End-User License Agreement

Last Updated July 17, 2017

This Fugue End User License Agreement (this “EULA”) is between you (the individual downloading, installing or using the Fugue Software and/or the entity on whose behalf you are acting) (“you”) and Fugue, Inc., a Delaware corporation (“Fugue”).

It is important that you read carefully and understand this EULA. By clicking the “I Accept” button located on this page, you agree to be bound by this EULA. If you do not agree with all the terms of this EULA and do not agree to be bound by this EULA, please click the “I Do Not Accept” button. If you do not accept this EULA, you will not be granted access to download or use the Fugue Software.

In addition, by clicking the “I Accept” button located on this page, you affirm that you are of legal age and have the legal capacity to enter into this EULA. If you are entering into this EULA on behalf of an entity, such as the company you work for, you represent to Fugue that you have the legal authority to bind that entity.

1. Definitions

For purposes of this EULA, the following terms shall have the following meanings:

1.1. “CLI” means the command line interface that allows a Customer User to create commands for use by the Conductor.

1.2. “Composer” means the graphical user interface that allows a Customer User to create a visual representation of Ludwig files.

1.3. “Conductor” means the core of the Fugue Software operating system that resides in the Customer’s infrastructure account and runs processes and accepts commands.

1.4. “Customer User” means, if you are an entity, your employee, contractor or agent who you permit to download, install and/or otherwise use the Fugue Software.

1.5. “Derivative Work” means a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such preexisting work.

1.6. “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.

1.7. “Effective Date” means the date that you execute this EULA in any form, whether online or offline as part of the subscription process for use of the Fugue Software.

1.8. “Fugue Customer Subscription Agreement” means, if applicable, the Fugue Customer Subscription Agreement entered into between you and Fugue pursuant to which you are granted the right to use certain Fugue Software.

1.9. “Fugue Software” means the product made available to you under this EULA or the Fugue Customer Subscription Agreement, as applicable, including as applicable the Composer, Conductor, CLI and Vars and any related files, executable files, or other components.

1.10. “Ludwig” means the language developed by Fugue to create compositions for the Fugue Software as well as the compositions created using such language, including any schematics, specifications, interfaces, development environments, libraries, compilers, interpreters, runtime tools or related utilities for the Fugue Software.

1.11. “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 or Ludwig, including software or services that are necessary or advisable in order for Customer to exploit the functionality of the Fugue Software or Ludwig.

1.12. “Vars” means a replicated, cached key-value store used internally by the Fugue Software and externally by users of the Fugue Software for coordination of components of cloud infrastructure and state management.

2. License to the Fugue Software; Restrictions

2.1. Grant of Rights. Subject to the terms and conditions of this EULA, Fugue hereby grants to you a restricted, non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable license during the term of this EULA to (a) download, install and use the Fugue Software, (b) use Ludwig, and (c) download and use the Documentation in connection with your use of the Fugue Software, in each case for internal purposes only (the “License”). You may not use Ludwig other than in connection with the Fugue Software. For the avoidance of doubt, you may not use Ludwig with any other compilers or interpreters or for any other purposes. In no event shall you disclose, make available to or use for the benefit of any third party, sell, assign, lease or otherwise dispose of, or commercially exploit or market in any way, with or without charge, the Fugue Software or Ludwig. Except as set forth in this Section 2.1, no other right or license of any kind is granted by Fugue to you hereunder with respect to the Fugue Software or Ludwig.

2.2. Restrictions. Without limitation of Section 2.1, you shall not, without the prior written consent of Fugue: (a) copy all or any portion of the Fugue Software; (b) decompile, disassemble, scrape or otherwise reverse engineer the Fugue Software or Ludwig or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Fugue Software or any portion thereof; (c) modify, translate or create any Derivative Works based upon the Fugue Software; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge or otherwise transfer the Fugue Software or Ludwig, in whole or in part, to any third party; (e) remove or alter any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in copies of the Fugue Software or in Ludwig; (f) perform, or release the results of, benchmark tests or other comparisons of the Fugue Software with other programs; (g) transfer the Fugue Software or Ludwig to any computer other than a computer owned by you (or the entity on whose behalf you have entered into this EULA) and used by you (or the entity on whose behalf you have entered into this EULA) in your (or the entity’s on whose behalf you have entered into this EULA) operations; (h) permit the Fugue Software to be used for processing the data of any third party; (i) incorporate the Fugue Software or any portion thereof into any other program or product, or use the Fugue Software to provide similar functionality to third parties; (j) use the Fugue Software or Ludwig for any unlawful or tortious purpose; or (k) use the Fugue Software or Ludwig for any purpose other than in accordance with the terms and conditions of this EULA.

2.3. License to Third Party Products. You shall obtain your own license to any Third Party Products, including cloud computing services, as may be necessary to use the Fugue Software or Ludwig under this EULA. For the avoidance of doubt, Fugue will have no duty to obtain a license on your behalf for such instances of any Third Party Products. You shall be responsible for all fees incurred from the providers of such Third Party Products (“Third Party Providers”), even if use of such Third Party Products is in conjunction with the use of the Fugue Software or Ludwig. You are responsible for cancelling services with any Third Party Providers according to the requirements of such Third Party Providers. No cancellation or notice to Fugue shall be effective in discontinuing any fees associated with Third Party Service usage. Notwithstanding the foregoing, Fugue may in its sole discretion make available to you such instances of Third Party Products as it may deem necessary to support your use of the Fugue Software or Ludwig under this EULA; provided that Fugue may cancel, suspend or cease to make available to you any such Third Party Products at any time.

2.4. Changes to this EULA. Fugue reserves the right to modify or update this EULA from time to time, at its discretion. In the event that Fugue modifies or updates this EULA, Fugue will notify you by reasonable means and shall provide you the opportunity to opt-out of acceptance of the updated EULA terms by terminating this EULA in accordance with Section 8.2. Your failure to opt-out of the updated EULA and terminate this EULA shall constitute your acceptances, on behalf of yourself and all Customer Users, of the updated EULA.

2.5. Nature of Licenses. You acknowledge and agree the License is neither contingent on the delivery of any future features or functionality nor subject to any public or other comments (oral, written or otherwise) made by Fugue regarding future features or functionality.

2.6. Compliance. You shall ensure that all Customer Users comply with the terms and conditions of this EULA. You shall be responsible for compliance with this EULA by each Customer User and you shall monitor and manage all Customer Users in connection with this EULA.

2.7. Open Source Software. The Fugue Software may be provided together with, or otherwise contain, certain open source software components (“Open Source Components”) that are made available under their respective open source license agreements (“Open Source Licenses”) which are identified at https://fugue.co/oss-disclosure. You agree to the terms and conditions in each such Open Source License and agree to comply with all such terms and conditions. With respect to each Open Source Component, to the extent there are any conflicts between any terms of this EULA and any terms of the respective Open Source License, which the Open Source License does not permit, such conflicting terms of this EULA will not apply. Any fees charged by Fugue in connection with the Fugue Software do not apply to any Open Source Components for which fees may not be charged under the applicable Open Source License. Where the terms of any specific Open Source License entitle you to the source code of the respective Open Source Component (if any), that source code may be made available from Fugue upon request (a nominal fee may be charged by Fugue for processing such request).

3. Support; Updates

Fugue will provide support to you (including Customer Users, as applicable) through Fugue’s generally available online ticketing and support system. Fugue is under no obligation to support the Fugue Software or Ludwig in any way, nor to provide any modification, error correction, bug fix, new release or other update (each an “Update”) for the Fugue Software or Ludwig. In the event Fugue, in its sole discretion, supplies or makes available any Update to you, such Update shall be deemed to be part of the Fugue Software or Ludwig hereunder as applicable and shall be subject to the terms and conditions of this EULA. For the avoidance of doubt, Fugue will have no duty to provide any support for any instance of Third Party Products.

4. Proprietary Rights

4.1. General. As between Fugue and you, Fugue retains all right, title and interest, including, without limitation, all patent rights, copyrights, trademarks and trade secrets, in and to the Fugue Software and Ludwig and any Update thereto, including, without limitation, any copy or Derivative Work of the Fugue Software. You agree to take any action reasonably requested by Fugue to evidence, maintain, enforce or defend the foregoing. You shall not take any action to jeopardize, limit or interfere in any manner with Fugue's ownership of and rights with respect to the Fugue Software or Ludwig or any Update thereto, or any Derivative Work of the Fugue Software. You shall have only those rights in or to the Fugue Software or Ludwig or any Update thereto, or any Derivative Work of the Fugue Software, granted to you pursuant to this EULA.

4.2. Feedback. If you (including your Customer User, if applicable) provide to Fugue any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Fugue Software, Ludwig, or otherwise, such Feedback will be non-confidential, gratuitous, unsolicited and without restriction, and will not place Fugue under any fiduciary or other obligation. In addition, by submitting Feedback, you (including your Customer User, if applicable) hereby grant to Fugue a non-exclusive, irrevocable, non-terminable, transferable, worldwide right and license (including the right to grant and authorize sublicenses) to use, display, reproduce, modify, distribute and otherwise exploit the Feedback in whole or in part, anywhere, in perpetuity, in any and all media, whether alone or together or as part of any material of any kind or nature for all current and future business purposes of Fugue, and you (including your Customer User, if applicable) waive all “moral rights” in connection therewith. Any disclosure of such Feedback by Fugue to third parties shall not attribute the Feedback to you (including your Customer User, if applicable).

5. Proprietary Information

5.1. Proprietary Information. You acknowledge that, in the course of this EULA, you (including your Customer User, if applicable) may obtain Fugue’s confidential or proprietary information (“Proprietary Information”). “Proprietary Information” shall include, without limitation, (a) the Fugue Software (including all Derivative Works thereof), Ludwig, and Updates thereto and all confidential information related thereto provided by Fugue to you (including your Customer User, if applicable) in connection with this EULA, (b) trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs (whether in source code or object code form), ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, documentation, design and functional specifications, product requirements, problem reports, performance information, software documents, hardware, devices, designs, drawings, unpublished patent applications, data, plans, strategies and forecasts, and (c) technical, engineering, manufacturing, product, marketing, servicing, financial, personnel and other information. Proprietary Information shall, as between you and Fugue, belong solely to Fugue.

5.2. Use and Disclosure Restrictions. You agree: (a) to protect the Proprietary Information from unauthorized dissemination and use; (b) to use the Proprietary Information only for the performance of this EULA and the exercise of any rights under this EULA; (c) not to disclose any Proprietary Information, or any part or parts thereof, to any of your employees, agents, contractors or any other individuals except to those employees, agents or contractors who are under confidentiality obligations no less restrictive than the requirements of this Section 5; (d) not to disclose or otherwise provide to any third party, without the prior written consent of Fugue, any Proprietary Information, materials or any data or other information produced, obtained or created by you in connection with your use of the Fugue Software; (e) to undertake whatever action is necessary (or authorize Fugue to do so in your name) to prevent or remedy any breach of your confidentiality obligations herein or any other unauthorized disclosure of any Proprietary Information by your current or former employees, agents or contractors (if applicable); and (f) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Proprietary Information.

5.3. Equitable Relief. You agree that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information or any other breach of any provision of this Section 5 will cause irreparable harm and significant injury to Fugue, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that Fugue, in addition to any other available remedies, shall have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 5 without the necessity of posting any bond or other security. You shall notify Fugue in writing immediately upon becoming aware of any such breach or threatened breach.

6. Disclaimers

6.1. Disclaimers. The Fugue Software and Ludwig is provided “as is” and Fugue disclaims all warranties and representations, whether express or implied, relating to the Fugue Software or Ludwig, including, without limitation, any warranties of design, merchantability, fitness for a particular purpose, title or noninfringement of third party rights, or warranties arising from a course of dealing, course of performance, usage or trade practice. Fugue does not guarantee that the Fugue Software or Ludwig will be uninterrupted or error-free, that bugs or malfunctions will be corrected or that the Fugue Software or Ludwig are or will be free of harmful components. Fugue does not guarantee that the Fugue Software or Ludwig is accurate, without error or reliable.

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 you. You are responsible for taking precautions to protect yourself and your customer user (if applicable) and your computer systems in connection with the use of third party products.

7. 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 this EULA or the subject hereof, even if fugue has been advised of the possibility of such damages, however caused, and (b) notwithstanding anything in this EULA to the contrary, Fugue’s entire liability arising from or relating to this EULA or the subject hereof, under any legal theory (whether in contract, tort, indemnity or otherwise), if any, shall not exceed one thousand dollars (US$1,000).

8. Term and Termination

8.1. Term. Unless earlier terminated in accordance with this Section 8, this EULA shall remain in effect until you uninstall the Fugue Software (the “Term”).

8.2. Termination. If you have entered into the Fugue Customer Subscription Agreement, termination shall be governed by the terms of that agreement. If you have not entered into the Fugue Customer Subscription Agreement:

8.2.1. You may terminate this EULA at any time by uninstalling the Fugue Software.

8.2.2. Fugue may terminate this EULA immediately if you breach this Agreement.

8.3. Effect of Termination. Upon the termination of this EULA, the rights granted to you hereunder shall terminate, you shall cease all use of the Fugue Software and Ludwig, uninstall the Fugue Software and destroy all Proprietary Information in your possession or control and, upon Fugue’s request, so certify such actions to Fugue. Any costs incurred in uninstalling the Fugue Software or destroying the Proprietary Information upon termination shall be borne by you. The provisions of Sections 2.2, 4, 5, 6, 7, 8.3 and 9 shall survive the termination of this EULA. Termination of this EULA by either party shall not act as a waiver of any breach of this EULA and shall not act as a release of either party from any liability for breach of such party's obligations under this EULA. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this EULA in accordance with its terms, and termination of this EULA by a party shall be without prejudice to any other right or remedy of such party under this EULA or applicable law.

9. General Provisions

9.1. 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.

9.2. Assignment. This EULA may not be assigned, in whole or part, whether voluntarily, by operation of law or otherwise, by you 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 are binding on the parties and their successors and assigns. Any attempted assignment other than in accordance with this Section 9.2 shall be null and void.

9.3. Governing Law. This EULA is to be interpreted, enforced, and 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.

9.4. Arbitration.

9.4.1. General. All disputes between you and Fugue arising out of or related to the Fugue Software, Ludwig or this EULA 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 9.4 instead of in a court by a judge or jury and each of Fugue and you hereby waive the right to trial by a jury. You agree that any arbitration or litigation under this EULA will take place on an individual basis; class arbitrations and class actions are not permitted and each of Fugue and you hereby agree to give up the ability to participate in a class action.

9.4.2. Procedure. Any arbitration under this EULA will be administered by the American Arbitration Association (the “AAA”), in accordance with (a) if you are an individual, the AAA’s Consumer Arbitration Rules (currently available at https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTAGE2021425&revision=latestreleased), as amended by this EULA, or (b) if you are an entity, the AAA’s Commercial Arbitration Rules and Mediation Procedures (currently available at https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTG_004103&revision=latestreleased), as amended by this EULA. 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 you 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 EULA 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 EULA, 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.

9.5. Attorneys’ Fees. If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this EULA 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.

9.6. No Third Party Beneficiary. This EULA does not create any third party beneficiary rights in any individual or entity that is not a party to this EULA.

9.7. Waiver. The waiver by either party of a breach of or a default under any provision of this EULA, 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 EULA, 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.

9.8. Severability. If the application of any provision of this EULA 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 EULA 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.

9.9. Relationship of Parties. Nothing contained in this EULA 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.

9.10. Restricted Rights. All software and any technical data contained in the Fugue Software or Ludwig 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 or Ludwig, 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.

9.11. Entire Agreement. This EULA, the Fugue Customer Subscription Agreement (if applicable) 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 EULA, the Fugue Customer Subscription Agreement (if applicable) and any Schedules and Exhibits attached hereto or thereto and incorporated herein by reference and all past courses of dealing or industry custom; provided however that the parties agree that in the event of any conflict or inconsistency between the terms of this EULA and the terms of the Fugue Customer Subscription Agreement, the terms of the Fugue Customer Subscription Agreement will control and prevail to the extent of the conflict or inconsistency.

9.12. Electronic Signature and Disclosure Consent Notice. You agree to the use of electronic documents and records in connection with this EULA 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 you these documents and their content in writing.