“CUSTOMER” SHALL MEAN THE CUSTOMER IDENTIFIED IN AND LOCATED AT THE ADDRESS STATED IN THE ORDER SCHEDULE AND / OR STATEMENT OF WORK REFERENCING THIS AGREEMENT. “PLA AGREEMENT REFERENCE #” SHALL MEAN THE APPLICABLE REFERENCE NUMBER IDENTIFYING THE PLA BETWEEN COVERITY AND CUSTOMER REFERENCED IN THIS AGREEMENT, AND “PLA EFFECTIVE DATE” MEANS THE EFFECTIVE DATE OF THE PLA.
1. 1. SERVICES.
1.1. Services. Customer may contract to retain Coverity to provide Customer with the services set out in the applicable Statement of Work to this Agreement (collectively the “Services“).
1.2. Statements of Work. Customer will contract for Services by executing one or more written statements of work (each a “Statement of Work“). A Statement of Work shall identify the Services that Customer requests Coverity to provide, the duration of the Services, the fees payable by Customer for the Services, and the payment structure. To be effective, each Statement of Work must reference this Agreement, and be agreed to in writing by an authorized representative of Coverity and Customer, and once so agreed upon will be incorporated herein by reference.
1.3. Performance of Services. Coverity will perform the Services in accordance with the terms and conditions of this Agreement and of each Statement of Work. The Services shall be performed solely in relationship to the licenses to the Software granted by Coverity to Customer under the Product License Agreement executed between the parties on the PLA Effective Date (the “PLA“). The terms of the PLA are incorporated herein by reference. All capitalized terms that are not defined in this Agreement will have the meaning set forth in the PLA. All terms of the PLA and Order Schedule that are not specifically amended herein will remain in full effect. Nothing in this Agreement grants Customer any rights to the Software other than as explicitly stated herein.
1.4. Customer Responsibilities. Customer will provide Coverity with access to Customer’s sites and facilities during Customer’s normal business hours as reasonably required by Coverity to perform the Services. Customer will also make available to Coverity any data, information and any other materials reasonably required by Coverity to perform the Services, including, but not limited to, any data, information or materials specifically identified in the Statement of Work (collectively, “Customer Materials“).
1.5. Relationship of the Parties. Coverity is performing the Services as an independent contractor, not as an employee, agent, joint venturer or partner of Customer. Coverity acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Customer makes available to its employees. Accordingly, for a period of twelve (12) months following the completion of Services, Customer agrees not to directly or indirectly solicit for employment any Coverity employee or subcontractor, provided that a job posting available to the general public shall not be deemed such a solicitation.
2.1. Fees and Expenses. In consideration for the Services, Customer will pay Coverity fees in accordance with the terms set forth in the applicable Statement of Work. In addition, Customer will reimburse Coverity for all reasonable and customary travel, lodging and other related expenses incurred by Coverity or its personnel in connection with the performance of Services in accordance with the terms set forth in the Statement of Work and upon being provided with receipts and other documentation for all such expenses.
2.2. Payment Terms. Unless otherwise agreed to in a specific Statement of Work, Coverity will invoice Customer on a monthly basis for all applicable fees and expenses based on the Services performed by Coverity during the preceding month. Customer will pay each such invoice no later than thirty (30) days after Customer’s receipt thereof. Any invoice not paid within such thirty (30) day period will accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is lower.
2.3. Taxes. All fees and expenses charged by Coverity hereunder are net of sales, use, value added or other applicable taxes, tariffs or duties, payment of which will be the sole responsibility of Customer (excluding any taxes based on Coverity’s net income). Customer will promptly reimburse Coverity for any such amounts that Coverity pays on Customer’s behalf.
3.1. Pre-Existing Material. Material and associated intellectual property rights developed by a party prior to or outside of the scope of a Statement of Work (“Pre-Existing Material“) shall be, as between the parties, owned by the developing party.
3.2. Coverity-Owned Work Product. Coverity shall own all rights, title and interest in methodologies, processes, and documentation, and all intellectual property rights therein, developed during the provision of the Services involving (i) implementation or installation of products of Coverity (the “Software“) into Customer’s environment, (ii) configuration of workflow or reporting capabilities of the Software, and (iii) optimization of the use of the Software in Customer’s environment (collectively, the “Coverity-Owned Work Product“).
3.3. License from Coverity. Coverity hereby grants to Customer, for the License Term listed in the applicable Order Schedule of the Software license granted to Customer under the PLA, a nonexclusive, worldwide, right to use, reproduce and create derivative works of any Pre-Existing Material owned by Coverity and incorporated into deliverables of the Services, and the Coverity-Owned Work Product, for Customer’s internal business purposes to aid in Customer’s use of Software licensed by it.
3.4. Custom Work Product. Subject to Coverity’s underlying rights in the Software, the Pre-Existing Material owned by Coverity, and the Coverity-Owned Work Product, Customer shall own all rights, title and interest in work product, and all intellectual property rights therein, developed during the performance of the Services that is customized to incorporate Customer’s Confidential Information (collectively, “Custom Work Product“). The terms of this Section 3.4 shall apply only to such work product identified as Custom Work Product in the applicable Statement of Work. Unless the applicable Statement of Work specifies performance milestones (“Milestones“) and a process for Customer’s review, testing and acceptance (“Acceptance Process“) of the Custom Work Product, no Milestones or Acceptance Process will apply, and the Custom Work Product shall be deemed accepted when provided to Customer. Customer hereby grants to Coverity a nonexclusive, worldwide, perpetual right to use, reproduce and create derivative works of the Custom Work Product (1) for Coverity’s internal business purposes, and (2) in connection with Coverity’s product or service offerings on the condition that Coverity removes any and all Customer Confidential Information from the Custom Work Product prior to including it in any offering to other parties.
3.5. Other Materials. Subject to Sections 3.1, 3.2, 3.3 and 3.4 above, and unless otherwise set forth in a Statement of Work, the parties shall jointly own in equal undivided interests all right, title and interest in and to any other work product, and all intellectual property rights therein, developed during the performance of the Services (collectively “Jointly Owned Materials“). The terms of this Section 3.5 shall apply only to such work product identified as Jointly Owned Materials in the applicable Statement of Work. The parties agree: (1) to cooperate in the preparation of and execute any and all documents necessary to effectuate such equal and undivided interests thereto, and (2) that each shall have the right to freely use, exploit, protect, maintain, license, transfer and enforce its rights to Jointly Owned Material with no royalty payment or accounting to the other party, provided each party shall bear half of all expenses incurred in securing rights with respect to Jointly Owned Material.
4. CONFIDENTIAL INFORMATION.
4.1. Definition. “Confidential Information” means: (a) for Coverity, Pre-Existing Material and Coverity-owned Work Product; for Customer, Custom Work Product; and for both parties, Jointly Owned Material, (b) each party’s software products, in byte code or binary form, source code form or otherwise, and any authorization keys and passwords delivered in order to operate such products; (c) product documentation, product road maps and development plans, and product pricing information, whether or not any such information is marked or otherwise identified as confidential or proprietary; (d) any information of a party that, if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the other party within thirty (30) days of such disclosure; and (e) the Customer specific terms and pricing set forth in any Statement of Work or this Agreement.
4.2. Exclusions. Confidential Information does not include information that: (a) is or becomes generally known or available to the public through no act or omission of the party receiving Confidential Information (“Receiving Party“); (b) is rightfully known by the Receiving Party prior to receiving such information from the other party (“Disclosing Party“) and without restriction as to use or disclosure; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information and without breach of this Agreement; or (d) is rightfully received by the Receiving Party from a third party without restriction on use or disclosure. The existence of this Agreement and the nature of the business relationship between the parties are not considered Confidential Information.
4.3. Use and Disclosure Restrictions. Receiving Party will not use the Disclosing Party’s Confidential Information except as necessary to exercise the rights granted and perform the obligations under this Agreement, and will not disclose such Confidential Information to any person or entity except to those of its employees and contractors that need to know such Confidential Information for the purpose of performing the obligations set out in this Agreement, provided that each such employee or contractor has signed a written agreement that includes binding use and disclosure restrictions that protect the Confidential Information at least to the same extent as those set forth herein. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors that need to know in order to provide business advice to such party. In addition, each party may disclose the terms and conditions of this Agreement: (i) as required under applicable securities regulations; and (ii) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
4.4. Right of Equitable Relief. The parties acknowledge that violations of the covenants and obligations of this Agreement may cause the non-breaching party irreparable injury for which an adequate remedy at law may not be available. Therefore, the non-breaching party may be entitled to seek all remedies that may be available under equity, including immediate injunctive relief, in addition to whatever remedies may be available at law.
5.1. Services Warranty. Coverity warrants that the Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of ninety (90) days from the completion of the applicable Services (the “Warranty Period“). If during the Warranty Period, Coverity receives written notice from the Customer of non-conformity with the performance of the Services set forth in this Section 5.1, Coverity will, as Customer’s sole and exclusive remedy and Coverity’s entire liability for any breach of the foregoing warranty, at its sole option and expense, promptly re-perform any Services that fail to meet this limited warranty or refund to Customer the fees paid for the non-conforming Services. THE FOREGOING STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR WARRANTY CLAIMS RELATED TO THE SERVICES.
5.2. Warranty Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COVERITY AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY OR COMPLETENESS OF RESULTS, CONFORMANCE WITH DESCRIPTION, AND NONINFRINGEMENT. COVERITY AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
6. EXPIRATION AND TERMINATION.
6.1. Termination. Each party will have the right to terminate this Agreement or any Statement of Work if the other party breaches any material term of this Agreement or Statement of Work, as the case may be, and if such breach is capable of cure, the breaching party fails to cure such breach within thirty (30) days after receipt of written notice thereof. Either party will have the right to terminate this Agreement if the other becomes insolvent or makes an assignment for the benefit of creditors, or a trustee or receiver is appointed for such other party or for a substantial part of its assets, or bankruptcy, reorganization or insolvency proceedings shall be instituted by or against such other party. Termination of this Agreement under this section terminates all Statements of Work entered into hereunder.
6.2. Effect of Termination. Upon the expiration or termination of this Agreement or of any Statement of Work: (i) each party will promptly return to the other party all Confidential Information of the other party in its possession or control; and (ii) Customer will, within thirty (30) days after receipt of Coverity’s invoice, pay all accrued and unpaid fees and expenses.
6.3. Survival. The rights and obligations of the parties contained in Sections 2, 3, 4, 5.2, 6.2, 6.3, 7 and 8 will survive the expiration or termination of this Agreement or any Statement of Work.
7. LIMITATION OF LIABILITY
7.1. Exclusion of Damages. IN NO EVENT WILL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS, REVENUE, GOODWILL, ANTICIPATED SAVINGS) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR ANY WORK PRODUCT PROVIDED HEREUNDER, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), FAILURE OF A REMEDY TO ACCOMPLISH ITS PURPOSE, STRICT LIABLITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The Customer may have other rights under applicable mandatory local laws. This Agreement does not change the Customer’s rights under applicable mandatory local laws if such laws do not permit it to do so.
7.2. Cap on Liability. IN NO EVENT WILL COVERITY OR ITS SUPPLIERS’ AGGREGATE LIABLITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID TO COVERITY BY CUSTOMER UNDER THE STATEMENT OF WORK GIVING RISE TO ANY LIABILITY HEREUNDER.
8. GENERAL PROVISIONS.
8.1. Assignment. The Customer shall not assign this Agreement, in whole or in part, by operation of law or otherwise. Any attempt to assign this Agreement without such consent will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
8.2. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California excluding that body of laws known as conflicts of law. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
8.3. Notices. All notices required or permitted under this Agreement will be in writing. Notices will be effective upon delivery if delivered in person and upon mailing if delivered by courier service, overnight delivery services or by a form of certified or express mail. Notices affecting this Agreement, as a whole will be sent to the address set forth above, if any, or to such other address of a party as such party may identify in writing; notices related to a particular transaction will be sent to the primary corporate address set forth in the Statement of Work or to such other address as the Customer or Coverity may identify the other party in writing.
8.4. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, natural disasters or governmental action.
8.5. Entire Agreement; Modification; Interpretation. This Agreement, including all accepted Statement of Works referencing this Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. The Customer agrees that additional or different terms on the Customer’s purchase order shall not apply. Failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of this Agreement will be effective only if in writing and signed by Customer and an authorized representative of Coverity. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. The word “including” when used in this Agreement will be including without limitation of the generality of any description, definition, term or phrase preceding that word.
END OF TERMS