34, Section 99.35, of the Code of Federal Regulation, personally identifiable educational records under the Family Educational Rights and Privacy Act may only be disclosed or used in limited circumstances. Percussion acknowledges that it may not use or disclose personally identifiable educational records or the information that such records contain without the express written consent of Customer unless such disclosure or use is required as a matter of law.