Last modified: October 26, 2019
The CodeScan Software is a code quality tool with support for a number of programming languages as well as the Force.com platform. The CodeScan Software is available as a self-hosted product and a cloud product, and along with as a plugin for a number of IDEs. To download and use the CodeScan Software you must create a user account. Follow our instructions to create a user account and the Installation Guide for installing the CodeScan Software is available at https://www.codescan.io/overview/installing/.
BY CLICKING THE “ACCEPT” BUTTON OR CHECK BOX PRESENTED WITH THESE TERMS OR, IF EARLIER, WHEN CUSTOMER USES ANY OF THE SERVICES (AS DEFINED BELOW), (A) CUSTOMER ACKNOWLEDGES THAT IT HAS READ THESE TERMS AND UNDERSTANDS IT; (B) THE INDIVIDUAL ACCEPTING THESE TERMS REPRESENTS THAT SUCH INDIVIDUAL IS AUTHORIZED TO ENTER INTO THESE TERMS ON BEHALF OF AND TO BIND CUSTOMER; AND (C) CUSTOMER ACCEPTS THESE TERMS AND AGREES TO BE LEGALLY BOUND BY ITS TERMS AND CONDITIONS. IF THE INDIVIDUAL ACCEPTING THESE TERMS OR CUSTOMER DO NOT AGREE TO THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL AND CUSTOMER MUST NOT USE THE SERVICES AND SUCH INDIVIDUAL OR ANOTHER AUTHORIZED REPRESENTATIVE OF CUSTOMER SHOULD CONTACT CODESCAN IMMEDIATELY TO REMOVE THE SERVICES.
WHEREAS, Customer desires to access the Services for its internal business purposes, and
WHEREAS, CodeScan desires to provide Customer access to the Services, subject to the terms and conditions of these Terms.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
(a) “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by CodeScan in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) “Authorized User” means Customer’s employees, consultants, contractors, and agents who meet both of the following conditions (i) those who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms and (ii) those for whom access to the Services has been purchased and paid for hereunder.
(c) “CodeScan IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing.
(d) “CodeScan Materials” means the CodeScan IP and CodeScan Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by CodeScan or any subcontractor of CodeScan in connection with the Services or otherwise comprise or relate to the Services or CodeScan Systems. For the avoidance of doubt, CodeScan Materials include Resultant Data and any information, data, or other content derived from CodeScan’s provision of the Services or monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
(e) “CodeScan Systems” means the information technology infrastructure used by or on behalf of CodeScan in providing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by CodeScan or by CodeScan through the use of Third-Party Materials.
(f) “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services. Customer Data does not include Aggregated Statistics or Resultant Data.
(g) “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or by Customer through the use of Third-Party Materials.
(h) “Documentation” means CodeScan’s user manuals, handbooks, and guides relating to the Services provided by CodeScan to Customer either electronically and/or in hard copy form.
(i) “Editor Plugin” means software consisting of a text editor or software with similar functionality that may be offered by CodeScan for download or use in connection with the CodeScan application.
(j) “Open Source Component” means any software component that is subject to any open source license agreement.
(k) “Permitted Use” means use of the Services by an Authorized User for the benefit of Customer in the ordinary course of its internal business operations.
(l) “Resultant Data” means data and information that is derived, altered, modified, resulting, or created from use or operation of the Services but does not include Aggregated Statistics or Customer Data.
(m) “Services” means the software-as-a-service offering known as “CodeScan” which reviews users’ code submissions, as such offering is made available by CodeScan from time to time.
(n) “Third-Party Materials” means materials, services and information, in any form or medium, that are not proprietary to CodeScan or Customer, including any third-party: (a) documents, data, content or specifications; (b) Open Source Component or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
- Access and Use.
(b) Documentation License. Subject to the terms and conditions contained in these Terms, CodeScan hereby grants to Customer a limited, revocable, non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 13(k)) license to use the Documentation during the Term solely for the Permitted Use in connection with its use of the Services.
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized User to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation, including any sharing of an account across multiple locations or hospitals unless permitted in writing by CodeScan; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. CodeScan reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by way of implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the CodeScan IP.
(e) Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. Customer Data may be subject to removal from the Services by CodeScan after the time period indicated to Customer by CodeScan by way of posting on CodeScan’s website or Customer’s account or as otherwise notified to Customer. CODESCAN HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
(f) Changes. CodeScan reserves the right, in its sole discretion and from time to time, to make any changes to the CodeScan IP and/or to change or discontinue any of the Services. CodeScan will seek to provide Customer with at least 12 months’ prior notice if CodeScan discontinues material functionality of a Service that Customer is using, except that such advance notice will not be required if (i) the 12 month period (A) would pose a security or intellectual property issue to CodeScan or the Services, or (B) is economically or technically burdensome, or (ii) CodeScan deems such change or discontinuance necessary or useful to: (1) maintain or enhance: (x) the quality or delivery of the Services; (y) the competitive strength of or market for the Services; or (z) the Services’ cost efficiency or performance; or (2) comply with applicable law.
(g) Suspension. Notwithstanding anything to the contrary in these Terms, CodeScan may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) CodeScan reasonably determines that (A) there is a threat or attack on any of the CodeScan IP; (B) Customer’s or any Authorized User’s use of the CodeScan IP disrupts or poses a security risk to the CodeScan IP or to any other customer or vendor of CodeScan; (C) Customer, or any Authorized User, is using the CodeScan IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) CodeScan’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of CodeScan has suspended or terminated CodeScan’s access to or use of any third party services or products (including Third-Party Materials) required to enable CodeScan to provide the Services or Customer to access the Services; (iii) failure, interruption, outage, or other problem with any Third-Party Materials or any software, hardware, system, network, facility, or other matter not supplied by CodeScan pursuant to these Terms, or (iv) in accordance with Section 6(a) (any such suspension described in subclause (i) – (iv), a “Service Suspension”). CodeScan shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. CodeScan shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is fully cured provided that such event can be fully cured. CodeScan will have no liability for any Losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(h) Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, CodeScan may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between CodeScan and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by CodeScan. Customer acknowledges that CodeScan may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that CodeScan may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
- Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Customer shall be responsible for ensuring that Customer and Customer’s use of the Services and Documentation comply with all laws, rules, and regulations applicable in jurisdictions in which Customer uses the Services or Documentation. Customer will be deemed to have taken any action that Customer permits, assists or facilitates any person or entity to take related to these Terms, Customer Data or use of the Services. Without limiting the generality of the foregoing, (i) Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer, (ii) Customer is responsible for all Authorized Users’ use of Customer Data and the Services, and (iii) except to the extent caused by CodeScan’s breach of these Terms, Customer is responsible for all activities that occur under Customer’s account with CodeScan, regardless of whether the activities are authorized by Customer or undertaken by Customer, Authorized Users, Customer’s employees, or a third party (including Customer’s contractors or agents) and CodeScan and its affiliates are not responsible for unauthorized access to Customer’s account with CodeScan. Customer shall use reasonable efforts to make all Authorized Users aware of these Terms’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions. If Customer becomes aware of any violation of its obligations under these Terms caused by an Authorized User, Customer will immediately suspend access to Customer Data and the Services by such Authorized User.
(b) Customer Systems. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services by any person or entity by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including through any unauthorized access, breach, or malware.
(c) Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content, use, access, collection, storage, processing, disclosure, transmission, and compliance with all laws and regulations, and obtaining all consents necessary in order to provide and license Customer Data to CodeScan as set forth herein; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) the security and use of Customer’s and its Authorized Users’ access credentials; (d) all access to and use of the Services and CodeScan IP directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use, and (e) notifying CodeScan with respect to any change in Customer Data or rights with respect to any use thereof that may impact CodeScan, the Services, or Customer’s or any Authorized User’s use thereof, including any individual’s request to modify or remove any information. Customer will comply with the terms of these Terms and with all laws, rules and regulations applicable to Customer’s use of the Services.
(d) Log-In Credentials and Account Keys. CodeScan log-in credentials and private keys generated by the Services are for Customer’s internal use only and Customer will not sell, transfer, or sublicense them to any entity or person other than Authorized Users, except that Customer may disclose Customer’s private keys to agents and subcontractors performing work on Customer’s behalf.
(e) Third-Party Materials. CodeScan may from time to time make Third-Party Materials available to Customer. For purposes of these Terms, such Third-Party Materials are subject to their own terms and conditions, which may include the applicable flow through provisions thereof. If Customer does not agree to abide by the applicable terms for any such Third-Party Materials, then Customer should not install or use such Third-Party Materials.
- Service Levels; Support; Customization.
(a) Service Levels. Subject to the terms and conditions of these Terms, CodeScan shall use commercially reasonable efforts to make Available the Services, excluding unavailability as a result of any of the Exceptions described below in this Section 4(a) (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” means the Services are available for access and use by Customer and its Authorized Users. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (i) act or omission by Customer or any Authorized User or any access to or use of the Services by Customer or any Authorized User, or use of Customer’s or an Authorized User’s access credentials, that does not strictly comply with these Terms; (ii) Customer’s delay in performing, or failure to perform, any of its obligations under these Terms; (iii) scheduled downtime as determined in CodeScan’s sole discretion; (iv) Customer’s or its Authorized User’s internet connectivity; (v) a force majeure event; (vi) any Service Suspension; or (vii) disabling, suspension, or termination of the Services as permitted hereunder.
(b) Support. These Terms do not entitle Customer to any support for the Services.
(c) Customization. CodeScan shall have no obligation to provide any customization, modification, or other upgrade or update with respect to the Services.
- Editor Plugins. During the Term and upon payment of additional fees, CodeScan may, from time to time and in its sole discretion, offer to Customer the right to download and/or use certain Editor Plugins and such download and/or use shall be subject to this Section 5 and these Terms. In order to download and/or use any Editor Plugin, Customer must pay to CodeScan all fees associated with each Editor Plugin in addition to all fees associated with the Services. Customer’s right to download and/or use the Editor Plugins shall commence upon payment of the applicable fees by Customer and such rights shall be co-terminus with this Agreement. For the avoidance of doubt, Customer shall not have any rights to use any Editor Plugin unless Customer has an active license to the Services hereunder. Any Editor Plugins offered by CodeScan shall be deemed “Services” pursuant to these Terms and all terms and conditions of these Terms shall be applicable to the Editor Plugins. Customer shall not, and shall not permit any other Person to: (a) copy any Editor Plugin, in whole or in part; (b) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Editor Plugin; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Editor Plugin to any third party; (d) reverse engineer, disassemble, decompile, decode, or adapt any Editor Plugin, or otherwise attempt to derive or gain access to the source code of any Editor Plugin, in whole or in part; (e) bypass or breach any security device or protection used for or contained in any Editor Plugin; (f) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of any documentation, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of any Editor Plugin; (g) use any Editor Plugin in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable Law; (h) use any Editor Plugin for purposes of: (i) benchmarking or competitive analysis of the Services; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to CodeScan’s detriment or commercial disadvantage; (i) use any Editor Plugin in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of any Editor Plugin could lead to personal injury or severe physical or property damage; or (j) use any Editor Plugin or documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by these Terms. Any use by Customer of any Open Source Component in the Editor Plugins is governed by, and subject to, the terms and conditions of the applicable license terms. Customer will install all maintenance releases and updates as soon as practicable after receipt.
- Fees and Payment.
(a) Fees. Customer shall pay CodeScan the fees (“Fees”) as set forth on the CodeScan website using one of the payment methods CodeScan supports. All amounts payable by Customer under these Terms will be paid to CodeScan without setoff or counterclaim, and without any deduction or withholding, on the terms set forth on the CodeScan website. CodeScan may increase or add new Fees for any existing Services by posting such changes on the CodeScan website at least 30 days prior to the effective date of such change; provided that a posted increase for a particular Service will not go into effect for a particular Customer that is obligated, at the time of such posted increase, to be paying for the use of such Service until the next following anniversary date of Customer’s first contracting for the use of such Service. For the avoidance of doubt, by way of example, if a Customer contracted for a particular Service on January 15, 2020 and is continuing to be contracted for the Service in 2021, and CodeScan were to post an increase in the Fee for such Service on July 1, 2021, then that Fee increase for such Service will not begin to be charged to that Customer until January 15, 2022. Fees for any new Services or new features of a Service will, however, be effective immediately when CodeScan posts the Fees for the respective Services on the CodeScan website, unless CodeScan expressly states otherwise in a notice. If Customer fails to make any payment when due, without limiting CodeScan’s other rights and remedies: (i) CodeScan may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse CodeScan for all reasonable costs incurred by CodeScan in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, CodeScan may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full or terminate Customer’s and its Authorized Users’ rights under these Terms. CodeScan may, in its sole discretion, provide to Customer, upon Customer’s request within the first 30 days of these Terms, a refund of amounts paid by Customer if Customer is unable to utilize the Services and Customer has reasonably attempted to resolve the issues with CodeScan.
(b) Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on CodeScan’s income.
(c) Audit Rights. CodeScan or its nominee (including its accountants and auditors) may inspect and audit Customer’s use of the Services under, and compliance with, these Terms at any time during the Term and for two years following the termination or expiration, with respect to such Customer, of these Terms. All audits and inspections at Customer’s facilities will be conducted upon no less than 10 days’ written notice to Customer, during regular business hours, and in a manner that does not unreasonably interfere with Customer’s business operations. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Customer with respect to such audit.
(d) Special Pricing Program. From time to time, CodeScan may offer free or discounted limited time period pricing programs, on a trial or other basis, covering certain usage of the services (each, a “Special Pricing Program”). CodeScan may at any time, in its sole discretion, stop accepting new sign-ups, discontinue a Special Pricing Program or extend the time period of Customer’s participation in a Special Pricing Program. Standard Fees will apply after a Special Pricing Program ends or if Customer exceeds the limitations of the Special Pricing Program. Customer must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage) for the Special Pricing Program as described in the offer terms for the Special Pricing Program or on the pricing page for the eligible Services. Customer may not access or use the Services in a way intended to avoid any additional terms, restrictions, or limitations (e.g., establishing multiple accounts in order to receive additional benefits under a Special Pricing Program), and CodeScan may immediately terminate Customer’s account if Customer does so. If CodeScan makes multiple discounts or pricing options for the Services available to Customer at one time, Customer will only be eligible to receive one discount or pricing option, and will not be entitled to cumulative discounting and pricing options.
- Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party confidential information about its business affairs, products, confidential intellectual property, trade secrets, third party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, or agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under these Terms, including to make required court filings. On the expiration or termination of these Terms, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, CodeScan may retain one copy of the Confidential Information of Customer per historical data archival processes and as required by law or regulation provided that such information remains subject to the confidentiality provisions herein, including, but not limited to, the non-use provisions hereof, is accessed and used solely to demonstrate compliance with any applicable law, and is destroyed in the ordinary course of business. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective when Customer clicked the “accept” button or check box presented with these Terms and will expire five years from the date of termination or expiration of these Terms; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- Intellectual Property Ownership; Feedback.
(a) CodeScan IP. Customer acknowledges that, as between Customer and CodeScan, CodeScan owns all right, title, and interest, including all intellectual property rights, in and to the CodeScan IP and, with respect to Third-Party Materials, the applicable third party providers own all right, title, and interest, including all intellectual property rights, in and to the respective Third-Party Materials.
(b) Customer Data. CodeScan acknowledges that, as between CodeScan and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. Customer hereby grants to CodeScan (i) a non-exclusive, royalty-free, fully paid-up, worldwide perpetual license to reproduce, distribute, and otherwise use and display Customer Data and perform all acts with respect to Customer Data as may be necessary for CodeScan to provide the Services to Customer or to improve the Services or CodeScan’s provision thereof, and (ii) a non-exclusive, royalty-free, fully paid-up worldwide perpetual, irrevocable, license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Customer is solely responsible for verifying the accuracy of all Customer Data, obtaining all consents regarding usage and sharing of Customer Data, and determining the data necessary for Customer to make diagnostic decisions.
(c) Reports. In connection with Customer’s and Authorized Users’ use of the Services, CodeScan may provide to Customer and Authorized Users various reports resulting from Customer Data and use of the Services (“Reports”). Such Reports shall be considered Resultant Data and the Reports may only be accessed and used in accordance with these Terms. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of these Terms, CodeScan hereby grants Customer and Authorized Users a non-exclusive, non-sublicenseable, non-transferable right to access and use the Reports, to the extent provided to Customer, during the Term in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use for internal business purposes.
(d) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to CodeScan by mail, email, telephone, or otherwise, responding to, or suggesting or recommending changes to the CodeScan Materials (including Reports), including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), CodeScan is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to CodeScan on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and CodeScan is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although CodeScan is not required to use any Feedback.
- Warranties; Disclaimers.
(a) Each Party represents, warrants, and covenants to the other Party that: (a) if an entity, it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under these Terms; (c) the execution of these Terms by its representative whose signature is set forth at the end of these Terms has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, these Terms will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
(b) CodeScan does not make any representations or guarantees regarding uptime or availability of the Services.
(c) THE CODESCAN IP IS PROVIDED “AS IS” AND CODESCAN HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CODESCAN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CODESCAN MAKES NO WARRANTY OF ANY KIND THAT THE CODESCAN IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CODESCAN STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD PARTY MATERIALS.
(d) CodeScan makes no representation or warranty with respect to the code for which the Services are utilized. Customer and each Authorized User are solely responsible for the code they have written and any code for which the Services are utilized and CodeScan does not warrant that the use of the Services will result in correct code.
(a) CodeScan Indemnification.
(i) CodeScan shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third party claim, suit, action, or proceeding (“Third Party Claim”) that the Services, or any use of the Services in accordance with these Terms, infringes or misappropriates such third party’s U.S. patents, copyrights, or trade secrets, provided that Customer promptly notifies CodeScan in writing of the claim, cooperates with CodeScan, and allows CodeScan sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit CodeScan, at CodeScan’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If CodeScan determines that neither alternative is reasonably available, CodeScan may terminate these Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 10(a) does not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by CodeScan or authorized by CodeScan in writing; (B) modifications to the Services not made by CodeScan; (C) Customer Data; (D) Third-Party Materials; (E) negligence, abuse, misapplication, or misuse of the Services or Documentation by or on behalf of Customer or a third party; (F) use of the Services or Documentation by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized by these Terms or in any manner contrary to CodeScan’s instructions; (G) events or circumstances outside of CodeScan’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or (H) Third-Party Claims or Losses for which Customer is obligated to indemnify CodeScan.
(b) Customer Indemnification. Customer shall indemnify, defend, and hold harmless CodeScan and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and permitted assigns (each, a “CodeScan Indemnitee”) from and against any and all Losses incurred by the CodeScan Indemnitee resulting from any Third Party Claim: (i) that any intellectual property rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any: (A) use or combination of the Services by or on behalf of Customer with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by CodeScan nor authorized by CodeScan in these Terms and the Documentation; and (B) information, materials, or technology directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated, or used with, as part of, or in connection with the Services or Documentation; (ii) relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under these Terms; (iii) relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Customer with respect to the Services or Documentation or otherwise in connection with these Terms; or (iv) relating to use of the Services or Documentation by or on behalf of Customer that is outside the purpose, scope or manner of use authorized by these Terms or the Documentation, or in any manner contrary to CodeScan’s instructions.
(c) Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND CODESCAN’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Limitations of Liability.
(a) EXCLUSION OF DAMAGES. IN NO EVENT WILL CODESCAN, ITS DIRECT OR INDIRECT SUBSIDIARIES, CONTROLLED AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CODESCAN WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
(b) CAP ON MONETARY LIABILITY. IN NO EVENT WILL CODESCAN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNT PAID TO CODESCAN BY CUSTOMER UNDER THESE TERMS IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Term and Termination.
(a) Term. The initial term of these Terms begins when Customer clicked “accept” or the check box presented with these Terms or, if earlier, when Customer first used any of the Services, and, unless terminated earlier pursuant to these Terms’s express provisions, will continue in effect for the initial term agreed to by the parties in the applicable order or other agreement for the Services (the “Initial Term”). These Terms will automatically renew for additional successive one year terms to be coterminous with the applicable order or other agreement for the Services unless earlier terminated pursuant to these Terms’s express provisions (each a “Renewal Term” and together with the Initial Term, the “Term”).
(b) Termination for Convenience. CodeScan may terminate these Terms for any reason by providing Customer at least 30 days’ advance notice.
(c) Termination. In addition to any other express termination right set forth in these Terms:
(i) CodeScan may terminate these Terms, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 15 days after CodeScan’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 7;
(ii) either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(d) Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, CodeScan may disable all Customer and Authorized User access to the Services and Customer shall immediately discontinue use of the CodeScan IP and the Services and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of the CodeScan IP and certify in writing to CodeScan that the CodeScan IP has been deleted or destroyed.
(e) Obliation to Pay; No Refunds. No expiration or termination of these Terms or Customer’s closing of Customer’s account or cessation of use of the Services will (i) affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, (ii) affect Customer’s obligation to pay all Fees for the remainder of the time period set forth in the applicable order or other agreement for the Services; or (iii) entitle Customer to any refund.
(f) Survival. This Section 12(e) and Sections 1, 2(h) 5-11, 12(d), and 13 survive any termination or expiration of these Terms. No other provisions of these Terms survive the expiration or earlier termination of these Terms.
(a) Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to these Terms.
(b) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
(c) Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms or, unless expressly permitted under these Terms, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld, provided, however, that CodeScan may, without Customer’s consent, include Customer’s name and other indicia in its lists of CodeScan’s current or former customers of CodeScan in promotional and marketing materials, including CodeScan’s website.
(d) No Third Party Beneficiaries. These Terms are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
(e) Entire Agreement. These Terms, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms, excluding its Exhibits; (ii) second, the Exhibits to these Terms; and (iii) third, any other documents incorporated herein by reference. Notwithstanding anything to the contrary herein, (A) if Customer and CodeScan signed an offline variant of these Terms for use of the Services, the terms in these Terms do not apply to Customer, and the terms in such offline variant govern Customer’s use of the Services, and (B) if Customer and CodeScan signed an offline amendment or supplement to these Terms in connection with use of the Services, the terms in these Terms are amended or supplemented by such offline amendment or supplement, as applicable, with any clear conflict between the terms in these Terms and the offline amendment or supplement being resolved in favor of the terms of the offline amendment or supplement.
(f) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of these Terms (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(g) Force Majeure. In no event shall CodeScan be liable to Customer, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms, if and to the extent such failure or delay is caused by any circumstances beyond CodeScan’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(h) Amendment and Modification; Waiver.
(i) CodeScan may amend or modify these Terms at any time by posting a revised version on the CodeScan website or by otherwise notifying Customer in accordance with Section 13(f); provided, however, that CodeScan will provide at least 30 days’ advance notice in accordance with Section 13(f) for any adverse changes. Subject to the 30 day advance notice requirement with respect to adverse changes, the modified terms will become effective upon posting or, if CodeScan notifies Customer by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to these Terms, Customer agrees to be bound by the modified terms. It is Customer’s responsibility to check the CodeScan website regularly for modifications to these Terms. CodeScan last modified these Terms on the date listed at the end of these Terms.
(ii) No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(i) Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(j) Governing Law; Submission to Jurisdiction. THESE TERMS ARE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THOSE OF THE STATE OF DELAWARE. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF THESE TERMS OR THE LICENSES GRANTED HEREUNDER WILL BE INSTITUTED EXCLUSIVELY IN THE FEDERAL COURTS OF THE UNITED STATES OR THE COURTS OF THE STATE OF CALIFORNIA IN EACH CASE LOCATED IN THE CITY OF SAN DIEGO, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING.
(k) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of CodeScan. CodeScan may assign these Terms and any rights hereunder without the consent of Customer. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(l) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS, INCLUDING EXHIBITS, ATTACHED TO THESE TERMS, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT HE, SHE, OR IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THESE TERMS, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(m) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(n) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 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. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(o) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(p) Attorneys’ Fees. To the extent a Party must seek enforcement of these Terms or otherwise defend against an unsuccessful claim of breach, the unsuccessful Party shall be liable for all attorneys’ fees and costs incurred by the successful Party to enforce the provisions of these Terms Last modified – December 17, 2019