This Base Terms End-User License Agreement (“Agreement”) is a legal agreement between Feenix.ai, Inc.
which is headquartered in San Jose, California (“Feenix.ai”) and
you, the licensed end-user (“Licensee” or “you”), to allow you and your Authorized Users,
as defined below, to use Feenix.ai’s proprietary Solution, as defined below, in
accordance with your Subscription (defined below) and pursuant to the terms
delineated herein. You and Feenix.ai are each a “Party” to this Agreement.
PLEASE READ THIS DOCUMENT CAREFULLY BECAUSE IT IS A LEGAL AGREEMENT TO
WHICH YOU MUST GIVE YOUR AFFIRMATIVE CONSENT BY CLICKING THE “I CONSENT” BUTTON OR BY ACCEPTING AN AWS MARKETPLACE PRIVATE OFFER BEFORE YOU ACCESS FEENIX.AI’S PROPRIETARY SOLUTION. IF YOU DO NOT AGREE WITH THE TERMS BELOW, YOU WILL NOT BE ALLOWED TO USE FEENIX.AI’S TECHNOLOGY.
1. DEFINITIONS.
1. “Authorized User” means any employee, agent, independent contractor, or representative of Licensee who uses the Solution under Licensee’s control and supervision pursuant to Licensee’s License in this Agreement for the term of Licensee’s Subscription, and for whose individual actions in using the Solution Licensee is responsible and fully liable.
2. “AWS Marketplace” means the Amazon Web Services cloud of on-demand Saas platforms.
3. “Data” means data owned by Licensee and provided to Feenix.ai solely for the purpose of maximizing the functionality of the Solution for Licensee. Data does not contain personally identifiable information.
4. “Documentation” means any user-manual or technical documentation and specifications that Feenix.ai provides with the Solution.
5 . “Intellectual Property” means any created or developed technology, patentable subject matter, invention, process, form of matter, device, machine, software, source or object code, copyrightable work, document, written work, drawing, graphical work, created work in an electronic medium, symbol, logo, slogan, design, trademark, service mark, trade name, trade dress, trade secret, know- how, proprietary and confidential information, or any other form of creativity ‘which takes form in a tangible medium of expression and is protected and enforceable under any Intellectual Property Rights (defined below) recognized in any jurisdiction throughout the world.
6 . “Intellectual Property Rights” means all rights of ownership or enforcement in any Intellectual Property now held or hereafter created or acquired by a party, regardless of whether arising under the laws of the United States, under the laws of any other jurisdiction throughout the world, or under any international treaty for
(i) all classes or types of patents, including, without limitation, utility models, utility patents and design patents, patent applications and disclosures, and any extensions in any jurisdiction throughout the world;
(ii) all copyrights, all ancillary and sub-rights of copyright, and all moral rights in both published and unpublished works, and all corresponding registrations and applications therefor in any jurisdiction throughout the world;
(iii) all trademarks and service marks and trade names, and all corresponding registrations and applications therefor in any jurisdiction throughout the world; and
(iv) all know-how, trade secrets, and confidential, technical and non-technical information created or acquired by a Party.
7. “Solution” means any services provided by Feenix.ai in exercising the functionality of the Solution and all proprietary technology of any kind owned by Feenix.ai and provided to Licensee under this Agreement, including Feenix.ai’s platform for growing and optimizing Licensee’s AWS Marketplace business, Feenix.ai Apps and downloadable software tools (if any), and any connector products and/or APIs owned by Feenix.ai. This definition excludes any Third Party Software and Open Source Software (each as defined in Section 2.4).
8. “Subscription” means the payment terms, Supplemental Terms, scope, and duration of Licensee’s access to the Solution under the License (defined below) as determined by the Tier to which Licensee has subscribed, and which Licensee has purchased via the Subscription page of the Feenix.ai website at Feenix.ai.ai.
9. “Supplemental Terms” means additional terms and conditions that are part of Licensee’s License and which govern Licensee’s Use of the Solution in accordance with a particular Tier (defined below). Supplemental Terms are incorporated into and made part of this Agreement.
10. “Tier” means the scope of Licensee’s Subscription to the License under the Starter Tier, Growth Tier, or Scale Tier, as delineated on the Subscription page of the Feenix.ai website at Feenix.ai.
11 “use” of the Solution means anv action of loading on executing unloading Ce emmy downloading, accessing, or any other use the Solution in any manner ‘whatsoever, including, but not limited to, displaying the Solution on a monitor screen, or temporarily downloading the Solution in whole or in part in the main or auxiliary memory of a personal computer or other storage device.
2. LICENSE GRANT.
1. Solution License. Subject to the terms and conditions of this Agreement, and all of the subsections of this Section 2, Feenix.ai grants Licensee a nontransferable, nonexclusive license to Use the Solution, in executable object code format only, solely in accordance with the Supplemental Terms for the Tier of Licensee’s Subscription, solely in accordance with any Documentation provided by Feenix.ai, and solely for the term and any other limitations in Licensee’s Subscription (“License”).
2. Payment Terms. Licensee’s Use of Solution is limited to the Supplemental Terms of Licensee’s Subscription and requires Licensee to be current in the payment of all fees due at all times. Licensee acknowledges and agrees that Feenix.ai may suspend or terminate Licensees Subscription if Licensee does not pay all required fees when due.
3. Authorized Users. Licensee understands, acknowledges, and agrees that Licensee is fully responsible and liable for the Use of the Solution by Licensee’s Authorized Users. To that end, Licensee undertakes to ensure that any Authorized User who is not an employee of Licensee shall execute a written agreement in which such Authorized User expressly promises to comply with ‘the Use restrictions of Licensee’s Subscription and this Agreement.
4 . License Management. Licensee acknowledges and agrees that the Solution may utilize a license management technology which enables use of the Solution as purchased by Licensee in accordance with the restrictions provided by Licensee’s Subscription and any additional restrictions deemed necessary by Feenix.ai in its sole discretion and judgment. The license management solution may prevent or restrict additional user login, availability of certain functionality, processing of additional data or setup of new Authorized Users until a valid amended or extended License is obtained by Licensee from Feenix.ai.
5. License Restrictions. Licensee shall not, and shall not allow any third party to:
(a) decompile, disassemble, or otherwise reverse engineer the Solution or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Solution by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to Feenix.ai)
(b) distribute, sell, sublicense, rent, or lease the Solution or the Documentation (or any portion thereof) or attempt to distribute, sell, sublicense, rent, or lease the Solution or the Documentation (or any portion thereof)
(c) use the Solution or the Documentation (or any portion thereof) for any purposes not expressly permitted under this Agreement
(d) remove any product identification, proprietary, copyright or other notices contained in the Solution or the Documentation (including any reports or data printed or exported from the Solution)
(e) modify any part of the Solution or the Documentation, create a derivative work of any part of the Solution or the Documentation, incorporate the Solution into or with other software, or use the Solution (or any part thereof) to provide any product or service to a third party, except to the extent expressly authorized in writing by Feenix.ai
(f) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Solution
(g) exceed the usage limitations of the Activate or Starter tier [Tier Limitations – The Activate tier is limited to customers with cloud marketplace Gross Software Sales (GSS) of $250,000 or less in annual sales. If Licensee exceeds this threshold, Licensee must transition to the Starter tier or a higher paid tier (Growth or Scale) upon renewal and expiration of the initial term for the Activate tier. The Starter tier is limited to customers with cloud marketplace GSS of $500,000 or less in annual sales. If Licensee exceeds this threshold, Licensee must transition to the Growth tier or Scale tier upon renewal and expiration of the initial term for the Starter tier.]
6. Behavior of Licensee and its Authorized Users. Licensee hereby understands, acknowledges, and agrees that Licensee and its Authorized Users will not do any of the following: alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the Solution in whole or in part; and/or remove any proprietary notices of copyright or trademark ownership, any ‘watermarking, or any other proprietary notices or language referring to Feenix.ai’s ownership of the Solution; and/or copy, reproduce, publish, distribute, or redistribute any of the Solution, in whole or in part, to any person ‘who is not authorized to use the Solution pursuant to this Agreement; and/or attempt to sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the Solution, any rights granted under this Agreement, or any intellectual property rights owned by Feenix.ai, to any other person or entity; and/or provide any other person or entity access to the Solution by means of Licensee’s username and/or Licensee’s password; and/or attempt to lend, lease, license, sublicense, transfer, assign, sell, or resell Licensee’s username(s) and password(s) to any other person or entity; and/or decompile, disassemble, translate or reverse engineer any portion of the Solution, or otherwise discover or duplicate any technology, routines, computer code, algorithms, methods or underlying ideas or designs or user interface techniques included in any portion of the Solution; and/or, except as authorized under the License, monitor, gather, copy, or distribute any content or data included in the Solution by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; and/or insert any code or product to manipulate the Solution in any way; and/or make or attempt to make any commercial use or exploitation of the Solution; and/or circumvent, disable or otherwise interfere with the security features of the Solution, or any features that prevent or restrict use or copying of any portion of the Solution; and/or use the Solution to collect or harvest any personally identifiable information (“PII”), including usernames and passwords of others; and/or use ‘the Solution to create multiple accounts under false or fraudulent pretenses; and/or use the Solution to create or transmit unsolicited electronic communications; and/or use the Solution to transmit any harmful code sequence or routines; and/or use the Solution to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or claim the Solution as Licensee’s property, Licensee’s creation, or Licensee’s work of authorship, in whole or in part; and/or contest or dispute Feenix.ai’s ownership of the Solution, all Intellectual Property inherent in the Solution and all Intellectual Property Rights invoked by or applicable to the Intellectual Property inherent in the Solution; and/or use the Solution after the termination date of this Agreement; and/or use the Solution, in whole or in part, in any manner not authorized by this Agreement. LICENSEE HEREBY ACKNOWLEDGES, AND AGREES THAT ANY VIOLATION OR SUSPECTED VIOLATION OF THE FOREGOING LICENSE RESTRICTIONS BY LICENSEE OR ONE OF ITS AUTHORIZED USERS MAY CONSTITUTE GROUNDS ON WHICH FEENIX.AI MAY, IN ITS SOLE DISCRETION, IMMEDIATELY SUSPEND OR TERMINATE LICENSEE’S LICENSE TO USE THE SOLUTION, IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO FEENIX.AL
7. Third-Party and Open Source Software. The Solution may be distributed with or contain or use certain third-party proprietary software (“Third-Party Software”) and certain “open source software” or “free software” (“Open Source Software”), which may be identified in the Documentation, or, if not so identified, Feenix.ai shall provide a list of such Third-Party Software and Open Source Software and copies of their governing licenses, upon request. Such Third-Party Software and Open Source Software (i) are not subject to the terms and conditions of Sections 2.1 (Solution License) or 7 (Indemnification) and (ii) are licensed under the terms of the end-user license that accompanies such software. Nothing in this Agreement limits Licensee’s rights under, or grants Licensee rights that supersede, the terms and conditions of any applicable end user license for the Third- Party Software and Open Source Software. If required by any license for particular Open Source Software, Feenix.ai makes such software, and Feenix.ai’s modifications to that Open Source Software, available by written request.
8. Support. For such period as Licensee has paid the applicable fees pursuant to Licensee’s Subscription, Feenix.ai shall provide support and maintenance services for the Solution in accordance with the Subscription Tier to which Licensee has subscribed. The support features and services for each Tier are delineated in the Supplemental Terms for such Tier.
9 . Audit Rights. Licensee acknowledges and agrees that Feenix.ai may, at its expense, audit Licensee’s use of the Solution. Any such audit shall either be conducted by means of remote access from a Feenix.ai location or on-site during regular business hours at Licensee’s facilities, and shall not unreasonably interfere with Licensee’s business activities.
3. LICENSEE OBLIGATIONS.
4. PROPRIETARY RIGHTS
5. PAYMENT
5.1 Fees. Access to the Solution by Licensee and its Authorized Users, and the exercise of the License by Licensee, requires Licensee to be current and fully paid up in regard to all license fees due pursuant to the Supplemental Terms of Licensee’s Subscription.
5.2 Invoi ing and Payment. Fee payment shall be made in accordance with Licensee’s Subscription Agreement. Payment is due and owing to Feenix.ai regardless of whether Licensee bills and/or receives payment from Licensee’s clients. Licensee’s activation of a Subscription account constitutes Licensee’s representation and warranty that Licensee can pay for the Subscription in accordance with the terms of Licensee’s Subscription Agreement.
5.3 Taxes. Fees are exclusive of taxes. Licensee will pay all taxes (except for Feenix.ai’s income taxes) and other government imposed fees or assessments arising out of or related to Licensee’s use of the Solution.
6. TERM AND TERMINATION.
6.1 Term. This Agreement shall commence on the date on which Licensee purchases Licensee’s Subscription and shall, unless terminated earlier in accordance with the provisions of this Agreement, remain in force for the period for which Licensee pays or has paid the appropriate fee under Licensee’s Subscription Agreement to keep Licensee’s Subscription current and active. The Subscription, including 12-month contracts paid upfront, shall automatically renew for successive periods of the same duration as the initial term, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
6.2 Termination. Feenix.ai may terminate this Agreement for any reason, including convenience, by providing reasonable advance notice to Licensee. Feenix.ai may terminate this Agreement immediately with or without notice to Licensee in the event that Licensee or any Authorized User of Licensee materially breaches any of the terms of this Agreement, as determined by Feenix.ai in Feen ‘s sole discretion and judgment. Termination of this Agreement shall not relieve Licensee of its obligation to pay all fees owed by Licensee under the terms of Licensee’s Subscription Agreement.
6.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason, (a) all licensed rights granted in this Agreement, including Licensee’s right to exercise the License, will immediately cease; (b) Licensee and all of Licensee’s Authorized Users will promptly discontinue all use of the Solution and Documentation and return to Feenix.ai any Confidential Information in Licensee’s possession or control; and (c) Feenix.ai shall return or destroy all Data in its possession.
7. WARRANTY DISCLAIMERS.
8. LIMITATION OF LIABILITY.
9. INDEMNIFICATION.
9.1 Licensee’s Indemnification Obligation. Licensee shall indemnify and hold harmless Feenix.ai, its officers, directors, employees, agents, representatives, and licensors from, and, at Licensee’s expense, shall defend Feenix.ai against, any loss, damage or expense (including reasonable and directly related legal costs) that Feenix.ai incurs or becomes liable for as a result of
(a) any breach by Licensee, by any of its Authorized Users, or by its agents, representatives, or others for whom Licensee is responsible, of any of the terms of this Agreement;
(b) any negligent, reckless or willful act or omission by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible;
(c) any failure by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible to comply with applicable laws in performing under this Agreement;
(d) any misuse by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible of the Solution or of the Documentation; or,
(e) any claim made against Feenix.ai by any third party for which Feenix.ai is not liable under this Agreement, and which arises as a consequence of use of the Solution by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible. Licensee shall reimburse Feenix.ai for its expenses under this Section as they are incurred. Feenix.ai shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder. Licensee, in the defense of any such claim, action, or proceeding arising under this Section shall not, except with the written consent of Feenix.ai obtained in advance, enter into any settlement which adversely affects Feenix.ai’s rights or which does not include, as an unconditional term, a release granted to Feenix.ai of all lial s in respect of such claim, action or proceeding.
9.2 Feenix.ai’s Indemnification Obligation. Feenix.ai shall indemnify, defend and hold Licensee harmless against any claim or action brought by a third party against Licensee to the extent based upon any claim that the Solution infringes the Intellectual Property Rights of such third party. Licensee shall promptly notify Feenix.ai in writing of any such claim. aive Feenix.ai full authoritv and control of the settlement and defense of the claim, and fully cooperate with Feenix.ai in the defense of such claim. Feenix.ai shall have no obligation to Licensee under this Agreement for any claim that arises from:
(a) any modification to the Solution made by anyone other than Feenix.ai; or
(b) any use by Licensee of the Solution other than as specified in this Agreement or in the Documentation (including on any hardware configuration other than the Equipment). If a third-party claim for infringement arises, or in Feenix.ai’s reasonable opinion is likely to arise, Feenix.ai may at its own expense obtain for Licensee the right to continue using the Solution, may modify the Solution to make it non-infringing, or may substitute other software and hardware of similar capability and functionality. If none of the foregoing options are reasonably available to Feenix.ai, Feenix.ai may terminate this Agreement and refund to Licensee the fees paid, less the fees for Licensee’s use of the Solution prior to such termination. THIS SECTION STATES THE ENTIRE INDEMNIFICATION OBLIGATION OF FEENIX.AI AND LICENSEE’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS BROUGHT AGAINST LICENSEE AND FOR WHICH LICENSEE MAY SEEK INDEMNIFICATION.
10. CONFIDENTIALITY.
“Confidential Information” means any and all information related to Feenix.ai’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including, without limitation, software, source code and specifications, trade secrets, development plans, content, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers. Without limiting the foregoing, the Solution and Documentation are the “Confidential Information” of Feenix.ai. Licensee agrees
(i) to hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party by using the same degree of care, but no less than a reasonable degree of care, as the receiving party uses to protect its own Confidential Information of a like nature against unauthorized dissemination and use,
(ii) not to disclose such Confidential Information to any third parties, except as described herein and
(iii) not to use any Confidential Information except for the purposes of this Agreement. With the advance written permission of Feenix.ai, Licensee may disclose Feenix.ai’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect Feenix.ai’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that Licensee can demonstrate by a preponderance of evidence
(a) was known to it prior to its disclosure;
(b) is or becomes publicly known through no wrongful act of Licensee;
(c) has been rightfully received from a third party authorized to make such disclosure without restriction;
(d) is, by clear and convincing evidence in the possession of Licensee, independently developed by Licensee without reference to Feenix.ai’s Confidential Information. The parties agree that a breach of this section may cause Feenix.ai irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, Feenix.ai shall be entitled to seek injunctive relief for any threatened or actual unauthorized disclosure.