DIFFBLUE END USER LICENSE AGREEMENT (EULA)

This End User License Agreement including any documents referenced in it (collectively “EULA”) is between you and Diffblue Limited (“Diffblue”) and governs your use of the Diffblue Product.

1. Ordering and Delivery

1.1 Your order of the Diffblue Product will be complete once you sign and submit the Order Form prepared by Diffblue which sets out the Diffblue Product and any Services ordered, the Subscription Term, Fees and any specific terms and conditions for the Diffblue Product and/or Services ordered.

1.2 Following receipt of the complete and signed Order Form from you, the Diffblue Product will be delivered to you by electronic delivery and is deemed delivered and accepted by you on the date that it is made available to you for download. You agree to be bound by the terms of this EULA and the terms of this EULA from the acceptance date. If you do not have authority to agree to this EULA or you do not agree with its terms, then you must not download or use the Diffblue Product.

1.3 You are responsible for installing and configuring the Diffblue Product using the Documentation provided unless you purchase Services from Diffblue.

2. Ownership and Licence

2.1 Subject to your payment of the fees when due and your compliance with this EULA, Diffblue grants you a non-exclusive, non-sublicensable, non-transferable, limited term licence 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. 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.

2.2 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 EULA, (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.

2.3 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. Limitations and Restrictions

3.1 You must not: (i) publicly display, publicly perform, translate or create derivative works of the Diffblue Product; (ii) (except as expressly provided in this clause) 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 EULA or the relevant Order Form.

3.2 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 EULA; and (iii) you assume liability for acts and omissions of the Affiliates and service providers.

4. Updates and Upgrades

4.1 Diffblue will provide Updates for the Diffblue Product during the Subscription Term in accordance with its normal Update cycle. Upgrades may be provided at Diffblue’s discretion, or otherwise available as an option for an additional subscription fee.

4.2 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.

5. Audit

Diffblue (or its third-party auditor) may audit your facilities and records to ensure that your use of the Diffblue Product is in compliance with this EULA. 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.

6.1 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 EULA 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 EULA 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 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).

7. Data Protection

7.1 Diffblue processes certain personal data for the purposes outlined in the privacy notice at https://www.diffblue.com/privacy/. 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, 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.

7.2 The Diffblue Product does not collect personally identifiable information but may collect anonymized usage data to assist product development. You may disable such data collection if you require.

8. Warranty

8.1 For a period of thirty (30) days from the commencement of the initial Subscription Term (the “Warranty Period”), Diffblue warrants to you that the Diffblue Product, when used in accordance with the terms of this EULA and the Documentation, will operate in conformity with the Documentation. If you notify Diffblue in writing of any suspected breach of the warranty during the Warranty Period, Diffblue shall, at Diffblue’s sole option, and as your sole and exclusive remedy: (i) repair or replace the Diffblue Product within a reasonable period, or (iii) terminate your subscription to the Diffblue Product and provide a pro rata refund of fees paid for the period after termination. A repaired or replaced Diffblue Product shall be warranted for the remainder of the original Warranty Period only.

8.2 The warranty in this Clause 8 shall not apply if in Diffblue’s reasonable opinion: (i) the non-conformity cannot be verified and replicated by Diffblue; (ii) the non-conformity is due to issues, deficiencies or incompatibilities with your IT system, network, materials or other software, or your negligence, misuse or abuse of the Diffblue Product; (iii) you have used the Diffblue Product inconsistently with this EULA or the Documentation; (iv) the Diffblue Product has been modified or altered in any way except by Diffblue; (v) you have not installed Updates made available by Diffblue or taken actions recommended by Diffblue; or (vi) the issue otherwise results from a cause outside of Diffblue’s reasonable control.

8.3 Except for the express warranty in Clause 8.1, Diffblue (and its suppliers, licensors and contributors) makes no other warranties conditions representations or undertakings of any kind and hereby disclaims all other warranties, whether express, implied or statutory, including without limitation the implied warranties relating to satisfactory quality, merchantability, quality, fitness for a particular purpose, ability to achieve a particular result and reasonable care and skill which are excluded to the fullest extent permitted by applicable law. Diffblue does not warrant that the Diffblue Product, Documentation or Services will be provided error free, will meet your requirements, will operate without interruption, will identify all vulnerabilities or will identify all unit tests. To the extent that Diffblue cannot disclaim any such warranty under applicable law, the scope and duration of such warranty will be the minimum required under such law.

9. Limitation of Liability.

9.1 Subject to Clause 9.3, 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.

9.2 Subject to sections 9.1 and 9.3, 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 in the twelve (12) months preceding the event giving rise to the claim.

9.3 Nothing in this agreement shall exclude or limit: (i) a party’s liability for death or personal injury caused by its negligence; (ii) a party’s liability for fraud or fraudulent misrepresentation; or (iii) any other matter in respect of which it would be unlawful to exclude or restrict liability.

10. Mutual Indemnifications

10.1 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. 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. Diffblue will have no obligation under this Clause 10 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 EULA, 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 set out above.

10.2 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 14.

10.3 The indemnifications set out in clause 10.1 and 10.2(i) and (ii) are subject to the indemnified party: (i) notifying the indemnifying party promptly in writing of any actual or threatened claims; (ii) not make any admission of liability, agreement or compromise without the prior written consent of the indemnifying party; (iii) giving the indemnifying party 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 indemnifying party’s expense. An indemnified party may also participate in the defence with counsel of its own choice at its own expense.

10.4 This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described Clause 10.1 and in Clause 10.2(i) and (ii).

11. Term and Termination

11.1 The terms of this EULA come into force on the date that you download the Diffblue Product and shall remain in force until all Subscription Terms have expired or been terminated and all Services have been completed or terminated.

11.2 The Subscription Term starts on the start date set out in the Order Form. Subscriptions automatically renew for the same Subscription Term unless either party gives written notice of termination at least thirty (30) days prior to the expiry of the then current Subscription Term.

11.3 Either party may terminate this EULA immediately for cause upon written notice if (i) the other party commits a material breach of this EULA or the terms in 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; or (ii) the other party becomes the subject of a petition in bankruptcy or any other proceeding (whether voluntary or involuntary), relating to insolvency, administration, receivership, administrative receivership, liquidation or assignment for the benefit of creditors or takes or suffers any similar or analogous procedure, action or event in consequence of debt in any jurisdiction.

11.4 Diffblue may terminate or suspend provision of Services and/or your use of the DIffblue Product immediately upon written notice if you fail to pay any amount due on the due date and you remain in default fourteen (14) days after being notified to remedy such non-payment.

11.5 Upon termination for whatever reason, you must immediately cease use, and destroy all copies, of the Diffblue Product and any Documentation; we shall each return or destroy Confidential Information belonging to the other. If you terminate on Diffblue’s material breach, we shall refund to you the pre-paid portion of any fees for the period from the date of termination to the end of the Subscription Term. If Diffblue terminates on your material breach you will pay Diffblue any unpaid fees for the period from the date of termination to the end of the Subscription Term.

12. 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.

13. Third Party Rights.

This EULA does not grant any benefits to any third parties and no person other than a party to the EULA can enforce or take the benefit of any of its terms under the Contracts (Rights of Third Parties) Act 1999 (as amended from time to time). The rights of a party to terminate, rescind or agree any variation, waiver or settlement under this EULA is not subject to the consent of any person that is not a party to this EULA.

14. 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 or organisation in the embargoed country list (currently the Crimea Region of the Ukraine, Cuba, Iran, Syria, Sudan, South Sudan or North Korea); or (iii) otherwise in violation of any United States or United Kingdom export law or regulation.

15. Anti-bribery.

Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this EULA. The parties shall comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption including without limitation the Bribery Act 2010 (as amended from time to time). Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

16. Assignment.

Neither party may assign any of its rights or obligations in this EULA or under any Order Form, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this EULA in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this EULA (and all Order Forms) upon written notice. Subject to the foregoing, this EULA will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

17. Waivers.

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

18. Severability.

If any provision of this EULA 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 18 shall not affect the validity and enforceability of the rest of this EULA.

19. 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.

20. Entire Agreement.

The Order Form and the terms and conditions of this EULA and any document referenced in it 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. In the event of any conflict between the terms of this EULA and the Order Form, the Order Form shall prevail.

21. Variation.

This EULA may only be amended by a written document signed by the authorised representatives of both parties.

22. Governing Law and Jurisdiction.

This EULA 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. 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 EULA or its subject matter or formation (including but not limited to non-contractual disputes or claims). Nothing in this Clause 23 will prevent either party from seeking injunctive relief, protecting its Intellectual Property Rights and Confidential Information, or Diffblue from recovering overdue payments from any court of competent jurisdiction.

23. Definitions

“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.

“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.

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

“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.

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

“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.

“Intellectual 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.

“Order Form” means an order form executed by the parties describing the Diffblue Product and Services and referencing this EULA.

“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.

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

“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).

“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).

Diffblue EULA v 14.02.20

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