This Fugue End User License Agreement (this “EULA”) is between you (the individual downloading, installing or using the Fugue Software and/or the entity on whose behalf you are acting) (“you”) and Fugue, Inc., a Delaware corporation (“Fugue”). Notwithstanding anything to the contrary herein, if you and/or the entity on whose behalf you are acting have entered into a Master Subscription and Services Agreement (the “Subscription Agreement”) with Fugue, that Subscription Agreement, and not this EULA, governs the relationship between you and/or the entity on whose behalf you are acting and Fugue in connection with the Fugue Software, Ludwig, Compositions, Documentation, Support Services and Professional Services.
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS EULA. BY CLICKING THE “I ACCEPT” BUTTON LOCATED ON THIS PAGE, YOU AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS EULA AND DO NOT AGREE TO BE BOUND BY THIS EULA, PLEASE CLICK THE “CANCEL” BUTTON ON THIS PAGE. IF YOU DO NOT ACCEPT THIS EULA, YOU WILL NOT BE GRANTED ACCESS TO DOWNLOAD OR USE THE FUGUE SOFTWARE.
IN ADDITION, BY CLICKING THE “I ACCEPT” BUTTON LOCATED ON THIS PAGE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE AND HAVE THE LEGAL CAPACITY TO ENTER INTO THIS EULA. IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF AN ENTITY, SUCH AS THE COMPANY YOU WORK FOR, YOU REPRESENT TO FUGUE THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY.
For purposes of this EULA, the following terms shall have the following meanings:
1.1. “CLI” means the command line interface that allows a Customer User to create commands for use by the Conductor.
1.2. “Composer” means the graphical user interface that allows a Customer User to create a visual representation of Ludwig files.
1.3.“Compositions”** means the compositions created using Ludwig that are made available to you in connection with this EULA.
1.4. “Conductor” means the core of the Fugue Software operating system that resides in your cloud infrastructure account and runs processes and accepts commands.
1.5. “Customer User” means, if you are an entity, your employee, contractor or agent whom you permit to download, install and/or otherwise use the Fugue Software.
1.6. “Derivative Work” means a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such preexisting work.
1.7. “Documentation” means such manuals, documentation and any other supporting materials relating to the Fugue Software as are currently maintained by Fugue and generally provided to its customers.
1.8. “Effective Date” means the date that you execute this EULA in any form, whether online or offline as part of the subscription process for the Fugue Software.
1.9. “Fugue Customer Subscription Agreement” means, if applicable, the Fugue Customer Subscription Agreement entered into between you and Fugue pursuant to which you are granted the right to download, install, and use certain Fugue Software.
1.10. “Fugue Software” means the software product made available to you under this EULA or the Fugue Customer Subscription Agreement, as applicable, including, as applicable, the Composer, Conductor, CLI and Vars and any related files, executable files, or other components.
1.11. “Ludwig” means the language developed by Fugue to create compositions for the Fugue Software, including any schematics, specifications, interfaces, development environments, libraries, compilers, interpreters, runtime tools or related utilities for the Fugue Software.
1.12. “Third Party Products” means any software or services made available by a party other than Fugue that may be used in connection with the Fugue Software, Ludwig, or Compositions, including software or services that are necessary or advisable in order for you to exploit the functionality of the Fugue Software, Ludwig, or Compositions.
1.13. “Vars” means a replicated, cached key-value store used internally by the Fugue Software and externally by users of the Fugue Software for coordination of components of cloud infrastructure and state management.
2. License to the Fugue Software; Restrictions
2.1. Grant of Rights. Subject to the terms and conditions of this EULA, Fugue hereby grants to you a restricted, non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable license during the term of this EULA to (a) download, install and use the Fugue Software, (b) use Ludwig, (c) download and use the Compositions, and (d) download and use the Documentation in connection with your use of the Fugue Software, in each case for internal purposes only (the “License”). You may not use Ludwig or Compositions except in connection with the Fugue Software, including with any other compilers or interpreters or for any other purposes. You shall not disclose, make available to or use for the benefit of any third party, sell, assign, lease or otherwise dispose of, or commercially exploit or market in any way, with or without charge, the Fugue Software, Ludwig, or Compositions. Except as set forth in this Section 2.1, no other right or license of any kind is granted by Fugue to you hereunder with respect to the Fugue Software, Ludwig, or Compositions.
2.2. Restrictions. Without limitation of Section 2.1, without Fugue’s prior written consent you shall not: (a) copy all or any portion of the Fugue Software; (b) decompile, disassemble, scrape or otherwise reverse engineer the Fugue Software or Ludwig or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Fugue Software or Ludwig or any portion thereof; (c) modify, translate or create any Derivative Works based upon the Fugue Software or the Documentation; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge or otherwise transfer the Fugue Software, the Documentation, Ludwig, or Compositions in whole or in part, to any third party; (e) remove or alter any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in copies of the Fugue Software or the Documentation or in Ludwig; (f) perform, or release the results of, benchmark tests or other comparisons of the Fugue Software with other programs; (g) transfer the Fugue Software, Ludwig, the Documentation, or any Compositions to any computer other than a computer owned by you (or the entity on whose behalf you have entered into this EULA) and used by you (or the entity on whose behalf you have entered into this EULA) in your (or the entity’s on whose behalf you have entered into this EULA) operations; (h) incorporate the Fugue Software or any portion thereof into any other program or product, or use the Fugue Software to provide similar functionality to third parties; (i) use the Fugue Software, Ludwig, or any Compositions for any unlawful or tortious purpose; or (j) use the Fugue Software, Ludwig, the Documentation, or any Compositions for any purpose other than in accordance with the terms and conditions of this EULA.
2.3. License to Third Party Products. You shall obtain your own license to any Third Party Products, including cloud computing services, as may be necessary to use the Fugue Software or Ludwig under this EULA. For the avoidance of doubt, Fugue will have no duty to obtain a license on your behalf for any Third Party Products. You shall be responsible for all fees incurred from the providers of such Third Party Products (“Third Party Providers”), even if use of such Third Party Products is in conjunction with the use of the Fugue Software, Ludwig, or any Compositions. You are responsible for cancelling services with any Third Party Providers according to the requirements of such Third Party Providers. No cancellation or notice to Fugue shall be effective in discontinuing any fees associated with Third Party Products usage. Notwithstanding the foregoing, Fugue may in its sole discretion make available to you such instances of Third Party Products as it may deem necessary to support your use of the Fugue Software or Ludwig under this EULA; provided that Fugue may cancel, suspend or cease to make available to you any such Third Party Products at any time in its sole discretion.
2.4. Professional Services. Fugue may agree to perform certain professional services under this EULA in connection with training, installation, implementation, customization, or use of the Fugue Software, Ludwig, or Compositions (the “Professional Services”). Any Professional Services performed under this EULA shall be free of charge. The terms and conditions governing Fugue’s provision, and your receipt, of the Professional Services are set forth in this EULA and in Schedule A hereto. Notwithstanding anything in this EULA to the contrary, in the event that you and Fugue enter into a separate Professional Services Agreement, the terms and conditions of that agreement shall govern all Professional Services performed hereunder.
2.5. Changes to this EULA. Fugue reserves the right to modify or update this EULA, including Schedule A, from time to time, at its discretion. In the event that Fugue modifies or updates this EULA, Fugue will notify you by reasonable means and provide you the opportunity to opt-out of acceptance of the updated EULA terms by terminating this EULA in accordance with Section 8.2. Your failure to opt-out of the updated EULA and terminate this EULA shall constitute your acceptances, on behalf of yourself and all Customer Users, of the updated EULA.
2.6. Nature of Licenses. You acknowledge and agree the License is neither contingent on the delivery of any future features or functionality nor subject to any public or other comments (oral, written or otherwise) made by Fugue regarding future features or functionality.
2.7. Compliance. You shall ensure that all Customer Users comply with the terms and conditions of this EULA. You shall be responsible for compliance with this EULA by each Customer User and you shall monitor and manage all Customer Users in connection with this EULA.
2.8. Open Source Software. The Fugue Software may be provided together with, or otherwise contain, certain open source software components (“Open Source Components”) that are made available under their respective open source license agreements (“Open Source Licenses”) which are identified at https://fugue.co/oss-disclosure/. You agree to the terms and conditions in each such Open Source License and agree to comply with all such terms and conditions. With respect to each Open Source Component, to the extent there are any conflicts between any terms of this EULA and any terms of the respective Open Source License, which the Open Source License does not permit, such conflicting terms of this EULA will not apply. Any fees charged by Fugue in connection with the Fugue Software do not apply to any Open Source Components for which fees may not be charged under the applicable Open Source License. Where the terms of any specific Open Source License entitle you to the source code of the respective Open Source Component (if any), that source code may be made available from Fugue upon request (a nominal fee may be charged by Fugue for processing such request).
2.9. Anonymized Usage Data. Fugue may collect anonymized data about your usage of the Fugue Software in order to help improve the Fugue Software. Fugue does not collect cloud service provider account information or credentials through this process. A sample of the type of data collected by Fugue is described in more detail at https://docs.fugue.co/user-guide-metrics.html. If you do not want to send anonymized usage data directly or indirectly to Fugue, you may opt out anytime by indicating your preference in the setting of the Fugue Software or by contacting Fugue at firstname.lastname@example.org.
3. Support; Updates
Fugue will provide support to you (including Customer Users, as applicable) through Fugue’s generally available online ticketing and support system. Fugue is under no obligation to support the Fugue Software, Ludwig, or any Compositions in any way, nor to provide any modification, error correction, bug fix, new release or other update to the Fugue Software or Ludwig (each an “Update”). In the event Fugue, in its sole discretion, supplies or makes available any Update to you, such Update shall be deemed to be part of the Fugue Software or Ludwig as applicable and shall be subject to the terms and conditions of this EULA. For the avoidance of doubt, Fugue will have no duty to provide any support for any Third Party Products.
4. Proprietary Rights
4.1. General. As between Fugue and you, Fugue retains all right, title and interest, including, without limitation, all patent rights, copyrights, trademarks and trade secrets, in and to the Fugue Software, Ludwig, or any Compositions (but not any compositions that you create using Ludwig) and any Update thereto, including, without limitation, any copy or Derivative Work thereof. You agree to take any action reasonably requested by Fugue to evidence, maintain, enforce or defend the foregoing. You shall not take any action to jeopardize, limit or interfere in any manner with Fugue's ownership of and rights with respect to the Fugue Software, Ludwig, any Compositions created by Fugue or any Update thereto, or any Derivative Work thereof. You shall have only those rights in or to the Fugue Software, Ludwig, any Compositions created by Fugue, or any Update thereto, or any Derivative Work thereof, granted to you pursuant to this EULA.
4.2. Feedback. If you (including your Customer User, if applicable) provide to Fugue any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Fugue Software, Ludwig, Professional Services, Deliverables, or otherwise, such Feedback will be non-confidential, gratuitous, unsolicited and without restriction, and will not place Fugue under any fiduciary or other obligation. In addition, by submitting Feedback, you (including your Customer User, if applicable) hereby assign to Fugue all right, title and interest in and to all Feedback, including all patent rights, copyrights, trade secrets, and other intellectual property or proprietary rights therein, and agree to assist Fugue in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback, and you (including your Customer User, if applicable) waive all “moral rights” in connection therewith. Any disclosure of such Feedback by Fugue to third parties shall not attribute the Feedback to you (including your Customer User, if applicable).
5. Proprietary Information
5.1. Proprietary Information. You acknowledge that, in the course of this EULA, you (including your Customer User, if applicable) may obtain Fugue’s confidential or proprietary information (“Proprietary Information”), which shall include, without limitation, (a) the Fugue Software (including all Derivative Works thereof), and Updates thereto and all confidential information related thereto provided by Fugue to you (including your Customer User, if applicable) in connection with this EULA, (b) trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs (whether in source code or object code form), ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, documentation, design and functional specifications, product requirements, problem reports, performance information, software documents, hardware, devices, designs, drawings, unpublished patent applications, data, plans, strategies and forecasts, and (c) technical, engineering, manufacturing, product, marketing, servicing, financial, personnel and other information. Proprietary Information shall, as between you and Fugue, belong solely to Fugue.
5.2. Use and Disclosure Restrictions. You agree: (a) to protect the Proprietary Information from unauthorized dissemination and use; (b) to use the Proprietary Information only for the performance of this EULA and the exercise of your rights under this EULA; (c) not to disclose any Proprietary Information, or any part or parts thereof, to any of your employees, agents, contractors or any other individuals except to those employees, agents or contractors who are under confidentiality obligations no less restrictive than the requirements of this Section 5; (d) not to disclose or otherwise provide to any third party, without the prior written consent of Fugue, any Proprietary Information, materials or any data or other information produced, obtained or created by you in connection with your use of the Fugue Software; (e) to undertake whatever action is necessary (or authorize Fugue to do so in your name) to prevent or remedy any breach of your confidentiality obligations herein or any other unauthorized disclosure of any Proprietary Information by your current or former employees, agents or contractors (if applicable); and (f) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Proprietary Information.
5.3. Equitable Relief. You agree that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information or any other breach of any provision of this Section 5 will cause irreparable harm and significant injury to Fugue, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that Fugue, in addition to any other available remedies, shall have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 5 without the necessity of posting any bond or other security. You shall notify Fugue in writing immediately upon becoming aware of any such breach or threatened breach.
6.1. Disclaimers. THE FUGUE SOFTWARE, LUDWIG, THE PROFESSIONAL SERVICES, THE DELIVERABLES (AS DEFINED IN SCHEDULE A), THE DOCUMENTATION AND ANY COMPOSITIONS ARE PROVIDED “AS IS” AND FUGUE DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, RELATING THERETO, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. FUGUE DOES NOT GUARANTEE THAT THE FUGUE SOFTWARE, LUDWIG, THE PROFESSIONAL SERVICES, THE DELIVERABLES, THE DOCUMENTATION, OR ANY COMPOSITIONS WILL BE UNINTERRUPTED, ERROR FREE, RELIABLE OR FREE OF HARMFUL COMPONENTS OR THAT BUGS OR MALFUNCTIONS WILL BE CORRECTED. IN ADDITION, UNDER NO CIRCUMSTANCES SHALL FUGUE BE RESPONSIBLE OR LIABLE FOR ANY ACTIONS OR OMISSIONS OF ANY CLOUD SERVICE PROVIDER (FOR EXAMPLE, MICROSOFT AZURE OR AMAZON WEB SERVICES) IN CONNECTION WITH THE FUGUE SOFTWARE, LUDWIG, THE DELIVERABLES OR ANY COMPOSITIONS OR FUGUE'S PERFORMANCE OF THE PROFESSIONAL SERVICES.
FUGUE MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS. FUGUE DOES NOT REPRESENT OR IMPLY THAT IT ENDORSES ANY THIRD PARTY PRODUCTS, OR THAT IT BELIEVES THE OPERATION OF ANY THIRD PARTY PRODUCTS WILL BE ACCURATE, USEFUL OR NON-HARMFUL. THIRD PARTY PRODUCTS MAY HAVE TECHNICAL INACCURACIES, MAY CAUSE MISTAKES OR ERRORS, AND MAY TRANSMIT, STORE, OR OTHERWISE MANIPULATE DATA IN A MANNER THAT IS OBJECTIONABLE TO YOU. YOU ARE RESPONSIBLE FOR TAKING PRECAUTIONS TO PROTECT YOURSELF AND YOUR CUSTOMER USERS (IF APPLICABLE) AND YOUR COMPUTER SYSTEMS IN CONNECTION WITH THE USE OF THIRD PARTY PRODUCTS.
7. Fugue’s Entire Liability
TO THE EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) IN NO EVENT SHALL FUGUE OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INADVERTENT DISCLOSURE OF DATA, OR INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR OTHER ECONOMIC LOSS ARISING FROM OR RELATING TO THIS EULA OR THE SUBJECT HEREOF, EVEN IF FUGUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED, AND (B) NOTWITHSTANDING ANYTHING IN THIS EULA TO THE CONTRARY, FUGUE’S ENTIRE LIABILITY ARISING FROM OR RELATING TO THIS EULA OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), SHALL NOT exceed ONE THOUSAND DOLLARS (US$1,000).
8. Term and Termination
8.1. Term. Unless earlier terminated in accordance with this Section 8, this EULA shall remain in effect until you uninstall the Fugue Software (the “Term”).
8.2. Termination. You may terminate this EULA at any time by uninstalling the Fugue Software. Fugue may terminate this EULA immediately if you breach this EULA.
8.3. Effect of Termination. Upon the termination of this EULA, the rights granted to you hereunder shall terminate, you shall cease all use of the Fugue Software, Ludwig, the Professional Services, the Deliverables, the Documentation, and all Compositions, uninstall the Fugue Software and destroy all Proprietary Information in your possession or control and, upon Fugue’s request, so certify such actions to Fugue. Any costs incurred in uninstalling the Fugue Software or destroying the Proprietary Information upon termination shall be borne by you. The provisions of Sections 2.2, 4, 5, 6, 7, 8.3, 9 and 10 shall survive the termination of this EULA. Termination of this EULA by either party shall not act as a waiver of any breach of this EULA and shall not act as a release of either party from any liability for breach of such party's obligations under this EULA. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this EULA in accordance with its terms, and termination of this EULA by a party shall be without prejudice to any other right or remedy of such party under this EULA or applicable law.
9. General Provisions
9.1. Force Majeure. Fugue shall not be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosions, earthquakes, floods, wars, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond its reasonable control.
9.2. Assignment. This EULA may not be assigned, in whole or part, whether voluntarily, in connection with a merger or acquisition, by operation of law or otherwise, by you without the prior written consent of Fugue. Subject to the preceding sentence, the rights and liabilities of the parties hereto shall bind, and inure to the benefit of, their respective assignees and successors and are binding on the parties and their successors and assigns. Any attempted assignment other than in accordance with this Section 9.2 shall be null and void.
9.3. Governing Law. This EULA is to be interpreted, enforced, and construed in accordance with and governed by the internal laws of the State of Maryland (but expressly excluding the Uniform Computer Information Transactions Act (“UCITA”) as enacted in Maryland) without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Maryland (excluding UCITA) to the rights and duties of the parties.
9.4.1. General. ALL DISPUTES BETWEEN YOU AND FUGUE ARISING OUT OF OR RELATED TO THE FUGUE SOFTWARE, LUDWIG, THE PROFESSIONAL SERVICES, THE DELIVERABLES, THE DOCUMENTATION, ANY COMPOSITIONS, OR THIS EULA, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY (EACH, A “DISPUTE”), WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THIS SECTION 9.4 INSTEAD OF IN A COURT BY A JUDGE OR JURY. YOU AND FUGUE EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION OR LITIGATION UNDER THIS EULA WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU AND FUGUE EACH HEREBY AGREE TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
9.4.2. Procedure. Any arbitration under this EULA will be administered by the American Arbitration Association (the “AAA”), in accordance with (a) if you are an individual, the AAA’s Consumer Arbitration Rules (currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf), as amended by this EULA, or (b) if you are an entity, the AAA’s Commercial Arbitration Rules and Mediation Procedures (currently available at https://www.adr.org/sites/default/files/Commercial%20Rules.pdf), as amended by this EULA. The arbitration proceeding will be conducted in English. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by Fugue that an in-person hearing is appropriate. Any in-person appearances will be held in Washington, D.C. The arbitrator’s decision will follow the terms of this EULA and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this EULA, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
9.5. Attorneys’ Fees. If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this EULA or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys' fees paid or incurred in good faith.
9.6. No Third Party Beneficiary. This EULA does not create any third party beneficiary rights in any individual or entity that is not a party to this EULA.
9.7. Waiver. The waiver by either party of a breach of or a default under any provision of this EULA, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this EULA, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
9.8. Severability. If the application of any provision of this EULA to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this EULA shall not in any way be affected or impaired thereby and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
9.9. Relationship of Parties. Nothing contained in this EULA shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party nor its agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
9.10. Restricted Rights. All software and any technical data contained in the Fugue Software, Ludwig, the Documentation, or any Compositions are “commercial items,” as defined in 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. The use, duplication, reproduction, release, modification, disclosure or transfer of the Fugue Software, Ludwig, the Documentation, or any Compositions, and any data relating thereto or derived therefrom, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. This is in lieu of, and supersedes, any Federal Acquisition Regulations (“FAR”), the Defense FAR Supplement (“DFARS”), or other agency supplemental clause or provision that addresses government rights in computer software or technical data.
9.11. Entire Agreement. This EULA, the Fugue Customer Subscription Agreement (if applicable) and any Schedules and Exhibits attached hereto or thereto and incorporated herein by reference constitute the entire agreement between the parties concerning the subject matter hereof and supersede all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements and communications, whether oral or written, between the parties relating to the subject matter of this EULA, the Fugue Customer Subscription Agreement (if applicable) and any Schedules and Exhibits attached hereto or thereto and incorporated herein by reference and all past courses of dealing or industry custom; provided however that the parties agree that in the event of any conflict or inconsistency between the terms of this EULA and the terms of the Fugue Customer Subscription Agreement, the terms of the Fugue Customer Subscription Agreement will control and prevail to the extent of the conflict or inconsistency.
9.12. Electronic Signature and Disclosure Consent Notice. You agree to the use of electronic documents and records in connection with this EULA and all future documents and records in connection with the Fugue Software, Ludwig, and the Professional Services —including this electronic signature and disclosure notice—and that this use satisfies any requirement that Fugue provides you these documents and their content in writing.
10. U.S. Government End Users Terms.
(a) U.S. State and Local Government Terms. This Section 10(a) applies only if you are a U.S. public entity other than a U.S. Federal Government entity. Fugue acknowledges that applicable law may prohibit some U.S. public sector entities from agreeing to binding arbitration to resolve disputes; in such case, the provisions in this EULA relating to binding arbitration shall not be applicable. In addition, if you are a U.S. public entity, notwithstanding anything to the contrary herein, THIS EULA WILL BE GOVERNED BY THE LOCAL LAW OF THE STATE OR COMMONWEALTH IN WHICH YOU ARE LOCATED.
(b) U.S. Federal Government Terms. This Section 10(b) applies only if you are a U.S. Federal Government entity (“Federal Government End User”). The Fugue Software, Ludwig, Compositions, and any accompanying documentation are commercial items that have been developed entirely at private expense. This license shall prescribe exclusively the Federal Government End User's use and disclosure of the Fugue Software, Ludwig, Compositions, and any accompanying documentation. If you are a Federal Government End User only, this EULA is hereby amended as follows:
(i) Dispute resolution and governing law: Any arbitration, mediation or similar dispute resolution provision in this EULA is hereby deleted. This EULA shall be governed by and interpreted and enforced in accordance with the laws of the United States of America, and dispute resolution shall take place in a forum, and within the time period, prescribed by applicable federal law. To the extent permitted by federal law and then only to the extent not pre-empted by federal law, the laws of the state specified in this EULA (excluding its choice of law rules) will apply. No equitable or injunctive relief, and no shifting of legal fees or costs, may be sought against the Federal Government End User except as, and then only to the extent, specifically authorized by applicable federal statute.
(ii) Any provisions in this EULA requiring any Federal Government End User to indemnify any party are hereby deleted and shall not apply. Any requirement for the Federal Government End User to give control of the defense for any claim for which the licensor indemnifies the Federal Government shall be subject to 28 USC 516.
(iii) Changes in templates: Subsequent updates to or changes in Fugue’s standard commercial templates for such agreements shall not be binding on the Federal Government End User, except by prior express written agreement of both parties.
(iv) Fees, taxes and payment: If the Fugue Software, Ludwig, or Compositions are licensed as part of a separate government contract between the Federal Government End User and a prime contractor, the provisions of such contract regarding fees, taxes and payment shall supersede any provisions of this EULA regarding same. Notwithstanding the foregoing: (a) express written agreement of the Federal Government End User shall be required prior to (i) any extension or renewal of this EULA or the associated fees or (ii) any change in the fees; (b) late payments shall be governed by the Prompt Payment Act and the regulations at 5 CFR 1315; and (c) no cost of collection on delinquent invoices may be sought against the Federal Government End User except as, and then only to the extent, specifically authorized by applicable federal statute.
(v) No waiver of liability or cause of action: Any provision requiring the Federal Government End User to agree to waive or otherwise not to pursue any claim against the licensor it may otherwise have is hereby deleted. Without limiting the generality of the foregoing, the parties agree that nothing in this EULA, including but not limited to the limitation of liability clauses, in any way grants the licensor a waiver from, release of, or limitation of liability pertaining to, any past, current or future violation of federal law and that no clause restricting users' statements shall be read to restrict the Federal Government End User's ability to pursue any course of action otherwise permitted by federal law, regulation, or policy, including without limitation making public statements in connection with any suspension or debarment action.
(vi) Audit: Any clauses in this EULA allowing for an audit of the Federal Government End User's records or information systems, or verification of its compliance with this EULA generally, shall be subject to the Federal Government End User's requirements pertaining to security matters, including without limitation clearances to be held and non-disclosure agreements to be executed by auditors, badging or escorting requirements for access to premises, and other applicable requirements. Any over-use of the Fugue Software, Ludwig, or Compositions in excess of the license identified in an audit shall be referred to the prime contractor or the Federal Government End User's contracting officer (as applicable) for action. No audit costs may be sought against the Federal Government End User except as, and then only to the extent, specifically authorized by applicable federal statute.
(vii) Compliance with laws: The parties acknowledge that the United States, as a sovereign, is subject to the laws of the United States. Nothing in this EULA shall be interpreted to imply consent by any Federal Government End User to submit to the adjudicative or enforcement power of any regulatory, administrative, or judicial authority of, or the application of the laws of, another jurisdiction. Any provision inconsistent with applicable federal law that is not listed above is hereby deemed omitted from this EULA to the extent of such inconsistence. (viii) Third party terms: Any third party licensing terms associated with third-party software components or products embedded in or otherwise provided with the the Fugue Software, Ludwig, or Compositions shall be deemed amended in accordance with the provisions in 10.1(b) (i) - (vii), above.
Professional Services Terms and Conditions
To the extent that Fugue provides any Professional Services under this EULA, the following terms and conditions shall apply to Fugue’s provision, and your receipt, of such Professional Services:
1. Performance of the Professional Services. Fugue may issue statement(s) of work describing Professional Services that it intends to perform under this EULA. The manner and means by which Fugue chooses to perform the Professional Services are in Fugue’s sole discretion and control and Fugue may cease performance of the Professional Services at any time, with no liability whatsoever to you. In connection with Fugue’s performance of the Professional Services, you agree to provide facilities (including access to cloud service environments where the Fugue Software is installed), equipment, materials, personnel, assistance, cooperation, other resources reasonably necessary for Fugue to perform the Professional Services (collectively, “Cooperation”). You agree that Fugue shall not be liable for any deficiency in performing the Professional Services if such deficiency results, in whole or in part, from your failure to provide full Cooperation. The Professional Services may include the delivery of certain products, including data, reports, test plans, and documentation (collectively, “Deliverables”).
2. Work Product. You agree that all Work Product shall be the property of Fugue and you hereby assign and agree to assign all of your rights in the Work Product to Fugue. In its sole discretion, Fugue shall have the right to license the Work Product or any portion thereof, or incorporate the Work Product or any portion thereof into products or services, for use by other Fugue licensees or customers. At Fugue’s request and expense, you shall assist, cooperate with Fugue in all reasonable respects, and execute documents, give testimony and take further acts as reasonably requested by Fugue, to acquire, transfer, maintain and enforce patent, copyright, trademark, mask work, trade secret and other legal protection for the Work Product. “Work Product” means all materials, software, tools, data, inventions, works of authorship and other innovations of any kind, including, without limitation, the Deliverables, that Fugue, or personnel working for or through Fugue, create, conceive, develop or reduce to practice, alone or jointly with others, in the course of performing the Professional Services or as a result of such Professional Services.
3. Non-Solicitation. During the period of performance of the Professional Services and for a period of twelve (12) months thereafter, you shall not contact or attempt to contact, directly or indirectly, for the purpose of offering any such person employment or engagement any person who works or has worked (whether as an employee or an independent contractor) for or on behalf of Fugue or its affiliates at any time during the period of performance of the Professional Services. The foregoing shall not prevent you from considering responses to advertising or job postings directed at the general public or contacting, employing or engaging any person who responds to such advertising or job posting.