END USER LICENSE AGREEMENT
Last Updated: June 30, 2023
This End User License Agreement ("Agreement") is a binding agreement between Scuba Analytics, Inc. ("Scuba") and you, the entity on whose behalf you are acting, and your Authorized Users ("Licensee"). "Authorized Users" means your employees and third party contractors or agents authorized by you to use Scuba Lite software licensed hereunder ("Software") and related services ("Services") subject to and according to the terms of this Agreement. SCUBA PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" BUTTON OR CHECKING THE "ACCEPT" BOX WHEN INSTALLING THE SOFTWARE ONTO YOUR AZURE MARKETPLACE HOSTED ENVIRONMENT (THE "PLATFORM") YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, SCUBA WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT INSTALL OR USE
THE SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID
NOT ACQUIRE LAWFULLY.
Your submission of information, including personal information, through or in connection with the Site is governed by the
terms of our privacy policy as updated from time to time located at https://www.scuba.io/privacy-policy (“Privacy Policy”).
1. LIMITED LICENSE AND SERVICES
1.1 License Term. "License Term" means the period of time you are granted a license to use the Software through the Platform and Services under the terms and conditions herein. The License Term for the Software is for 365 days from initial access.
1.2 License to Software. Subject to the terms of this Agreement, Scuba grants Licensee during the License Term a non-transferable, non-exclusive, non-assignable, non-sublicensable, revocable, limited license to use and access the Software solely for Licensee's internal business purposes within the usage limitations ("Licensed Capacity") and solely in the Platform, which is managed by you.
Licensed Capacity. The Licensed Capacity for the Software is as follows: (a) up to 10 million Maximum Daily Events, (b) up to 5 Authorized Users, (c) no more than 1 Data Source. (d) Retention Period of 3 months. An "Event" is a unique time stamped record of Licensee Data ingested into the Software. "Licensee Data" means Licensee's electronic data or information that Licensee ingests into the Software. "Day" or "Daily" means the time period measured from midnight to midnight UTC. “Data Source” means each designated data source from which Licensee Data is ingested into the Software. “Maximum Daily Event Volume” means, the maximum number of Events permitted to be ingested Daily into the Scuba Software, but excludes any Event that is re-Ingested after the initial ingestion of such Event; “Retention Period” means the maximum number of calendar days that Customer is allowed to retain Events for live query access in the Scuba Software.
1.3 Modification and Discontinuation. Scuba reserves the right, at any time, to modify, suspend, or discontinue the Software or Services (in whole or in part) with or without notice at its sole discretion. Licensee agrees that Scuba will not be liable to Licensee or to any third party for any modification, suspension, or discontinuation of the Software or Services or any part thereof. Unless otherwise indicated, any future release, update, or other addition to functionality or content of the Software or Services shall be subject to the terms of this Agreement.
1.4 Support and Maintenance. For the purposes of this section, an "Error" means a reproducible failure of the Software, to perform in substantial conformity with the specifications set forth in the Documentation, whose origin can be isolated to a single cause. "Documentation" means the product and technical documentation relating to the Software that Scuba makes available to Licensee. Scuba will provide the support Services for the Software as provided for below:
(a) Communication. Any requests for support must be sent via email to help@scuba.io. Requests for support must include a detailed description of the Error, including screenshots or relevant logs and other information reasonably required by Scuba in order to verify and reproduce the Error reported by you.
(b) Response Time. Scuba will make commercially reasonable efforts to provide a Response to all requests for support sent in compliance with Section 2.5(a) above. "Response" means Scuba's initial communication acknowledging Licensee's request for support in connection with a specific Error.
(c) Support Exclusions. An Error in the Software does not include, and Scuba will have no obligation to provide support and maintenance for any failure of the Software caused by any of the following: (i) any alterations or modifications to the Software not made or approved by Scuba in writing; (ii) misuse or abuse, including without limitation, the failure to operate the Software in accordance with the Documentation; (iii) any failure of the Software caused by Licensee Data; (iv) damage to the Software in any manner due to the fault or negligence of any person or entity other than Scuba; (v) Licensee fails to reasonably assist Scuba in
verifying, reproducing and correcting error conditions, or Scuba is unable, after using reasonable efforts, to verify and reproduce the error condition reported by Licensee; (vi) any failure of the computer operating systems, hardware environment, or third party software utilized by Licensee, including any Licensee Technology; or any force majeure event. "Licensee Technology" means Licensee's technical data, computer facilities, systems, network, applications, files, documentation and other resources belonging to Licensee.
2. LICENSEE DATA
2.1 Responsibility. Licensee is solely responsible for the Licensee Data. Scuba is not obligated to backup any Licensee Data. Licensee is solely responsible for creating and maintaining its own backup copies of its Licensee Data at its discretion. Licensee agrees that it will evaluate, and bear all risks associated with, the use of any Licensee Data, including any reliance on the accuracy or completeness of such Licensee Data.
2.2 Representation and Warranty. Licensee retains all right, title and interest in and to all Licensee Data. Licensee represents and warrants that: (i) Licensee's use of the Software, Services, and all Licensee Data is and will be at all times compliant with Licensee's published privacy policies and all applicable laws and regulations, including without limitation, all applicable laws and regulations related to data privacy, exportation of technical data and personally identifiable information and international communications; and (ii) Licensee has sufficient rights in the Licensee Data to grant the rights granted to Scuba herein and that the Licensee Data does not infringe or otherwise violate the rights of any third party.
2.3 License to Licensee Data. Licensee hereby grants to Scuba a non-exclusive, worldwide, right and license during the License Term to use the Licensee Data in order to make the Software available to Licensee and to perform the Services.
3. ACCEPTABLE USE POLICY.
3.1 Restrictions. Licensee agrees not to use the Software or Documentation in any of the following manners: (a) except as expressly authorized in this Agreement; (b) decompile, disassemble or reverse engineer the Software, or otherwise attempt to learn the source code, structure or algorithms underlying the Software; (c) copy, modify, distribute, adapt, or create derivative works of the Software or Documentation; (d) rent, lease, loan, sublicense, assign, distribute, resell or otherwise commercially exploit the Software or Documentation or make the Software available to any third party other than Authorized Users; (e) use the Software or Documentation to provide processing services to third parties, or otherwise use the Software or Documentation on a “service bureau” or “timesharing” basis; (f) access the Software or Documentation to build a competitive product or service, or copy any ideas, features, functions, graphics of the Software or Documentation; (g) interfere with or disrupt the integrity or performance of the Software; (h) remove or obscure any proprietary or other notices contained in the Software or Documentation; (i) disclose to any third party the results of any benchmark tests or other evaluation of the Software; (j) upload, transmit, or distribute to or through the Software any computer viruses, worms, or any software intended to damage or alter a computer system or data; (k) in violation of any law, regulation, rule, applicable standards, or third-party rights; or (l) authorize or enable any third parties to do any of the above.
3.2 Licensee Responsibilities. Licensee agrees to: (a) limit access to, and use of, the Software to its Authorized Users; (b) access and use, and cause its Authorized Users to access and use, the Software and Documentation in compliance with this Agreement and all applicable laws; (c) remain responsible for any and all acts or omissions of action of any of its Authorized Users; and (d) only use the most up to date version of the Software.
3.3 Monitoring and Enforcement. Scuba reserves the right (but have no obligation) to investigate or take appropriate action against Licensee in its sole discretion if Licensee violates any provisions of this Section 3 (“Acceptable Use Policy”) or any other provision of this Agreement or otherwise create liability for Scuba or any other person. Such action may include suspending or terminating your license in accordance with Section 8, or reporting you to law enforcement authorities. In addition, during the License Term and for a period of one (1) year thereafter, upon reasonable notice, Scuba shall have the right to audit Licensee's systems and logs as necessary to verify Licensee's compliance with this Agreement.
4. INTELLECTUAL PROPERTY.
4.1 Ownership. Scuba or its licensors retain all worldwide right, title and interest, including all related intellectual property rights, in and to the Software, Services, Documentation, any technology developed from any Services provided by Scuba herein, and all derivative works, improvements, modifications thereto or thereof, by whomever made. No rights are granted to Licensee hereunder other than as expressly set forth herein. The Software is licensed, not sold, to Customer.
4.2 Copyright and Trademark. Copyright © 2022 Scuba Analytics. All rights reserved. Scuba’s stylized name, trademarks, graphics, logos, service marks and trade names used on or in connection with the Software or Services (“Scuba Marks”) are the trademarks of Scuba and may not be used without permission in connection with any third-party products or services. Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Scuba Marks displayed on the Software, without Scuba's prior written permission in each instance.
4.3 Feedback. In the event that Licensee or any of Licensee's employees or contractors provides Scuba with any suggestions, ideas, improvements or other feedback with respect to the Software, Documentation, or any of the Services (“Feedback”), the Feedback will not be considered confidential information of the Licensee. Scuba shall be free to use any part of the Feedback without limitation, without any attribution or compensation to any party, and for any purpose. Licensee hereby assigns, and shall cause Licensee' employees, contractors, and agents to assign to Scuba all right, title, and interest in, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever in its sole discretion.
5. WARRANTY DISCLAIMER. SCUBA PROVIDES THE SOFTWARE, DOCUMENTATION, AND SERVICES ON AND “AS IS” AND “AS AVAILABLE” BASIS. NEITHER SCUBA NOR ITS SUPPLIERS MAKE OTHER WARRANTIES OF ANY KIND AND SPECIFICALLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED, STATUTORY AND OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY OR NONINFRINGEMENT. SCUBA DOES NOT WARRANT THAT THE SOFTWARE, DOCUMENTATION, OR SERVICES ARE ERROR-FREE, OR THAT THE SOFTWARE OR SERVICES WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY SCUBA.
6. INDEMNIFICATION. Licensee shall indemnify, defend, and hold harmless Scuba, its affiliates, and each of their officers, employees, partners, suppliers, and agents (collectively, “Scuba Parties”) against any liabilities, losses, costs, and expenses, including reasonable attorneys’ fees, from third party claims relating to or arising out of Licensee's or its Authorized User's: (a) negligence in its use of the Software or Services, (b) violation of this Agreement, (c) violation of applicable laws or regulations, (d) violation of any rights of a third party, or (e) Licensee Data or Licensee Technology. Scuba reserves the right, at Licensee's expense, to assume the exclusive defense and control of any matter for which Licensee is required to indemnify Scuba, and Licensee agrees to cooperate with Scuba's defense of these claims. Licensee agrees not to settle any matter without the prior written consent of Scuba. Scuba will use reasonable efforts to notify Licensee of any such claim, action or proceeding upon becoming aware of it. This provision does not require you to defend, indemnify, or hold harmless any of the Scuba Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with
the Software or Services.
7. LIABILITY
7.1 Indirect Damages. To the maximum extent permitted by law, and subject to Section 7.3, in no event shall Scuba Parties be liable to Licensee or any third party for any lost profits, lost data, costs of procurement of substitute products, or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this Agreement or Licensee's use of, or inability to use, the Software, Documentation, or Services, whether based on warranty, copyright, contract, tort (including negligence), product liability or any other theory of liability, even if Scuba has been advised of the possibility of such damages. Access to, and use of, the Scuba or Services is at Licensee' own discretion and risk, and Licensee shall be solely responsible for any damage to Licensee's device or computer system, or loss of data resulting therefrom.
7.2 Liability Limitation. UNDER NO CIRCUMSTANCES WILL SCUBA PARTIES BE LIABLE TO LICENSEE FOR LOSSES ARISING OUT OF OR RELATING TO THE PLATFORM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND SUBJECT TO SECTIONS 7.1 AND 7.3, SCUBA'S CUMULATIVE LIABILITY TO LICENSEE SHALL NOT EXCEED $100.
7.3 Exclusions. The limitations on liability in Sections 7.1 and 7.2 above shall apply to the maximum extent permitted by law, but Scuba does not limit its liability caused by its own gross negligence, fraud, or willful misconduct.
7.4 Basis of the Bargain. The limitations on damages set forth above are fundamental elements of the basis of the bargain between Licensee and Scuba.
8. TERM AND TERMINATION
8.1 Term. This Agreement will become effective upon your Acceptance and remain in full force and effect through the end of your License Term, unless earlier terminated in accordance with below.
8.2 Suspension and Termination. Scuba may suspend or terminate Licensee's license provided herein or terminate this Agreement at any time for any reason without liability at Scuba's sole discretion, including for any use of the Software or Services in violation of this Agreement or Scuba discontinues its Software offering. Licensee may terminate this Agreement at any time by uninstalling and deleting the Software from its Platform and ceasing use.
8.3 Survival. Even after this Agreement is terminated, this Section 8.3 and the following sections will remain in effect: 3.3 (Monitoring and Enforcement), 4 (Intellectual Property Rights), 5 (Warranty Disclaimer), 6 (Indemnification), 7 (Limitation of Liability), 9 (Dispute Resolution), 10 (General).
9. DISPUTE RESOLUTION
9.1 Negotiation or Mediation. Parties shall first attempt to resolve any disputes arising out of the Software or Services or this Agreement by negotiation or mediation with a neutral third-party negotiator acceptable to both parties. Mediation expenses will be shared equally by the parties.
9.2 Arbitration. If parties are not able to resolve the dispute by negotiation or mediation within thirty (30) days from the date of the written notice of the dispute, the dispute shall be exclusively settled through binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) (adr.org) or Judicial Arbitration and Mediation Services, Inc. (“JAMS”) (jamsadr.com). Unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes. The arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction. Reasonable attorneys’ fees and costs for arbitration shall be recoverable by the substantially prevailing party in the arbitration.
9.3 Waiver of Jury Trial. Except as provided for in Section 12.4: (a) you are giving up your right to go to court to assert or defend your rights, and (b) your rights will be determined by a neutral mediator or arbitrator, not a judge or jury.
9.4 Equitable Remedies. Either party may seek emergency equitable relief before the state or federal courts located in Delaware in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Delaware for such purpose.
9.5 Governing Law and Jurisdiction. These Terms and any dispute or claim arising out of or in connection with their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the state of Delaware, except that the arbitration provision shall be governed by the Federal Arbitration Act.
10. GENERAL
10.1 Export. Licensee agrees to comply fully with all U.S. export laws and regulations to ensure that neither the Software nor any technical data related thereto, nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
10.2 Database of Record. Licensee acknowledges and agrees that the Software is not the database of record for Licensee, and Licensee shall not rely on or consider the Software as the sole source of, or a complete copy of Licensee Data.
10.3 Third Party Products and Services. Licensee may choose to obtain products and services that are provided or supported by third parties for use with the Software, including the Platform. Such third party products and services are provided pursuant to the terms of the applicable third party agreement between Licensee and such third party, and Scuba assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third party products or services.
10.4 Changes to Terms. This Agreement is subject to occasional revision. If Scuba makes any substantial changes, Scuba will make commercially reasonable efforts to notify Licensee, which may be by posting a notice in the Software or Platform. In the event Scuba provides notice by e-mail and the last e-mail address that Licensee has provided to Scuba is not valid, or for any reason is not capable of delivering the notice described above, Scuba's dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this Agreement will be effective upon the earlier of ten (10) calendar days following Scuba's dispatch of an e-mail notice (if applicable) or ten (10) calendar days following Scuba's posting of notice of the changes. Continued use of the Software following notice of such changes shall indicate Licensee's acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
10.5 Electronic Communications. The communications between parties use electronic means. For contractual purposes, Licensee (a) consents to receive communications from Scuba in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, policies, and other communications that Scuba provides to Licensee electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing.
10.6 Entire Agreement. This Agreement, including any additional terms and policies which have been included herein by reference, constitute the entire agreement between the parties regarding the use of the Software and Services.
10.7 Waiver. A waiver by Scuba of any right or remedy under this Agreement shall only be effective if it is in writing, executed by a duly authorized representative of Scuba and shall apply only to the circumstances for which it is given. Scuba's failure to exercise or enforce any right or remedy under this Agreement shall not operate as a waiver of such right or remedy, nor shall it prevent any future exercise or enforcement of such right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of any such right or remedy or other rights or remedies.
10.8 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.9 Relationship. Licensee confirms that it is acting on its own behalf (and its organization’s behalf where applicable) and not for the benefit of any other person. Licensee's relationship to Scuba is that of an independent contractor, and neither party is an agent or partner of the other.
10.10 Assignment. This Agreement, and Licensee's rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred without Scuba's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Scuba may freely assign this Agreement. The terms and conditions set forth in this Agreement shall be binding upon assignees.
10.11 Contact and Notice. Scuba may be contacted at:
Attn: Legal Department
Scuba Analytics, Inc.
800 W. El Camino Real, Ste 180
Mountain View, CA 94040
Licensee may provide notice by mail at the address above or by email at legal@scuba.com. Legal notice shall be deemed given when sent to the email address so provided, or when received by Scuba by letter delivered by a nationally recognized overnight delivery service or first-class postage prepaid mail at the address provided above.