Botpress Software License Agreement

IMPORTANT – PLEASE CAREFULLY READ THE FOLLOWING LICENSE AGREEMENT, WHICH IS LEGALLY BINDING. DO NOT DOWNLOAD OR INSTALL THE LICENSED MATERIALS UNLESS: (1) YOU WILL USE THE LICENSED MATERIALS FOR YOUR OWN BENEFIT AND PERSONALLY ACCEPT, AGREE TO AND INTEND TO BE BOUND BY THESE TERMS; OR (2) YOU ARE AUTHORIZED TO, AND INTEND TO BE BOUND BY, THESE TERMS ON BEHALF OF YOUR COMPANY OR ORGANIZATION.  YOU REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF THE LICENSEE IS A COMPANY OR ORGANIZATION, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR ORGANIZATION.  

This Software License Agreement (“Agreement”) is a legal agreement between you and Botpress Inc. (“Licensor”). The “Licensed Materials” subject to this Agreement include the Licensed Software and any associated Documentation (in each case, in whole or in part), as well as any Updates thereto if any, provided to you at Licensor’s sole discretion. 

The Licensed Materials may be bundled with software and associated electronic documentation, if any, licensed under terms other than the terms of this Agreement (in whole or in part, “Other Licensed Materials”), including, for example, open source software and/or third party proprietary software licensed under such other terms. If by accepting this Agreement, you gain access to Other Licensed Materials, your use of the Other Licensed Materials is subject to the applicable other licensing terms. For clarification, this Agreement does not limit your rights under or grant you rights that supersede, the terms of any applicable Other Licensed Materials license agreement.  In the event you choose not to accept or agree with the terms in any applicable Other Licensed Materials license agreement, you must terminate this Agreement.

Definitions. For purposes of this Agreement, the following terms have the following meanings:

“Documentation” means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other forms, that describe the installation, operation, use or technical specifications of the Licensed Software.
“License Fees” means any license fees, including all taxes thereon, paid or required to be paid by for the license granted under this Agreement as expressly set forth in the Order Form or order confirmation. All License Fees are due when invoiced and are non-refundable unless otherwise set forth herein.
“Licensed Software” means the software identified in the Order Form.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Order Form” means the online order form that you complete and submit, that has been accepted by Licensor, for use of the Botpress Platform and associated Licensed Materials. For the avoidance of doubt, an Order Form is subject to Licensor’s acceptance.  
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Term” has the meaning set forth in Section 8.
“Update” has the meaning set forth in Section 6.
“You” or “Licensee” means you personally if you will exercise the rights granted for your own benefit, but it means your company or organization (or you on behalf of your company or organization) if you will exercise the rights granted for your company’s benefit.

2.	License Grant and Scope. Subject to and conditioned upon payment of the License Fees (if any) and your strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants you a non-exclusive, non-assignable, non-sublicensable, fully paid-up, royalty-free license during the Term to use the Licensed Materials solely as set forth in this Section 2 and subject to all conditions and limitations set forth in this Agreement. Licensor grants to Licensee the right to download, install one copy of the Licensed Software.  Licensor reserves all rights not specifically granted in this Agreement. Licensor shall provide Licensee with a unique license key, which Licensee must keep confidential and use solely for the purpose of enabling Licensee to use the Licensed Software in accordance with the terms and conditions of this Agreement. Support, if any, provided for the Licensed Materials, shall be as set forth in the Order Form or a separate agreement between the parties.

3.	Prohibited Activities. You shall not directly or indirectly:

use the Licensed Materials for any illegal purpose, in violation of any applicable laws or regulations or in violation of the rules of any service provider that you engage; or
use the Licensed Materials to create a commercial offering or product directly or indirectly competing with an offering or product from the Licensor, including for competitive analysis, benchmarking or marketing; or
unless expressly authorized by Licensor in writing, use the Licensed Materials for the benefit of any person or entity where such use may result in the creation of a commercial offering or product directly or indirectly competitive with an offering or product from the Licensor.

4.	Responsibility for Use of Licensed Materials. The licensee is responsible and liable for all uses of the Licensed Materials through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Licensed Materials by any Person whom Licensee allows to access or use the Licensed Materials, whether such access or use is permitted by or is in violation of this Agreement.

5.	Audit Right. During the Term, Licensor may, in Licensor’s sole discretion, audit Licensee’s use of the Licensed Materials to ensure Licensee’s compliance with this Agreement, provided that (i) any such audit shall be conducted on not less than five (5) days’ prior notice to Licensee, and (ii) no more than two audits may be conducted in any twelve (12) month period (unless the immediately preceding audit revealed a discrepancy). The Licensee shall fully cooperate with Licensor’s personnel conducting such audits and provide all reasonable access requested by the Licensor to records, systems, equipment, information and personnel, including machine IDs, serial numbers and related information. Licensor shall only examine information directly related to the Licensee’s use of the Licensed Materials. Licensor may conduct audits only during Licensee’s normal business hours and in a manner that does not unreasonably interfere with the Licensee’s business operations.

6.	Updates. Licensor may from time to time, in its sole discretion, provide updates, upgrades, bug fixes, patches and error corrections (collectively, “Updates”) to the Licensed Materials. Licensee agrees that Licensor has no obligation to develop any Updates at all, generally, or for particular issues. Licensee further agrees that all Updates will be deemed Licensed Materials, subject to this Agreement.
 
7.	Intellectual Property Rights. Licensee acknowledges and agrees that the Licensed Materials are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Licensed Materials. Licensor and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Licensed Materials and all Intellectual Property Rights arising out of or relating to the Licensed Materials, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Licensed Materials (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Licensed Materials and shall fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.  In no event may you alter, remove or destroy any copyright, patent, trademark, or other intellectual property notices included in or with the Licensed Materials.  Licensee agrees that it will not “unlock”, decompile, reverse engineer, disassemble or otherwise translate to a human-perceivable form any portions of the Licensed Software nor permit or enable any person or entity under its employ or control to do so

8.	Term and Termination.

The term of this Agreement shall be the term for using the Licensed Materials designated in the Order Form and any renewal term thereof unless terminated earlier as set forth herein (the “Term”).  Upon termination, this Agreement shall immediately terminate.
You may terminate this Agreement at any time during its Term; however, you must pay all amounts due and owing before the termination is effective.
Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Licensed Materials.
Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement.
Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Licensed Materials immediately upon termination. 


9.	Warranty Disclaimer. THE LICENSED MATERIALS ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR, ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE LICENSED MATERIALS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER INTELLECTUAL PROPERTY, AS WELL AS WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, THAT THE LICENSED MATERIALS WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

10. 	Indemnity; Limitation of Liability.  Licensee shall indemnify, defend and hold harmless Licensor, Licensor’s affiliates and its or their respective officers, directors, shareholders, employees, agents, representatives, licensors and service providers from and against any and all third party claims, demands or causes of action relating to this Agreement, including those arising from Licensee’s use of the Licensed Materials and Licensee’s alteration or improper operation, interconnection, or installation of the Licensed Materials. 

IN NO EVENT SHALL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED, ARISING IN ANY WAY OUT OF THIS AGREEMENT, OR YOUR USE OF THE LICENSED MATERIALS, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE OR INTERRUPTION OF BUSINESS OR OTHER ECONOMIC LOSS. IN NO EVENT WILL LICENSOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR ARISING OUT OF YOUR USE OF THE LICENSED MATERIALS EXCEED THE TOTAL AMOUNT PAID TO LICENSOR PURSUANT TO THIS AGREEMENT IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. 

11. 	Replacement. Should the Licensed Materials as delivered by Licensor become or, in Licensor’s opinion, be likely to become, the subject of a third party claim of infringement, Licensor may, at its option, either (a) procure for Licensee the right to continue to use the Licensed Materials as contemplated hereunder, (b) replace or modify the Licensed Materials to avoid the infringement, or (c) terminate the infringing features of the Licensed Materials and refund to Licensee any prepaid amounts for such features, in proportion to the portion of the Term left after such termination. The preceding sentence states Licensor’s sole obligation and liability, and Licensee’s sole remedy, for potential or actual intellectual property infringement by the Licensed Materials. For the avoidance of doubt, Licensor is not required to do either of the foregoing. THE FOREGOING PROVISIONS OF THIS SECTION 11 STATE THE ENTIRE LIABILITY OF LICENSOR AND THE EXCLUSIVE REMEDY OF LICENSEE AND ANY OTHER PERSON OR ENTITY, WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

12.	Export Regulation. The Licensed Materials may be subject to export control laws. Licensee shall not, directly or indirectly, export, re-export or release the Licensed Materials to, or make the Licensed Materials accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. Licensee 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), prior to exporting, re-exporting, releasing or otherwise making the Licensed Materials available across national borders.

13.	Miscellaneous.

This Agreement is 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. Exclusive jurisdiction for any legal suit, action or proceeding arising out of this Agreement lies within courts located in the State of Delaware, USA. 
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form.
This Agreement, together with the Order Form (which is subject to Licensor’s acceptance), and any schedules and exhibits hereto, and any documents incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings, agreements, and representations, whether written or oral, with respect to such subject matter.
Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, without Licensor’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 13(d) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. 
This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Licensor may amend this Agreement at any time with notice to Licensee, including any amendment to provide for a License Fee.  The amendment(s) shall automatically be effective thirty (30) days after a notice is provided.  No waiver of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If for any reason a court of competent jurisdiction finds any provision of the Agreement to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of the Agreement shall continue in full force and effect.
The parties' obligations under Sections 9, 10, 11 (pertaining to limitation of liability), and 13(a), (b), (d), (e), and (g) will survive the expiration or termination of this Agreement.
