Effective: August 1, 2018
ADDENDUM A
CAST HIGHLIGHT TERMS AND CONDITIONS
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. General
1.1 Services
Subject to the other terms of this Addendum, CAST Software, Inc. (“CAST”) grants End User a limited, non-exclusive, non-transferrable right to access and use the CAST Highlight Services (“Services”) to obtain CAST Generated Data that End User may use for its own internal purposes only. “CAST Generated Data” means the Deliverables described in Section 1.2 below.
1.2 Deliverables
The deliverables consist of specific Highlight metrics displayed through the ITPM web portal provided by Tidal SW, Inc. (hereinafter the “Portal”) of assessment(s) of the structural health of applications’ inner workings. For the avoidance of doubt, the data generated by the End User from the CAST Highlight Product and the Deliverables shall remain the property of the End User.
1.3 Restrictions
End User shall not, and shall not knowingly allow any third party to, (a) modify, copy, or otherwise reproduce the Services in whole or in part; (b) permit access to the Services through Internet links, frames, or content mirrors (other than through End User’s own intranet system or otherwise for its own internal business purposes) or attempt to gain unauthorized access to the Services or related systems or networks; (c) translate, modify or create a derivative work of any part of the Services or otherwise create a competing service by using the Services; (d) sell, resell, rent, lease, transfer, assign, distribute or otherwise commercially exploit the Services or make any CAST Generated Data derived from the Services available to any third party except to its affiliates and as permitted in this Agreement; (e) interfere with or disrupt the Services, the Software or the CAST Generated Data therein; (f) disclose any Confidential Information, as defined below, of CAST to any third party unless compelled by law; or (g) use the Services for any unlawful purpose.
1.4 Conditions for CAST to deliver the Services
To enable the Service, End User must download and install an agent (“Agent”) and then run (execute) within the End User’s domain for on-site, centralized or distributed, local diagnosis of applications’ inner-structures. End User must upload the results to the Portal, using the procedure defined by CAST. The results consist of data files containing the results of the analyses and the input entered manually by the application project lead or project owner. At any point in time, the application’s inner structure (source code, architecture, tech components and all software constituents of any End User’s application) will not be transferred to the Portal, and will stay behind the End User’s firewall and internal security mechanisms.
1.5 Use of the Agent
The Agent is a technical software component which includes a PERL runtime, released under the GNU General Public License: http://www.gnu.org/licenses/gpl.html. All other components are Copyright © 2010-2016 CAST S.A.. All rights reserved. The Agent is made available via the CAST HIGHLIGHT website and is governed by the Terms of Services, also available in electronic format, embedded into The Agent. CAST grants End Users a non-assignable, non-transferable, non-exclusive right to use the Agent at no charge for the sole purpose of enabling End User to use the Services in the manner permitted by the Terms of Services. End User is granted the right to install and execute one copy of The Agent on any number of workstations owned or controlled by End User and / or to distribute copies of The Agent to third parties belonging to End User’s IT ecosystem, including any copying or redistribution of The Agent to any other server or location, or redistribution or use on a service bureau basis. As a condition of the foregoing grant, End User must provide a copy of this notice along with each copy of The Agent End User distributes. End User must not remove, alter, or obscure this notice. All other use, reproduction, modification, distribution, or other exploitation of The Agent is prohibited. The grant of use will be automatically terminated and revoked if End User exceeds its purchased scope or violates any of the Terms of Services. The Agent is provided “AS IS” WITHOUT ANY WARRANTY of any kind, including completeness or fitness for a particular purpose, accuracy or reliability, and CAST expressly disclaims any warranty with respect thereto. End User expressly assumes all of the risks thereof. In no event will CAST be liable for direct, consequential, special, incidental, or indirect damages such as loss or damage to any person or property as a result of the use of The Agent, lost profits or revenue, loss of use of data, disks, or programs, costs for recovering data, or third party claims. End User recognizes that The Agent may contain errors and that not all errors may be corrected at reasonable and sustainable cost, nor require correction. End User is solely responsible for the download, installation and use of The Agent on its equipment, facilities and network and for any consequential damage on its systems or hardware. Accordingly, CAST does not warrant the uninterrupted operation of the software nor operation free from all error, nor that all of the deficiencies or errors which may be contained in the software will be corrected. Notwithstanding the preceding wording, CAST’s liability to any party shall not exceed, under any circumstances, the amount paid for the Services under the specific commercial terms, for a maximum of the prior twelve month period.
2. Warranties and Liability
2.1 Warranties:
CAST warrants that: (a) CAST holds, and will continue to hold during the term of the Addendum, all necessary rights to provide the Services hereunder including, without limitation, rights to all servers, electronic device platforms, and rights or licenses to all software, hardware or other technologies used by CAST in connection with such Services (“Technologies”), the right to enter into this Addendum and to grant End User rights pursuant to the terms and conditions of this Addendum; (b) The Technologies may be used in connection with this Addendum without violating or infringing the rights of any third party, including, without limitation, infringing any copyright, patent, trademark or any other intellectual or industrial property right, title or interest of any third party; (c) CAST will exercise its best efforts to protect CAST Generated Data and End User Data (as defined herein in Section 4.1) and any other End User material from unauthorized access, duplication and use by any third party, by maintaining a secure hosting environment accessible solely to authorized end-users which will include, without limitation, the use of secure log-in procedures, connections protected by 256 bit encryption, and identity verified by a trusted third-party authority; and (d) The Services will comply with any and all applicable rules, laws, regulations, court or administrative orders or decrees of any federal, state, provincial, local or other governmental body which has jurisdiction depending on the circumstance(s).
2.2 Warranties:
CAST does not warrant the: (a) Accuracy and reliability of the Services, if the data collected and transferred to the Portal by the agent is corrupted, incorrect or altered during the collection and diagnosis process or during the transfer of the text file through the Internet (or any other network) to the Portal. (b) Data collected by the agent will be error free or accurate, and CAST does not warrant that the text file created by the agent will not be altered during its transfer through the Internet (or any other network) to the Portal.
2.3 LIMITATION OF LIABILITIES:
(A) EXCEPT TO THE EXTENT OTHERWISE PROVIDED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (OR TO ANY PERSON OR ENTITY CLAIMING THROUGH THE OTHER PARTY) FOR ANY LOSS OF DATA (INCLUDING THE CAST GENERATED DATA), LOST PROFITS OR FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES. (B) CAST DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. (C) BECAUSE OF THE VERY NATURE OF THE WEB SERVICES, CAST DOES NOT WARRANT THE UNINTERRUPTED OPERATION OF THE SERVICES OR ACCESS AND OPERATION FREE FROM ALL ERROR, NOR THAT ALL OF THE DEFICIENCIES OR ERRORS WHICH MAY BE CONTAINED IN THE SERVICES AND THE SOFTWARE WILL BE CORRECTED. (D) THE MAXIMUM AGGREGATE LIABILITY OF CAST TO THE END USER (OR TO ANY PERSON OR ENTITY CLAIMING THROUGH THE END USER) RELATED TO OR IN CONNECTION WITH THIS ADDENDUM WILL BE LIMITED TO ONE MILLION US DOLLARS ($ 1,000,000) EXCEPT WHERE SUCH LIABILITY CANNOT BE LIMITED BY THE APPLICABLE LAW, OR IN THE EVENT OF GROSS NEGLIGENCE, WILFUL MISCONDUCT, MISREPRESENTATION, BODILY INJURY, DEATH OR PURSUANT TO A CLAIM RAISED BY THE END USER FOR INFRINGEMENT.
3. Proprietary Rights
3.1
CAST S.A. (A French company whose registered office is situated at 3, rue Marcel Allegot - 92190 Meudon, France, and whose identification number is 379668809 RCS Paris) owns rights, including intellectual property rights of websites and technical components used to enable the Services. CAST Software, Inc. is a subsidiary of CAST S.A. and has been granted the right to deliver the Services utilizing CAST S.A.’s intellectual property rights of websites and technical components used to enable the Services. Under this Agreement, End User is not granted any right of any nature to the Services and all rights to the same are reserved by CAST S.A.
3.2
Notwithstanding the foregoing, End User owns all rights, including intellectual property rights, in and to CAST Generated Data and End User Data (respectively defined in Sections 1.1 and 4.1 of this Agreement).
4. Privacy and Security
4.1 Privacy
CAST, as the operator of the Services, will collect, have access to and analyze End User Data and CAST Generated Data. End User has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all End User Data. End User grants CAST the right to host the End User Data and the CAST Generated Data solely for the purposes of operating the Services for the benefit of End User pursuant to the terms and conditions of this Agreement. “End User Data” means information collected and mined from, submitted by, or entered by CAST or End User.
4.2 Security
CAST undertakes to maintain adequate technological and procedural security measures in accordance with industry practice. End User acknowledges that the Internet is an open system and CAST cannot and does not warrant or guarantee that third parties cannot or will not access the Services using the End User’s user identification and/or intercept, delete or modify End User Data or CAST Generated Data.
4.3 Password
End User is responsible for maintaining the confidentiality of its user identification(s) and password(s). The user identifications and passwords are strictly personal and attached to each individual identified by the End User as a user. End User agrees that CAST has no liability with regard to the use of such user identifications or passwords by third parties.
5. Termination
5.1 Surviving Provisions
The following provisions shall survive any termination or expiration of this Addendum: 3. Proprietary Rights.
6. General Provisions
6.1 Entire Highlight Terms and Conditions:
This Addendum, together with any policies and instructions incorporated herein by reference, constitutes the entire Highlight Terms and Conditions agreed to between the Parties with respect to the subject matter hereof. It supersedes all prior negotiations, contracts, and undertakings between the Parties with respect to such matter. In the event of a conflict between a provision of this Addendum and a provision of any agreement the Addendum is part of, the specific provision of this Addendum shall control.
6.2 Governing Law
The CAST Highlight Terms and Conditions shall be governed by the laws of the State of New York, USA. It shall be deemed to be performed in the State of New York, USA.
6.3 Headings and severability:
Headings in this Addendum are for reference purposes only and shall not affect the interpretation or meaning of this Addendum. If any provision of this Addendum is held to be contrary to law, then said clause shall be severed from the Addendum and the remaining provisions of this Addendum will remain in full force and effect.
6.4
CAST retains the right to analyze CAST Highlight-generated analytics for product development, feedback, and research, provided that all such analytics shall be rendered anonymous and used in a strictly confidential manner.
Contacting CAST CAST Software, Inc. 321 West 44th Street, Suite 501, New York, NY 10036 USA