Software License and Services Agreement

September 16, 2023

Thank you for using Bowtie!

Installation and use of the Bowtie Software, and the provision of Services in connection therewith, are subject to this software license and services agreement (“Agreement”). The Bowtie Software and Services are provided by Bowtie Works, Inc., (“Bowtie”) a Delaware corporation. By using the Bowtie Software or receiving the Services, the individual or entity (“Customer” or “You” or “Your”) using the Software or receiving the Services agrees to be bound by this Agreement.

1 Definitions

1.1 “Affiliate” means any present or future entity controlling, controlled by, or under common control with, a party.

1.2 “API” means rules and specifications that define how software components interact with each other. APIs allow different software applications to communicate with each other, or to allow developers to access the functionality of software applications.

1.3 “Software” means any Bowtie proprietary software, tool, or binary code provided to Customer, as well as any copies made by or on Customer’s behalf. The term “Software” also includes any Updates.

1.4 “Services” means those services Bowtie provides to Customer as identified on a Quote, Order, or SOW, and may include technical support, professional services, and other optional services that Customer may purchase.

1.5 “Statement of Work” (“SOW”) means a description of the purpose and scope of services that Bowtie will provide to Customer.

1.6 “Documentation” means user guides, instructions, and other materials, in any form, that describe the capabilities, specifications, and functionality of the Software, as updated from time to time, made available at https://docs.bowtie.works.

1.7 “Intellectual Property Rights" means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how, moral rights, trade secrets, and all other intellectual or industrial property, including all associated applications, registrations, renewals, and extensions of those rights.

1.8 “User” means the individual end user of the Software.

1.9 “Updates” means minor updates to a version of the Software, major upgrades or new versions of the Software, and other modifications, enhancements, or bug fixes.

1.10 “Test Software” means Bowtie Software provided to Customer for a limited term in order to evaluate the software for trial purposes.

1.11 “Order” means a purchase order, schedule, or other ordering or purchasing document issued by Customer, if applicable, indicating a promise to pay and acceptance of a then-current Quote. Order also includes a Quote signed by Customer and online orders You make through the Bowtie website. All Orders are subject to this Agreement.

1.12 “Quote” means the system-generated offer from Bowtie that identifies the Software and Services Customer is ordering, usage quantities, applicable term length, and applicable fees.

1.13 “Effective Date” means either the date of last signature below, date of last signature on the Quote or Order, or the date that You click to accept the Agreement.

2 Software License

2.1 License Grant

Bowtie hereby grants Customer a revocable, non-exclusive, non-transferable (except as otherwise stated in this Agreement), and non-sublicensable license to copy, install, and use the Bowtie Software by Users in accordance with the Bowtie Documentation and pursuant to an active Order. The Bowtie Software is comprised, in part, of open source or third party software, each of which may have additional or different terms concerning licensing or usage.

2.2 Test Software

Test Software may only be used for the term and purpose agreed to by the parties. In all cases, Test Software is provided “AS IS” without warranty of any kind. Bowtie expressly disclaims all warranties, indemnities, and all other liabilities with regard to Customer use of Test Software. Test Software is for non-production use only and Bowtie may terminate Your use of Test Software at any time by providing You with written notice of termination.

3 Services

3.1 No Works for Hire. This Agreement governs Bowties’s provision of Services and all Statements of Work between the parties. You acknowledge that we are not performing creative work or custom software development in connection with any of the Services. Any creative work or custom development work must be outlined in a separate written agreement.

3.2 No Access to Customer Systems. Bowtie will not have access to Your systems as part of any Services unless the Parties so agree in writing.

4 Payment Terms

4.1 Net 30

Unless otherwise stated in the relevant Order, all invoices for purchases You make are due and payable 30 days from the date of invoice. You will pay fees and applicable taxes for the Software as set forth on the applicable Order.

4.2 Service Fees

Services fees will be invoiced as such services are provided, on a monthly basis or as otherwise provided in the applicable Statement of Work. Bowtie will not be entitled to be reimbursed for travel, living, or other expenses incurred in the performance of this Agreement unless provided in the Order or a Statement of Work, or otherwise pre-approved by Customer in writing. For reimbursed expenses, Bowtie will provide Customer with copies of receipts and other customary documentation.

5 Restrictions on Use of Software

Customer will not, and will not permit Affiliates or others, to:

(a) lease, lend, loan, rent, resell, sell, sublicence, transfer or otherwise make the Software, its features, or functionality available to any third party for any reason;

(b) use or permit the Software to be used to perform services for third parties, whether as a service bureau, as software-as-a-service, on a time sharing basis, or otherwise;

(c) adapt, alter, modify, translate, combine with other software other than through standard interfaces for permitted uses under this Agreement, or prepare derivative works based in whole or in part on the Software;

(d) alter or remove any proprietary notices from the Software or Documentation;

(e) use the Software to develop products, systems, or services like or competitive with the Software;

(f) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, non-public API, techniques, processes, algorithms, know-how, or other information from the binary code portions of the Software by any means whatsoever, unless this restriction is prohibited by law;

(g) use the Software for any unlawful purpose or activity;

(h) use the Software in any circumstances where failure could lead to death, personal injury, or environmental damage, and You further acknowledge that the Software is not designed or intended for such use.

6 Intellectual Property

6.1 Proprietary Software

The Software are protected by copyright, trademark, and other U.S. and foreign laws. Except as set forth herein, this Agreement does not grant You any right, title, or interest in the Software, Bowtie trademarks, logos, and other brand features.

6.2 Feedback

You may provide suggestions, recommendations, or feedback about the Software, Test Software, or other aspects of Bowtie products and services (“Feedback”). If You provide Feedback, we may use it without any obligation to You.

7 Warranties

7.1 Mutual Warranty

Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

7.2 Software Warranty

Bowtie warrants that (a) we own or have the right to license the Software and (b) the Software will substantially conform to the Documentation. These warranties are void if the Software is modified, combined with other third-party software, systems, or services, or used other than as provided in the Documentation or this Agreement.

7.3 Warranty Remedies

If Customer believes the warranty stated in this Section has been breached, Customer must notify Bowtie of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and Bowtie will promptly correct the non-conformity at its own expense if a breach of this warranty occurred. Your sole remedy and Bowtie’s sole liability for our breach of warranties under this section will be to correct the non-conformity.

7.4 Disclaimer of Warranties

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER.  BOWTIE EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR THAT THE SOFTWARE WILL BE ERROR-FREE.

8 Limitation of Liability

8.1 Waiver of Consequential Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOST PROFITS OR LOST MONIES, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

8.2 Limitation of Monetary Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT AND ALL ORDERS SHALL BE LIMITED TO THE TOTAL FEES PAID OR PAYABLE TO BOWTIE FOR THE APPLICABLE PRODUCT GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST INCIDENT GIVING RISE TO SUCH LIABILITY.

9 Indemnification

9.1 Indemnification by Bowtie

Subject to Section 8  (Limitation of Liability), Bowtie will indemnify Customer from and against any claim against Customer by reason of Customer’s use of the Software as permitted hereunder, brought by a third party alleging that the Software infringes or misappropriates that third party’s valid United States or European Union patent, copyright, trademark, or trade secret.  Bowtie shall, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Bowtie for such defense.  If the Software, or parts thereof, become, or in Bowitie’s opinion may become, the subject of an infringement claim, Bowtie may, at its option: (a) procure for Customer the right to continue using the Software as set forth herein; (b) replace or modify the Software to make it non-infringing, provided that such replacement or modification does not compromise Bowtie’s obligations under this Agreement; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Bowtie, terminate this Agreement and the applicable Order and refund Customer, on a pro-rated basis, any pre-paid Fees for the corresponding unused portion of the Term. Bowtie will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by: (i) Customer’s use of the Software not in accordance with the Documentation; (ii) modification of a Software by anyone other than Bowtie; or (iii) the combination, operation, or use of any Software with other hardware or software not provided by Bowtie where the Software would not by itself be infringing absent such combination, operation, or use. THIS SECTION 9.1  STATES BOWTIE’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE.

9.2 Indemnification by Customer

Customer will defend and indemnify Bowtie from and against any claim brought by a third party against Bowtie arising from or related to Customer’s violation of Section 5  (Restrictions on Use of Software) of this Agreement.

9.3 Indemnity Procedure

The indemnification obligations in this Section shall be subject to the indemnified party:  (a) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (b) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (c) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.

10 Term and Termination

10.1 Term

This Agreement is effective on the earlier of the Effective Date or the date you begin using the Software, and will remain in effect for the term indicated in an Order or Quote plus any renewal term(s) (unless extended by us in our sole discretion) or otherwise terminated as permitted in this Section.

10.2 Termination by Customer  

You may terminate this Agreement or any Services at any time by giving us 30 days written notice and by paying any outstanding fees for the Software and Services owed for the balance of the then current Term.

10.3 Mutual Termination

Either party may terminate this Agreement if the other party fails to cure any material breach of this Agreement (including Your failure to pay applicable fees when due) within 30 days of receiving written notice.

10.4 Effect of Termination

Upon termination for any reason, You will cease using the Software and destroy all copies of the Software and Documentation.

11 Export Compliance and Commercial Item Software

11.1 Export Compliance

The Software or components of the Software which Bowtie may provide or make available to Customer may be subject to United States export control and economic sanctions laws and other foreign trade controls.  The parties agree to comply with applicable U.S. and foreign export controls, economic sanctions, and other trade controls.

11.2 Commercial Item Software

The Software and Documentation are “commercial items”, “commercial computer software” and “commercial computer software documentation,” pursuant to DFAR section 227.7202 and FAR section 12.212, as applicable.  All Software and Documentation are and were developed solely at private expense. Any use, modification, reproduction, release, performance, display, or disclosure of the Software and Documentation by the United States Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.

12 General Provisions

12.1 Assignment

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld), except that either party may assign this Agreement in its entirety, without the consent of the other party, to (a) an Affiliate; or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section 12.1 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

12.2 Relationship of the Parties

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

12.3 Force Majeure

Neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is due to a Force Majeure Event. The party affected shall be relieved from its obligations (or part thereof) for the time that the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event.

12.4 Governing Law and Venue

This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act. Except if prohibited by applicable law, in relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement, each party irrevocably submits to the exclusive venue and personal jurisdiction of the state courts located in Santa Clara County, California, and the federal courts located in the Northern District of California.

12.5 Notices

All notices required to be sent hereunder shall be in writing, addressed to receiving party’s current business contact, if known, with a cc:  to the Legal Department of the receiving party, and sent to the party’s address as listed in this Agreement, or as updated by either party by written notice.  Notices shall be effective upon receipt and shall be deemed to be received as follows:  (a) if personally delivered by courier, when delivered; or (b) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address.

12.6 Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.

12.7 Waiver

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

12.8 Translations

If this Agreement is translated into languages other than English, only the English version will control.

12.9 Headings

The headings are for convenience only and do not affect the interpretation of this Agreement.

12.10 Counterparts

This Agreement may be executed by electronic signature and in counterparts, which together constitute one binding agreement.

12.11 Entire Agreement

This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement. No terms or conditions set forth on any Customer purchase order, preprinted form, or other document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.