Directus commercial software license agreement
This Directus Commercial Software License Agreement (the “Agreement”) is between you and the Directus (“Directus” or “we”). If you are agreeing to this Agreement not as an individual but on behalf of your company or other entity for which you are acting (for example, as an employee), then “you” means your entity and you are binding your entity to this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to or use of the Software (as defined below) or (b) the effective date of the first Order referencing this Agreement.
By using or accessing the Software, you indicate your consent to be bound by this Agreement. Unless you are eligible to use the Software pursuant to the Directus BSL, if you have downloaded and intend to self-host the Software for production, you may not use the Software unless you agree to the terms of this Agreement. If you have subscribed for either Directus Standard Cloud or Directus Enterprise Cloud, this Agreement governs your license of the Software and supplements the terms and conditions of the Directus Cloud Services (for Standard Cloud users) or the Directus Master Services Agreement (for Enterprise Cloud Users).
1. Scope of Agreement
1.1. Software. This Agreement governs your right to use the Directus Software as well as any future software products or services ordered by you that reference this Agreement. This Agreement includes each Orderand any other referenced policies and terms in the Order. The Software and its permitted use are furtherdescribed in the Documentation. The term “Software” includes the Documentation unless otherwise specified.
1.2. Cloud Products and Support Services. This Agreement does not apply to Directus’ hosting services (currently designated as “Cloud” deployments) which are provided pursuant to the terms of the Cloud Services Agreement (for users of Standard Cloud) or the Master Services Agreement (for users of Enterprise Cloud). This Agreement does not apply to Directus’ support for the Software or any Additional Services, procurement of which requires a separate Service Level Agreement or Statement of Work.
2. Accounts; Authorized Users
2.1. Account Registration. You must register for an account with us in order to place Orders or access or receive Software. Your registration information must be accurate, current and complete. You must keep your registration current so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your account, including Orders made or projects enabled (which may incur fees).
2.2. Authorized Users. Only Authorized Users may access and use the Software. You are responsible for compliance with this Agreement by all Authorized Users, including what Authorized Users do with your data, and for all fees incurred by Authorized Users (or from adding Authorized Users). All use of Software must be solely for the benefit of you or your Affiliates (except as expressly permitted in Section 2.3 below) and must be within the Technical Limits.
2.3. Secondary Users. As may be further described in the Documentation, certain Software may be used as part of your support (or similar) resources related to your own products or services, e.g., use of the Softwareon an agency basis for your clients that engage you to perform content management services. Subject to the terms and conditions of this Agreement, you may grant your own customers’ end users (“Secondary Users”) rights to use the Software solely so that they may view and interact with such resources. You may not permit Secondary Users to use the Software for purposes unrelated to supporting your own offerings or grantSecondary Users administrator, configuration or similar use of the Software. You may not charge Secondary Usersa specific fee for use of the Software but you may charge an overall fee for your own offerings. You are responsible under Section 2.2 (Authorized Users) for all Secondary Users as “Authorized Users” and are otherwise solely responsible for your own products, support offerings and Secondary relationships. Notwithstanding anything to the contrary in this Agreement, Directus has no direct or indirect warranty,indemnity or other liability or obligations of any kind to Secondary Users.
3. Use of the Software
3.1. Your License Rights. Subject to the terms and conditions of this Agreement and payment of the fees set forth in your Order, Directus grants you a non-exclusive, non-sublicensable and non-transferable license to install and/or use the Software during the applicable License Term in accordance with this Agreement, your applicable Technical Limits, the Documentation and all Laws.
3.2. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt or create derivative works of any part of the Software; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party (except for Secondary Users as contemplated in Section 2.3 above); (c) use the Software for the benefit of any third party (except as contemplated in Section 2.3 above); (d) incorporate the Software into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Software intended to ensure adherence to the Technical Limits; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in the Software; (h) use the Software for competitive analysis or to build competitive products; or (i) encourage or assist any third party to do any of the foregoing.
3.3. Number of Instances. Unless otherwise specified in your Order, for each self-hosted Software license that you purchase, you may install one (1) production instance of the Software on systems owned or operated by you or one of your Authorized Users.
3.4. Your Modifications. Subject to the terms and conditions of this Agreement, for any elements of the Software provided by Directus in source code form (which election shall be made in Directus’ sole and absolute discretion) and to the extent permitted in the Documentation, you may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Software. Any modified source code or Documentation constitutes “Your Modifications”. You may use Your Modifications solely in support of your permitted use of the Software (and only with your own instances of the Software), but you may not distribute the code to Your Modifications to any third party. Notwithstanding anything in this Agreement to the contrary, Directus has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Software.
3.5. Attribution. In any use of the Software, you must not remove, obscure, or alter in any way any attribution to Directus that may exist on user interfaces to the Software.
3.6. System Requirements. If you are self-hosting, you are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. Directus will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by Directus.
3.7. Indemnification by You. You will defend, indemnify and hold harmless Directus from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against Directus (a) arising from or related to your breach of Section 2.3 (Secondary Users) or any claims or disputes brought by Secondary Users arising out of their use of the Software; (b) by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications of the Software) or your breach of Section 3.4 (Your Modifications); (c) by a third party related to your Customer Materials, as defined in Section 6.2; or (d) by a third party relating to any non-Directus content or data used by you or your Secondary Users in connection with the Software. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Directus at your sole expense.
4. Apps and Third-Party Products
4.1. Third Party Products. You (including your Authorized Users) may choose to use or procure other third-party products or services inconnection with the Software, or implementation, customization, training or other services. Your receipt or use ofany third-party products or services is subject to a separate agreement between you and the third-party provider.If you enable or use third-party products or services with the Software, you acknowledge that the third-partyproviders may access or use your data as required for the interoperation of their products and services with theSoftware. This may include transmitting, transferring, modifying or deleting your data, or storing your data onsystems belonging to the third-party providers or other third parties. Any third-party provider’s use of yourdata is subject to the applicable agreement between you and such third-party provider. We are not responsible for any access to or use of your data by third-party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services. You are solely responsible for your decision to permit any third-party provider or third-party product or service to use your data. It is your responsibility to carefully review the agreement between you and the third-party provider, as provided by the applicable third-party provider. DIRECTUS DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.
4.2 Third Party Components. The Software may contain or otherwise make use of software, code or related materials from third parties, including, without limitation, “open source” or “freeware” software (“Third-Party Components”). Third-Party Components may be licensed under additional or other license terms that accompany such Third-Party Components, and You acknowledge and agree that these accompanying license terms govern your use of such Third Party Components. Nothing in this Agreement limits Your rights under, or grants You rights that supersede, the license terms that accompany any Third-Party Components. We provide a list of the Third-Party Components that may be contained in the Software (https://github.com/directus/directus/network/dependencies). If required by any license for a particular Third-Party Component, We make the source code of such Third-Party Component, and any of our modifications to such Third-Party Component, as required, available by written request to Directus at the following address: info@directus.io.
DIRECTUS, ITS SUPPLIERS AND LICENSORS PROVIDE NO WARRANTY OR REMEDY FOR ANY THIRD-PARTY COMPONENT; SUCH THIRD-PARTY COMPONENTS ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," "WITH ALL FAULTS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. DIRECTUS AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE THIRD-PARTY COMPONENTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE, AND ANY WARRANTIES REGARDING THE SECURITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, RELIABILITY, TIMELINESS, AND PERFORMANCE
5. Privacy Terms. Directus may collect certain data and information from you and Secondary Users in connection with your and Secondary Users’ use of the Software and otherwise in connection with this Agreement. All such data and information will be collected and used by Directus in accordance with Directus’ Privacy Policy (https://directus.io/privacy), which you acknowledge. You may disable data collection by the Software through the settings in the Software.
6. Directus Commitments
6.1. Support and Maintenance. If you subscribe for such services or if you are entitled to services in connection with your subscription toEnterprise Cloud, during the period for which you have paid the applicable fees, Directus will provide Support andMaintenance for the Software in accordance with the Directus Service Level Agreement or the Enterprise LevelSupport and Services Agreement (if applicable). Support and Maintenance for Software includes access to NewReleases, if and when available, and any references to “Software” in this Agreement include New Releases that maybe made available to you.
6.2. Additional Services. Subject to this Agreement, you may purchase Additional Services from Directus, such as retained advisory services or cloud services, which Directus will provide to you pursuant to the applicable Order and which will be governed by separate agreements that supplement the terms of this Agreement. Directus will retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments that Directus provides in connection with any Additional Services (“Directus Deliverables”). You may use any Directus Deliverables provided to you only in connection with the Software, subject to the same usage rights and restrictions as for the Software. For clarity, Directus Deliverables are not considered Software, and any Software (including any New Release) is not considered a Directus Deliverable. You agree to provide Directus with reasonable access to your materials, systems, personnel or other resources (including your instances of the Software) as reasonably necessary for Directus’ provision of Additional Services (“Customer Materials”). If you do not provide Directus with timely access to Customer Materials and such materials are required for the provision of Additional Services, Directus’ performance of Additional Services will be excused until you do so. You retain your rights in your Customer Materials, subject to Directus’ ownership of any underlying Software, Directus Deliverables or other Directus Technology. Directus will use Customer Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Customer Materials to provide them to Directus for such purposes.
7. License Term, Returns and Payment
7.1. License Term and Renewals. The License Term, hosting period, Support and Maintenance period (if any), and Additional Services (if any) will be indicated in the Order (as applicable). The License Term and any applicable service periods will commence on the Order date (unless a different start date is designated in the Order) and expire on the expiration date indicated in the Order and/or in your account dashboard. Unless earlier terminated in accordance with this Agreement, each right to use Software will expire at the end of the applicable License Term. Unless your Order indicates “auto renewal”, any renewals must be mutually agreed upon by the parties in writing. All renewals are subject to the pricing schedule in effect at the time of such renewal with respect to both the license and any services.
7.2. Delivery. We may enable your use and/or access to the Software prior to your payment of the applicable fees, but such access shall not modify your obligation to pay the fees that are due for your use of the Software. You are responsible for accessing your account to ensure that you have paid all fees dues and that your Order has been processed. All deliveries under this Agreement will be electronic. For the avoidance of doubt, if you are self-hosting, you are responsible for installation of the Software, and you acknowledge that Directus has no further delivery obligation with respect to the Software after provision of access or download.
7.3. Technical Limits Policy. To ensure the best possible experience for all Directus customers, we enforce Technical Limits. If your usage exceeds the Technical Limits for any reason other than a cyberattack or similar security incident which causes excess usage without your knowledge or authorization, we reserve the right to take corrective action, including but not limited to the throttling of API or suspending/terminating your account. If you exceed your Technical Limits, we may assess overage charges or, if more cost effective for you, modify your subscription tier to increase your Technical Limits and bill you additional fees. Any increases to your Technical Limits will be subject to additional fees, as set forth in the applicable Order.
7.4. Payment. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a purchase order number is required in order for an invoice to be paid, then you must provide such purchase order number to Directus by emailing the purchase order number to sales@directus.io. Other than as expressly set forth in Section 16 (IP Indemnification by Directus), all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional services ordered by you, and excess fees incurred on account of your exceeding Technical Limits, as may be applicable.
7.5. Taxes. Your fees under this Agreement exclude any taxes or duties payable in respect of the Software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Directus, you must pay to Directus the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Directus any such exemption information, and Directus will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
7.6. Withholding Taxes. You will pay all fees net of any applicable withholding taxes. You and Directus will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If Directus qualifies for a tax exemption, or a reduced treaty withholding rate, Directus will provide you with reasonable documentary proof. You will provide Directus reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.
7.7. Future Functionality; Separate Purchases. You acknowledge that the Software license and Additional Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Software licenses and Additional Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Software beyond the current License Term or any New Releases), or dependent on any oral or written public comments made by Directus regarding future functionality or features.
8. License Certifications and Audits. At our request, you agree to provide a signed certification that you are using all Software pursuant to the terms of this Agreement, including in compliance with the Technical Limits. You agree to allow us, or our authorized agent, to audit your use of the Software (including that of your Authorized Users); provided, however, that we recognize that you may not be authorized to grant audit rights with respect to use of the Software by Secondary Users. We will provide you with at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Technical Limits. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Technical Limits, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Directus at law or equity or under this Agreement.
9. Ownership and Feedback. The Software is made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Directus and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to Directus Technology (including the Software). From time to time, you may choose to submit Feedback to us. Directus may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Directus' right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
10. Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Directus Technology and any performance information relating to the Software will be deemed Confidential Information of Directus without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 10. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
11. Term and Termination
11.1. Term. This Agreement is effective as of the Effective Date and continues until expiration of all License Terms, unless earlier terminated as set forth herein.
11.2. Termination for Cause. Either party may terminate this Agreement (including all related Orders) if the other party (a) fails to cureany material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without asuccessor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement,composition or comparable proceeding, or if any such proceeding is instituted against that party (and notdismissed within sixty (60) days thereafter).
11.3. Effects of Termination. Upon any expiration or termination of this Agreement, your license to the Software terminates and you must cease using and delete (or at our request, return) all Software and Confidential Information or other materials of Directus in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. If this Agreement is terminated by you in accordance with Section 11.2 (Termination for Cause), Directus will refund you any prepaid Software fees covering the remainder of the then-current License Term after the effective date of termination. If this Agreement is terminated by Directus in accordance with Section 11.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current License Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to Directus for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
11.4. Survival. The following Sections will survive any termination or expiration of this Agreement: 3.2 (Restrictions), 3.8 (Indemnification by You), 4.1 (Third Party Products), 7.5 (Payment), 7.6 (Taxes), 8 (License Certifications and Audits), 9 (Ownership and Feedback), 10 (Confidentiality), 11 (Term and Termination), 12.3 (Warranty Disclaimer), 13 (Limitations of Liability), 14 (IP Indemnification by Directus) (but solely with respect to claims arising from your use of the Software during the License Term), 16 (Dispute Resolution), 17 (Export Restrictions), and 20 (General Provisions).
12. Warranties and Disclaimer
12.1. General Warranties. You represent and warrant that you have the legal power and authority to enter into this Agreement. If you are an entity, you represent and warrant that this Agreement and each Order is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.
12.2. Virus Warranty. Directus represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to you, will be free of any viruses, malware, or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and Directus’ sole obligation, is to provide a replacement copy of the Software promptly upon notice.
12.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12.2 (VIRUS WARRANTY), ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND DIRECTUS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. DIRECTUS WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF DIRECTUS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER DIRECTUS NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12.2 (VIRUS WARRANTY), THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
13. Limitations of Liability
13.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISINGOUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OFSECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE ORCONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
13.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
13.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Orders (including any additional fees on account of exceeding the Technical Limits), (2) either party’s express indemnification obligations in this Agreement, and (3) your breach of Section 3.2 (Restrictions).
13.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 13 (Limitations of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
14. IP Indemnification by Directus. We will defend you against any claim brought against you by a third party alleging that the Software, when used as authorized under this Agreement, infringes any third-party patent, copyright or trademark, or misappropriates any third-party trade secret (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by Directus (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Software is (or in our opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right or license for your continued use of the Software in accordance with this Agreement; (ii) substitute substantially functionally similar Software; or (iii) terminate your right to continue using the Software and refund any license fees pre-paid by you for use of the Software for the terminated portion of the applicable License Term or, in the case of any “perpetual” licenses, the license fee paid by you as reduced to reflect a three (3) year straight-line depreciation from the license purchase date. Directus’ indemnification obligations above do not apply: (1) if the Software is modified by any party other than Directus, but solely to the extent the alleged infringement is caused by such modification; (2) if the Software is used in combination with any non-Directus product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorized use of Software; (4) to any Claim arising as a result of (y) circumstances covered by your indemnification obligations in Section 3.8 (Indemnification by You) or (z) any third-party deliverables or components contained with the Software; (5) to any unsupported release of the Software; or (6) if you settle or make any admissions with respect to a Claim without Directus’ prior written consent. THIS SECTION 14 STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SOFTWARE OR OTHER ITEMS PROVIDED BY DIRECTUS UNDER THIS AGREEMENT.
15. Publicity Rights. We may identify you as a Directus customer in our promotional materials. We will promptly stop doing so upon your request sent to sales@directus.io.
16. Dispute Resolution
16.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 16.2 (Governing Law; Jurisdiction; Arbitration). All negotiations pursuant to this Section 16.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
16.2. Governing Law; Jurisdiction; Arbitration. This Agreement is governed by the laws of the State of Delaware without regard to conflict of law provisions. Except as provided below, You and Directus agree that any cause of action, legal claim, or dispute between You and Directus arising out of or related to this Agreement or your use of the Software must be resolved by arbitration on an individual basis. Class actions and class arbitrations are not permitted; You may bring a claim only on your own behalf and cannot seek relief that would affect other users of the Software. If there is a final judicial determination that any particular claim (or a request for particular relief) cannot be arbitrated in accordance with this provision's limitations, then only that claim (or only that request for relief) may be brought in court. All other claims (or requests for relief) remain subject to this provision. Instead of using arbitration, You or Directus can bring claims in your local "small claims" court, if the rules of that court will allow it. If you don't bring your claims in small claims court (or if you or Directus appeal a small claims court judgment to a court of general jurisdiction), then the claims must be resolved by binding, individual arbitration. The American Arbitration Association will administer all arbitrations under its Commercial Arbitration Rules. You and we expressly waive a trial by jury. The following claims don't have to be arbitrated and may be brought in court: disputes related to intellectual property (like copyrights and trademarks), violations of our rules, policies and procedures. In addition, issues relating to the scope and enforceability of the arbitration provision are for a court to decide. The costs and fees of arbitration shall be allocated in accordance with the arbitration provider's rules, including rules regarding frivolous or improper claims. For any claim that is not arbitrated or resolved in small claims court, you agree that it will be resolved exclusively in the courts of the State of Delaware or the U.S. District Court for the District of Delaware. You also agree to submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim.
This arbitration provision is governed by the Federal Arbitration Act. You can opt out of this provision within 30 days of the date that you agreed to this Agreement. To opt out, You must send your name, residence address, username, email address or phone number You use for your account, and a clear statement that You want to opt out of this arbitration agreement, and You must send them here: Monospace, Inc. ATTN: Arbitration Opt-out, 680 E Main Street Unit #1117, Stamford, CT 06901.
YOU CONFIRM THAT YOU HAVE READ AND UNDERSTAND THIS PARAGRAPH 16.2, AND VOLUNTARILY AGREE TO BINDING ARBITRATION. IN DOING SO, YOU VOLUNTARILY GIVE UP IMPORTANT CONSTITUTIONAL RIGHTS TO TRIAL BY JUDGE OR JURY, AS WELL AS RIGHTS TO APPEAL.
16.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 16.1 (Informal Resolution) and Section 16.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent Directus from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
16.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.
17. Export Restrictions. The Software is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your download of, access to, and use of the Software. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons” ); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Software for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
19. Changes to this Agreement.
19.1. Modifications Generally. We may modify the terms and conditions of this Agreement (including Directus Policies) from time to time, with notice given to you by email, through the Software or through our website. Together with notice, we will specify the effective date of the modifications. When we make modifications to the main body of this Agreement, the modifications will take effect at the next renewal of your License Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 7.1 (License Term and Renewals). In some cases – e.g., to address compliance with Laws, or as necessary for new features – we may specify that such modifications become effective during your then-current License Term. If the effective date of such modifications is during your then-current License Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Software for the terminated portion of the applicable License Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.
19.2 Directus Policies; Directus BSL. Our products and business are constantly evolving, and we may modify the Directus Policies from time to time, including during your then-current License Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to the Directus Policies that, considered as a whole, would substantially diminish our obligations during your then-current License Term. Modifications to the Directus Policies will take effect automatically as of the effective date specified for the updated policies.
20. General Provisions
20.1. Notices. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Monospace, Inc., Legal Department, 680 E Main Street Unit #1117, Stamford, CT 06901. Your notices to us will be deemed given upon our receipt.
20.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, pandemic, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
20.3. Assignment. You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment, the assignee agrees in writing to assume all of your obligations under this Agreement, and you confirm in writing that the assignee/successor is eligible for the fee schedule that is applicable to your use of the Software. Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.
20.4. Entire Agreement. This Agreement is the entire agreement between you and Directus relating to the license of the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and Directus with respect to the Software or any other subject matter covered by this Agreement. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
20.5. Conflicts. In event of any conflict between the main body of this Agreement and either the Directus Policies or the ancillary agreements that may be mutually executed in the event that you procure cloud services or Additional Services, the Directus Policies or such ancillary agreements will control with respect to their subject matter.
20.6. Waivers; Modifications. No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 19 (Changes to this Agreement), any amendments or modifications to this Agreement must be executed in writing by the authorized representatives of Directus and you.
20.7. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
20.8. Independent Contractors. The parties are independent contractors. This Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
21. Definitions. Certain capitalized terms are defined in this Section 21, and others are defined contextually in this Agreement.
“Additional Services” means retained advisory services, Support and Maintenance or other services related to the Software provided to you by Directus, as identified in an Order.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
“Authorized Users” means the specific individuals whom you designate to use the applicable Software. Authorized Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents or other third parties who are acting for your or your Affiliates’ benefit or on your or your Affiliates’ behalf. Authorized Users also include any Secondary Users that you permit to use the Software, subject to Section 2.3 (Secondary Users).
“Directus Policies” means Directus’ Acceptable Use Policy, Privacy Policy, and (unless otherwise specified) any other policies or terms referenced in this Agreement.
“Directus Technology” means the Software and any and all related or underlying technology and any modifications or derivative works thereof, including as they may incorporate Feedback.
“Documentation” means our standard published documentation for the Software, currently located here.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Software, Support and Maintenance or Additional Services.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
“License Term” means your permitted license term for the Software, as set forth in an Order.
“New Releases” means any bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that Directus makes available to you as part of Support and Maintenance.
“Order” means Directus’ applicable ordering documentation or other purchase flow referencing this Agreement. Orders may include purchases of Software licenses, Support and Maintenance, Additional Services, increased or upgraded Technical Limits or renewals.
“Technical Limits” means the technical limits correlated to your license and subscription level, as summarized at https://directus.io/cloud-policies/.
“Software” means Directus Version 10.0 and any other commercially available software products offered by Directus. Your Order will specify the Software that you may use.
“Support and Maintenance” means Directus’ support and maintenance services for the Software. Your level of Support and Maintenance will be specified in your Order should you subscribe for such services.