This is the End User License Agreement (this “EULA”) that applies to any software product(s) that Daytona Platform Inc. (“Daytona”) provides or makes available to you, or that you download, install, copy, or otherwise use (or have your employee or other agent or representative download, install, copy or use) (each a “Software Product” or collectively, the “Software Products” or “Software”). This EULA also applies to any updates or ancillary support, or other services Daytona may provide you in connection with Software Products.
By acknowledging, agreeing, or other indicating your acceptance of this EULA, or downloading, installing, copying, or using any Software Products, you are bound to this EULA. This EULA is a binding legal agreement.
“You” or “Customer” means the individual or entity identified as the end user or customer when downloading or installing any Software Product(s) or that is otherwise identified as such during the download, installation, or ordering processes. If the Customer is a legal entity, the individual identifying such Customer represents and warrants that he/she has authority to bind such entity to this EULA. That Customer entity is responsible for the acts and omissions of its employees, contractors, agents, representatives, and other uses who have or gain access to the Software Products in connection with their relationship with the Customer Entity.
1. License Rights and Restrictions.
Customer will have a limited non-commercial evaluation license at no charge or fee as described below (the “Non-Commercial License”). Customer is not obligated to license, and is not automatically granted, a Commercial License. As and if mutually agreed by Customer and Daytona, Customer may be granted a commercial license (e.g., an enterprise or start-up license) (a “Commercial License”) for applicable Software Product(s), subject to Customer ordering, registering, and paying Daytona for the Commercial License pursuant to Daytona’s then current commercial licensing fees, rates, terms, policies, and procedures (or as otherwise agreed in writing with Daytona) (the “Commercial Licensing Terms”) and the terms of this EULA. Daytona’s published standard Commercial Licensing Terms are described on Daytona’s website at daytona.io/eula or available by contacting an authorized Daytona representative.
1.1 License Rights.
A. Non-Commercial License. Subject to the other provisions of this EULA, Daytona hereby grants to Customer a non-transferable, nonexclusive, non-commercial, revocable, limited license (without the right to sublicense) to access and use the applicable Software Product(s) solely for Customer’s internal evaluation and testing purposes in accordance with documentation made available by Daytona and in executable object code. This Non-Commercial Commercial License does not grant any right to use the Software Product for production, product development, or business purposes of any kind.
B. Optional Commercial Licenses. If Customer elects to obtain a Commercial License pursuant to Commercial Licensing Terms published or agreed by Daytona, including fees payable to Daytona, and Customer and Daytona document that license through Daytona’s ordering, installation, and/or activation processes, then Daytona hereby grants to Customer a non-transferable, nonexclusive, limited license (without the right to sublicense) to access and use the applicable Software Product(s) solely for Company’s business and operations in accordance with documentation made available by Daytona and in executable object code, subject to the other provisions of this EULA and such Commercial Licensing Terms. Commercial Licensing Terms may include limitations on the number of seats or users and/or the revenue or size of the Customer, and additional fees may apply if Customer exceeds the foregoing. Unless expressly stated otherwise in the Commercial Licensing Terms applicable to a Software Product, the licensing period or term of the applicable Commercial License is one year, and fees for renewals or extensions are subject to change by Daytona.
1.2 Restrictions. Customer agrees that it will not (and will not authorize any user or third party to) (a) reproduce, modify, distribute, publish, rent, lease, sublicense or assign, disclose, transfer or make available to any third party all or any portion of the Software Product(s) (or any related documentation) in any form; (b) reverse engineer, decompile, or disassemble any portion of the Software Products, or otherwise attempt to decrypt, extract or derive source code for, or any algorithms or data structures embodied within, the Software Product(s) or any parts thereof; (c) use or reference the Software Products, in whole or in part, to build a similar or competitive product or service; (d) publish or disclose to a third party any performance or benchmark tests or analyses, the results of audits or ethical hacks, or other non-public information relating to the Software Products or the use thereof, except as may be authorized by Daytona in writing; (e) use any Software Product for purposes not expressly authorized; or (f) violate or exceed any use limitations relating to the Software Products, including without limitation any Commercial Licensing Terms. The Software Products are copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. Customer shall preserve and shall not remove any copyright or other proprietary notices in the Software, its documentation, and all copies thereof, and protect all of the Software Products in its possession or control from unauthorized use or disclosure.
1.3 Third-Party Code. Certain items of software code provided with the Software Products are subject to “open source” or “free software” licenses (“Third-Party Code”), a list of which is available on Daytona’s website and/or in the documentation made available by Daytona. The Third-Party Code is not subject to the terms and conditions of this EULA, except for this section and the disclaimers and limitations of liability. Instead, each item of Third-Party Code is licensed under the terms of the license that accompanies such Third-Party Code. Nothing in this document limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for the Third-Party Code, including any rights to copy, modify, or distribute Third-Party Code under the applicable license. If Daytona makes modifications to such Third-Party Code and if the applicable license requires that such modifications be made available and Daytona does not already publish such modifications via the applicable Third-Party Code community, then Daytona will make its modifications available on its website.
1.4 Updates. Daytona may make available certain updates or additional functionality to certain Software Products from time to time. Any future updates or functionality of a Software Product made available by Daytona to Customer shall be subject to this EULA and any applicable Commercial Licensing Terms relating to the applicable Software Product update. Except as otherwise agreed in writing by Daytona, Customer agrees that it has sole responsibility for installing such updates into its environment.
2. Proprietary Rights.
2.1 Title. Daytona (and its affiliates and licensors, as applicable) will retain all right, title, and interest in the Software Products and all intellectual property rights therein, including without limitation all patent, trademark, trade name, and copyright, whether registered and not registered. No license or other express or implied rights of any kind are granted or conveyed except for licenses expressly provided above. Any rights not expressly granted by Daytona are reserved.
2.2 Feedback. Daytona may periodically request that Customer provide, and Customer may provide to Daytona at Customer’s discretion, feedback regarding the use, operation, performance, and functionality of the Software Products (collectively, “Feedback”). Such Feedback may include information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features. Customer hereby grants to Daytona a perpetual, irrevocable, worldwide, sub-licensable, and royalty-free right to use and otherwise exploit the Feedback in any manner, and such right will survive any expiration or termination of this EULA.
2.3 Derivative Works and Improvements. Any and all derivative works, improvements, or modifications to any Software Product, arising from the Feedback or otherwise (e.g., artificial intelligence, machine learning, or benchmarking), are the sole and exclusive property of Daytona, and Customer hereby irrevocably assigns any right, title, or interest Customer may have therein or thereto to Daytona. However, derivative works, improvements, and modifications to Software Products do not include Customer’s business or personal data but may include the aggregation and anonymization thereof or learnings therefrom.
3. Installation, Maintenance, and Support.
3.1 General. The Software Products are made available and intended for installation in Customer’s designated owned or controlled IT environment, and do not include any hosting services from Daytona. Customer or its designated third-party contractor(s) are responsible for such environment and related installation, hosting, and operations. However, Daytona may, at is option, use reasonable efforts to assist Customer in installing certain Software Products in the applicable IT environment. However, as between Customer and Daytona, Customer is solely responsible for its IT environment, including any installation, hosting, operations, security, data, or other matters relating thereto.
3.2 Software Support and Maintenance. Daytona may, at its option, offer Software Product maintenance, support, or other ancillary services relating to Software Products (“M&S”), and Customer may, at its option, order and receive M&S. M&S may include updates to certain Software Products that are subject to a Commercial License. M&S may be ordered in connection with a Commercial License and be subject to a fee as provided in any Commercial Licensing Terms.
3.3 Software Use and Return. If Customer’s rights to any Software Product(s) terminate or expire, Customer agrees to promptly return or destroy all copies of the Software Product(s) in its possession or control and certify the same as requested by Daytona. Daytona may monitor and collect certain information and statistics regarding Customer use of the Software Products, and Customer agrees that Daytona may access and use such information to monitor compliance with this EULA and otherwise improve, maintain, and support the Software Products.
4. Fees and Payment Terms.
4.1 Non-Commercial Licenses. There are no fees for Non-Commercial Licenses.
4.2 Commercial Licenses and Related Fees. Customer shall pay Daytona the applicable fees or amounts set forth in the Commercial Licensing Terms or otherwise agreed by the Parties for any Commercial License, M&S, or otherwise. All fees and expenses are non-cancellable and non-refundable, unless expressly provided otherwise in writing.
4.3 Payment. Payment may be made by credit card or other applicable methods supported by Daytona. Customer will provide Daytona (or its designated third-party payment processor) accurate and valid credit card or other payment information and update such payment information in the event any information provided becomes invalid or incomplete. Customer authorizes Daytona (or its third-party payment processor) to deduct any fees and expenses owed to Daytona from Customer’s credit card or other designated account.
4.4 Taxes. Any amounts due to Daytona are exclusive of all sales, use, excise, service, value added, or other taxes, duties, and charges of any kind (whether foreign, federal, state, local or other). Customer shall be solely responsible for all such taxes, duties, and charges (except for taxes imposed on Daytona’s U.S. income). Customer agrees to gross-up any payments due to Daytona for any tax related withholding or deduction required by applicable laws, such that Customer pays Daytona the net amount owed. Customer will indemnify, defend, and hold Daytona harmless from any such taxes, fines, or interest for which Customer is responsible.
4.5 Late Payments. Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer will reimburse Daytona for all costs and expenses, including reasonable attorneys’ fees and expenses, incurred in collecting any unpaid amounts owed by Customer. In addition, Daytona may, without limiting any of its additional rights and remedies, (a) accelerate all fees for the remainder of any applicable period so that such fees become immediately due and payable, (b) suspend or terminate Customer license rights and applicable services, and (c) deactivate and require Customer uninstall and destroy all copies of the the Software Products in Customer’s possession or control.
5. Indemnification; Disclaimer; Limitation of Liability.
5.1 Indemnification. Each party will indemnify, defend, and hold harmless the other party for any direct infringement caused by such indemnifying party’s intellectual property provided or used in connection with this EULA, including (a) the Software Products in the case of Daytona as the indemnifying party, but excluding any Customer related modifications or combinations thereof, and (b) Customer related data, information, or software in the case of Customer as the indemnifying party.
5.2 Disclaimer. THE SOFTWARE PRODUCTS, M&S, AND ANY OTHER DAYTONA OFFERINGS ARE PROVIDED ON AN “AS IS” BASIS WITH ALL FAULTS AND DAYTONA AND ITS RESELLERS, AFFILIATES, AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. DAYTONA DOES NOT WARRANT THAT THE OPERATION OF ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT NO SOFTWARE CAN BE GUARANTEED TO BE PERFECTLY SECURE AND THAT INSECURITIES OR VULNERABILITIES MAY ARISE IN THE SOFTWARE OR IN THE WAY IT IS USED.
5.3 Indirect Damages. IN NO EVENT WILL DAYTONA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE OR DATA) ARISING IN CONNECTION WITH THIS EULA, ANY SOFTWARE PRODUCTS, OR RELATED SERVICES BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.4 Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DAYTONA’S AGGREGATE CUMULATIVE LIABILITY UNDER OR RELATING TO THIS EULA, ANY SOFTWARE PRODUCT, OR ANY RELATED LICENSES OR SERVICES SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO DAYTONA FOR THE SPECIFIC SOFTWARE PRODUCT RELATING THERETO THAT GAVE RISE TO SUCH CLAIM DURING THE YEAR IN WHICH SUCH CLAIM AROSE. HOWEVER, FOR SOFTWARE PRODUCTS RELATED TO NON-COMMERCIAL LICENSES, THIS AGGREGATE CAP WILL BE $10. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED IN ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN WILL REMAIN IN EFFECT.
6. Confidentiality. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. Information will not constitute the other party’s Confidential Information if it (i) is already known by the Receiving Party without obligation of confidentiality; (ii) is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (iii) is publicly known without breach of this EULA; or (iv) is lawfully received from a third party without obligation of confidentiality. The Receiving Party shall not use or disclose any Confidential Information except as expressly authorized by this EULA and shall protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. The Receiving Party may disclose Confidential Information to its affiliates, employees, and representatives as necessary to perform its obligations or exercise its rights under this EULA and shall cause such affiliates, employees, and representatives to comply with confidentiality restrictions consistent with this Section. The Receiving Party shall take prompt and appropriate action to prevent unauthorized use or disclosure of the Disclosing Party’s Confidential Information. If any Confidential Information must be disclosed to any third party by reason of legal, accounting, or regulatory requirements, the Receiving Party shall promptly notify the Disclosing Party of the order or request and permit the Disclosing Party (at its own expense) to seek an appropriate protective order.
7. Term and Termination.
7.1 Non-Commercial Licenses. Non-Commercial Licenses commence upon download or first use, whichever is earlier, and end when terminated in accordance with this EULA. Non-Commercial Licenses and any related services may be terminated by Customer or Daytona on thirty (30) days’ written notice to the other party for any or no reason.
7.2 Commercial Licenses. Commercial Licenses are for the period designated in the Commercial Licensing Terms or as otherwise stated in Section 1.1(B). A Commercial License and any related services may be terminated by either party if the other party materially breaches this EULA and fails to cure such breach on thirty (30) days’ written notice (or immediately if such breach is not curable). Customer’s material breach includes any failure to pay amounts due to Daytona, Customer’s breach of Section 1.2, or Customer’s unauthorized use or disclosure of Daytona confidential or proprietary information. Fees for the remainder of the originally contemplated licensing period accelerate and are immediately due and payable if Daytona is terminating for Customer’s uncured breach.
7.3 Effect of Expiration or Termination. The license and other rights provided to Customer automatically terminate immediately in the event of a termination or expiration, and Customer will thereafter promptly return or destroy the applicable Software Products and related documentation. Upon any termination or expiration, applicable Sections of this EULA survive, including 1.2, 3.3, 4, 5, 6, 7, and 8.
8. General.
8.1 Verification. Daytona (or its designated auditors) has the right to audit Customer’s use of the Software Products to verify fees owed and compliance with this EULA, including with respect to any licensing or use restrictions. Daytona will conduct any such audit at its expense, unless such audit reveals a breach or underpayment by Customer and will reasonably endeavor to provide Customer prior notice of such audit. If an audit reveals that Customer has underpaid fees or violated this EULA, Customer shall reimburse Daytona of the reasonable costs of the audit and pay any underpayment or other amounts due without limiting Daytona’s other rights and remedies.
8.2 Required Disclosure. If Daytona is requested by applicable law, subpoena, or other legal process to produce documents, data, records, or personnel in connection with the discovery, testimony, or interviews pertaining to investigations, litigations, or disputes between Customer and any third parties, Customer will reimburse Daytona for Dayton’s reasonable fees and costs relating thereto, including cost of counsel.
8.3 Modifications. Daytona may modify or supplement the terms and conditions in this EULA by posting a revised EULA on its website, and such revisions will apply for any future downloads of the Software Products or Updates thereto, any renewals of a Commercial License, and for continued use of the Software Products under a Non-Commercial License to the maximum extent permitted by law. If Customer has any reasonable concerns relating to such modifications, Customer’s sole remedy is to stop using the Software Product(s) or to not renew the Commercial License relating thereto, if any.
8.4 Assignment. Customer shall not assign or transfer any rights or obligations under this EULA without the prior written consent of Daytona. Daytona may assign or transfer this EULA in connection with any merger, reorganization, or sale of all or substantially all of its assets or stock.
8.5 Waiver. No waiver by either party of any of the provisions of this EULA is effective unless explicitly set forth in writing and signed by an authorized representative of a party.
8.6 Governing Law and Venue. The laws of the State of Delaware will govern this EULA and any dispute arising hereunder without giving effect to the choice of law provisions thereof. Customer hereby consents to jurisdiction and venue in any federal or state court located within the State of California, and Customer shall not bring any suit, claim or other cause of action except in a court within the State of California, USA.
8.7 Third-Party Beneficiaries. There are no third-party beneficiaries to this EULA.
8.8 Notices. Customer agrees that an email to Customer’s email address on record will constitute notice to Customer.
8.9 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this EULA will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise or employment relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
8.10 Severability. If any portion of any provision of this EULA are held to be illegal, invalid or unenforceable, in whole or in part, then such unenforceable portion of the provision will be deemed severed from this EULA, the validity and enforceability of the remaining portion of the provision and the other provisions of this EULA will not be affected or impaired, and this EULA will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.
8.11 Entire Agreement. This EULA (and any Commercial Licensing Terms) set forth the entire agreement between Customer and Daytona regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter.