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 Software (as defined below) and the Software is 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 SOFTWARE (AS DEFINED BELOW), (A) CUSTOMER ACKNOWLEDGES THAT IT HAS READ THESE TERMS AND UNDERSTANDS IT; (B) THE INDIVIDUAL ACCPETING 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 SOFTWARE AND SUCH INDIVIDUAL OR ANOTHER AUTHORIZED REPRESENTATIVE OF CUSTOMER SHOULD CONTACT CODESCAN IMMEDIATELY TO REMOVE THE SOFTWARE.

WHEREAS, CodeScan desires to license the Software to Customer; and

WHEREAS, Customer desires to obtain a license to use the Software for its internal business purposes, 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:

1. Definitions.

1.1 “Authorized User” means Customer’s employees, consultants, contractors, and agents who meet both of the following conditions (i) those who are authorized by Customer to access and use the Software under the rights granted to Customer pursuant to these Terms and (ii) those for whom access to the Software has been purchased and paid for hereunder.

1.2 “CodeScan IP” means the Software, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing.

1.3 “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 Software or otherwise comprise or relate to the Software or CodeScan Systems.

1.4 “CodeScan Systems” means the information technology infrastructure used by or on behalf of CodeScan in providing the Software, 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.

1.5 “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or by Customer through the use of Third-Party Materials.

1.6 “Documentation” means CodeScan’s user manuals, handbooks, and guides relating to the Software provided by CodeScan to Customer either electronically and/or in hard copy form.

1.7 “Editor Plugin” means software consisting of a text editor or software with similar functionality that may be offered by CodeScan for download or use in connection with the CodeScan application.

1.8 “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that CodeScan may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Version.

1.9 “New Version” means any new version of the Software that CodeScan may from time to time introduce and market generally as a distinct licensed product (as may be indicated by CodeScan’s designation of a new version number), and which CodeScan may make available to Customer at an additional cost under a separate written agreement.

1.10 “Open Source Components” means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.

1.11 “Permitted Use” means use of the Software by an Authorized User for the benefit of Customer in the ordinary course of its internal business operations.

1.12 “Software” means the CodeScan application, in executable, object code version, and any Maintenance Releases provided to Customer pursuant to these Terms.

1.13 “Territory” means the United States of America.

1.14 “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 Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

2. License.

2.1 License Grant. Subject to and conditioned on Customer’s payment of Fees (as defined in Section 7.1) 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 15.7) license to use the Software and Documentation solely for the Permitted Use during the Term. Customer shall comply with CodeScan’s configuration guide when downloading the Software. Customer represents and warrants to CodeScan that Customer and each Authorized User are authorized to utilize the Software with respect to the code for which the Customer and each Authorized User utilizes the Software 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.

2.2 Scope of Licensed Access and Use. Subject to compliance with these Terms, there is no limit on the number of Customer’s Authorized Users. Customer may make one copy of the Software solely for testing, disaster recovery, or archival purposes. Any copy of the Software made by Customer: (a) will remain the exclusive property of CodeScan; (b) be subject to the terms and conditions of these Terms; and (c) must include all copyright or other Intellectual Property Rights notices contained in the original. CodeScan log-in credentials and private keys generated by the Software are for Customer’s internal use only and Customer will not sell, transfer, or sublicense them to any other entity or person, except that Customer may disclose Customer’s private keys to Authorized Users performing work on Customer’s behalf. In connection with Customer’s use of the Software, the Software sends to CodeScan the Customer’s license key in order to validate the user’s permission to use the Software and statistics related to Customer’s use of the Software 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 Software. Use of the Software is subject to CodeScan’s privacy policy, as amended from time to time, which can be viewed at: www.codescan.io/tos/privacy-policy or a successor website address.

2.3 Open Source Licenses. The Software includes Open Source Components licensed under the applicable license terms (each, an “Open Source License”). Any use of the Open Source Components by Customer is governed by, and subject to, the terms and conditions of the Open Source Licenses.

2.4 Security Measures. The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. Customer acknowledges and agrees that: (a) CodeScan may use these and other lawful measures to verify Customer’s compliance with the terms of these Terms and enforce CodeScan’s rights in and to the Software; (b) CodeScan may deny any individual access to and/or use of the Software if CodeScan, in its sole discretion, believes that person’s use of the Software would violate any provision of these Terms, regardless of whether Customer designated that person as an Authorized User; and (c) CodeScan may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Customer’s computers, systems and software, that CodeScan may gather periodically to improve the performance of the Software or develop Maintenance Releases. This information will be treated in accordance with 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.

2.5 User Accounts. Each Authorized User, along with the person who downloads the Software, must create a user account. With respect to each user account, the user agrees to: (a) provide CodeScan with complete and accurate information on the user and the Customer; (b) provide a correct name, valid email address, and any other reasonable information requested by CodeScan when the user opens the user account and CodeScan may use, share, and store such information and other information provided by the user from time to time in accordance with CodeScan’s Privacy Policy; (c) not register multiple user accounts unless such user or Customer have agreed to pay the fees for each user account; (d) not share their account or user credentials with any other person or impersonate any other person; (e) provide appropriate identification from the user to verify the user’s identity; (f) be solely responsible for maintaining the security of the user account and password; (g) be responsible for all content posted and all activities that occur through use of the user account; and (h) not use the Software for any illegal or unauthorized purpose or in a way that infringes or violates any third party rights, and to only use the Software in a manner that is in compliance with applicable laws and regulations. Each user represents and warrants that such user is authorized by the Customer to create a user account with respect to the Software. CodeScan may limit, cancel, suspend or terminate any user account without notice to the user if CodeScan believes the Customer or user is in breach of these Terms or that the user’s or Customer’s use of the Software is illegal or may infringe or violate applicable law or the intellectual property rights of a third party. Any user may terminate the user’s account pursuant to the process set forth by CodeScan. Without limiting these Terms, upon termination of the user’s account or Customer’s payment of fees, the user shall have no right to access the user account or use the Software.

3. License Restrictions. Except as these Terms expressly permit, Customer shall not, and shall not permit any other Person to: (a) copy the Software, in whole or in part; (b) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the Software; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party; (d) reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (e) bypass or breach any security device or protection used for or contained in the Software or Documentation; (f) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software or Documentation; (g) use the Software 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 the Software for purposes of: (i) benchmarking or competitive analysis of the Software; (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 the Software 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 the Software could lead to personal injury or severe physical or property damage; or (j) use (i) the Software or Documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by these Terms or (ii) any Open Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open Source License. Customer shall be responsible for ensuring that Customer and Customer’s use of the Software and Documentation comply with all laws, rules, and regulations applicable in jurisdictions in which Customer uses the Software or Documentation.

4. Delivery. CodeScan shall deliver one copy of the Software electronically to Customer.

5. Maintenance Releases. During the Term, CodeScan may provide Customer with Maintenance Releases and/or updated Documentation that CodeScan, in its sole discretion, decides to make available to Customer. All Maintenance Releases provided by CodeScan to Customer are deemed Software. Customer will install all Maintenance Releases as soon as practicable after receipt. Customer does not have any right hereunder to receive any New Versions of the Software that CodeScan may, in its sole discretion, release from time to time.

6. 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 use certain Editor Plugins and such download and use shall be subject to this Section 6 and these Terms. In order to access and use any Editor Plugin, Customer must pay to CodeScan all fees associated with each Editor Plugin in addition to all fees associated with the Software. Customer’s right to download and 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 Software hereunder. Any Editor Plugins offered by CodeScan shall be deemed “Software” pursuant to these Terms and all terms and conditions of these Terms shall be applicable to the Editor Plugins.

7. Fees and Payment.

7.1 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 Software or new features of the Software 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 Software 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 Software and Customer has reasonably attempted to resolve the issues with CodeScan.

7.2 Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on CodeScan’s income.

7.3 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 Software (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 for the Special Pricing Program as described in the offer terms for the Special Pricing Program or on the pricing page for the eligible Software. Customer may not access or use the Software 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 Software 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. Audit Rights. CodeScan or its nominee (including its accountants and auditors) may inspect and audit Customer’s use of the Software under, and compliance with, these Terms at any time during the Term and for two years following the termination or expiration, with respect to such Customer, of these Terms. All audits and inspections at Customer’s facilities will be conducted upon no less than 10 days’ written notice to Customer, during regular business hours, and in a manner that does not unreasonably interfere with Customer’s business operations. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Customer with respect to such audit.

9. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party confidential information about its business affairs, products, confidential intellectual property, trade secrets, third party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, or agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under these Terms, including to make required court filings. On the expiration or termination of these Terms, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, CodeScan may retain one copy of the Confidential Information of Customer per historical data archival processes and as required by law or regulation provided that such information remains subject to the confidentiality provisions herein, including, but not limited to, the non-use provisions hereof, is accessed and used solely to demonstrate compliance with any applicable law, and is destroyed in the ordinary course of business. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective when Customer clicked the “accept” button or check box presented with these Terms and will expire five years from the date of termination or expiration of these Terms; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.

10. Intellectual Property Rights.

10.1 Intellectual Property Ownership. Customer acknowledges and agrees that: (a) the Software and Documentation are licensed, not sold, to Customer by CodeScan and Customer does not have under or in connection with these Terms any ownership interest in the Software or Documentation, or in any related intellectual property rights; (b) as between Customer and CodeScan, CodeScan and its licensors are the sole and exclusive owners of all right, title, and interest in and to the Software and Documentation, including all intellectual property rights relating thereto, and, with respect to Third-Party Materials, the applicable third party providers own all right, title, and interest, including all intellectual property rights, in and to the respective Third-Party Materials; and (c) Customer hereby unconditionally and irrevocably assigns to CodeScan, or CodeScan’s designee, its entire right, title, and interest in and to any intellectual property rights that Customer may now or hereafter have in or relating to the Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.

10.2 Customer Cooperation and Notice of Infringement. Customer shall, during the Term: (a) take all reasonable measures to safeguard the Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access; (b) at CodeScan’s expense, take all such steps as CodeScan may reasonably require to assist CodeScan in maintaining the validity, enforceability and CodeScan’s ownership of the intellectual property rights in the Software and Documentation; (c) promptly notify CodeScan in writing if Customer becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of CodeScan’s intellectual property rights in or relating to the Software or Documentation; or (ii) any claim that the Software or Documentation, including any production, use, marketing, sale or other disposition of the Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the intellectual property rights or other rights of any Person; and (d) fully cooperate with and assist CodeScan in all reasonable ways in the conduct of any Action by CodeScan to prevent or abate any actual or threatened infringement, misappropriation or violation of CodeScan’s rights in, and to attempt to resolve any Actions relating to, the Software or Documentation, including having Customer’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.

10.3 No Implied Rights. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by way of implication, waiver, estoppel or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software or Documentation.

10.4 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 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.

11. Representations and Warranties.

11.1 Mutual Representations and Warranties. 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.

11.2 DISCLAIMER OF WARRANTIES.

(a) ALL SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SOFTWARE PROVIDED BY CODESCAN ARE PROVIDED “AS IS.” 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. WITHOUT LIMITING THE FOREGOING, CODESCAN MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SOFTWARE, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.

(b) CodeScan makes no representation or warranty with respect to the code for which the Software is utilized. Customer and each Authorized User are solely responsible for the code they have written and any code for which the Software is utilized and CodeScan does not warrant that the use of the Software will result in correct code.

12. Indemnification.

12.1 CodeScan Indemnification.

(a) CodeScan shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third party claim, suit, action, or proceeding (“Third Party Claim”) that the Software or Documentation, or any use of the Software or Documentation in accordance with these Terms, infringes or misappropriates such third party’s U.S. patents, copyrights, or trade secrets in the Territory provided that Customer promptly notifies CodeScan in writing of the claim, cooperates with CodeScan, and allows CodeScan sole authority to control the defense and settlement of such claim.

(b) If such a claim is made or appears possible, Customer agrees to permit CodeScan, at CodeScan’s sole discretion, to (A) modify or replace the Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If CodeScan determines that neither alternative is reasonably available, CodeScan may terminate these Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.

(c) This Section 12.1 does not apply to the extent that the alleged infringement arises from: (a) Open Source Components or other Third-Party Materials; (b) combination, operation, or use of the Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by CodeScan or specified for Customer’s use in the Documentation; (c) modification of the Software other than by CodeScan; (d) use of any version of the Software other than the most current version or failure to timely implement any Maintenance Release, modification, update, or replacement of the Software made available to Customer by CodeScan; (e) use of the Software after CodeScan’s notice to Customer of such activity’s alleged or actual infringement, misappropriation, or other violation of a third party’s rights; (f) negligence, abuse, misapplication, or misuse of the Software or Documentation by or on behalf of Customer or a third party; (g) use of the Software 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; (h) events or circumstances outside of CodeScan’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or (i) Third-Party Claims or Losses for which Customer is obligated to indemnify CodeScan.

12.2 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: (a) 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: (i) use or combination of the Software 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 (ii) 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 Software or Documentation; (b) relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under these Terms; (c) 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 Software or Documentation or otherwise in connection with these Terms; or (d) relating to use of the Software 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.

12.3 Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND CODESCAN’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION OR ANY SUBJECT MATTER OF THESE TERMS INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

13. Limitations of Liability.

13.1 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 SOFTWARE, 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.

13.2 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.

14. Term and Termination.

14.1 Term. The initial term of these Terms begins when Customer clicked “accept” or the check box presented with these Terms or, if earlier, when Customer first used any of the Software, and, unless terminated earlier pursuant to these Terms’s express provisions, will continue in effect for the initial term agreed to by the parties in the applicable order or other agreement for the Software (the “Initial Term”). These Terms will automatically renew for additional successive one year terms to be coterminous with the applicable order or other agreement for the Software unless earlier terminated pursuant to these Terms’s express provisions (each a “Renewal Term” and together with the Initial Term, the “Term”).

14.2 Termination for Convenience. CodeScan may terminate these Terms for any reason by providing Customer at least 30 days’ advance notice.

14.3 Termination. In addition to any other express termination right set forth in these Terms:

(a) CodeScan may terminate these Terms, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 15 days after CodeScan’s delivery of written notice thereof; or (B) breaches any of its obligations under Sections 2, 9 or 10;

(b) either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or

(c) either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

14.4 Effect of Termination or Expiration. On the expiration or earlier termination of these Terms: (a) all rights, licenses and authorizations granted to Customer hereunder will immediately terminate and Customer will (i) immediately cease all use of and other activities with respect to the Software and Documentation; (ii) within two (2) days deliver to CodeScan, or at CodeScan’s written request destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Software, the Documentation and CodeScan’s Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (iii) certify to CodeScan in a signed written instrument that it has complied with the requirements of this Section 14.4; and (b) all amounts payable by Customer to CodeScan of any kind are immediately payable and due no later than 5 Business Days after the effective date of the expiration or termination of these Terms.

14.5 Obligation to Pay; No Refunds. No expiration or termination of these Terms or Customer’s removal or cessation of use of the Software 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 Software, or (iii) entitle Customer to any refund.

14.6 Surviving Terms. This Section 14 and Sections 1, 3, 6, 7, 8, 9, 10, 11.2, 12, 13, and 15.

15. Miscellaneous.

15.1 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.

15.2 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.

15.3 Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms or, unless expressly permitted under these Terms, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld, provided, however, that CodeScan may, without Customer’s consent, include Customer’s name and other indicia in its lists of CodeScan’s current or former customers of CodeScan in promotional and marketing materials, including CodeScan’s website.

15.4 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the email addresses provided by the applicable Person. Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. CodeScan may provide notice to Customer and any user by emailing the email addresses provided by Customer and the applicable user and Customer may provide notice to CodeScan by emailing support@codescan.io (with confirmation of transmission) and notice shall be deemed given on the next business day after such email is sent.

15.5 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 Software, the terms in these Terms do not apply to Customer, and the terms in such offline variant govern Customer’s use of the Software, and (B) if Customer and CodeScan signed an offline amendment or supplement to these Terms in connection with use of the Software, 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.

15.6 Headings. The headings in these Terms are for reference only and do not affect the interpretation of these Terms.

15.7 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of CodeScan. CodeScan may assign these Terms and any rights hereunder without the consent of Customer. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

15.8 Export Regulation. The Software may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. Customer will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. Customer will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

15.9 US Government Rights. Each of the Documentation and the software components that constitute the Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

15.10 Force Majeure. In no event shall CodeScan be liable to Customer, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms, if and to the extent such failure or delay is caused by any circumstances beyond CodeScan’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

15.11 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.

15.12 Amendment and Modification; Waiver.

(a) 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 15.4; provided, however, that CodeScan will provide at least 30 days’ advance notice in accordance with Section 15.4 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 Software 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.

(b) 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.

15.13 Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

15.14 Governing Law; Submission to Jurisdiction. THESE TERMS ARE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THOSE OF THE STATE OF DELAWARE. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF THESE TERMS OR THE LICENSES GRANTED HEREUNDER WILL BE INSTITUTED EXCLUSIVELY IN THE FEDERAL COURTS OF THE UNITED STATES OR THE COURTS OF THE STATE OF CALIFORNIA IN EACH CASE LOCATED IN THE CITY OF SAN DIEGO, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING.

15.15 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS, INCLUDING EXHIBITS, ATTACHED TO THESE TERMS, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT HE, SHE, OR IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THESE TERMS, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

15.16 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 9, or, in the case of Customer, Section 2, 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.

15.17 Attorneys’ Fees. To the extent a Party must seek enforcement of these Terms or otherwise defend against an unsuccessful claim of breach, the unsuccessful Party shall be liable for all attorneys’ fees and costs incurred by the successful Party to enforce the provisions of these Terms.

Last modified - December 15, 2019