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Software License Agreement

The terms and conditions of this Software License Agreement (this "License Agreement") govern your use of the accompanying Bytewax Module software (the "Software") and constitute a binding legal contract between you and Bytewax, Inc. ("Bytewax"). Your download, installation or use of the Software constitutes acceptance of this License Agreement. If you do not agree to any part of this License Agreement, then you may not use the Software and must delete all copies of the Software in your possession or control.

If you are accepting the terms of this Agreement on behalf of a legal entity, you represent and warrant that you have the authority to bind that legal entity to the terms of this License Agreement, and, in such event, "you" and "your" will refer to that legal entity. If you do not have such authority, you must not accept this License Agreement, in which case you may not download or use the Software.

  1. Subject to all terms and conditions of this License Agreement and your timely payment of all subscription fees due hereunder, Bytewax hereby grants you a limited, nonexclusive, nontransferable license (without right to sublicense) to: (i) install and use the object code version of the Software internally for the purpose of ingesting and processing data for your own internal business purposes; and (ii) incorporate the Software, solely in object code form or code artifact, as a component of software-as-a-service offering that is hosted by you ("Application"), provided that such Application provides material additional functionality and features in addition to that provided by the Software.

  2. Subject to all terms and conditions of this License Agreement and your timely payment of all subscription fees due hereunder, Bytewax hereby grants you, a limited, nonexclusive, nontransferable license to internally use any documentation that may be provided by Bytewax regarding the Software ("Documentation") as reasonably necessary for your authorized use of the Software. You may make copies of the Documentation in connection with exercising the foregoing license. Without limiting any other terms and conditions of this License Agreement, you may not transfer or provide the Documentation to any third party.

  3. You shall be entitled to download and use any updated versions of the Software that Bytewax may make available to similarly situated licensees in its sole discretion. Any such updated versions constitute the "Software" for all purposes hereunder. In addition, Bytewax will use commercially reasonable efforts to answer questions regarding use of the Software during Bytewax's normal business hours through such support channels as Bytewax may make available from time to time.

  4. You have no rights or licenses with respect to the Software or Documentation except as expressly provided in this License Agreement. Without limiting the generality of the foregoing, you may not, except to the extent expressly provided for in Sections 1 and 2 above: (a) copy, distribute, rent, lease, lend, sublicense or transfer the Software or Documentation or use the Software or Documentation on a service bureau basis; (b) decompile, reverse engineer, or disassemble the Software or otherwise attempt to discover the source code of the Software, except solely to the extent such acts are authorized under applicable law notwithstanding this prohibition; (c) create derivative works based on the Software or Documentation; (d) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that may appear on the Software or Documentation or during the use and operation thereof; (e) cause the Software to become subject to the terms of any open source license agreement; or (f) deploy your Application in a manner that allows the end user to directly access, download or use the Software other than as incorporated within your Application. acknowledge that certain components of the Software may be covered by open source software licenses. To the extent the terms of such open source licenses prohibit any of the restrictions in this License Agreement with respect to the applicable open source software, such restrictions do not apply. To the extent the terms of such open source licenses require Bytewax to make an offer to provide source code or related information in connection with the open source software, such offer is hereby made. You are not required to provide any ideas, feedback or suggestions regarding the Software (collectively, "Feedback") to Bytewax. To the extent you do provide any Feedback to Bytewax, you acknowledge that Bytewax may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to you.

  5. As part of its operation, the Software may collect and send to Bytewax data regarding the system on which the Software is installed and relating to usage of the Software ("Collected Data"). Collected Data will not include the data that you ingest or process through use of the Software. Collected Data may be used by or on behalf of Bytewax for any lawful purpose, including without limitation to develop and improve Bytewax's products and services and for statistical analysis purposes. In addition, Bytewax will disclose Collected Data where Bytewax, in good faith, believes that the law or legal process (such as a court order, search warrant or subpoena) requires Bytewax to do so or in other circumstances where Bytewax believes it is necessary to protect the rights or property of Bytewax or third parties.

  6. For the avoidance of doubt, you may not directly or indirectly utilize the Software as an embedded component of any device or system or as part of any software application that is distributed. The Software is licensed solely for your internal use or use in an Application as set forth in Section 1. If you wish to request a license for any other purpose, please contact Bytewax at [email protected].

  7. You may only make your Application available under terms and conditions that: (i) do not conflict with any provision of this License Agreement or Bytewax's rights in and to the Software; (ii) are not materially less protective of the Software and Bytewax's rights therein and thereto than the provisions of this License Agreement; (iii) do not make any representations, warranties or covenants regarding the Software or on behalf of Bytewax; (iv) state that the Application incorporates the Software and that Bytewax owns all copyright and other intellectual property rights in and to the Software; (v) disclaim any and all warranties and liability on behalf of Bytewax to the maximum extent allowable under applicable law; and (vi) are presented to and accepted by the Application end user in a manner sufficient to create a binding legal agreement under applicable law.

  8. The Software and Documentation are licensed, not sold. The Software and Documentation provided hereunder are the property of Bytewax or its third-party licensors. Bytewax shall retain all right, title and ownership interest and all worldwide patent, copyright, trade secret, trademark and other intellectual property rights and other proprietary rights in and to the Software and Documentation and any copies, derivative works, upgrades, updates, improvements and modifications thereof, in, regardless of the form or media in which, or on which, the original and any other copies, derivative works, upgrades, updates, improvements or modifications may exist.

  9. You agree to pay all subscription fees for the Software for the applicable subscription term you select ("Subscription Term"), as set forth on our website. Each Subscription Term shall automatically renew for a Subscription Term of equal length until you cancel the subscription on or before the end of the then current Subscription Term, unless otherwise terminated in accordance with this License Agreement. You agree to provide a valid credit card or other approved payment mechanism for paying subscription fees and other charges. You authorize us to charge your credit card or other payment mechanism for any subscription fees and charges that you may incur in connection with your account or use of the Software. We reserve the right to change the fee structure and fees charged for the Software at any time. We will provide you with thirty days advance notice (which may be by email) of changes to the fee structure and fees. By continuing use of the Software following that thirty day notice period, you agree to the updated fee structure and fees. You acknowledge that if you object to the proposed change(s), your sole remedy is to cancel your subscription. All fees are exclusive of any taxes required by applicable law, and you agree to pay or reimburse Bytewax for any all taxes relating to this License Agreement, other than taxes based on Bytewax's net income.

  10. If you breach any provision of this License Agreement or cancel your subscription, this License Agreement (including all of your rights and licenses with respect to the Software and Documentation) shall immediately terminate without further notice from or action by Bytewax. Bytewax may decline to renew your subscription and terminate this License Agreement at the end of the Subscription Term for any or no reason upon notice (including by email) to you. Upon termination or expiration of this License Agreement, you agree to cease all use of the Software and Documentation (including by removing it from your Application) and to delete all copies thereof in your possession or control. The provisions of Sections 4, 5, 6, 8, 9 (with respect to accrued but unpaid fees), 11 through 22 and this Section 10 shall survive any termination or expiration of this Agreement according to their terms.

  11. You agree that Bytewax may state in the public domain that you are a user of the Software, and may include references to and screenshots of your Applications in Bytewax's marketing and publicity materials.

  12. THE SOFTWARE AND DOCUMENTATION ARE FURNISHED "AS IS". BYTEWAX MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED WITH RESPECT TO THE SOFTWARE AND THE DOCUMENTATION, INCLUDING WITH RESPECT TO THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION IS WITH YOU. BYTEWAX HAS NO OBLIGATION TO PROVIDE ANY SUPPORT OR ASSISTANCE RELATING TO YOUR USE OF THE SOFTWARE.

  13. IN NO EVENT SHALL BYTEWAX BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT OR YOUR USE OF THE SOFTWARE, EVEN IF BYTEWAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL BYTEWAX 'S AGGREGATE LIABILITY TO YOU IN RELATION TO THIS LICENSE AGREEMENT EXCEED FEES PAID BY YOU HEREUNDER DURING THE SIX MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE EXISTENCE OF MULTIPLE CLAIMS OR THE THEORY OF LIABILITY, AND REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.

  14. You agree to indemnify and hold Bytewax and its affiliated companies, and each of their directors, officers, employees, contractors, suppliers and partners, harmless from any claims, losses, damages, liabilities, costs and expenses, including attorney's fees, arising out of or relating to your use or misuse of the Software (including without limitation your commercialization of any Application), breach of this Agreement or violation of the rights of any other person or entity, except solely to the extent any of the foregoing arise out of the willful misconduct or gross negligence of Bytewax or an IP Claim for which Bytewax is obligated under Section 15 below. Bytewax reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Bytewax and you agree to cooperate with Bytewax's defense of these claims.

  15. Subject to the terms and conditions hereof, Bytewax agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against you alleging that Software infringes such third party's intellectual property rights (an "IP Claim"), and Bytewax will pay those amounts finally awarded by a court of competent jurisdiction against the Company Indemnitees, or payable pursuant to a settlement agreed to by Bytewax with respect to the IP Claim, provided that you promptly notify Bytewax in writing of the IP Claim, tender sole control of the defense and settlement thereof to Bytewax and provide Bytewax with all reasonably requested information and assistance in connection with the IP Claim. If Bytewax, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Bytewax may, at its option, (a) obtain a license from such third party claimant that allows you to continue the use of the Software, (b) modify the Software so as to be non-infringing, or (c) terminate this License Agreement. Bytewax will have no obligation or liability relating to any IP Claim that: (x) is based on modification or customization of the Software by you or any person or entity other than Bytewax; (y) is based on the combination or use of the Software (or any component of either) with any software, hardware, system, method, device or materials not provided by Bytewax; or (z) results from your use of the Software in a manner that is inconsistent with its intended use or is in breach of this Agreement. This Section 15 sets forth the entire liability of Bytewax and your sole and exclusive remedy in the event of any claim that the Software infringes any third party intellectual property right.

  16. Bytewax may make modifications, deletions and/or additions to this License Agreement ("Changes") at any time. Changes will be effective: (i) thirty (30) days after Bytewax sends notice of the Changes to the e-mail address associated with your account; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this License Agreement incorporating the Changes, whichever comes first. In addition, this License Agreement may be modified by an amendment signed by authorized representatives of you and Bytewax. This License Agreement may not be modified or amended other than as set forth in this Section 16.

  17. To the extent that you are an agency or instrumentality of the U.S. government, the parties agree that the Software and Documentation are commercial computer software and commercial computer software documentation, respectively, and that your rights therein are as specified in this License Agreement, per FAR 12.212 and DEARS 227.7202-3, as applicable, or in the case of NASA, subject to NFS 1852.227-86.

  18. You may not assign your rights under this License Agreement without the express prior consent of Bytewax. If you are a legal entity, any merger involving you, acquisition of all or substantially all of your assets or change of control shall be deemed an assignment of this Agreement for which prior written consent is required. Bytewax may freely assign this License Agreement.

  19. The Software may be subject to export laws and regulations. You agree to comply with any United States and international export laws and regulations that may apply.

  20. This License Agreement shall be governed by and construed in accordance with the laws of the state of California, without giving effect to any principles of conflicts of law. Any action arising out of or relating to this License Agreement shall be filed only in the state or federal courts of the Northern District of California and you and Bytewax hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.

  21. Notwithstanding anything to the contrary, Bytewax may apply to any court of competent jurisdiction for injunctive or other equitable relief.

  22. This License Agreement and the User Agreement for Bytewax is the complete and final agreement of the parties with respect to the Software and Documentation. If any part of this License Agreement is found to be void, unenforceable or invalid, that part will be deemed stricken and will not affect the validity of the other provisions. Failure by Bytewax to enforce any provision of this License Agreement will not be deemed a waiver of future enforcement of that or any other provision.