DIFFBLUE END USER LICENSE AGREEMENT (EULA)

This End User License Agreement (the “Agreement”) is entered into by and between Diffblue Limited, a company registered in England number 09958102, with its registered office and principal place of business at Ramsey House, 10 St. Ebbes Street, Oxford, OX1 1PT, UK (“Diffblue”) and You. “You” and “Your” means the individual or legal entity licensing the Software under this EULA. “Use” or “Using” means to download, install, activate, access or otherwise use the Diffblue Product. By Using the Diffblue Product, You agree to be bound by the terms of the EULA. If you are entering into this EULA on behalf of an entity, you represent that you have authority to bind that entity. If you do not have such authority or you do not agree to the terms of the EULA, neither you nor the entity may Use the Software and it may be returned within thirty (30) days of the date you acquired the Diffblue Product.

WHEREAS the parties desire to establish the terms and conditions under which Diffblue licenses software to you.

1. Definitions

1.1 “Affiliate” means any entity controlling, controlled by, or under common control with a party. An entity is deemed to "control" if it owns, directly or indirectly, in excess of 50% of voting power, issued share capital or other securities of the entity.

1.2 “Confidential Information” means any information expressly identified as confidential or which would reasonably be considered confidential or proprietary under the circumstances, including but not limited to product roadmaps, source code, know-how and trade secrets. Without limiting the foregoing, the Diffblue Product, Documentation and Services (including any deliverables of such Services such as training materials) shall be deemed the Confidential Information of Diffblue, and the Customer Content shall be deemed to be your Confidential Information.

1.3 “Customer Content” means code owned by you or your Affiliates that you run through the Diffblue Product.

1.4 “Diffblue Product” means the software program (in object code form) licensed to you by Diffblue, as identified on the Order, and any Upgrades or Updates that Diffblue provides to you.

1.5 “Documentation” means the end-user documentation for the Diffblue Product as made commercially available and provided by Diffblue.

1.6 “Entitlement” means the number of instances or other applicable units for which you are licensed to use the Diffblue Product, as specified on the relevant Order Form.

1.7 “Evaluation Product” If you license the Software or receive Diffblue Product for evaluation purposes or other limited, temporary use as authorized by Diffblue.

1.8Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

1.9Order Form” means an order form executed by the parties describing the Diffblue Product and Services.

1.10 Services” means training, installation, configuration or other services ancillary to the Diffblue Product which are purchased by you, as specified on the relevant Order Form.

1.11Subscription Term” means the term of the license to the Diffblue Product, as specified on the relevant Order Form.

1.12 “Update” means a version or release of the Diffblue Product intended to have updated functionality, a software maintenance update, a patch or a bug-fix (as indicated by a number change to the right of the decimal point e.g. v 1.1, 1.2, 1.3).

1.13 “Upgrade” means a version or release of the Diffblue Product encompassing substantially new or enhanced features or functionality (as indicated by a number change to the left of the decimal point e.g. v 1.0, 2.0, 3.0).

1.14 References to “including” mean “including without limitation”.

2. Scope

2.1 Order Forms. Each Order Form describes the Diffblue Product and Services ordered, the Entitlement, the Subscription Term, the corresponding fees and any additional terms and conditions specific to such Diffblue Product and Services. The Order Form is not binding until signed by both parties, whereupon it shall be incorporated into this Agreement. In the event of conflict, the terms and conditions of an Order Form will prevail over this Agreement with respect to such Order Form only.

2.2 Delivery. Delivery of the Diffblue Product is by electronic means and will be completed when Diffblue makes the Diffblue Product available to you.

2.3 Services. You are responsible for installing, configuring and learning to use the Diffblue Product using the Documentation provided, unless you have purchased such Services from Diffblue (as indicated on the relevant Order Form).

2.4 Entitlement. Your usage of the Diffblue Product must not exceed the Entitlement. If you wish to increase your usage, you must first purchase a subscription for the additional Entitlement for the remainder of the then current Subscription Term.

2.5 Changes. Diffblue may change or retire a Diffblue Product or version at any time. In the event of retirement, you may continue to (i) use the Diffblue Product or version until your current Subscription Term ends; and (ii) receive support for such Diffblue Product or version for a period of ninety (90) days (or until your current Subscription Term ends if earlier). Unless required by applicable law, Diffblue will not provide a refund for changes or retirements.

3. License

3.1 License Grant. Subject to your payment of the fees when due and your compliance with the terms and conditions of this Agreement, Diffblue grants you a non-exclusive, non-sublicensable, non-transferable, limited term license to use the Diffblue Product during the Subscription Term solely for your internal business purposes on code developed by you and your Affiliates. You may make one copy of the Diffblue Product for back-up purposes. The Diffblue Product may also contain third party components with separate notices and licensing terms, as specified in the Documentation.

3.2 Restrictions. You must not: (i) publicly display, publicly perform, translate or create derivative works of the Diffblue Product; (ii) (except as expressly provided by Clause 3.3) distribute, sell, sublicense, lease, rent, loan, assign, transfer or otherwise make the Diffblue Product available to any third party or use the Diffblue Product for the benefit of any third party; (iii) (except to the extent that this restriction is prohibited by applicable law) modify, adapt, alter, copy, reverse engineer, decompile, make error corrections, disassemble, or otherwise attempt to derive the source code for the Diffblue Product in whole or in part; (iv) disclose any performance information or analysis (including benchmarks) relating to the Diffblue Product to a third party; (v) remove, alter, obscure or destroy any proprietary notices on the Diffblue Product, or produce copies of the Diffblue Product which do not contain such notices; (vi) use the Diffblue Product as a consumer; or (vii) use the Diffblue Product in any manner other than as described in the Documentation, this Agreement or the relevant Order Form.

3.3 Third Parties. Diffblue agrees that your Affiliates and your service providers may use the Diffblue Product provided that: (i) use by service providers is limited solely to providing services to you and your Affiliates; (ii) the Affiliates and service providers comply with this Agreement; and (iii) you assume liability for acts and omissions of the Affiliates and service providers.

3.4 Ownership. The Diffblue Product, Services and Documentation, and all Intellectual Property Rights therein, are and shall remain the exclusive property of Diffblue (and its licensors and contributors). Except for the rights expressly granted under this Agreement, (i) Diffblue (and its licensors and contributors) reserves all right, title and interest in and to the Diffblue Product, Services, Documentation and all Intellectual Property Rights therein, and (ii) no right, title, interest or license in or to the Diffblue Product, Services, Documentation or any other Intellectual Property Rights is granted, assigned or transferred to you, whether by implication, inducement, estoppel or otherwise. The Diffblue Product is licensed, not sold or given.

3.5 Suggestions. If you provide Diffblue with any suggestions or other input relating to the Diffblue Product, you (i) grant Diffblue an irrevocable, perpetual, royalty-free, sub-licensable and transferable license to use such suggestions and input for any purpose, and (ii) warrant that Diffblue's use of such suggestions and input does not infringe the Intellectual Property Rights of any third party.

3.5 Evaluation License. Your Use of the Evaluation Product is only permitted for the period limited by the license or otherwise stated by Diffblue in writing. If no evaluation period is identified by the license key or in writing, then the evaluation license is valid for thirty (30) days from the date the Software or Diffblue product is made available to you. You will be invoiced for the list price of the Evaluation Product if you fail to return or stop using it by the end of the evaluation period. The Evaluation Product is licensed “AS-IS” without support or warranty of any kind, expressed or implied. Diffblue will does not assume any liability arising from any use of the Evaluation Product. You may not publish any results of benchmark tests run on the Evaluation Product without first obtaining written approval from Diffblue. You authorize Diffblue to use any feedback or ideas you provide Diffblue in connection with your use of the Evaluation Product.

4. Term

4.1 Subscription Term. Each Subscription Term automatically renews for successive twelve (12) month periods unless either party gives written notice of termination at least thirty (30) days prior to the expiry of the then current Subscription Term.

4.2 Order Form. Each Order Form commences on execution and continues until the Subscription Term for the Diffblue Product licensed thereunder terminates and any Services purchased thereunder have been performed.

4.3 Agreement Term. This Agreement commences on execution and continues unless and until terminated by either party as expressly permitted herein. Either party may terminate this Agreement immediately upon written notice if (i) all Order Forms executed hereunder have expired; (ii) the other party commits a material breach of this Agreement or an Order Form which is irremediable or (if such breach is remediable) fails to remedy such breach within thirty (30) days after written notice to do so; (iii) the other party threatens to suspend payment of debts, admits inability to pay its debts, or is otherwise unable to pay debts as they fall due, (iv) the other party commences negotiations or enters an arrangement with any creditors with a view to rescheduling debts, (v) a petition is filed, notice given, resolution passed or order made for the winding up of the other party, (vi) an application or order is made for the appointment of an administrator over the other party, (vii) a person becomes entitled to appoint a receiver or a receiver is appointed over the assets of the other party, or (viii) the other party suspends, ceases or threatens to suspend or cease all or a substantial part of its business, or (ix) any other event occurs with respect to the other party that has an effect equivalent or similar to any of the events in sections (iii) to (viii) of this Clause 4.3.

4.4 Termination by Diffblue. Diffblue may terminate this Agreement immediately upon written notice if (i) you fail to pay any amount due under this Agreement or any Order Form on the due date and you remain in default fourteen (14) days after being notified to remedy such non-payment; or (ii) you experience a change of control.

4.5 Suspension. As an alternative to termination under Clauses 4.3(ii) or 4.4(i), Diffblue may (at its discretion) elect to suspend the license grant for the Diffblue Product and the provision of Services until such time as the default or arrears are remedied by you or Diffblue elects to terminate the Agreement. For the avoidance of doubt, the Subscription Term shall continue to be exhausted and fees shall continue to be payable during any such period of suspension.

4.6 Effects of Termination. Upon termination of the Subscription Term, you must immediately (i) pay all fees outstanding under this Agreement; (ii) cease use of the relevant Diffblue Product; (iii) destroy the relevant Diffblue Product and Documentation (and all copies thereof); (iv) return or destroy (as directed by Diffblue) any Diffblue Confidential Information; and (v) certify upon request that you have complied with the foregoing obligations.

4.7 Survival. Clauses 3, 4, 5, 6, 7, 8 and 9 shall survive expiry or termination of this Agreement for any reason.

5. Payment

5.1 Fees. Fees for the Diffblue Product and Services are specified in the relevant Order Form. All fees are exclusive of value added tax, other applicable sales tax, customs duties, export and import clearances, which shall be payable by you as prescribed by applicable law. If any withholding is required by law, you shall gross up such fees in order to leave Diffblue with the same amount as it would be entitled to receive in the absence of any such withholding. Diffblue shall invoice all fees in full in advance, on or after the date of the Order Form (or in the case of a renewal Subscription Term, on or after the renewal date).

5.2 Payments. Payment of all fees shall be made in the currency specified on the Order Form within thirty (30) days of the date of invoice. All fees and expenses paid are non-refundable except as expressly provided herein. Late payments accrue daily interest from the due date until actual payment at four percent per annum above HSBC Bank’s base rate.

5.3 Audit. Diffblue (or a reputable third party auditor designated by Diffblue) may audit your facilities and records to ensure that your use of the Diffblue Product is in compliance with this Agreement. Any such audit will be conducted upon reasonable notice, during normal business hours, and no more than once in any 12 month period. Diffblue shall respect your reasonable policies including safety, data protection, confidentiality and security in conducting such audit, subject to you providing such policies in advance. If the audit reveals any usage of the Diffblue Product in excess of your Entitlement or other non-compliance, you must pay fees for any excess usage at Diffblue’s then current list price and reimburse Diffblue’s costs of conducting the audit.

6. Confidentiality and Data Protection.

6.1 Obligations. A receiving party (the “Recipient”) shall maintain the confidentiality of all Confidential Information of the disclosing party (the “Discloser”) and shall not use such Confidential Information other than as necessary for the performance of its rights and obligations under this Agreement or as otherwise permitted herein. The Recipient shall not disclose Confidential Information to any third party without the Discloser’s prior written consent save for those professional advisors, Affiliates, directors, officers, employees, agents, suppliers and contractors who have entered into a written agreement with the Recipient that is no less protective of the Discloser’s Confidential Information than this Agreement and who have a need to know such information. The Recipient shall assume liability for use of the Confidential Information by such persons. The Recipient shall use the same measures to protect the Discloser’s Confidential Information that it uses to protect its own confidential information, but in no event less than reasonable measures.

6.2 Exclusions. The restrictions of this Clause 6 shall not apply to information that: (i) is independently developed by the Recipient without any access to the Confidential Information of the Discloser; (ii) becomes known to the Recipient, without restriction, from a third party without breach of any confidentiality obligation to the Discloser; (iii) is or comes in the public domain through no act or omission of the Recipient; or (iv) is required to be disclosed by law (provided that the Recipient shall, to the extent legally permitted, provide prompt notice thereof to the Discloser and use reasonable efforts to prevent and restrict public disclosure of such information).

6.3 Personal Data. Diffblue processes certain personal data for the purposes outlined in the privacy notice at https://www.diffblue.com/privacy-notice/. Such purposes include customer account management, financial accounting, sending you communications related to the Diffblue Product, and conducting export control and other compliance checks. Unless expressly agreed otherwise in a separate data processing agreement between the parties, Diffblue is not required to act as a processor on your behalf and you will not submit personal data to Diffblue for processing on your behalf.

6.4 Anonymized Data. Diffblue collect certain anonymized product usage data for the purposes of improving the product, please see outlined in our product privacy notice at https://docs.diffblue.com/cover/user-manual/topics/privacy/privacy-cover-intellij.

7. Limitation of Liability

7.1 EXCLUSION OF LIABILITY. SUBJECT TO CLAUSE 7.3, NEITHER PARTY (NOR THEIR SUPPLIERS, LICENSORS AND CONTRIBUTORS) WILL BE LIABLE UNDER ANY CIRCUMSTANCES WHATSOEVER TO THE OTHER PARTY (OR ANY PERSON CLAIMING UNDER OR THROUGH IT), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSS. IN PARTICULAR, BUT WITHOUT LIMITATION, DIFFBLUE SHALL NOT BE LIABLE FOR (i) ANY LOSS OF PROFITS; (ii) ANY LOSS OR CORRUPTION OF DATA; (iii) ANY LOSS OR CORRUPTION OF COMPUTER SOFTWARE OR SYSTEMS; (iv) ANY LOSS OR DAMAGE TO EQUIPMENT; (v) ANY LOSS OF CONTRACT OR BUSINESS OPPORTUNITY; (vi) ANY BUSINESS INTERRUPTION; (vii) ANY LOSS OF SAVINGS (WHETHER ACTUAL OR ANTICIPATED); (viii) ANY HARM TO REPUTATION OR LOSS OF GOODWILL; (ix) ANY COST OF SUBSTITUTE SOFTWARE, GOODS OR SERVICES.

7.2 LIABILITY CAP. SUBJECT TO SECTIONS 7.1 AND 7.3, NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, WILL EXCEED AN AMOUNT EQUIVALENT TO THE ANNUAL FEES PAYABLE BY YOU FOR THE DIFFBLUE PRODUCT OR SERVICES GIVING RISE TO SUCH LIABILITY.

7.3 NON-EXCLUDED LIABILITIES. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT: (i) YOUR LIABILITY FOR BREACH OF THE OBLIGATIONS UNDER CLAUSES 3, 6, 8.5 OR 8.3; (ii) YOUR OBLIGATION TO PAY FEES FOR THE DIFFBLUE PRODUCT WHEN DUE; (iii) A PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (iv) A PARTY’S LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION; OR (v) ANY OTHER MATTER IN RESPECT OF WHICH IT WOULD BE UNLAWFUL TO EXCLUDE OR RESTRICT LIABILITY.

8. Indemnification

8.1 Diffblue’s Obligation. Subject to Clauses 8.2 to 8.4 inclusive, Diffblue will (i) defend and/or settle at its own expense any action brought against you by a third party, to the extent that such action is based upon a claim that the Diffblue Product licensed hereunder infringes any third party's copyright, database rights and registered trademarks in the United States or the United Kingdom (the “Claim”), and (ii) indemnify you against any costs and damages finally awarded against you that are specifically attributable to such Claim, or those costs and damages agreed to by Diffblue in a monetary settlement of such Claim.

8.2 Your Obligation. You must: (i) notify Diffblue promptly in writing of such Claim; (ii) not make any admission of liability, agreement or compromise without the prior written consent of Diffblue; (iii) give Diffblue sole control of the defence of the Claim and any related counterclaim or settlement negotiations; (iv) provide reasonable cooperation and assistance in such defence, counterclaim and settlement at Diffblue’s expense. You may also participate in the defence with counsel of your own choice at your own expense.

8.3 Remedies. If the Diffblue Product is or is likely to be the subject of a Claim, then Diffblue may (at its option and expense) either (i) procure the right for you to use the affected Diffblue Product; (ii) replace or modify the affected Diffblue Product so that it becomes non-infringing; or (iii) terminate your subscription to the affected Diffblue Product and provide a pro rata refund of fees which relate to the period after termination.

8.4 Exclusions. Diffblue will have no obligation under this Clause 8 or otherwise to the extent that any claim is based upon: (i) third party open source software; (ii) use of the Diffblue Product other than in accordance with this Agreement, the Order Form or the Documentation; (iii) use of the Diffblue Product in combination with any other product, equipment, software or data not provided by Diffblue; (iv) modification of the Diffblue Product by anyone other than Diffblue; or (v) use of the affected Diffblue Product after Diffblue has provided one of the remedies under Clause 8.3. The indemnity given under this Clause 9 shall be your sole and exclusive remedy in respect of any infringement.

8.5 Customer Indemnity. You agree to indemnify and hold Diffblue harmless from: (i) any claim or action alleging that Customer Content or other materials provided by you infringe the Intellectual Property Rights of or breach confidentiality obligations to a third party; (ii) any claim or action alleging that your Customer Content or use of the Diffblue Product breaches applicable laws or regulations; and (iii) any breach of Clause 9.3.

9. General

9.1 Notices. All notices to Diffblue must be sent by registered post or courier to Diffblue’s registered address, with a copy by email to legal@diffblue.com. Diffblue will deliver all notices to your registered address unless you notify Diffblue of an alternative address. Email notices will be effective on delivery and postal or courier notices will be effective two (2) working days from sending.

9.2 Parties. The parties are independent. This Agreement does not create an agency, employment, joint venture, partnership or other relationship. This Agreement does not confer any rights on any person under the Contracts (Rights of Third Parties) Act 1999.

9.3 Export. You must comply with all applicable export and import control laws, regulations, sanctions and trade embargoes of the United States, United Kingdom and foreign jurisdictions in which the Diffblue Product is used. You will not export or re-export the Diffblue Product: (i) without all required United States, United Kingdom and foreign government licenses; or (ii) to any person in the Crimea Region of the Ukraine, Cuba, Iran, Syria, Sudan, South Sudan or North Korea.

9.4 Assignments. You may not assign or transfer any of your rights or obligations under this Agreement. You give general consent that Diffblue may assign, transfer or subcontract all or any of its rights or obligations under this Agreement. This Agreement will bind and inure to the benefit of each party’s permitted successors, transferees and assigns.

9.5 Anti-bribery. Each party warrants that it shall comply with the United Kingdom Bribery Act 2010 and any other applicable anti-bribery and anti-corruption laws.

9.6 Marketing. You agree that Diffblue may from time to time identify you (with your name, logo and/or trade mark) as a Diffblue customer in or on its Web site, sales and marketing materials or press releases.

9.7 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

9.8 Severability. If any provision of this Agreement is deemed to be invalid, unenforceable or illegal, such provision will be modified to achieve the objectives of such provision. If modification is not possible, the relevant provision shall be deleted. Any modification or deletion under this Clause 9.8 shall not affect the validity and enforceability of the rest of this Agreement.

9.9 Force Majeure. Diffblue shall not be liable for any failure or delay in performance caused by reasons beyond its reasonable control, including without limitation: (i) unavailability, reduced performance, failure or delay of a supplier, utility service provider or telecommunications network; (ii) explosion, terrorist attack, war, riot, civil commotion or malicious damage; (iii) compliance with any law or governmental order; (iv) fire, flood, storm, act of God, epidemic or other natural disaster. In such event, the time for performance shall be extended for the period of delay or inability to perform.

9.10 Entire Agreement. The Order Form and the terms and conditions of this Agreement constitute the entire agreement between the parties with respect to the subject matter of the transaction in question, to the exclusion of all other terms and conditions. You expressly agree that the terms and conditions of purchase orders supplied to Diffblue are void and have no legal effect. You further acknowledge and agree that you have not based your purchasing decision on the future availability of any new products, versions and/or features. Nothing in this Clause 9.10 shall limit or exclude any liability for fraud.

9.11 Variation. This Agreement may only be amended by a written document signed by the authorized representatives of both parties.

9.12 Governing Law. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including but not limited to non-contractual disputes or claims) will be governed by the laws of England.

9.13 Jurisdiction. The parties hereby submit to the exclusive jurisdiction of the English court to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including but not limited to non-contractual disputes or claims). You acknowledge that any actual or threatened disclosure of Diffblue Confidential Information or infringement of Diffblue Intellectual Property Rights will constitute immediate and irreparable harm to Diffblue for which monetary damages would be an inadequate remedy and for which Diffblue will be entitled to seek injunctive relief. Nothing in this Clause 9.13 will prevent Diffblue from seeking injunctive relief, protecting its Intellectual Property Rights and Confidential Information, or recovering overdue payments from any court of competent jurisdiction.

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