Last Updated: 8/21/2019 (see previous version)
METABASE, INC. COMMERCIAL SOFTWARE LICENSE AGREEMENT
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE METABASE SOFTWARE THAT ACCOMPANIES THIS SOFTWARE LICENSE AGREEMENT OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, AND INCLUDING ANY UPDATES THERETO PROVIDED BY METABASE, THE “SOFTWARE”).
THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT AND THE ORDER FOR THE SOFTWARE THAT YOU AGREED TO (“ORDER”), AND (WHERE APPLICABLE) ANY METABASE LICENSE KEY INFORMATION (“LICENSE KEY” AND, COLLECTIVELY WITH THE ORDER AND THIS SOFTWARE LICENSE AGREEMENT, THIS “AGREEMENT”) ARE AN AGREEMENT BETWEEN YOU AND METABASE, INC. (“METABASE”) AND GOVERN USE OF THE SOFTWARE, UNLESS YOU AND METABASE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT GOVERNING USE OF THE SOFTWARE.
Metabase is willing to license the Software to you only upon the condition that you accept all the terms contained in this Agreement. By accepting this license or by downloading, installing or using the Software, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all of the terms of this Agreement, then Metabase is unwilling to license the Software to you, and you must return the Software to Metabase or destroy all copies of the Software.
1.1 License Grant. Subject to your compliance with the terms and conditions of this Agreement (including payment of the applicable fees in accordance with Section 3), Metabase grants to you a non-exclusive, non-transferable, non-sublicenseable, worldwide limited license to use the software products, in executable code form, and related Documentation (as defined in Section 6.1), as specified in the Order, including any error corrections, modifications and updates thereto provided by Metabase to you under this Agreement (the “Software”), but only in the Licensed Configuration and only during the term of this Agreement. For purposes of this Agreement, “Licensed Configuration” means the features and usage limits for a specified time period, in each case, as specified in the Order. Your use of the Software is further limited according to the license type and other terms in the Order. You may copy the Software, as reasonably required to exercise your rights under this Section 1.1, and you may make a reasonable number of copies for backup or archival purposes.
1.2 Source Code Access; Modifications. Solely if your license type and pricing tier, as specified in the Order, includes access to the source code of the Software, subject to your compliance with the terms and conditions of this Agreement (including payment of the applicable fees in accordance with Section 3), Metabase grants to you a non-exclusive, non-transferable, worldwide limited license to use, reproduce, modify and create derivative works based upon the Software, solely for the purpose of customizing the Software to interface, embed, combine, or otherwise use with your products or services. Notwithstanding anything to the contrary, you agree that you have the right to use any and all modifications, customizations, enhancements and extensions to the Software to the same extent, and solely to such extent, that you have the right to use the Software pursuant to this Agreement and your valid subscription. In addition, Metabase prohibits you from modifying, and you agree not to modify, the Software (a) to enable features not available to customers at your license type and pricing tier; or (b) to disable usage limits.
1.3 Limited Rights; License Restrictions. Your rights in the Software will be limited to those expressly granted in this Agreement. Metabase reserves all rights and licenses in and to the Software not expressly granted to you under this Agreement. Except as expressly provided in this Agreement, you will not: (i) copy or modify the Software, in whole or in part; (ii) transfer, sublicense, lease, lend or rent or otherwise distribute the Software to any third party; (iii) make the functionality of the Software available to third-party users through any means, including but not limited to by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services, except as integrated into and offered as part of your Licensed Product; or (iv) disassemble, decompile or reverse engineer the Software or permit or authorize a third party to do so, except to the extent such restrictions are expressly prohibited by law.
1.4 Ownership. You expressly acknowledge that, as between Metabase and you, Metabase and its licensors own all worldwide right, title and interest in and to the Software, including all worldwide patent rights, copyrights, trade secrets, know-how and any other intellectual property rights embodied therein. You will not delete or in any manner alter the copyright, trademark or other proprietary rights notices appearing on the Software as delivered to you. You will reproduce such notices on all copies you make of the Software. Subject to Section 1.2, you will own your modifications to the Software (“Modifications”); provided that your ownership thereof will be subject to Metabases’s underlying intellectual property rights in the Software. At your option, you may submit your Modifications to the Metabase open source project. In addition, you own all worldwide right, title and interest in and to all your data that is processed by the Software and the analyses that are generated by the Software based on such data.
1.5 Verification and Audit. At Metabase’s written request, you will furnish Metabase with an officer’s written certification verifying that the Software is being used in accordance with the terms of this Agreement. Upon at least thirty (30) days prior written notice, Metabase may audit your use of the Software to ensure that you are in compliance with the terms of this Agreement. If an audit reveals that you have underpaid fees to Metabase during the period audited, then you will promptly pay Metabase for such underpaid fees based on Metabase’s price list in effect at the time the audit is completed. If the underpaid fees exceed five percent (5%) of the license fees paid by you for the Software, then you will also pay Metabase’s reasonable costs of conducting the audit.
2. Software Support. Subject to your compliance with the terms and conditions of this Agreement (including payment of the applicable fees in accordance with Section 3), Metabase will make available to you at no additional cost Metabase’s standard support for the license type and pricing tier specified in the Order in accordance with Metabase’s then-standard support terms. Metabase reserves the right to designate any additional content or features as requiring separate payment or purchase of a separate subscription at any time. If you have entered into a separate support or similar agreement with Metabase, then Metabase will provide Software maintenance and support in accordance with the terms of that agreement, not this Agreement.
3.1 Subscription Fees. You will pay the fees and charges stated in the Order (“Subscription Fees”) for use of the Software. The base Subscription Fee for each Subscription Term (as defined in Section 4) will be specified in the Order (“Base Subscription Fee”) and is payable and charged at the beginning of each Subscription Term.
3.2 Units; True-Up. If specified in the Order, Subscription Fees will be calculated based on units of use of the Software (such as per server, per installation, per customer or per user) (each, a “Unit”). Where applicable, the Base Subscription Fee includes the number of Units specified in the Order for each Subscription Term. At the end of each Subscription Term, you will promptly confirm in writing to Metabase (at the latest within five (5) business days of a request from Metabase) the number of Units used by you during that Subscription Term. If your actual usage of the Software exceeds the Units covered by the Base Subscription Fee prepaid by you for a Subscription Term, Metabase will charge you for the difference between the Units covered by the Base Subscription Fee and the number of Units actually used by you during that Subscription Term (“Additional Units Fee”).
3.3 Payment Terms. If you have provided us with credit card details, we will charge that credit card: (i) at the start of each Subscription Term, for the Base Subscription Fee; and (ii) promptly after receipt of your report under Section 3.2 (or the results of an audit under Section 1.5), any Additional Units Fee payable by you (if any). We will issue a payment confirmation to you with respect to any charges we have made to your credit card. If we issue an invoice to you, all invoices are payable as specified in the Payment Terms section of the Order (or if not so specified, within thirty (30) days of receipt). All amounts are stated and shall be paid in US dollars and are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). You are responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made to us, other than any taxes based on Metabase’s net income. All past due amounts will incur interest at a rate of 1% per month or the maximum rate permitted by law, whichever is less. Except as expressly set forth in this Agreement, all payments, once paid, are non-refundable.
4. Term and Termination. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Section 4, will continue in effect for the initial subscription term specified in the Order. At the end of such initial subscription term and each renewal subscription term thereafter, subject always to timely payment of the Subscription Fees, this Agreement will automatically renew for additional renewal subscription terms having the duration specified in the Order (or if no renewal term length is stated in the Order, having the same duration as the Initial Subscription Term), unless either party provides 15 days’ prior written notice of non-renewal. Such initial subscription term and each renewal subscription term are each individually referred to herein as a “Subscription Term.” Each party will have the right to terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 10 days after written notice thereof. Notwithstanding the foregoing, if you fail to pay the applicable fees as specified in the Order and this Agreement, your license to the Software ends automatically. You acknowledge that upon expiration or termination of this Agreement, the Software and any license key may automatically de-activate and you may no longer be able to access and use the Software. Upon termination: (1), you must, at Metabase’s option, either promptly destroy or return to Metabase all copies of the Software and any Metabase Confidential Information in your possession or control; and (2) you shall not be entitled to a refund of any pre-paid fees, except that you will be entitled to a refund of pre-paid fees if this Agreement is terminated by you for our breach. Sections 4, 5, 6.3, 8, 9, 10, 11 and 12 will survive any expiration or termination of the Agreement.
5. Confidentiality. Continuing until 5 years after the expiration or termination of this Agreement, each party agrees to keep all information, documents and data received from the other party, which are marked as or which would reasonably be considered to be confidential (“Confidential Information”) as strictly confidential and to use such information only within the scope of the licenses granted to you. The Software and its pricing are Metabase’s Confidential Information.
6.1 Limited Software Warranty. Metabase warrants that, for thirty (30) days following the Effective Date, the Software will perform in all material respects in accordance with the standard user documentation for the Software that Metabase makes generally available to its customers (“Documentation”). As your sole and exclusive remedy and Metabase’s entire liability for any breach of this limited warranty, Metabase will at its option and expense promptly correct or replace the Software so that it conforms to this limited warranty. Metabase does not warrant that the Software will meet your requirements, that the Software will operate in the combinations that you may select, that the operation of the Software will be error-free or uninterrupted, or that all Software errors will be corrected. The limited warranty set forth in this Section 6.1 does not apply to the extent that Metabase provides you with the Software (or portions of the Software) for beta, evaluation, testing, or demonstration purposes.
6.2 No Excluded Licenses. The Software and Documentation do not incorporate, combine with, or use software or materials distributed under an Excluded License (“Open Source Materials”). “Excluded License” means a license that requires, as a condition of use, modification, and/or distribution of such Open Source Materials that other software incorporated into, derived from, or distributed with such Open Source Materials be (i) disclosed or distributed in source code form, (ii) licensed for the purpose of making derivative works, or (iii) redistributedable at no charge.
6.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. METABASE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM METABASE OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
7.1 Metabase Indemnity. Metabase will defend, indemnify and hold you harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees and other professional fees) awarded against you in a final non-appealable judgment or that are agreed to in settlement, to the extent based on a third-party claim that the Software, as provided by Metabase to you, infringes any patent, copyright or misappropriates any trade secret of any third party; provided that you: (a) promptly notify Metabase in writing of any such claim; (b) grant Metabase sole control of the defense and settlement of the claim; and (c) provide Metabase, at Metabase’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. You have the right to retain counsel, at your expense, to participate in the defense or settlement of any claim. Metabase will not be liable for any settlement or compromise that you enter into without Metabase’s prior written consent.
7.2 Exclusions. Metabase’s obligation to indemnify you pursuant to Section 7.1 will not apply to the extent any claim results from or is based on: (i) any combination, operation or use of the Software with any product, system, device, method or data not provided by Metabase, if such claim would have been avoided but for such combination, operation or use; (ii) modification of the Software by anyone other than Metabase, if a claim would have been avoided but for such modification; (iii) your failure to install and use any upgrades to the Software furnished by Metabase, if such claim could have been avoided by such installation and use of such upgrades; or (iv) use of the Software other than in accordance with this Agreement. You will indemnify, defend and hold Metabase harmless and will pay any costs damages and reasonable attorney’s fees in connection with any third party claim to the extent it results from any of the foregoing activities in this Section 7.2.
7.3 Injunction. If your use of the Software is, or in Metabase’s opinion is likely to be, enjoined due to the type of claim specified in Section 7.1, then Metabase will at its sole option and expense: (i) procure for you the right to continue using the Software under the terms of this Agreement; (ii) replace or modify the Software to make it non-infringing and of equivalent functionality; or (iii) if Metabase is unable to accomplish either (i) or (ii) despite using its reasonable efforts, then Metabase may terminate your rights and Metabase’s obligation under this Agreement with respect to such Software and refund to you a pro-rata portion of the prepaid license fees you paid for such Software.
7.4 Sole Remedy. THIS SECTION 7 SETS FORTH METABASE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
8. Limitation of Liability. IN NO EVENT WILL METABASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, WHETHER OR NOT FORESEEABLE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT METABASE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. METABASE’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID TO METABASE BY YOU FOR THE SPECIFIC SOFTWARE GIVING RISE TO A CLAIM FOR LIABILITY HEREUNDER DURING THE 12 MONTH PERIOD PRIOR TO THE FIRST CLAIM. The parties agree that the limitations and exclusions contained in this Section 8 and elsewhere in this Agreement will survive and apply even if any exclusive remedy specified in this Agreement is found to have failed of its essential purpose.
9. U.S. Government End Users. The Software is a “commercial item” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Software will be only those specified in this Agreement.
10. Export Law. You agree to comply fully with all applicable export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
11. Feedback; Modifications. If you make any Modifications or provide any ideas, suggestions, or recommendations regarding the Software (“Feedback”), Metabase will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Modifications and Feedback as it sees fit, entirely without obligation or restriction of any kind. By making Modifications or providing Feedback, you grant Metabase a worldwide, perpetual, irrevocable, sublicenseable, fully-paid and royalty-free license to use and exploit in any manner such Modifications and Feedback.
12. General. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Metabase’s prior written consent, and any attempt by you to do so, without such consent, will be void. Metabase may freely assign this Agreement. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed email transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the Order or to such other address as may be specified by either party to the other in accordance with this Section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.