PARALLEL MACHINES™ SOFTWARE LICENSE AGREEMENT
Last Updated: January 15, 2019,
THIS AGREEMENT (“Agreement”) CONSTITUTES A BINDING AGREEMENT BETWEEN THE PERSON IDENTIFIED IN THE REGISTRATION PAGE (“Customer”) AND Parallel Machines, Inc., A DELAWARE COMPANY WITH A PLACE OF BUSINESS AT 1290 OAKMEAD PKWY, SUITE 301 SUNNYVALE, CA 94085 (“PM”), AND GOVERNS THE CUSTOMER’S USE OF THE SOFTWARE (DEFINED BELOW) ON A LIMITED INTERNAL BASIS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT AND IN SUCH CASE ALL REFERENCES TO “CUSTOMER” HEREINAFTER SHALL INCLUDE AND APPLY TO SUCH ENTITY. BY CLICKING “I AGREE” BELOW, OR BY OTHERWISE ACCESS OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THIS AGREEMENT (THE DATE OF SUCH OCCURRENCE BEING THE “Effective Date”). IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE ANY PART OF THE SOFTWARE.
BY ACCPTING THIS AGREEMENT AND/OR ACCESSING OR USING THE SOFTWARE, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE.
1. DEFINITIONS AND INTERPRETATION
“Software” means PM’s proprietary MCenter™ software product (in object code version only), as well as any related documentation, updates and upgrades made available by PM to Customer hereunder.
“Free Edition” means a limited-functionality version of Software.
“Data Science Edition” means limited-use version of the Software.
2.1. License. Subject to the terms and conditions of this Agreement, PM grants Customer a limited, non-exclusive, non-assignable, non-transferable, and non-sublicensable license, during the Term (defined below), to access and use (and, if applicable, install a single occurrence on a single computer or server owned by Customer) the Software, for the sole purpose of Customer’s internal end-use of the Software (the “License”). The Software will be delivered electronically and deemed accepted upon delivery. The Software’s management module may be hosted by a third party hosting provider engaged by PM. PM is not obligated to provide any services under this Agreement.
2.2. License Restrictions. As a condition to the License, Customer shall not do (or permit or encourage to be done) any of the following (in whole or in part): (a) copy, “frame” or “mirror” the Software; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Software to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Software; (d) modify, alter, adapt, arrange, or translate the Software; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Software; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Software; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software; (h) make a derivative work of the Software, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of nodes, devices or users that directly access or use the Software (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent any limitations or conditions on the scope of the License; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Software by Customer; or (l) take any action that imposes or may impose (as determined in PM’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Software, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.
2.3. Version Specific Limitations. The License shall also be subject to whatever functionality limitations, or use or consumption limitations, apply to the Free Edition and Data Science Edition respectively (in each case, the “Version Specific Limitations”), as they appear on/in the PM website or the Software’s documentation. Notwithstanding the foregoing sentence, both versions of the Software are single-user only. The Version Specific Limitations are determined in PM’s sole discretion and may change from time to time without obligation or notice to Customer.
2.4. General. For the avoidance of doubt, the Software (and any copies of the Software) are only licensed under this Agreement. Customer is granted no other right in or to the Software, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise.
2.5. Feedback. Customer shall use its best efforts to provide PM with detailed Feedback (defined below), and to cooperate with PM in further exploring and refining such Feedback. Customer warrants that Feedback will not infringe any third party’s intellectual property (or other proprietary) rights or any applicable law. “Feedback” means ideas, suggestions, or similar feedback about performance of the Software and/or for improving the Software. PM and PM Affiliates (defined below) shall be entitled, during this Agreement and in perpetuity thereafter, to use, copy, make derivative works of, distribute, and otherwise commercially exploit Feedback, for any purpose and in any media, without any restriction or obligation.
3.1. Fees. Customer shall pay all fees (if any) stated in the online registration page (“Fees”). Unless expressly stated otherwise in the registration page: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are payable in advance; (c) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of: (i) the rate of one and a half percent (1.5%) per month; and (ii) the highest amount permitted by applicable law. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon PM’s net income.
3.2. Payment Processing. Customer shall provide PM accurate and complete billing information (including valid payment method information). Customer agrees to promptly notify PM in writing of any changes to the Customer’s billing information. Customer authorizes PM (either directly or through third parties) to request and collect payment on a recurring basis (or otherwise charge or take any other billing actions) from the Customer. In case Customer pays with a credit card, Customer hereby authorizes PM to charge the credit card on a recurring basis for all applicable Fees and to store the credit card information on PM’s (and its third parties’ payment processing providers’) servers. Payment of Fees may be processed through a third-party payment processing service, and additional terms may apply to such payments.
4. TERM AND TERMINATION
4.1. Term. This Agreement commences on the Effective Date and will remain in full force and effect until expiration of any license period specified in the online registration page, and, in the absence of such a license period, shall continue until terminated (the “Term”).
4.2. Termination. Each party may terminate this Agreement immediately upon written notice (email acceptable) to the other party, if the other party breaches any provision of this Agreement. Moreover, each party may terminate this Agreement for convenience upon seven (7) days’ prior written notice (email acceptable) to Customer. In the event PM terminates for convenience, it shall provide Customer with a pro-rated refund of any prepaid and unused Fees based on the remaining period of the applicable billing cycle.
4.3. Effect of Termination; Survival. Upon termination of this Agreement: (A) the License will automatically terminate, and Customer shall immediately cease all access to and use of the Software; and (B) Customer shall (unless directed otherwise by PM in writing) uninstall and permanently delete all copies of all Software. Termination of this Agreement (as applicable) shall not affect any right or liability accrued by either party as of the effective date of termination, and any outstanding payment obligations shall become immediately due and payable. Any provision in this Agreement that is stated (or by its nature ought) to survive expiration or termination, shall survive, as will Sections 5 (Ownership) through 10 (General) inclusive.
5.1. Software. Customer hereby acknowledges that the Software is or may be protected by laws, treaties, and conventions governing intellectual property rights. Any rights not expressly granted herein are hereby reserved by PM and its licensors and suppliers. As between the parties, PM is, and shall be, the sole and exclusive owner of all Intellectual Property Rights in and to: (a) the Software; and (b) any and all improvements, derivative works, modifications, and/or customizations of/to the Software, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by PM to ensure and/or provide PM (or a PM Affiliate) the ownership rights set forth in the preceding sentence.
5.2. Customer Data. As between the parties, Customer is, and shall be, the sole and exclusive owner of all data and information inputted or uploaded to the Software by or on behalf of Customer (“Customer Data”). Customer shall not provide or make available to PM any Customer Data that includes or links to Personal Sensitive Data. “Personal Sensitive Data” means Payment Card Industry (PCI) data, Nonpublic Personal Information (NPI) (as defined by the Gramm-Leach-Bliley Act and its implementing rules and regulations), Personal Health Information (PHI) data (as defined by the Health Insurance Portability and Accountability Act and its implementing rules and regulations).
Each of PM and Customer (the “Recipient”) may have access under this Agreement to certain non-public or proprietary information or materials of the other party (the “Discloser”), whether in tangible or intangible form (“Confidential Information”). Without derogating from any other obligation in this Agreement, Customer will treat the Software as PM’s Confidential Information. Confidential Information will not include information or material which Recipient can demonstrate: (a) was in the public domain at the time of disclosure by Discloser to Recipient hereunder; (b) became part of the public domain after disclosure by Discloser to Recipient hereunder, through no fault of Recipient; (c) was in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and was not subject to prior continuing obligations of confidentiality by Recipient to Discloser; (d) was rightfully disclosed to the Recipient by a third party having the lawful right to do so; and/or (e) was independently and rightfully developed by the Recipient without (direct or indirect) use of, or reliance upon, Discloser’s Confidential Information. Recipient shall safeguard the Discloser’s Confidential Information and use it solely for the purpose of Recipient performing its obligations and/or exercising its rights under this Agreement. Recipient shall not disclose or make available the Discloser’s Confidential Information to any third party, except to its employees that have a need to know such information and that are bound by obligations at least as protective as provided herein. Recipient will promptly notify Discloser in writing in the event of any actual or suspected unauthorized use or disclosure of the Discloser’s Confidential Information. Each party acknowledges that in the event of a breach or threatened breach of this Section (Confidentiality) by the other party, the non-breaching party may suffer irreparable harm or damage for which monetary damages will be inadequate, and will, therefore, be entitled to injunctive relief and specific performance to enforce the obligations under this Section (Confidentiality) without the need to post a bond.
7.1. Use of Name and Logo. Customer hereby grants PM permissions to: (i) use and display the Customer’s name and/or logo on PM’s website and marketing materials, and otherwise in connection with PM’s marketing and promotional activities; and (ii) state that the Customer is a customer of PM.
7.2. Marketing Communications. The Customer agrees that PM may contact the Customer or any of its representatives for business purposes, including without limitation for purposes of product support and/or to send the Customer or any of its representatives marketing communications about PM, its products and services.
8. DISCLAIMER OF WARRANTIES
THE SOFTWARE, ALL SERVICES (SUCH AS HOSTING SERVICES), AS WELL AS ANY OTHER ITEMS PROVIDED OR MADE AVAILABLE BY PM, ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF SERVICE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY PM AND ITS LICENSORS AND SUPPLIERS. NO REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION IS MADE THAT CUSTOMER’S USE OF THE SOFTWARE OR SAID OTHER ITEMS WILL MEET CUSTOMER’S REQUIRMENTS OR EXPECTATIONS, OR WILL BE INTERRUPTED, SECURE OR ERROR-FREE.
9. LIMITATION OF LIABILITY
9.1. IN NO EVENT WILL PM OR ANY PM AFFILIATE, OR THEIR LICENSORS OR SUPPLIERS, BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES. THE COMBINED AGGREGATE LIABILITY OF PM AND ALL PM AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (1) TEN U.S. DOLLARS (US$ 10); OR (2) THE AMOUNTS (IF ANY) ACTUALLY PAID BY CUSTOMER TO PM UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
9.2. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (A) EVEN IF PM OR ONE OF ITS AFFILIATES HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE AND STRICT LIABILITY).
10.1. Governing Law; Jurisdiction. For Customers located in North America, this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any conflicts of laws rules, and any dispute hereunder shall be subject to the exclusive jurisdiction of the courts located in New York County, NY. For Customers located outside of North America, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflicts of laws rules, and any dispute hereunder shall be subject to the exclusive jurisdiction of the courts located in Tel Aviv, Israel. Notwithstanding anything in this Agreement to the contrary, PM may seek equitable relief in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods, as well as the Uniform Computer Information Transactions Act, shall not apply to this Agreement and are hereby disclaimed. Furthermore, the parties hereby irrevocably and unconditionally waive the right to litigate any disputes in court before a jury.
10.2. Entire Agreement. This Agreement represents the entire agreement between PM and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Customer and PM with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the PM website.
10.3. Language of Agreement. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement Customer hereby irrevocably waives, to the maximum extent legally permitted, any law applicable to Customer requiring that the Agreement be localized to meet Customer’s language (as well as any other localization requirements) or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. This Agreement may be accepted by Customer electronically, and such electronic acceptance shall have the same force and effect as an original signature.
10.4. Amendments. PM reserves the right to make changes to these terms and conditions at any time by posting the changed version at www.parallelm.com/Terms (PM may – but is not obligated to – also provide notice through a pop-up or banner within the Software, by sending an email to any address Customer may have used to register for the Software, or through other similar mechanisms.) Such changes will be effective ten (10) days after such posting, and Customer’s continued use of the Software thereafter shall constitute Customer’s acceptance of such changes (accordingly if Customer objects to any of the changes, Customer’s sole remedy is to cease all access and use of the Software within such 10-day period). In the event of such changes, PM will also update the “Last Updated” date and “Version” number set forth above. Please check the above webpage regularly for any changes to this these terms and conditions.
10.5. Section Headings. Section headings herein are for convenience only, and shall not be used for interpretive purposes.
10.6. Assignment. PM may assign this Agreement (or any of its rights and obligations) without restriction or obligation. Customer may not assign this Agreement (or any of its rights and obligations) without PM’s prior express written consent. Any prohibited assignment shall be null and void. At PM’s sole discretion, any PM obligation hereunder may be performed (in whole or in part), and any PM right (such as invoice and payment rights) or remedy may be exercised (in whole or in part), by a corporate subsidiary, parent or affiliate of PM (each, a “PM Affiliate”).
10.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
10.8. Remedies and Waiver. Except as stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies. No failure or delay on the part of any party hereto in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, and shall be valid only in the specific instance in which given.
10.9. Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
10.10. No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as PM Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
10.11. Force Majeure. PM shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond PM’s reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Software shall not be deemed within PM’s reasonable control.
10.12. US Government Rights. The Software is “commercial computer software” and its documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If Customer is an agency, department, employee or other entity of the United States Government, then Customer’s access to and use of the Software shall be subject solely to the terms and conditions of this Agreement.
10.13. Export Compliance. Customer represents and warrants that: (a) it is not a resident of (or will use the Software in) a country that the U.S. government has embargoed for use of the Software, nor is Customer named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event Customer breaches this Section (in whole or in part), or otherwise violates any Export Control Laws (defined below) in connection with the Software, Customer agrees to indemnify and hold harmless PM and all PM Affiliates (including ours and their respective directors, officers, and employees) for any fines and/or penalties imposed upon PM or a PM Affiliate (or such persons) as a result of such breach or violation. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or PM, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.