This Development and Demonstration License Agreement (the “Agreement”) is entered into by and between Veracode, Inc., a Delaware corporation with offices at 65 Blue Sky Drive, Burlington, Massachusetts 01803, (“Veracode”) and the company entity identified on a Veracode sales order form (each an “Order Form”) referencing this Agreement (“Company”) and shall be effective as of the last date of signature on the first Order Form referencing this Agreement, (the “Effective Date”). The parties to this Agreement may be referred to as a “Party” singularly or the “Parties” collectively. In consideration of the promises and mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Veracode and Company agree as follows:
WHEREAS, Company wishes to obtain from Veracode a limited-use license to access and use the Veracode licensed program(s) set forth in an Order Form (collectively, the “Veracode Licensed Program(s)”) for the sole purpose of integrating, testing, and, if any Interfaces are certified in accordance with this Agreement, demonstrating to prospective customers the benefits of the use of the Veracode Licensed Programs in connection with the Company products; and
WHEREAS, each Company wishes to obtain a limited license to use the Veracode’s trademarks and logos and Veracode is willing to license to Company the use of such trademarks and logos set forth in Exhibit 1 provided that Certification is achieved as set forth in this Agreement; and
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree to following:
1. License to Veracode Licensed Programs. Upon execution of an Order Form between the Parties, Veracode grants to Company a non-exclusive, non-assignable, non-transferable, royalty-free limited license for Company to access and use, during the Term, the Veracode Licensed Program(s) as set forth in such Order Form, solely pursuant to the terms and conditions and subject to the limitations set forth herein. Company shall have the right to access and use the Veracode Licensed Program(s) solely and exclusively for the purpose of the Development Project and for no other purpose. Except as expressly set forth herein, no license or right is granted hereunder to Company, whether expressly or by implication, estoppel or otherwise, to use execute, reproduce, display, perform, distribute internally or externally, sell, license or otherwise copy, or prepare derivative works based upon, any portion or all of the Veracode Licensed Programs. For purposes of this Agreement, “Development Project” shall mean the development and testing by the Parties of interface(s) between the Veracode Licensed Programs and the Company products (“Interface(s)”) and, if such Interface(s) are certified in accordance with this Agreement, demonstrating the benefits of the use of the Veracode Licensed Programs in connection with the Company products to prospective customers of the Parties. Upon Veracode’s request, Company shall provide specific details about the Development Project and information necessary to process and provide access to the Veracode Licensed Programs, including a contact to serve as Company’s administrator for the Licensed Programs.
2. Demonstration License. Effective upon the Certification (as defined herein) of the Interface(s) in accordance with this Agreement, Veracode hereby grants to Company a non-exclusive, non-assignable, non-transferable, royalty-free, limited right during the Term and in the Territory, for Company to use the certified Interface(s) to access the Veracode Licensed Program(s) solely for purposes of providing demonstrations of the use of the Veracode Licensed Programs to prospective customers of the Company. For purposes of this Agreement, “Territory” shall mean worldwide(subject to all United States and other applicable export laws, and excluding any countries or regions prohibited under such laws), except if Veracode communicates any territory restrictions to Company during Certification Testing, in which cases Company shall abide by any such territory restrictions.
3. License to use Veracode Trademarks and Logos. Effective upon the Certification of the Interface(s) in accordance with this Agreement, Veracode hereby grants to Company a non-exclusive, non-assignable, non- transferable, personal right to use, during the Term, the Veracode trademarks, trade names, service marks and logos listed and/or depicted on Exhibit 1 (the “Veracode Marks”) solely in conjunction with the use of the certified Interface(s), solely in the manner set forth in the guidelines set forth on Exhibit 1 and subject to the terms and conditions of this Agreement. Company may display Veracode Marks for informational purposes to showcase the Interface(s) to Company’s customers and prospects, however, Veracode Marks may not be used to infer or indicate any further relationship with Veracode and its Affiliates beyond the relationship contemplated by the terms of this Agreement. Veracode reserves the right to, at any time during the Term of this Agreement, add additional Veracode Marks, remove Veracode Marks or provide revised versions of Veracode Marks upon written notice to Company. All Veracode Marks remain the exclusive property of Veracode. Company will not register the Veracode Marks or take any action that jeopardizes Veracode’s proprietary rights in the Veracode Marks. Company agrees to cooperate with Veracode’s reasonable instructions and quality control procedures relating to the Veracode Marks, and shall only use the Veracode Marks in unaltered form. Veracode shall require Company to submit to Veracode all advertising and marketing material referencing Veracode, the Veracode Marks or the Veracode Licensed Program(s) for advance review and written approval of Veracode prior to Company’s use of same. Veracode also reserves the right, upon written notice to Company, to require Company to discontinue use of any advertising or marketing materials relating to Veracode, the Veracode Marks or the Veracode Licensed Program(s).
4. Limitations on the use of Licensed Program(s). Company may use the Veracode Licensed Program(s) as set forth above subject to the following:
4.1. Company shall restrict use of the Veracode’s Licensed Program(s) to those of its employees having a genuine need to have such access for the Development Project.
4.2. Company shall not use the Veracode Licensed Program(s) for the benefit of any third party.
4.3. Company shall not permit or allow to the removal of any proprietary or other legend or restrictive notice on any Veracode Licensed Program(s) or containing media.
4.4. Company shall not reproduce or allow the reproduction of any such media or Veracode’s Licensed Program(s) except as specifically provided in this Agreement.
4.5. Company shall not perform, nor allow, authorize or assist others to perform, reverse engineering, de-compilation, disassembly or the like upon the Veracode Licensed Program(s).
4.6. Company shall not use the Veracode Licensed Program(s) to develop or market any conversion utility or aid specific thereto that would enable users to convert from the Veracode Licensed Program(s) to an alternative product.
4.7. Company shall not use the Veracode Licensed Program(s) for internal production use, competitive analysis or benchmarking of any kind.
4.8. Company may not export or re-export the Veracode Licensed Program(s) unless expressly authorized to do so by Veracode in writing, and, if so authorized, Company agrees to comply with all United States and other applicable export laws.
4.9. Company shall not distribute, rent, lease, transfer, assign, or sublicense the Veracode Licensed Program(s) to any third party or use the Veracode Licensed Program(s) for the benefit of any third party.
4.10. Company shall not use any Veracode Licensed Program(s) to disrupt or interfere with any other networks, websites, or security;
4.11. Company shall not use any Veracode Licensed Program(s) for any illegal activity;
4.12. Company shall not disclose to any third party the results of any benchmark or other results of any Veracode Licensed Program(s).
Company shall not allow, authorize or assist others in the access or use of the Veracode Licensed Programs including, without limit, allowing, authorizing or assisting access or use of the Veracode Licensed Programs by any other entity, business organization or division of Company.
5. Certification. The Parties shall jointly perform testing of the Interface(s) to ensure that the Interface(s) perform in all material respects to the reasonable satisfaction of the Parties (“Certification Testing”). At such time as the Parties agree that the Interface(s) perform in all material respects to the reasonable satisfaction of each Party, the Parties shall notify each other of same in writing, with e-mail being an acceptable form of such writing (“Certification”). The initial Certification and Company’s continuing right to demonstrate the Veracode Licensed Programs to prospective customers is contingent on successful completion of Certification and Company’s continued compliance with the following terms and conditions:
5.1. Upon any subsequent release of Veracode’s Licensed Programs which materially impacts the operation of the Interface(s), Veracode shall notify Company in writing, and the Parties shall again perform Certification Testing as set forth above. The Parties agree that no demonstrations with prospective customers utilizing the revised Veracode Licensed Programs until such revised Licensed Programs have passed Certification Testing and received Certification.
5.2. Veracode shall be entitled to withdraw Certification and Company’s license to access and use the Veracode Licensed Programs on written notice to Company in the event that the Interfaces fail Certification Testing at any time or the other Party fails to comply with the terms of this Agreement.
5.3. Each Party shall each be responsible for bearing its own costs and expenses in connection with the Certification Testing and otherwise pursuant this Agreement.
6. Confidential Information. In addition to any provisions relating to confidentiality and non- disclosure as may be set forth herein, each Party acknowledges that during the Term of this Agreement a Party may disclose (“Discloser”) to the other Party (“Recipient”) in writing or orally, confidential, proprietary and/or technical information that relates to such Party’s past, present or future research, development of business activities, including, without limit, confidential, proprietary and technical information concerning the Licensed Program(s), hereinafter referred to as “Confidential Information”. Recipient agrees: (i) to hold such Confidential Information in strict confidence and employ reasonable precautions, at least as protective as the precautions it uses to protect its own confidential information of a similar nature (but in no event with less than a reasonable degree of care), to protect Discloser’s Confidential Information from unauthorized copying, use or disclosure; (ii) to use Discloser’s Confidential Information for the sole purpose of the Development Project and otherwise solely in accordance with the provisions of this Agreement; (iii) to keep Discloser’s Confidential Information separate and apart from materials not relating to this Agreement to prevent any commingling; and (iv) to disclose Discloser’s Confidential Information only to those employees who have a need to know such information. Confidential Information subject to these provisions shall not include information which is: (a) independently developed by Company without use of Discloser’s Confidential Information; (b) made available by Discloser to the public or to other parties without obligation of confidentiality; (c) previously known by Recipient prior to the time of disclosure; or (d) approved for disclosure by Discloser in writing.
7. Title. Veracode shall retain all right, title and interest in and to all copyright, patent, trademark, trade secret and other intellectual property rights in or relating to the Veracode Licensed Program(s), Veracode Marks and Confidential Information, and any related copies, partial copies, compilations, modifications, enhancements, changes, derivative works or translations thereto. Discloser acknowledges and agrees that by disclosing its Confidential Information to Recipient hereunder, Discloser does not grant any express, implied right or license to Recipient under any patent, copyright or other intellectual property right of Discloser. All rights not expressly granted in this Agreement by Veracode are reserved by Veracode.
8. Limitation of Warranties and Liability. VERACODE’S LICENSED PROGRAM(S) AND CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. VERACODE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL VERACODE BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES WHICH MAY ARISE FROM THE USE, OPERATION, OR MODIFICATION OF THEIR RESPECTIVE LICENSED PROGRAM(S) OR MARKS OR OTHERWISE UNDER THIS AGREEMENT. OTHER THAN WITH RESPECT TO BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT WILL VERACODE LIABLE FOR ANY DAMAGES, DIRECT OR OTHERWISE, IN EXCESS OF TEN THOUSAND UNITED STATES DOLLARS ($10,000).
9. Term. This Agreement shall commence on the Effective Date and continue for a period of two (2) years thereafter (“Initial Term”). After the Initial Term, this Agreement shall be renewed automatically thereafter for two (2) years (each a “Renewal Term”) until terminated by either Party upon written notice to the other Party given no less than thirty (30) days prior to the end of the Initial Term or then current Renewal Term. The Initial Term together will all Renewal Terms shall be referred to herein as the “Term”. Either Party shall have the right to terminate this Agreement immediately upon written notice to the other Party in the event the other Party has breached any term or condition of this Agreement. Veracode shall have the right to terminate this Agreement for any reason upon thirty (30) days written notice to Company. Upon any termination or expiration of this Agreement, each Party shall immediately cease use of all copies of the other Party’s Licensed Program(s) and the Marks and Confidential Information, return the original and all copies of the such materials back to other Party, and certify to the other Party in writing that all copies thereof have been destroyed or deleted (including from any computer libraries or electronic storage devices) and are no longer in use by such Party.
10. Non-Competition; Non-Exclusive. Company agrees that it shall not utilize Veracode’s Licensed Program(s) to assist in the development or design of a computer software program that is intended to provide substantially similar functionality as the Veracode Licensed Program(s). The Parties acknowledge and agree that this Agreement is non-exclusive. Each Party and/or any of its Affiliates will have the right to, and may, enter into agreements with third parties that are similar to the subject matter of this Agreement.
11. Survival. The terms of Sections 5.3, 6, 7, 8, 10, 12, 15and 17 shall survive termination or expiration of this Agreement.
12. Non-Waiver. No delay or failure of either Party in exercising any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights hereunder.
13. Notices and Veracode Contact Information. Any notices required or permitted to be given under this Agreement shall be deemed sufficiently given if delivered by hand, mailed by registered or certified mail, postage prepaid and return receipt requested or sent by overnight courier (with a confirmation of delivery obtained) to the address below:
If to Veracode:
Veracode, Inc.
65 Blue Sky Drive
Burlington, MA 01803
Attn: Legal Department
If to Company: The address set forth in the Order Form.
Company may submit general questions regarding this Agreement to TAPOps@veracode.com.
14. Assignment. Neither Party may assign or transfer its rights, by operation of law or otherwise, or delegate its duties under this Agreement. Any change of control with regards to the majority of the outstanding voting securities or substantially all of the assets of a Party shall terminate this Agreement. Any prohibited assignment shall be null and void.
15. Publicity. Neither Party shall make any press release or announcement concerning this Agreement or disclose the terms and conditions of this Agreement to any third party without the other Party’s prior written approval.
16. Severability. If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to be deemed omitted and not to render invalid any other provision hereof.
17. Governing Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement. The Uniform Computer Information Transactions Act (“UCITA”) will not apply to this Agreement regardless of when and howsoever adopted, enacted and further amended under the governing state laws.
18. Entire Agreement. This Agreement contains the entire agreement and the complete and exclusive statement of the agreement between the Parties regarding the subject matter hereof, and supersedes all other communications between the Parties, whether written or oral, relating thereto. This Agreement may not be amended or modified except in writing signed by both Parties.
Exhibit 1
Trademarks
Veracode Marks:
Veracode®
Veracode Usage Guidelines:
Company shall use the Veracode logo as presented above. If Company needs additional logo formats, they may reach out to Veracode to obtain. The Veracode logo should not be manipulated in size, color, gradient, positioning or any other aesthetic.
When using the Veracode logo alongside Company logo, there must be double the amount of clear space between the two logos (base aligned only) as Company would use for the Veracode logo on all sides (size of the zero in the logo).
The two logos should also be as close to the same size and height as possible. Logos should be paired vertically (left aligned) or horizontally (base aligned) depending on layout.