StrongLoop offers its software under a subscription agreement with several levels including a free community level. With all subscription levels, including the community level, StrongLoop offers support and certification for the software as well as additional features and capabilities.

Please see http://strongloop.com/pricing for a description of the various subscription levels.

Many components are also offered under the terms of an open source license, including Node.js, Zones and LoopBack. Please see the LICENSE file in a particular project or module for any open source license terms.

STRONGLOOP SUBSCRIPTION AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU AGREE TO THESE TERMS. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT AGREE TO THE TERMS OF THIS AGREEMENT OR INSTALL OR USE THE SOFTWARE.

This StrongLoop Subscription Agreement (“Agreement”) is made by and between StrongLoop, Inc., an IBM Company (“StrongLoop”) with its principal place of business at 1001 E Hillsdale Blvd Suite 400 Bay Area Lab Foster City, CA 94404-1603 USA and you (“Customer”) as of the date you download the Software (“Effective Date”).

.1 Definitions

Ancillary Services” means implementation, training, consulting, or other similar services that Customer may purchase under an Order Form or SOW, subject to the Ancillary Services Schedule attached hereto.

Customer Programs” means Customer’s website(s), applications, and services that utilize all or any portion of the Software, Open Source Software, and/or Support Services.

Documentation” means the user documentation and manuals that StrongLoop makes available electronically as part of the Software.

Open Source Software” means all software that StrongLoop makes available to Customer under the Agreement that is licensed under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, MIT license, Artistic License 2.0 or any other license that is approved by the Open Source Initiative (www.opensource.org).

Order Form” means the ordering document for a Subscription or Ancillary Services purchased from StrongLoop that are executed hereunder by the parties from time to time, including any mutually agreed upon modifications, supplements and addenda thereto. A sample of the Order Form is attached as Appendix B. All Order Forms will be deemed incorporated herein by reference.

Process” means an operating system process associated with a running application instance. Each application process has a corresponding process identifier. In Node.js, concurrent application processes run as separate worker threads and the best practice is to run one node.js process per available CPU to maximize usage of resources

Software” means the StrongLoop software in object code form that StrongLoop licenses to Customer on a subscription-basis (excluding any Trial Subscription), as identified in the Order Form, along with any updates, enhancements, patches, or new versions of such software that are made available to Customer as part of the Support Services.

Statement of Work” or “SOW” means a separate, written work statement entered into and signed by the parties describing the Ancillary Services to be provided by StrongLoop to Customer.

StrongLoop Site” means www.strongloop.com/.

Subscription” means the Software and/or Support Services provided by StrongLoop on a subscription-basis as identified in an Order Form executed by the parties.

Subscription Fee” means the fees for the Subscription as set forth in the applicable Order Form.

Support Services” means the support and maintenance services offered by StrongLoop (excluding any Trial Subscription), as described in the “Support Services” exhibit to this Agreement, and any upgraded or premium support and maintenance services if made available by StrongLoop and purchased by Customer separately pursuant to an Order Form.

.2 Subscriptions and Licenses

.2.1 Subscriptions

StrongLoop offers different types of Subscriptions to its customers, each as more particularly described on the StrongLoop Site (each a “Subscription Plan”). Unless otherwise specified in the applicable Order Form, the Subscription is purchased for a specified number of Processes and Customer may not use the Software or apply the Support Services on any more than the number of Processes specified in the applicable Order Form. Additional Processes may be purchased at any time during the applicable Subscription Term. Subscription Fees for the additional Processes will be at the same pricing as that for the pre-existing Processes thereunder, prorated for the remainder of such Subscription Term. All such additional Processes will be covered under the Subscription coterminous with the then current Subscription Term. Affiliates of Customer may purchase a Subscription and/or Ancillary Services subject to this Agreement by executing Order Forms and/or SOWs hereunder, as applicable, and by executing an Order Form or SOW, that affiliate of Customer will be bound by this Agreement as if it were an original party hereto. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by StrongLoop regarding any future functionality or features. If there is any inconsistency between an Order Form and the Agreement, the Order Form will controls.

.2.2 License Grant

Subject to the terms and conditions of this Agreement including the payment of all applicable Subscription Fees, StrongLoop grants to Customer, during the applicable Subscription Term, a limited, non-exclusive, non-transferable license to: (a) access, install, and use the Software in accordance with the Documentation, Order Form, and Customer’s selected Subscription Plan and solely for the number of Processes purchased by Customer, and (b) use the Documentation solely in connection with Customer’s use of the Software. This Agreement applies to Customer regardless of whether Customer accesses the Software via download from StrongLoop’s website or through a third party website or service, even if Customer acquired the Software prior to entering into this Agreement.

.2.3 License Restrictions

Customer will not itself, or through any parent, subsidiary, affiliate, agent or other third party:

          1. sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any Software or the Documentation to a third party;
          2. decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Software, in whole or in part, nor will Customer use any mechanical, electronic or other method to     trace, decompile, disassemble, or identify the source code of the Software or encourage others to do so, except to the limited extent, if any, that applicable law permits such acts notwithstanding any contractual prohibitions, provided, however, before Customer exercises any rights that Customer believes to be entitled to based on mandatory law, Customer will provide StrongLoop with thirty (30) days prior written notice and provide all reasonably requested information to allow StrongLoop to assess Customer’s claim and, at StrongLoop’s sole discretion, to provide alternatives that reduce any adverse impact on StrongLoop’s intellectual property rights or other rights;
          3. allow access or permit use of the Software by any users other than Customer’s employees or authorized third party contractors who are providing services to Customer and agree in writing to abide by the terms of this Agreement, provided further that Customer will be liable for any failure by such employees and third party contractors to comply with the terms of this Agreement and no usage restrictions, if any, will be exceeded;
          4. create, develop, license, install, use, or deploy any third party software or services to circumvent or provide access, permissions or rights which violate the license keys embedded within the Software;
          5. modify or create derivative works based upon the Software or Documentation; or disclose the results of any benchmark test of the Software to any third party without StrongLoop’s prior written approval;
          6. change any proprietary rights notices which appear in the Software or Documentation;
          7. use the Software as part of a time sharing or service bureau purposes or in any other resale capacity;
          8. publish or disclose to third parties any evaluation of the Software without StrongLoop’s prior written consent; or
          9. use the Software for any purpose other than its intended purpose.

.2.4 Open Source Software

StrongLoop may make certain Open Source Software available to Customer under this Agreement. Such Open Source Software is licensed to Customer under the terms of the applicable open source licenses that can be found in the LICENSES file, the Documentation or other materials accompanying the Open Source Software. If Customer elects to use the Open Source Software, Customer will comply with the terms and conditions of the relevant Open Source Software licenses.

.3 Trial Subscription

StrongLoop may, at its sole discretion, choose to offer Customer the ability to download and use certain software and support services for a limited trial period (collectively “Trial Subscription”). Any software and/or support services made available under a Trial Subscription will be subject to separate terms and conditions, as may be made available to Customer at the time it downloads and/or accesses the Trial Subscription. Notwithstanding anything to the contrary, Customer understands and acknowledges that the software and support services (if any) provided under a Trial Subscription are provided “as is” and any use of such software and/or support services under the Trial Subscription will be at Customer’s sole risk. StrongLoop reserves the right to suspend, terminate, or discontinue any Trial Subscription, at any time, in its sole discretion.

.4 Support Services

Subject to the terms of this Agreement and Customer’s purchase of a Subscription, StrongLoop will provide Support Services as specifically described in the Support Services appendix to this Agreement, which may be updated by StrongLoop from time to time upon written notice to Customer. Customer may only use the Support Services to support the number of Processes purchased under the applicable Subscription. Any use of the Support Services on Processes for which Customer has not paid Subscription Fees, will constitute a material breach of this Agreement. Additionally, StrongLoop has endeavored to establish a community of users of the Software who have provided their own feedback, hints and advice regarding their experiences in using the Software. Customer can find that community and user feedback on StrongLoop’s website. The use of any information, content or other materials from, contained in or on StrongLoop’s website are subject to the StrongLoop website terms of use located at http://strongloop.com/terms-of-use/.

.5 Customer Obligations

.5.1 Customer Servers

Customer is responsible for obtaining, deploying and maintaining the Servers, and all computer hardware, software, and other equipment necessary for Customer, its affiliates and their respective users to access and use the Software. Except as specifically set forth in this Agreement or an Order Form, StrongLoop is not responsible for supplying any hardware, software or other equipment to Customer under this Agreement.

.5.2 Accuracy of Customer’s Contact Information; E-mail Notices

Customer agrees to provide accurate, current and complete information as necessary for StrongLoop to communicate with Customer from time to time regarding the Support Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform StrongLoop of any changes in Customer’s legal business name, address, e-mail address and phone number. Customer agrees to accept emails from StrongLoop at the email addresse(s) registered to Customer’s account. In addition, Customer agrees that StrongLoop has the right to rely and act on all information and instructions provided to StrongLoop by Customer or its users from the above- specified e-mail addresses.

.6 Feedback

To the extent that Customer provides any suggestions, ideas, recommendations, or feedback to StrongLoop regarding StrongLoop’s Software, and any other products and services (collectively “Feedback”), such Feedback will not be considered confidential and StrongLoop may use, publish, disclose, display, perform, copy, make, have made, use, sell, and otherwise commercially exploit the Feedback for any purpose, and in any manner, without reference to the source, and without restriction or remuneration of any kind to Customer.

.7 Ownership

As between StrongLoop and Customer, StrongLoop and its licensors retain all right, title and interest in the Software, Open Source Software, and Documentation, and any other materials furnished or made available by StrongLoop hereunder, including all intellectual property rights contained therein, and all modifications, derivatives, and enhancements thereof. Except for the express licenses granted in this Agreement, no other licenses are granted by StrongLoop hereunder, by implication, estoppel or otherwise. StrongLoop reserves all rights not expressly granted in this Agreement.

.8 Representations and Warranties; Disclaimer

.8.1 Mutual Representations and Warranties

Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement will not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.

.8.2 Disclaimer

THE SOFTWARE, OPEN SOURCE SOFTWARE, DOCUMENTATION, AND SUPPORT SERVICES MADE AVAILABLE TO CUSTOMER ARE PROVIDED “AS-IS” AND STRONGLOOP, ON BEHALF OF ITSELF AND ITS LICENSORS, EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY STRONGLOOP OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTY HEREUNDER. STRONGLOOP IS NOT OBLIGATED TO PROVIDE CUSTOMER WITH UPGRADES TO THE SOFTWARE, BUT MAY ELECT TO DO SO IN ITS SOLE DISCRETION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. STRONGLOOP DOES NOT WARRANT THAT THE SOFTWARE OR ANY OPEN SOURCE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SUBSCRIPTION WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, THE SOFTWARE, OPEN SOURCE SOFTWARE AND DOCUMENTATION ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN THE PLANNING, CONSTRUCTION, MAINTENANCE, CONTROL, OR DIRECT OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, CONTROL OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, OR DIRECT LIFE SUPPORT SYSTEMS.

.9 Liability and Indemnity

StrongLoop’s entire liability for all claims related to the Agreement will not exceed the amount of any actual direct damages incurred by Customer up to the amounts paid (if recurring charges, up to 12 months’ charges apply) for the product or service that is the subject of the claim, regardless of the basis of the claim. This limit applies collectively to StrongLoop, its subsidiaries, contractors, and suppliers. StrongLoop will not be liable for special, incidental, exemplary, indirect, or economic consequential damages, or lost profits, business, value, revenue, goodwill, or anticipated savings.

The following amounts, if a party is legally liable for them, are not subject to the above cap: i) third party payments referred to in the paragraph below; ii) damages for body injury (including death); iii) damages to real property and tangible personal property; and iv) damages that cannot be limited under applicable law.

If a third party asserts a claim against Customer that a product or service acquired under this Agreement infringes a patent or copyright, StrongLoop will defend Customer against that claim and pay amounts finally awarded by a court against Customer or included in a settlement approved by StrongLoop, provided that Customer promptly (i) notifies StrongLoop in writing of the claim, (ii) supplies information requested by StrongLoop, and (iii) allows StrongLoop to control, and reasonably cooperates in, the defense and settlement, including mitigation efforts.

StrongLoop has no responsibility for claims based, in whole or part, on non-StrongLoop products or services, items not provided by StrongLoop, or any violation of law or third party rights caused by Customer’s content, materials, designs, specifications, or use of a non-current version or release of a StrongLoop product when an infringement claim could have been avoided by using a current version or release.

.10 Term and Termination

.10.1 Term

This Agreement will commence on the Effective Date and continue, unless earlier terminated as stated in the “Termination” section below (the “Term”).  The term of a trial license is thirty (30) calendar days.  The term of any Subscription will commence on the date the parties execute the applicable Order Form and will run for a period of 12 months (“Initial Subscription Term”), automatically renewing thereafter for successive periods of 12 months (“Renewal Subscription Term”), unless a party gives the other written notice of non-renewal at least 30 days prior to the end of the current Subscription Term, or unless earlier terminated in accordance with  the “Termination” section below. The Initial Subscription Term and each Renewal Subscription Term will each constitute a “Subscription Term” for purposes of this Agreement.

.10.2 Termination

Either party may terminate this Agreement upon written notice if: (a) the other party fails to cure a material breach of this Agreement within 30 days after written notice of such breach; or (b) there are no existing Order Forms or SOWs pending under the Agreement. StrongLoop may terminate this Agreement immediately without notice, if Customer fails to comply with or otherwise breaches the license grant and/or restrictions of this Agreement.

.10.3 Effects of Termination

Upon termination of this Agreement, (a) Customer’s use of and access to the Software and StrongLoop’s performance of all Ancillary Services and Support Services will cease; (b) all Order Forms and SOWs will terminate; and (c) all fees and other amounts owed to StrongLoop will be immediately due and payable by Customer, including without limitation, all fees incurred under any outstanding Statement of Work up through the date of termination for any Ancillary Services completed and a pro-rated portion of the fees incurred for any partially completed Ancillary Services, and (d) Customer will remove all Software from the Servers. Any terms that by their nature extend beyond the Agreement termination remain in effect until fulfilled, and apply to successors and assignees.

.11 Subscription Fees and Payments

Customer will pay StrongLoop the Subscription Fees for the Subscription as described on the StrongLoop Site for the Subscription Plan purchased unless a different amount has been agreed to in the applicable Order Form. Fees for Ancillary Services will be invoiced as set forth in an applicable SOW or Order Form. In addition, Customer will pay all sales, use, value added, withholding, excise taxes and other tax, duty, custom and similar fees levied upon the delivery or use of the Software and the Services. All fees will be invoiced in full upon the execution of an Order Form or as set forth in the SOW. Subscription Fees will be invoiced annually in advance prior to the start of each Subscription Term, unless otherwise set forth in the Order Form. All invoices will be paid in US dollars (unless otherwise set forth in the Order Form) and are payable within 30 days of the invoice date. Late payment fees may apply. Except as expressly provided herein, all purchases of Subscriptions are non-cancellable and all fees are non-refundable. If Customer fails to pay fees in accordance with this section, StrongLoop may suspend the fulfillment of its obligations under this Agreement (including but not limited to suspending performance of the Support Services) until payment is received by StrongLoop.

.12 Compliance

Customer will i) maintain, and provide upon request, records, system tools output, and access to Client’s premises, as reasonably necessary for StrongLoop and its independent auditor to verify Customer’s compliance with the Agreement, and ii) promptly order and pay for required entitlements (including associated Support Services at StrongLoop’s then current rates and for other charges and liabilities determined as a result of such verification, as StrongLoop specifies in an invoice. These compliance verification obligations remain in effect during the term of this Agreement and for two years thereafter.

.13 Governing Laws and Geographic Scope

Each party is responsible for complying with: i) laws and regulations applicable to its business and content, and ii) import, export and economic sanction laws and regulations, including those of the United States that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users. Customer is responsible for its use of StrongLoop and non-StrongLoop products and services.

Both parties agree to the application of the laws of the state of New York to this Agreement, without regard to conflict of law principles. The rights and obligations of each party are valid only in the country where the transaction is performed or, if StrongLoop agrees, the country where the product is placed in productive use, except all licenses are valid as specifically granted. If any provision of the Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect. Nothing in the Agreement affects statutory rights of consumers that cannot be waived or limited by contract. The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under this Agreement.

.14 General

Parties will not disclose confidential information without a separate, signed confidentiality agreement. If confidential information is exchanged in connection with this Agreement, the applicable confidentiality agreement is incorporated into, and subject to, this Agreement.

Customer accepts an Order Form or SOW by ordering, enrolling, using, or making a payment for, the product, offering or service. Since this Agreement may apply to many future orders, StrongLoop reserves the right to modify it by providing Customer at least three (3) months’ written notice. However, changes are not retroactive; they apply, as of the effective date, only to new orders and renewals. For transactions with a defined renewable contract period, Customer may request that Strongloop defer the change effective date until the end of the current contract period. Client accepts changes by placing new orders after the change effective date or allowing transactions to renew after receipt of the change notice. Except as provided above, all changes to the Agreement must be in writing signed by both parties. If there is a conflict, an Order Form or SOW prevails over the terms of this Agreement.

StrongLoop is an independent contractor, not Customer’s agent, joint venturer, partner, or fiduciary, and does not undertake to perform any of Customer’s regulatory obligations, or assume any responsibility for Customer’s business or operations. Each party is responsible for determining the assignment of its personnel and contractors, and for their direction, control, and compensation.

Customer is responsible for obtaining all necessary permissions to use, provide, store and process content, Ancillary Services, maintenance, or Support Services, and grants StrongLoop permission to do the same. Customer is responsible for adequate content back-up. Some of Customer’s content may be subject to governmental regulation or may require security measures beyond those specified by StrongLoop for an offering. Customer will not input or provide such content unless StrongLoop has first agreed in writing to implement additional required security measures.

StrongLoop and its affiliates, and their subcontractors, may process and store business contact information of Customer personnel in connection with the performance of this Agreement wherever they do business. StrongLoop may use personnel and resources in locations worldwide and third party suppliers to support the delivery of products and services.

Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other. Assignment of StrongLoop rights to receive payments and by StrongLoop in conjunction with the sale of the portion of StrongLoop’s business that includes the product or service is not restricted.

All notices under this Agreement must be in writing and sent to the address below, unless a party designates in writing a different address. The parties consent to the use of electronic means and facsimile transmissions for communications as a signed writing. Any reproduction of the Agreement made by reliable means is considered an original. The Agreement supersedes any course of dealing, discussions or representations between the parties.

No right or cause of action for any third party is created by this Agreement or any transaction under it. Neither party will bring a legal action arising out of or related to this Agreement more than two (2) years after the cause of action arose. Neither party is responsible for failure to fulfill its non-monetary obligations due to causes beyond its control. Each party will allow the other reasonable opportunity to comply before it claims the other has not met its obligations. Where approval, acceptance, consent, access, cooperation or similar action by either party is required, such action will not be unreasonably delayed or withheld.

The Agreement applies to StrongLoop and Customer (the signatories below) and their respective Enterprise companies who avail themselves of the Agreement. The signatories will coordinate the activities of Enterprise companies under this Agreement. Enterprise companies include (i) companies within the same country that Customer or StrongLoop control (by owning greater than 50% of the voting shares), and (ii) any other entity that controls, is controlled by or is under common control as Customer or StrongLoop and has signed a participation Attachment.