NPSS Access Agreement
By accepting the terms of this NPSS Access Agreement (the “Agreement”) I hereby confirm that I have read and understood the terms of the Agreement and I agree on my behalf and on behalf of my company (the “Customer”) to such terms of this Agreement.
Agreed and Accepted: ___________________________ Company: ___________________________ Date: ___________________________
Capitalized terms used in this Agreement shall have the meaning assigned to them as set forth below.
1.1. “License Term” means the period of validity for the Agreement, beginning on the earlier of (a) date Customer accepts the Agreement or (b) accesses the applicable software or service.
1.2. “NPSS” means the non-production software and services (and any related documentation or instructions related thereto) made available pursuant to this Agreement (a) for download, in binary form, (b) in a virtual machine environment accessed through the ForgeRock, (c) via a hosted service by ForgeRock, or (d) for download, in source form (“NPSS Source”).
2. NPSS License and Restrictions
2.1. Limited Rights to Use NPSS. During the applicable License Term, and subject to compliance to the terms of this Agreement, ForgeRock grants to Customer a non-exclusive and non-transferable, limited license solely to permit Customer’s employees to (a) access, use, copy, install (solely at Customer’s facilities, at a Customer-controlled space within a third-party data center or a third-party hosting provider associated with a Customer-controlled account) any NPSS software available for download, (b) access and use any NPSS software hosted within a virtual environment, or (c) access and use any NPSS service, but (in all cases) only for the purposes of testing and evaluation to assess the procurement of a commercial product license of such products or as otherwise expressly agreed between the parties in writing.
2.2. Additional Rights to NPSS Source. NPSS Source contains source code owned or licensed by ForgeRock (“Proprietary Code”) and code distributed by ForgeRock subject to a third-party license (“Third Party Code”). Subject to compliance with the terms of this Agreement and the software license under which the Company has licensed ForgeRock generally available software (“Customer Software License”) and subject to Section 2.1, ForgeRock grants to Customer a world-wide, non-exclusive and non-transferable license to the Proprietary Code to correct, modify, update and support the software licensed under a Customer Software License for the sole purpose of Customer exercising its license subject to all restrictions therein and solely as permitted in the documentation accompanying the ForgeRock software. All Third Party Code shall be subject solely to such license and is available upon request from ForgeRock as required by the applicable license. Except as otherwise explicitly set forth herein, the Source Code shall be solely governed by this NPSS Access Agreement. Nothing in this Agreement shall expand the usage rights or scope of license in the Customer Software License.
2.3. Restrictions. Except as expressly set forth in this Agreement, Customer shall not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute or otherwise transfer rights or usage in the NPSS, (b) provide the NPSS on a timesharing, service bureau, service provider or other similar basis, (c) remove or alter any copyright, trademark or proprietary notice in the NPSS, (d) disseminate information or feedback about the NPSS to any third party, (e) disclose to any third party the results of any analysis, evaluations, including, without limitation, benchmarks regarding the quality or performance of the NPSS, (f) sublicense, resell, rent, lease, distribute or otherwise transfer rights or usage in the NPSS, (g) except as set forth herein, use the NPSS in a production environment, including but not limited to, the initiation or deployment of any environment intended to become or otherwise support a production environment (h) reverse engineer or decompile any portion of the NPSS not provided in source code format, or in any way derive source code from the NPSS, except to the extent enforcement of the foregoing is prohibited by applicable law, (i) download or attempt to extract any software hosted as part of a service or otherwise contained in a ForgeRock environment, unless such software is specifically made available for download by ForgeRock and (i) load, transmit, process any personally identifiable information in any ForgeRock hosted system or NPSS environment in contravention of any privacy law.
2.4. Intellectual Property. Title to and ownership of all copies of the NPSS (except Third Party Code) whether in machine-readable (source, object code or other format) or printed form, and all related technical know-how and all rights therein (including without limitation all Intellectual Property Rights applicable thereto and in all derivative works by whomever produced), are reserved by ForgeRock and its licensors and shall remain the exclusive property thereof. All rights not expressly granted to Customer are reserved by ForgeRock and its licensors. In the event that Customer make modifications to the Proprietary Code pursuant to Section 2.2, then such modifications shall be deemed derivative works herein and owned exclusively by ForgeRock, provided that to the extent that Customer transforms such modifications to binary form then Customer shall have a license to use such derivative works pursuant to the restrictions of the Customer Software License, but only during such period such license remains valid, unless otherwise terminated pursuant herein. To the extent that Customer provides ForgeRock with suggestions, recommendations, or other feedback with respect to the NPSS (“Suggestions”) and hereby grants to ForgeRock a royalty-free, worldwide, transferable, sublicensable, irrevocable, right and license to use, copy, modify and distribute, without attribution, including by incorporating into any software or service owned by ForgeRock, any Suggestions provided by Customer relating to any NPSS or service owned or offered by ForgeRock. For the purposes herein, Intellectual Property Rights” shall mean any intellectual property rights, including patents, utility models, rights in designs, copyrights, moral rights, topography rights, database rights, trade secrets, and rights of confidentiality, trade secrets or proprietary information, in all cases whether or not registered or registrable in any country, and including the right to apply for the same and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world from time to time.
3. Customer Obligations
Customer represents and warrants that (a) neither Customer nor any director, officer, agent, employee or affiliate of Customer is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC), (b) Customer shall not access the NPSS from any country on the OFAC list of sanctioned countries and (c) it shall, at all times, comply with any applicable end-user and end-use based restrictions under 15 CFR Part 744.
4. Term and Termination
4.1. This Agreement shall become effective upon the acceptance by Customer and shall expire when Customer stops accessing the NPSS and in no event for a period longer than one-hundred-eighty days. For clarity, this Agreement is applicable to each and every instance Customer accesses the NPSS. This Agreement shall terminate without notice to Customer in the event Customer is in material breach of any of the terms and conditions of this Agreement. Alternatively, ForgeRock may terminate this Agreement, in whole or in part and any licenses hereunder, for convenience upon written notice.
4.2. Effect of Termination; Surviving Provisions. Upon expiration or termination of the Agreement as a whole, Customer shall immediately stop accessing the NPSS. Upon expiration or termination of the Agreement as a whole, shall immediately return or destroy Confidential Information received thereunder in its possession or under its control. The terms of Section 1 (Definitions), 2.4 (ForgeRock Intellectual Property Rights), 3 (Customer Obligations), 4 (Term and Termination), 5 (Confidentiality), 6 (Disclaimer of Warranties), 7 (Limitation of Liability), and 8 (General) shall survive termination or expiration of this Agreement.
5.1. Definition. “Confidential Information” means all non-public information disclosed by a party to the other party which: (a) is marked as “Confidential” or with a comparable legend if disclosed in written, graphic, machine readable or other tangible form, or (b) which should be reasonably in good faith be treated as confidential or proprietary based on the nature of the information or the circumstance surrounding its disclosure. Confidential Information does not include information which: (i) is generally known or publicly available, or which, hereafter through no act or failure to act on the part of recipient, becomes generally known or available; (ii) is rightfully known to recipient at the time of receiving such information; (iii) is furnished to recipient by a third party without restriction on disclosure; or (iv) is independently developed by recipient without having relied on the Confidential Information of the disclosing party.
5.2. Obligation. Customer agrees that, for a period of three (3) years after last receipt of ForgeRock Confidential Information, it will: (a) use the ForgeRock Confidential Information only in connection with fulfilling its rights and obligations under this Agreement, and (b) hold the ForgeRock Confidential Information in strict confidence and exercise due care with respect to its handling and protection, consistent with its own policies concerning protection of its own Confidential Information of like importance but in no instance with less than reasonable care, such due care including, without limitation, requiring its employees, professional advisors and contractors to execute non-disclosure agreements which are consistent with the terms and conditions of this Agreement and no less protective of ForgeRock’s Intellectual Property Rights as set forth herein before allowing such parties to have access to the ForgeRock Confidential Information.
5.3. Exceptions to Obligation. Notwithstanding Section 5.1 (Obligation), either party may disclose Confidential Information to the extent required by law, provided the other party uses commercially reasonable efforts to give the party owning the Confidential Information sufficient notice of such required disclosure to allow the party owning the Confidential Information reasonable opportunity to object to and to take legal action to prevent such disclosure.
6. Disclaimer of Warranties and Support Obligations
6.1. Disclaimer of Warranties. THE FORGEROCK SOFTWARE (WHETHER IN BINARY, HOSTED, OR SOURCE FORM), THIRD PARTY CODE SERVICES, AND ANY ASSOCIATED DOCUMENTATION LICENSED HEREUNDER IS PROVIDED AND/OR LICENSED “AS IS” AND WITHOUT WARRANTY, INDEMNITY, OR LIABILITY OF ANY KIND. FORGEROCK AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, SECURITY, COMPLETENESS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OF NON-INFRINGEMENT.
6.2. Disclaimer of Support Obligations. FORGEROCK SHALL NOT PROVIDE ANY SUPPORT FOR THE FORGEROCK SOFTWARE, SERVICES AND ANY MODIFICATIONS THERETO.
7. Limitation of Liability
7.1. Limitation on All Damages. TO THE EXTENT NOT PROHIBITED BY LAW, EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) AND CUSTOMER’S LIABILITY ARISING UNDER SECTION 3.1 (CUSTOMER RESPONSIBILITIES), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ANY LOST PROFITS, REVENUE, OR DATA, INTERRUPTION OF BUSINESS OR FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND, AND WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) AND CUSTOMER’S LIABILITY ARISING UNDER SECTION 3.1, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE ONE THOUSAND U.S. DOLLARS ($1,000 USD).
8.1. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without reference to its conflicts of law provisions. Both parties hereby irrevocably consent to the personal and exclusive jurisdiction of the state and federal courts of competent jurisdiction located in San Francisco, California. The substantially prevailing party shall be entitled to recover its reasonable attorneys’ fees, and costs and expenses incurred.
8.2. Customer Information. ForgeRock shall use customer’s registration and login information for the purposes of conducting business or potential business relations with Customer. This information will be processed and accessed by employees and contractors of the ForgeRock group companies as set forth herein and such information shall be processed and stored in systems outside of the European Union.
8.3. Audit Rights. ForgeRock shall have the right at its expense to audit, or have an independent, certified public accountant reasonably acceptable to Customer audit Customer’s use of NPSS for the sole purpose of verifying compliance with the terms of this Agreement provided, that: (a) Customer is provided at least ten (10) business days’ advance written notice of ForgeRock’s intention to audit and (b) the audit is conducted during normal business hours.
8.4. Assignment. Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of ForgeRock. Any assignment not in conformity with this Section shall be null and void.
8.5. Notices. Any notices required under this Agreement shall be given in writing, shall reference this Agreement, and shall be deemed to have been delivered and given: (a) when delivered personally, (b) three (3) business days after having been sent by registered or certified U.S. mail, return receipt requested, or (c) one (1) business day after deposit with a commercial overnight courier, with written verification of receipt. All communications shall be sent to the addresses set forth in the preamble of this Agreement or to such other address as may be designated by a party by giving written notice to the other party. Notices shall be addressed to the Legal Department.
8.6. Force Majeure. Except for any payments due hereunder, neither party shall be responsible for delay or failure in performance caused by any government act, law, regulation, order, or decree, by communication line or power failures beyond its reasonable control, or by fire, flood, or other natural disasters or by other causes beyond its reasonable control, nor shall any such delay or failure be considered a breach of this Agreement.
8.7. Compliance with Law. The NPSS is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply fully with all laws and regulations of the United States and other countries ( “Export Laws” ) to assure that neither the NPSS, nor any direct products thereof are: (a) exported, directly or indirectly, in violation of Export Laws, either to any countries that are subject to U.S. export restrictions or to any end user who is prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government or (b) intended to be used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Further, Customer agrees to comply with all relevant anti-bribery and anti-corruption laws in effect in the U.S. and its local regulations, if any. As such, Customer acknowledges and agrees to comply with the United State Foreign Corrupt Practices Act in all business related to this Agreement.
8.8. US Government Restrictions. Customer acknowledges that the NPSS consists of “commercial computer NPS” and “commercial computer NPSS documentation” as such terms are defined in the Code of Federal Regulations. No government procurement regulations or contract clauses or provisions shall be deemed a part of any transaction between the parties unless its inclusion is required by law, or mutually agreed in writing by the parties in connection with a specific transaction. Use, duplication, reproduction, release, modification, disclosure or transfer of the NPSS is restricted in accordance with the terms of this Agreement.
8.9. General. No modification, termination, extension, renewal or waiver of any provision of this Agreement shall be binding upon a party unless made in writing and signed by both parties. No modification of this Agreement or of any term or condition hereof shall result due to either party’s acknowledgment or acceptance of the party’s forms (e.g., purchase orders, acknowledgment forms, etc.) containing different or additional terms and conditions unless expressly and specifically accepted by both parties by means of a writing which references this Section. A waiver on one occasion shall not be construed as a waiver of any right on any future occasion. No delay or omission by a party in exercising any of its rights hereunder shall operate as a waiver of such rights. In performing their respective duties under this Agreement ForgeRock and Customer will be operating as independent contractors and neither party is the legal representative, agent, joint venturer, or employee of the other party for any purpose whatsoever. The headings of the Sections of this Agreement are for convenience only and shall not be of any effect in construing the meaning of the Sections. In the event that it is determined by a court of competent jurisdiction that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms. To the extent any provision cannot be enforced in accordance with the stated intentions of the parties, such terms and conditions shall be deemed not to be a part of this Agreement. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes any prior agreements between the parties with respect to such subject matter.