Terms of Use – SaaS CodeScan Software
The CodeScan Software is a code quality tool with support for a number of programming languages as well as the Force.com platform. The CodeScan Software is available as a self-hosted product and a cloud product, and along with as a plugin for a number of IDEs. To download and use the CodeScan Software you must create a user account. Follow our instructions to create a user account and the Installation Guide for installing the CodeScan Software is available at https://www.codescan.io/overview/installing/.
These Terms of Use (“Terms”) constitute a legally binding agreement between the entity or sole proprietorship you represent (“Customer”) and CodeScan Enterprises, L.L.C., a Delaware limited liability company (“CodeScan”). CodeScan and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” These Terms govern Customer’s and each Authorized User’s use of the Services (as defined below) and the Services are licensed, not sold, to Customer or any of the Authorized Users.
BY CLICKING THE “ACCEPT” BUTTON OR CHECK BOX PRESENTED WITH THESE TERMS OR, IF EARLIER, WHEN CUSTOMER USES ANY OF THE SERVICES (AS DEFINED BELOW), (A) CUSTOMER ACKNOWLEDGES THAT IT HAS READ THESE TERMS AND UNDERSTANDS IT; (B) THE INDIVIDUAL ACCEPTING THESE TERMS REPRESENTS THAT SUCH INDIVIDUAL IS AUTHORIZED TO ENTER INTO THESE TERMS ON BEHALF OF AND TO BIND CUSTOMER; AND (C) CUSTOMER ACCEPTS THESE TERMS AND AGREES TO BE LEGALLY BOUND BY ITS TERMS AND CONDITIONS. IF THE INDIVIDUAL ACCEPTING THESE TERMS OR CUSTOMER DO NOT AGREE TO THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL AND CUSTOMER MUST NOT USE THE SERVICES AND SUCH INDIVIDUAL OR ANOTHER AUTHORIZED REPRESENTATIVE OF CUSTOMER SHOULD CONTACT CODESCAN IMMEDIATELY TO REMOVE THE SERVICES.
WHEREAS, Customer desires to access the Services for its internal business purposes, and
WHEREAS, CodeScan desires to provide Customer access to the Services, subject to the terms and conditions of these Terms.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
(c) “CodeScan IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing.
(d) “CodeScan Materials” means the CodeScan IP and CodeScan Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by CodeScan or any subcontractor of CodeScan in connection with the Services or otherwise comprise or relate to the Services or CodeScan Systems. For the avoidance of doubt, CodeScan Materials include Resultant Data and any information, data, or other content derived from CodeScan’s provision of the Services or monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
(e) “CodeScan Systems” means the information technology infrastructure used by or on behalf of CodeScan in providing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by CodeScan or by CodeScan through the use of Third-Party Materials.
(f) “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services. Customer Data does not include Aggregated Statistics or Resultant Data.
(h) “Documentation” means CodeScan’s user manuals, handbooks, and guides relating to the Services provided by CodeScan to Customer either electronically and/or in hard copy form.
(j) “Open Source Component” means any software component that is subject to any open source license agreement.
(k) “Permitted Use” means use of the Services by an Authorized User for the benefit of Customer in the ordinary course of its internal business operations.
(l) “Resultant Data” means data and information that is derived, altered, modified, resulting, or created from use or operation of the Services but does not include Aggregated Statistics or Customer Data.
(m) “Services” means the software-as-a-service offering known as “CodeScan” which reviews users’ code submissions, as such offering is made available by CodeScan from time to time.
(n) “Third-Party Materials” means materials, services and information, in any form or medium, that are not proprietary to CodeScan or Customer, including any third-party: (a) documents, data, content or specifications; (b) Open Source Component or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees (as defined in Section 6) and compliance with all other terms and conditions of these Terms, CodeScan hereby grants to Customer a limited, revocable, non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 13(k)) right to access and use the Services during the Term, solely for use by Authorized Users on Customer’s premises for the Permitted Use in accordance with the terms and conditions herein. Each Authorized User will be required to create the necessary password to access the Services. Customer represents and warrants to CodeScan that Customer and each Authorized User are authorized to utilize the Services with respect to the code for which the Customer and each Authorized User utilizes the Services and that such code (or CodeScan’s access or use thereof) does not infringe any third party right and has not been used and will not be used for any illegal purpose. In connection with Customer’s use of the Services, the Services send to CodeScan the Customer’s credentials in order to validate the user’s permission to use the Services and statistics related to Customer’s use of the Services including project name or identity and the number of lines scanned, and such information may be used by CodeScan for the purposes of these Terms, including to compile statistical and performance information related to the provision and operation of the Services. Use of the Services is subject to CodeScan’s privacy policy, as amended from time to time, which can be viewed at: https://www.codescan.io/tos/privacy-policy/ or a successor website address.
(b) Documentation License. Subject to the terms and conditions contained in these Terms, CodeScan hereby grants to Customer a limited, revocable, non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 13(k)) license to use the Documentation during the Term solely for the Permitted Use in connection with its use of the Services.
(f) Changes. CodeScan reserves the right, in its sole discretion and from time to time, to make any changes to the CodeScan IP and/or to change or discontinue any of the Services. CodeScan will seek to provide Customer with at least 12 months’ prior notice if CodeScan discontinues material functionality of a Service that Customer is using, except that such advance notice will not be required if (i) the 12 month period (A) would pose a security or intellectual property issue to CodeScan or the Services, or (B) is economically or technically burdensome, or (ii) CodeScan deems such change or discontinuance necessary or useful to: (1) maintain or enhance: (x) the quality or delivery of the Services; (y) the competitive strength of or market for the Services; or (z) the Services’ cost efficiency or performance; or (2) comply with applicable law.
(g) Suspension. Notwithstanding anything to the contrary in these Terms, CodeScan may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) CodeScan reasonably determines that (A) there is a threat or attack on any of the CodeScan IP; (B) Customer’s or any Authorized User’s use of the CodeScan IP disrupts or poses a security risk to the CodeScan IP or to any other customer or vendor of CodeScan; (C) Customer, or any Authorized User, is using the CodeScan IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) CodeScan’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of CodeScan has suspended or terminated CodeScan’s access to or use of any third party services or products (including Third-Party Materials) required to enable CodeScan to provide the Services or Customer to access the Services; (iii) failure, interruption, outage, or other problem with any Third-Party Materials or any software, hardware, system, network, facility, or other matter not supplied by CodeScan pursuant to these Terms, or (iv) in accordance with Section 6(a) (any such suspension described in subclause (i) – (iv), a “Service Suspension”). CodeScan shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. CodeScan shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is fully cured provided that such event can be fully cured. CodeScan will have no liability for any Losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Customer shall be responsible for ensuring that Customer and Customer’s use of the Services and Documentation comply with all laws, rules, and regulations applicable in jurisdictions in which Customer uses the Services or Documentation. Customer will be deemed to have taken any action that Customer permits, assists or facilitates any person or entity to take related to these Terms, Customer Data or use of the Services. Without limiting the generality of the foregoing, (i) Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer, (ii) Customer is responsible for all Authorized Users’ use of Customer Data and the Services, and (iii) except to the extent caused by CodeScan’s breach of these Terms, Customer is responsible for all activities that occur under Customer’s account with CodeScan, regardless of whether the activities are authorized by Customer or undertaken by Customer, Authorized Users, Customer’s employees, or a third party (including Customer’s contractors or agents) and CodeScan and its affiliates are not responsible for unauthorized access to Customer’s account with CodeScan. Customer shall use reasonable efforts to make all Authorized Users aware of these Terms’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions. If Customer becomes aware of any violation of its obligations under these Terms caused by an Authorized User, Customer will immediately suspend access to Customer Data and the Services by such Authorized User.
(b) Customer Systems. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services by any person or entity by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including through any unauthorized access, breach, or malware.
(c) Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content, use, access, collection, storage, processing, disclosure, transmission, and compliance with all laws and regulations, and obtaining all consents necessary in order to provide and license Customer Data to CodeScan as set forth herein; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) the security and use of Customer’s and its Authorized Users’ access credentials; (d) all access to and use of the Services and CodeScan IP directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use, and (e) notifying CodeScan with respect to any change in Customer Data or rights with respect to any use thereof that may impact CodeScan, the Services, or Customer’s or any Authorized User’s use thereof, including any individual’s request to modify or remove any information. Customer will comply with the terms of these Terms and with all laws, rules and regulations applicable to Customer’s use of the Services.
(d) Log-In Credentials and Account Keys. CodeScan log-in credentials and private keys generated by the Services are for Customer’s internal use only and Customer will not sell, transfer, or sublicense them to any entity or person other than Authorized Users, except that Customer may disclose Customer’s private keys to agents and subcontractors performing work on Customer’s behalf.
(e) Third-Party Materials. CodeScan may from time to time make Third-Party Materials available to Customer. For purposes of these Terms, such Third-Party Materials are subject to their own terms and conditions, which may include the applicable flow through provisions thereof. If Customer does not agree to abide by the applicable terms for any such Third-Party Materials, then Customer should not install or use such Third-Party Materials.
4. Service Levels; Support; Customization.
(b) Support. These Terms do not entitle Customer to any support for the Services.
(c) Customization. CodeScan shall have no obligation to provide any customization, modification, or other upgrade or update with respect to the Services.
5. Editor Plugins. During the Term and upon payment of additional fees, CodeScan may, from time to time and in its sole discretion, offer to Customer the right to download and/or use certain Editor Plugins and such download and/or use shall be subject to this Section 5 and these Terms. In order to download and/or use any Editor Plugin, Customer must pay to CodeScan all fees associated with each Editor Plugin in addition to all fees associated with the Services. Customer’s right to download and/or use the Editor Plugins shall commence upon payment of the applicable fees by Customer and such rights shall be co-terminus with this Agreement. For the avoidance of doubt, Customer shall not have any rights to use any Editor Plugin unless Customer has an active license to the Services hereunder. Any Editor Plugins offered by CodeScan shall be deemed “Services” pursuant to these Terms and all terms and conditions of these Terms shall be applicable to the Editor Plugins. Customer shall not, and shall not permit any other Person to: (a) copy any Editor Plugin, in whole or in part; (b) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Editor Plugin; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Editor Plugin to any third party; (d) reverse engineer, disassemble, decompile, decode, or adapt any Editor Plugin, or otherwise attempt to derive or gain access to the source code of any Editor Plugin, in whole or in part; (e) bypass or breach any security device or protection used for or contained in any Editor Plugin; (f) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of any documentation, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of any Editor Plugin; (g) use any Editor Plugin in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable Law; (h) use any Editor Plugin for purposes of: (i) benchmarking or competitive analysis of the Services; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to CodeScan’s detriment or commercial disadvantage; (i) use any Editor Plugin in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of any Editor Plugin could lead to personal injury or severe physical or property damage; or (j) use any Editor Plugin or documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by these Terms. Any use by Customer of any Open Source Component in the Editor Plugins is governed by, and subject to, the terms and conditions of the applicable license terms. Customer will install all maintenance releases and updates as soon as practicable after receipt.
6. Fees and Payment.
(a) Fees. Customer shall pay CodeScan the fees (“Fees”) as set forth on the CodeScan website using one of the payment methods CodeScan supports. All amounts payable by Customer under these Terms will be paid to CodeScan without setoff or counterclaim, and without any deduction or withholding, on the terms set forth on the CodeScan website. CodeScan may increase or add new Fees for any existing Services by posting such changes on the CodeScan website at least 30 days prior to the effective date of such change; provided that a posted increase for a particular Service will not go into effect for a particular Customer that is obligated, at the time of such posted increase, to be paying for the use of such Service until the next following anniversary date of Customer’s first contracting for the use of such Service. For the avoidance of doubt, by way of example, if a Customer contracted for a particular Service on January 15, 2020 and is continuing to be contracted for the Service in 2021, and CodeScan were to post an increase in the Fee for such Service on July 1, 2021, then that Fee increase for such Service will not begin to be charged to that Customer until January 15, 2022. Fees for any new Services or new features of a Service will, however, be effective immediately when CodeScan posts the Fees for the respective Services on the CodeScan website, unless CodeScan expressly states otherwise in a notice. If Customer fails to make any payment when due, without limiting CodeScan’s other rights and remedies: (i) CodeScan may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse CodeScan for all reasonable costs incurred by CodeScan in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, CodeScan may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full or terminate Customer’s and its Authorized Users’ rights under these Terms. CodeScan may, in its sole discretion, provide to Customer, upon Customer’s request within the first 30 days of these Terms, a refund of amounts paid by Customer if Customer is unable to utilize the Services and Customer has reasonably attempted to resolve the issues with CodeScan.
(d) Special Pricing Program. From time to time, CodeScan may offer free or discounted limited time period pricing programs, on a trial or other basis, covering certain usage of the services (each, a “Special Pricing Program”). CodeScan may at any time, in its sole discretion, stop accepting new sign-ups, discontinue a Special Pricing Program or extend the time period of Customer’s participation in a Special Pricing Program. Standard Fees will apply after a Special Pricing Program ends or if Customer exceeds the limitations of the Special Pricing Program. Customer must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage) for the Special Pricing Program as described in the offer terms for the Special Pricing Program or on the pricing page for the eligible Services. Customer may not access or use the Services in a way intended to avoid any additional terms, restrictions, or limitations (e.g., establishing multiple accounts in order to receive additional benefits under a Special Pricing Program), and CodeScan may immediately terminate Customer’s account if Customer does so. If CodeScan makes multiple discounts or pricing options for the Services available to Customer at one time, Customer will only be eligible to receive one discount or pricing option, and will not be entitled to cumulative discounting and pricing options.
8. Intellectual Property Ownership; Feedback.
(b) Customer Data. CodeScan acknowledges that, as between CodeScan and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. Customer hereby grants to CodeScan (i) a non-exclusive, royalty-free, fully paid-up, worldwide perpetual license to reproduce, distribute, and otherwise use and display Customer Data and perform all acts with respect to Customer Data as may be necessary for CodeScan to provide the Services to Customer or to improve the Services or CodeScan’s provision thereof, and (ii) a non-exclusive, royalty-free, fully paid-up worldwide perpetual, irrevocable, license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Customer is solely responsible for verifying the accuracy of all Customer Data, obtaining all consents regarding usage and sharing of Customer Data, and determining the data necessary for Customer to make diagnostic decisions.
(d) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to CodeScan by mail, email, telephone, or otherwise, responding to, or suggesting or recommending changes to the CodeScan Materials (including Reports), including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), CodeScan is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to CodeScan on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and CodeScan is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although CodeScan is not required to use any Feedback.
(a) Each Party represents, warrants, and covenants to the other Party that: (a) if an entity, it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under these Terms; (c) the execution of these Terms by its representative whose signature is set forth at the end of these Terms has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, these Terms will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
(b) CodeScan does not make any representations or guarantees regarding uptime or availability of the Services.
(c) THE CODESCAN IP IS PROVIDED “AS IS” AND CODESCAN HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CODESCAN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CODESCAN MAKES NO WARRANTY OF ANY KIND THAT THE CODESCAN IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CODESCAN STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD PARTY MATERIALS.
(d) CodeScan makes no representation or warranty with respect to the code for which the Services are utilized. Customer and each Authorized User are solely responsible for the code they have written and any code for which the Services are utilized and CodeScan does not warrant that the use of the Services will result in correct code.
(iii) This Section 10(a) does not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by CodeScan or authorized by CodeScan in writing; (B) modifications to the Services not made by CodeScan; (C) Customer Data; (D) Third-Party Materials; (E) negligence, abuse, misapplication, or misuse of the Services or Documentation by or on behalf of Customer or a third party; (F) use of the Services or Documentation by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized by these Terms or in any manner contrary to CodeScan’s instructions; (G) events or circumstances outside of CodeScan’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or (H) Third-Party Claims or Losses for which Customer is obligated to indemnify CodeScan.
(b) Customer Indemnification. Customer shall indemnify, defend, and hold harmless CodeScan and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and permitted assigns (each, a “CodeScan Indemnitee”) from and against any and all Losses incurred by the CodeScan Indemnitee resulting from any Third Party Claim: (i) that any intellectual property rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any: (A) use or combination of the Services by or on behalf of Customer with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by CodeScan nor authorized by CodeScan in these Terms and the Documentation; and (B) information, materials, or technology directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated, or used with, as part of, or in connection with the Services or Documentation; (ii) relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under these Terms; (iii) relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Customer with respect to the Services or Documentation or otherwise in connection with these Terms; or (iv) relating to use of the Services or Documentation by or on behalf of Customer that is outside the purpose, scope or manner of use authorized by these Terms or the Documentation, or in any manner contrary to CodeScan’s instructions.
(a) EXCLUSION OF DAMAGES. IN NO EVENT WILL CODESCAN, ITS DIRECT OR INDIRECT SUBSIDIARIES, CONTROLLED AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CODESCAN WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
(b) CAP ON MONETARY LIABILITY. IN NO EVENT WILL CODESCAN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNT PAID TO CODESCAN BY CUSTOMER UNDER THESE TERMS IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(b) Termination for Convenience. CodeScan may terminate these Terms for any reason by providing Customer at least 30 days’ advance notice.
(c) Termination. In addition to any other express termination right set forth in these Terms:
(e) Obliation to Pay; No Refunds. No expiration or termination of these Terms or Customer’s closing of Customer’s account or cessation of use of the Services will (i) affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, (ii) affect Customer’s obligation to pay all Fees for the remainder of the time period set forth in the applicable order or other agreement for the Services; or (iii) entitle Customer to any refund.
(a) Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to these Terms.
(b) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
(d) No Third Party Beneficiaries. These Terms are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
(e) Entire Agreement. These Terms, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms, excluding its Exhibits; (ii) second, the Exhibits to these Terms; and (iii) third, any other documents incorporated herein by reference. Notwithstanding anything to the contrary herein, (A) if Customer and CodeScan signed an offline variant of these Terms for use of the Services, the terms in these Terms do not apply to Customer, and the terms in such offline variant govern Customer’s use of the Services, and (B) if Customer and CodeScan signed an offline amendment or supplement to these Terms in connection with use of the Services, the terms in these Terms are amended or supplemented by such offline amendment or supplement, as applicable, with any clear conflict between the terms in these Terms and the offline amendment or supplement being resolved in favor of the terms of the offline amendment or supplement.
(h) Amendment and Modification; Waiver.
(i) CodeScan may amend or modify these Terms at any time by posting a revised version on the CodeScan website or by otherwise notifying Customer in accordance with Section 13(f); provided, however, that CodeScan will provide at least 30 days’ advance notice in accordance with Section 13(f) for any adverse changes. Subject to the 30 day advance notice requirement with respect to adverse changes, the modified terms will become effective upon posting or, if CodeScan notifies Customer by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to these Terms, Customer agrees to be bound by the modified terms. It is Customer’s responsibility to check the CodeScan website regularly for modifications to these Terms. CodeScan last modified these Terms on the date listed at the end of these Terms.
(ii) No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(m) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(o) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Last modified – December 17, 2019