This Fugue End User License and Subscription Agreement (this "Agreement") governs each order for the Fugue Software placed by Customer (each, an "Order") pursuant to an Order Form or purchase through the Amazon Web Services ("AWS") Marketplace. Each Order Form entered into pursuant to this Agreement or Order placed through the AWS Marketplace shall, once executed by Customer and Fugue, become a part of this Agreement as of the Effective Date and shall be appended to this Agreement without further action by either party. Capitalized terms used but not defined in this Agreement shall have the meanings given to such terms in the Order Form.
For purposes of this Agreement, the following terms shall have the following meanings:
1.1 "Cloud Service Provider" shall means a provider of cloud computing services, including but not limited to Infrastructure-as-a-Service (IaaS), Software-as-a-Service (SaaS) or Platform as a Service (PaaS) providers, such as Amazon Web Services.
1.2 "Composition" means any composition created using Ludwig that is made available to Customer under this Agreement.
1.3 "Customer" means the individual or entity identified in the Order Form who places an Order.
1.4 "Customer User" means an employee, contractor or agent of Customer who is permitted by Customer to download, install and/or otherwise use the Fugue Software.
1.5 "Documentation" means such manuals, documentation and any other supporting materials relating to the Fugue Software as are currently maintained by Fugue and generally provided to its customers.
1.6 "Effective Date" means the date that the Order Form, executed by Customer, is accepted by Fugue or the date that the Customer consummated an Order through the AWS Marketplace.
1.7 "End User License Agreement" or "EULA" means an agreement between Fugue and Customer and/or Customer Users, as applicable, that governs the use of the Fugue Software, Ludwig, and the Documentation and includes terms and conditions related thereto. The current version of the EULA is available at https://fugue.co/eula.
1.8 "Fugue Software" means the software identified in the Order Form.
1.9 "Ludwig" means the language developed by Fugue to create compositions for the Fugue Software, including any schematics, specifications, interfaces, development environments, libraries, compilers, interpreters, runtime tools or related utilities for the Fugue Software.
1.10 "Order" or "Order Form" means a quote signed by the Customer and accepted by Fugue or an order placed through the Amazon Web Services Marketplace pursuant to which Fugue directly or indirectly provides the Fugue Software to the Customer.
1.11 "Ordering Documents" means, collectively, the Order Form(s), the EULA and this Agreement.
1.12 "Support Services"means the support services made available by Fugue to Customer under this Agreement, as described in Section 5 hereof.
1.13 "Third Party Products" means any software or services made available by a party other than Fugue that may be used in connection with the Fugue Software, Ludwig or Compositions, including software or services that are necessary or advisable in order for Customer to exploit the functionality of the Fugue Software, Ludwig, or Compositions.
2. End User License Agreement
2.1 EULA. The EULA available at https://fugue.co/eula is hereby incorporated by reference into this Agreement. Customer agrees to the terms and conditions set forth in the EULA. For the purposes of this Agreement, references to "you" or "your" in the EULA shall refer to Customer. To the extent that there is a conflict among the terms of this Agreement, an Order Form and/or the EULA, (a) the terms in an Order Form shall supersede any conflicting terms in this Agreement or the EULA, and (b) the terms of this Agreement shall supersede any conflicting terms in the EULA. Fugue reserves the right to modify or update the EULA from time to time, at its discretion. In the event that Fugue modifies or updates the EULA, Fugue will notify Customer in accordance with Section 10.2 or by other reasonable means and shall provide Customer the opportunity to opt-out of acceptance of the updated EULA terms by terminating this Agreement in accordance with Section 9.2. Customer's failure to opt-out of the updated EULA and terminate the Agreement shall constitute Customer's acceptances, on behalf of itself and all Customer Users, of the updated EULA.
2.2 Customer User Compliance. Customer shall ensure that (a) each Customer User agrees to the terms and conditions set forth in the EULA at the time that the Fugue Software is delivered by Fugue to Customer or downloaded, installed or first used by a Customer User, and (b) all Customer Users comply with the terms and conditions of the Ordering Documents. Customer shall be responsible for compliance with the Ordering Documents by each Customer User and it shall monitor and manage all Customer Users in connection with their compliance with the Ordering Documents.
3. License to the Fugue Software; Restrictions
3.1 Grants of Rights. This Section 3.1 supersedes and replaces the corresponding Section 2.1 (Grant of Rights) in the EULA. Subject to the terms and conditions of the Ordering Documents, Fugue hereby grants to Customer a restricted, non-exclusive, non-transferable, non-sublicensable license during the applicable Order Term to (a) download, install and use the Fugue Software, (b) use Ludwig, (c) download and use Compositions, and (d) download and use the Documentation in connection with Customer's use of the Fugue Software, in each case for internal purposes only (the "License"). Customer may not use Ludwig or any Compositions other than in connection with the Fugue Software, including with any other compilers or interpreters or for any other purposes. In no event shall the Fugue Software or Ludwig be disclosed, made available to or used for the benefit of any third party, sold, assigned, leased or otherwise disposed of, or commercially exploited or marketed in any way, with or without charge, by Customer or any Customer User. Except as otherwise set forth in this Agreement or an Order Form, rights and restrictions regarding the use of the Fugue Software and Ludwig are set forth in the EULA. Notwithstanding anything to the contrary in the EULA, the commercial terms that govern the quantity of Fugue Software licensed hereunder, the Cloud Service Provider in connection with which the Fugue Software may be used, and pricing, payment, term and termination of the License shall be governed by the applicable Order Form(s) and this Agreement. Except as expressly set forth in an Order Form or this Agreement, no other right or license of any kind is granted by Fugue to Customer hereunder with respect to the Fugue Software, Ludwig or Compositions.
3.2 Restrictions. In addition to the applicable restrictions set forth in the EULA, Customer may not (a) download or install quantities of Fugue Software in excess of the amount set forth in the applicable Order Form(s), (b) load the Fugue Software on Cloud Service Provider accounts other than the Cloud Service Provider accounts specifically identified in the applicable Order Form(s), or (c) allow the number of Customer Users who use the Fugue Software to exceed the number specified in the applicable Order Form(s). Customer acknowledges and agrees that, unless otherwise agreed in writing between the parties, Customer shall be solely responsible for procuring and complying with any license or right to use any Third Party Products, including applicable Cloud Service Provider services.
3.3 Delivery. Subject to the terms and conditions of the Ordering Documents, Fugue shall make available for download the object code version of the Fugue Software, Ludwig and related Documentation to Customer.
3.4 Professional Services. Customer may engage Fugue to perform certain Professional Services, for which the terms and conditions shall be set forth in a separate Professional Services Agreement.
4. Orders and Payments
4.1 Orders. The initial Order for the Fugue Software and Support Services is set forth through the AWS Marketplace or on the Order Form attached to this Agreement. During the term of this Agreement, Customer may order additional subscriptions or support services for the Fugue Software or other software made available by Fugue in accordance with Fugue's then-current rates and policies in effect when such an Order is placed. To place such order, Customer may use the AWS Marketplace or shall request that Fugue issue a quote for such additional subscriptions or support services. Order placed through the AWS Marketplace or any Order Form executed by Customer and accepted by Fugue shall be governed by this Agreement and the EULA.
4.2 Professional Services Fees. Fees for any Professional Services rendered shall be set forth in a separate Professional Services Agreement.
4.3 Fees; Payment. In consideration of Fugue's provision of the Fugue Software, Ludwig, and Support Services, Customer shall make non-refundable payments to Fugue in accordance with the terms set forth in each Order or Order Form associated with this Agreement or through Customer's purchase through the AWS Marketplace. Unless Order is placed through the AWS Marketplace, Fugue will invoice Customer for all fees (including expense reimbursements) due under this Agreement and Customer shall pay such invoiced amounts within forty-five (45) days of the date of the invoice. For all amounts not paid within forty-five (45) days from the date of the invoice therefor, Customer agrees to pay interest at the rate of one and one-half percent (1.5%) per month (or the maximum rate permitted by applicable law, whichever is less). All fees payable under this Agreement shall be made without recoupment or set-off. In the event that Customer disputes all or any portion of the fees set out in any such invoice, Customer will notify Fugue in writing of such dispute with specific details sufficient to identify the amounts in dispute, and the parties will promptly attempt in good faith to resolve such dispute.
4.4 Taxes. In addition to all fees payable pursuant to this Agreement, Customer will pay or reimburse AWS or Fugue for all federal, state, local or other taxes, including sales, use, excise and property taxes, or amounts levied in lieu thereof, based on charges set forth in this Agreement; provided, however, that Customer will have no responsibility for taxes imposed on Fugue's net income by any taxing authority
5. Support; Updates
Except as provided for in an Order Form or in a separate support agreement entered into between Fugue and Customer, Fugue will provide support as specified in Section 3 (Support; Updates) of the EULA.
6. Proprietary Information
Customer acknowledges that in the course of this Agreement it may obtain Proprietary Information. The definition of Proprietary Information and restriction on its use by Customer and Customer Users are set forth in Section 5 (Proprietary Information) of the EULA. This includes use and disclosure restrictions, exclusions to the treatment of such proprietary information, and equitable relief in the event of unauthorized disclosure. In addition, the existence of and terms of the Order Form(s) and this Agreement shall be Proprietary Information under the Ordering Documents.
7. Limited Warranties; Disclaimer
7.1 Limited Warranties. Fugue warrants (a) that the Fugue Software shall conform in all material respects to the Documentation. In the event of a breach of the foregoing warranty, Fugue's sole obligation, and Customer's sole and exclusive remedy for such breach, shall be to make commercially reasonable efforts to promptly correct the non-conforming functionality of the Fugue Software without charge.
7.2 Disclaimer. EXCEPT AS SET FORTH IN SECTION 7.1, FUGUE MAKES NO WARRANTIES WITH RESPECT TO THE FUGUE SOFTWARE, LUDWIG, THE PROFESSIONAL SERVICES, ANY DELIVERABLES, THE DOCUMENTATION OR ANY COMPOSITIONS OR ANY THIRD PARTY PRODUCTS, INCLUDING CLOUD SERVICE PROVIDER SERVICES, EXPRESS OR IMPLIED, RELATING THERETO, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE AND ALL STATUTORY WARRANTIES ARE EXCLUDED TO THE FULLEST EXTENT POSSIBLE. In addition, under no circumstances shall Fugue be responsible or liable for any actions or omissions of any cloud service provider in connection with THE PERFORMANCE OF THE FUGUE SOFTWARE OR LUDWIG, THE DELIVERABLES OR ANY COMPOSITIONS OR Fugue's performance of ANY PROFESSIONAL Services.
FUGUE MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS. FUGUE DOES NOT REPRESENT OR IMPLY THAT IT ENDORSES ANY THIRD PARTY PRODUCTS, OR THAT IT BELIEVES THE OPERATION OF ANY THIRD PARTY PRODUCTS WILL BE ACCURATE, USEFUL OR NON-HARMFUL. THIRD PARTY PRODUCTS MAY HAVE TECHNICAL INACCURACIES, MAY CAUSE MISTAKES OR ERRORS, AND MAY TRANSMIT, STORE, OR OTHERWISE MANIPULATE DATA IN A MANNER THAT IS OBJECTIONABLE TO CUSTOMER. CUSTOMER IS RESPONSIBLE FOR TAKING PRECAUTIONS TO PROTECT ITSELF AND CUSTOMER'S COMPUTER SYSTEMS IN CONNECTION WITH THE USE OF THIRD PARTY PRODUCTS.
8. Fugue's Entire Liability
TO THE EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) IN NO EVENT SHALL FUGUE OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INADVERTENT DISCLOSURE OF DATA, OR INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR OTHER ECONOMIC LOSS ARISING FROM OR RELATING TO ANY ORDERING DOCUMENT, OR THE SUBJECT HEREOF OR THEREOF, EVEN IF FUGUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED, AND (B) NOTWITHSTANDING ANYTHING IN THE ORDERING DOCUMENTS TO THE CONTRARY, FUGUE'S ENTIRE LIABILITY ARISING FROM OR RELATING TO ANY ORDERING DOCUMENT OR THE SUBJECT HEREOF OR THEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), IF ANY, SHALL NOT exceed the aggregate fees paid by CUSTOMER to FUGUE during the TWELVE (12) months preceding the claim (or for a claim arising before TWELVE (12) months after the Effective Date, the aggregate fees paid by CUSTOMER to FUGUE during the first TWELVE (12) months of the Term).
9. Term and Termination
This Section 9 supersedes and replaces Section 8 (Term and Termination) of the EULA.
9.1 Term. This Agreement shall commence on the Effective Date of the initial Order Form or the date that the Customer consummated an Order through the AWS Marketplace entered into in connection with this Agreement and, unless sooner terminated pursuant to terms hereof, shall expire upon the expiration of the last Order Term (defined below) under this Agreement. Unless otherwise specified in an Order Form, the term of each Order shall commence on the Effective Date of such Order Form or the date that the Customer consummated an Order through the AWS Marketplace and, unless sooner terminated pursuant to the terms hereof or otherwise specified in the Order Form or through AWS Marketplace, shall continue in full force and effect for a period of one (1) year following the Effective Date of such Order and shall automatically renew for successive one (1) year periods unless either party provides the other party with written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term (each such term, including any renewals thereof, an "Order Term"). Any renewal of an Order pursuant to the preceding sentence will be for the same quantities of subscriptions for the Fugue Software and other products and services as set forth in the applicable Order Form and the purchase of any additional subscriptions for Fugue Software or other products and services shall require the execution of an amendment to the applicable Order Form or the execution of a new Order Form. Upon any termination or expiration of this Agreement, all Ordering Form(s) and the EULA shall immediately terminate.
9.2 Termination. Either party may terminate the Ordering Documents upon written notice to the other party if the other party fails to perform any of its duties or obligations hereunder (including its payment obligations) and fails to cure such default within thirty (30) days following receipt of written notice from the non-defaulting party specifying the occurrence or existence of the default. Customer shall notify Fugue within twenty-four (24) hours of Customer becoming aware of any breach (other than by Fugue) of the terms and conditions of the Ordering Documents. In addition, if Fugue notifies Customer that the EULA has been modified or updated in accordance with Section 2.1, Customer may immediately terminate the Ordering Documents upon written notice to Fugue if Customer does not wish to be bound by the terms of the updated EULA.
9.3 Termination by Fugue. The Ordering Documents may be immediately terminated by Fugue, if Customer: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay its debts as they become due; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
9.4 Effect of Termination. Upon the expiration or termination of this Agreement, the rights granted to Customer hereunder shall terminate, Customer will cease all use of the Fugue Software, Ludwig, the Professional Services, the Deliverables, the Documentation, and all Compositions, return to Fugue or destroy the Fugue Software in its possession, and, upon Fugue's request, so certify such actions to Fugue. Any costs incurred in returning or destroying the Fugue Software upon termination shall be borne by Customer. The provisions of Sections 2.2, 3.2, 4, 5, 6, 7, 8, 9.4 and 10 of this Agreement and provisions of Sections 2.2, 4, and 5 of the EULA shall survive the expiration or any termination of this Agreement. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party's obligations under this Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party shall be without prejudice to any other right or remedy of such party under this Agreement or applicable law.
10. General Provisions
10.1 Force Majeure. Fugue shall not be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosions, earthquakes, floods, wars, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond its reasonable control.
10.2 Notices. Any notice, request, demand or other communication required or permitted hereunder shall be in writing, shall reference this Agreement and shall be deemed to be properly given: (a) when delivered personally; (b) seven (7) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (c) two (2) business days after deposit with a private industry express courier, with written confirmation of receipt. All notices shall be sent to the address set forth on the Order Form(s) and to the notice of the person executing this Agreement (or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section).
10.3 Assignment. This Agreement, including the Order Form(s), may not be assigned, in whole or part, whether voluntarily, in connection with a merger or acquisition, by operation of law or otherwise, by Customer without the prior written consent of Fugue. Subject to the preceding sentence, the rights and liabilities of the parties hereto shall bind, and inure to the benefit of, their respective assignees and successors and is binding on the parties and their successors and assigns. Any attempted assignment other than in accordance with this Section shall be null and void.
10.4 Governing Law, Jurisdiction and Venue. This Agreement is to be construed in accordance with and governed by the internal laws of the State of Maryland (but expressly excluding the Uniform Computer Information Transactions Act ("UCITA") as enacted in Maryland) without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Maryland (excluding UCITA) to the rights and duties of the parties.
10.5.1 General. all disputes between CUSTOMER and FUGUE arising out of or related to the FUGUE SOFTWARE, LUDWIG or this Agreement whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory (each, a "Dispute"), will be resolved through final and binding arbitration IN ACCORDANCE WITH THIS SECTION 10.5 instead of in a court by a judge or jury and each of FUGUE and Customer hereby waive the right to trial by a jury. customer agrees that any arbitration or litigation under this agreement will take place on an individual basis; class arbitrations and class actions are not permitted and each of FUGUE and customer hereby agree to give up the ability to participate in a class action.
10.5.2 Procedure. Any arbitration under this Agreement will be administered by the American Arbitration Association (the "AAA"), in accordance with the AAA's Commercial Arbitration Rules and Mediation Procedures (currently available at https://www.adr.org/sites/default/files/Commercial%20Rules.pdf), as amended by this Agreement. The arbitration proceeding will be conducted in English. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by Customer or by Fugue that an in-person hearing is appropriate. Any in-person appearances will be held in Washington, D.C. The arbitrator's decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
10.6 Attorneys' Fees. If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys' fees paid or incurred in good faith.
10.7 No Third Party Beneficiary. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
10.8 Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
10.9 Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
10.10 Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party nor its agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
10.11 Restricted Rights. All software and any technical data contained in the Fugue Software, Ludwig, the Documentation, or any Compositions are "commercial items," as defined in 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. The use, duplication, reproduction, release, modification, disclosure or transfer of the Fugue Software, Ludwig, the Documentation, or any Compositions, and any data relating thereto or derived therefrom, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. This is in lieu of, and supersedes, any Federal Acquisition Regulations ("FAR"), the Defense FAR Supplement ("DFARS"), or other agency supplemental clause or provision that addresses government rights in computer software or technical data.
10.12 Entire Agreement. This Agreement, the Order Form and the EULA, and any Schedules and Exhibits attached hereto or thereto and incorporated herein by reference, constitute the entire agreement between the parties concerning the subject matter hereof and supersede all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements and communications, whether oral or written, between the parties relating to the subject matter of this Agreement, the Order Form and the EULA and all past courses of dealing or industry custom. No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized signatory of each of Fugue and Customer; provided, however, that Fugue reserves the right to update and modify the EULA in accordance with Section 2.1.
10.13 Electronic Signature and Disclosure Consent Notice. Customer agrees to the use of electronic documents and records in connection with this Agreement and all future documents and records in connection with the Fugue Software or Ludwig, including this electronic signature and disclosure notice, and that this use satisfies any requirement that Fugue provides Customer these documents and their content in writing.