LICENSE AGREEMENT FOR QACOVERAGE SOFTWARE
You should carefully read the following terms and conditions before downloading and installing the QACOVERAGE™ software product of OCCYGEN LLC. By downloading and installing the Software, you acknowledge your acceptance of the terms and conditions of this License Agreement (“Agreement”).
If you are entering into this Agreement on behalf of a corporation or other legal entity (“organization”), then (i) except as indicated, all references to “you” in this Agreement after this paragraph shall mean the organization, and (ii) by clicking the “Download” button you represent and warrant (x) that you are currently employed by the organization and have the authority and legal ability to enter into this Agreement on behalf of the organization, and (y) the organization agrees to be bound by all of the terms of this Agreement.
If you do not agree to the terms and conditions of this Agreement, then do not download or install any of the Software.
Copies of this Agreement are available for download and printing by using current web browser software and going to www.qacoverage.com/license-agreement.
This is a license and not a sale. The Software with which this Agreement is provided is licensed to you under the following terms and conditions which define what you can and cannot do with the Software. This Agreement comprises the entire agreement between you and QACoverage, and supersedes any other agreement, terms or promises, oral or written, with respect to the subject matter of this Agreement.
You must register for an account in order to use the Software. Please register for your QACoverage account at https://www.qacoverage.com/ if you have not done so. During your registration for your QACoverage account, you will provide a name and an email address.
You may subscribe to one of two QACOVERAGE offerings: QACOVERAGE or QACOVERAGE Enterprise. “QACOVERAGE” is the free QACOVERAGE offering for a single User for that User’s individual use only and has limited functionality. “QACOVERAGE Enterprise” is QACoverage’s multi-User, subscription-based QACOVERAGE offering that has additional features. If you register for QACOVERAGE Enterprise (or use it on a trial basis), then the terms and conditions under the “QACOVERAGE ENTERPRISE LICENSE TERMS” section apply. Otherwise the terms and conditions under the “QACOVERAGE STANDARD LICENSE TERMS” section apply.
Whether you choose a subscription to QACOVERAGE, QACOVERAGE Enterprise, the terms and conditions under the “GENERAL TERMS AND CONDITIONS” apply; they include a glossary of defined terms.
QACOVERAGE STANDARD LICENSE TERMS
ACTIVATION. As part of registration for your QACoverage account, you will enter an email address and this email address will identify you as the User of QACOVERAGE. An internet connection is required in order to complete the activation. Each QACOVERAGE subscription is limited to a specific Machine. A free trial period related to selected Plan of QACOVERAGE Enterprise included with the new account registration.
LICENSE. Subject to the terms and conditions of this Agreement, OCCYGEN grants you a non-exclusive, nontransferable, non-sublicensable license for you to use QACOVERAGE on your Machine during the term of this Agreement for (a) your individual use only on internal test scripting and management operations and (b) test scripting and management operations for your Clients as part of the services you provide to them. This license is limited to your individual use and not on behalf of any organization.
UPDATES. This license only applies to the version of QACOVERAGE you have downloaded and not any future versions. If OCCYGEN LLC provides an updated version of QACOVERAGE, you may elect either to accept the new version by installing the new version and agreeing to the license agreement that accompanies it, or declining the new version. However, the old version of QACOVERAGE will no longer work once the new version has been made available, and you acknowledge and agree that OCCYGEN LLC may deactivate the old version at that time.
FEES AND PAYMENT. The license to QACOVERAGE depends on selected plan.
TERMINATION. This Agreement and your license to QACOVERAGE terminate immediately upon the earlier to occur of the following: (a) when you stop using QACOVERAGE, or (b) upon your breach of any of the terms of this Agreement.
GENERAL TERMS AND CONDITIONS
PAYMENT. If you are paying by credit card, you authorize OCCYGEN LLC to bill the fees to the credit card number you provide when they are due. OCCYGEN LLC’s acceptance of a credit card does not relieve you from any obligation to pay for the Offering. OCCYGEN LLC may invoice you for amounts due if credit card payment is not effective for any reason. Where you are to be invoiced for fees, OCCYGEN LLC will invoice you, and you shall pay any invoice within 30 days of the date of invoice. If a PO number is required in order for an invoice to be paid, then you must provide such PO number to OCCYGEN LLC by emailing the PO number to email@example.com. You shall pay interest in the greater of 1.5% per month or the highest amount allowed by law on any amounts not received when due. If you are purchasing subscriptions through a reseller, then the reseller is responsible for payment of the fees for those subscriptions; however, if the reseller fails to pay OCCYGEN LLC for any reason, then OCCYGEN LLC may invoice you directly for the applicable fees, and the payment terms above will apply. The fees are exclusive of all taxes, and you shall pay all taxes, duties or charges of any kind imposed by any taxing authority for the amounts due under this Agreement, excluding taxes based solely on OCCYGEN LLC’s income. All fees are nonrefundable.
USE BY YOUR AFFILIATES AND YOUR CONTRACTORS. If you are an organization, then your use of the Software includes use by your Affiliates (as defined below) and will be considered part of “you” and “your organization”, subject to all provisions of this Agreement and the following (a) you are responsible for each of your Affiliates’ compliance with this Agreement and will be jointly and severally liable with each of the Affiliates for any breach of the provisions of this Agreement, and (b) the entity may not use the Software under your license once it stops being an Affiliate. You may permit Users who are Your Contractors to use the Software on your behalf solely as necessary to provide you services, subject to the following: (x) any such use is subject to the terms and conditions of this Agreement, and (y) each of Your Contractors must be subject to obligations of confidentiality at least as protective of the Software, Documentation and OCCYGEN LLC as those in this Agreement. You are responsible for each of your Users’ use of the Software in compliance with this Agreement.
DOCUMENTATION. Subject to the terms and conditions of this Agreement, OCCYGEN LLC grants you a non-exclusive, nontransferable, non-sublicensable license to use the Documentation solely in connection with your use of the Software. Your license to the Documentation terminates with your license to the applicable Software.
OTHER LIMITATIONS. Use of the Software is limited to use in object-code form only. You may not access the Software if you are or become OCCYGEN LLC’s direct competitor, except with OCCYGEN LLC’s prior written consent. With respect to your use of the Software for Clients as permitted in the license sections above, you may not provide access or use of your copies of the Software to the Client or include the Software as part of a product, service or other offering you provide to the Client. In addition, you must verify that the Client has its own copy of the Software. You may not use the Software for purposes of monitoring the Software’s performance or functionality or for any other benchmarking or competitive purposes. You acknowledge and agree that the Software and all Documentation and the information in them represent OCCYGEN LLC’s confidential and proprietary information. You agree to keep all such information confidential by exercising the necessary care required to prevent its disclosure and not to disclose or use such information for any purpose whatsoever other than as expressly authorized by this Agreement.
RESERVATION OF RIGHTS. Except for the limited rights expressly granted above in this Agreement, OCCYGEN LLC reserves all rights, title and interest in and to the Software, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, you may not (a) distribute outside your organization, sublicense, copy, modify, or publicly display the Software, (b) except for the limited use for Clients described above and Your Contractors as permitted above, use on behalf of any third party, or permit any third party to use, the Software, (c) decompile or reverse engineer the Software, (d) remove any proprietary rights notices on the Software, or (e) attempt to gain unauthorized access to the Software or circumvent any security measures within the Software. If you believe you are entitled to reverse engineer the Software because of rights that may be granted as a matter of local law, such as the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (as amended), then (1) you shall first request the technical information from OCCYGEN LLC, (2) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (2) the technical information will be considered OCCYGEN LLC Information and treated as such according to the terms set forth in this Agreement.
THIRD PARTY COMPONENTS. You acknowledge that the Software may include open source and freeware software and materials licensed from third parties (“Third Party Components”) and that such third parties may be third party beneficiaries to this Agreement with the ability to directly enforce the provisions pertaining to their Third Party Components. You shall comply with the additional license terms, restrictions and conditions (including notices) pertaining to Third Party Products that accompany the Third Party Components or which OCCYGEN LLC otherwise makes available to you (“Third Party Terms”). The Third Party Terms may have additional rights and requirements which apply to the Third Party Components and the terms in this Agreement are offered by OCCYGEN LLC alone and do not limit the rights that may be granted in those Third Party Terms. However, you shall notify OCCYGEN LLC before attempting to modify any Third Party Components, and OCCYGEN LLC’s support, warranty and indemnification obligations (if any) do not apply where Third Party Components have been modified.
SUGGESTIONS. You grant OCCYGEN LLC a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by you, including your Users, relating to the Software (“Feedback”). OCCYGEN LLC may use and incorporate any Feedback without any compensation or acknowledgment to you.
EFFECT OF TERMINATION. Upon termination of this Agreement for any reason, you shall immediately destroy all copies of the Software and any related Documentation in your possession or control. However, you may retain the test scripts, related reports, and output from your Test Cases using the QACOVERAGE.
DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, OCCYGEN LLC MAKES NO, AND DISCLAIMS, ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Without limiting the foregoing, you agree that OCCYGEN LLC and its officers, directors, agents, and employees, shall have no liability for errors or omissions in the output of the Software, such outputs including, without limitation, the quality or accuracy of any screen displays or reports, in the transmission and reception of data, or in the processing of such data by the Software.
IP INDEMNIFICATION. OCCYGEN LLC shall defend any claim brought by a third party against you that the Software infringes any U.S. patent, copyright, trademark or trade secret of any third party (“Claim”) and shall pay any award of damages and costs made against you in a final judgment by a court of competent jurisdiction, or any amount in settlement, arising out of a Claim. OCCYGEN LLC’s obligations in this Section are conditioned upon (1) you providing OCCYGEN LLC prompt written notice of the Claim; (2) you providing reasonable assistance and cooperation to enable OCCYGEN LLC to defend the Claim; and (3) OCCYGEN LLC having sole control over the defense of the Claim and any negotiations for its settlement. If the use of the Software becomes, or in OCCYGEN LLC’s opinion is likely to become, the subject of a Claim, then OCCYGEN LLC at OCCYGEN LLC’s option and expense may either (a) procure the right for you to continue to use the Software as permitted under this Agreement, or (b) replace or modify the Software so that it becomes noninfringing. If unable to do (a) or (b) after exercising commercially reasonable efforts, OCCYGEN LLC may terminate this Agreement upon written notice to you. At such time, OCCYGEN LLC shall return to you a prorated portion of the fees you have paid for your subscription based on the remaining number of days in your then-current subscription term. OCCYGEN LLC will have no liability for any claims caused by or contributed to by (i) any modification or alteration of the Software performed other than by OCCYGEN LLC, (ii) use of the Software other than as specified in its Documentation and under this Agreement, (iii) any hardware, software, data or other materials not provided by OCCYGEN LLC, (iv) the combination or use of the Software with non-OCCYGEN LLC software, hardware, data, materials or services, or (v) Third Party Components, or (vi) any other acts by you in violation of this Agreement. This Section states your exclusive remedy against OCCYGEN LLC and the complete liability of OCCYGEN LLC with respect to any claim of infringement made against you. This section does not apply to the free version of QACOVERAGE.
LIMITATION OF LIABILITY. In no event will OCCYGEN LLC or its officers, directors, agents, and employees, be liable to you under this Agreement or otherwise, regardless of the form of claim or action, in an amount that exceeds the greater of (a) the amount you have paid for your subscriptions for the Software under this Agreement in the preceding 12 months or (b) $100. In no event will OCCYGEN LLC or its officers, directors, agents, and employees, be liable to you for consequential, exemplary, incidental, or indirect damages or costs (including legal fees and expenses) or loss of goodwill or profit in connection with the Software or this Agreement, even if OCCYGEN LLC has been advised of the possibility of such damages or costs. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so this paragraph may not apply to you.
GOVERNING LAW AND LANGUAGE. This Agreement is governed by the laws of the state of Georgia, USA, without regard to choice or conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The official language of this Agreement is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.
(a) If you are a resident of, or a company organized under a state or territory of, the United States, then all disputes regarding this Agreement will be settled exclusively in any court of competent jurisdiction located in Fulton County, Georgia. Each party hereby consents and submits to the in personam jurisdiction of such courts. Each party hereby waives any objection based on forum non conveniens and any objection to venue of any action instituted under this Agreement to the extent that an action is brought in the courts identified above.
(b) Otherwise, all disputes regarding this Agreement shall be finally resolved by binding arbitration before a single arbitrator pursuant to the then-existing Rules of Conciliation and Arbitration (“Rules”), and under the auspices, of the International Chamber of Commerce (“ICC”). The arbitrator shall be knowledgeable in the chosen law and the software industry. At either party’s request, the arbitrator shall give a written opinion stating the factual basis and legal reasoning for the decision. The arbitrator shall have the authority to determine issues of arbitrability and to award damages as permitted by this Agreement. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. The arbitration proceedings will take place in Atlanta, Georgia. Judgment on the arbitration award may be entered in any court having jurisdiction.
(c) Notwithstanding the foregoing, OCCYGEN LLC may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief) as necessary to enforce its rights in its intellectual property.
LIMITATION OF ACTIONS. No action arising out of this Agreement, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.
EXPORT COMPLIANCE. The Software may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you as an individual and your organization are not named on any U.S. government denied-party list. You shall not use or export the Software in violation of any U.S. export law or regulation.
USE OF YOUR NAME AND TRADEMARKS. You grant OCCYGEN LLC the nonexclusive, worldwide license to use your and your organization’s name, logos, and trademarks (“Your Marks”) to identify you as a OCCYGEN LLC user via the OCCYGEN LLC Web site and otherwise. You retain all rights in Your Marks.
U.S. GOVERNMENT END-USE PROVISIONS. The following applies to all acquisitions of the Software and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Software and documentation and services utilizing the Software and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Software and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Software and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.
MISCELLANEOUS. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. No waiver or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of the parties. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any provision of this Agreement requires judicial interpretation, this Agreement is not to be more strictly construed against one party than the other. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. You may not assign, sublicense, or transfer this Agreement without the prior written consent of OCCYGEN LLC. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations here under is null and void.
GLOSSARY. Below are some defined terms used in this Agreement. Other terms may be defined in context.
“Affiliate” means any entity that controls, is controlled by, or is under common control with you, where “control” means ownership of at least 50% of the voting stock of such entity.
“Admin User” means a User who is your contact for purposes of controlling your OCCYGEN LLC account.
“Client” means a person or entity who receives your testing services and the resulting output and who has separately downloaded and licensed the Software from OCCYGEN LLC.
“Documentation” means the product documentation that accompanies the Software or is made available at https://docs.qacoverage.com.
“Floating License” means a license that is tied to one parallel usage session in the case of QACOVERAGE in each case enables use for a concurrent number of Users or Machines.
“Machine” means a single computer operated by you (or your Organization) on which you may run the Software.
“Node-locked License” means a license of QACOVERAGE that is tied to one specific Machine. This license applies for physical or virtual Machines with fixed hardware specifications in each execution session.
“Offline Mode” means that an instance of QACOVERAGE is used offline on a Machine within your environment.
“Online Mode” means that an instance of QACOVERAGE is installed on a Machine with online access, including for activation, support and updates.
“Plugins” means those certain plugins approved for use with the QACOVERAG made available by OCCYGEN LLC through the OCCYGEN LLC Store or embedded in the enterprise version of the QACOVERAGE Enterprise.
“Project” means a testing project for your organization or one of your Clients.
“Software” means QACOVERAGE.
“Test Case” means a test script created using QACOVERAGE and designed to execute tests with respect to a particular Project.
“User” means a named individual identified by an email address who is either your employee or Your Contractor and whom the Admin User has invited to participate in a Project through your QACoverage account.
“Your Contractors” means your independent contractors and supplemental personnel who provide services to you.