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Plotly On-Premise License Agreement

PLOTLY ON PREMISE LICENSE AGREEMENT

THE FOLLOWING ON PREMISE LICENSE AGREEMENT (TOGETHER WITH ALL DOCUMENTS INCORPORATED BY REFERENCE HEREIN, THE AGREEMENT") GOVERNS LICENSEE'S ACCESS TO AND USE OF THE DELIVERABLES. BY INSTALLING, ACCESSING OR USING (THE TERM "USE" WHEN USED HEREIN IN RESPECT OF THE DELIVERABLES WILL MEAN INSTALL, ACCESS OR USE, AND USING WILL HAVE A CORRESPONDING MEANING) ANY OF THE DELIVERABLES, INCLUDING BY CLICKING ON THE APPROPRIATE ACCEPTANCE BUTTON BELOW, LICENSEE ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THIS AGREEMENT. IF LICENSEE DOES NOT ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, LICENSEE WILL NOT PROCEED TO INSTALL THE SOFTWARE OR, IF APPLICABLE, WILL IMMEDIATELY DISCONTINUE USE OF THE SOFTWARE AND ALL OTHER DELIVERABLES, AND WILL, IN EACH CASE, IMMEDIATELY DESTROY OR REMOVE ALL COPIES AND INSTANCES OF THE SOFTWARE AND ALL OTHER DELIVERABLES FROM LICENSEE'S SYSTEMS.

1. Definitions

(a) "Deliverables" means the Source Code, Software, Documentation and Derivative Works.

(b) "Derivative Works" means any software which incorporates or contains modifications of any part of the Source Code or the Software, and includes any revision, adaptation, modification, enhancement, translation (including compilation or recapitulation by computer), abridgment, condensation, extension, expansion or any other form in which Source Code or the Software, may be recast, transformed or adapted.

(c) "Documentation" means all end user and developer documentation supplied by Plotly for use with the Software, including subsequent revisions and updates thereto.

(d) "Effective Date" means the date on which Licensee agrees to the terms and conditions of this Agreement and completes the installation or receives access to the Software (whichever comes first).

(e) "Fees" has the meaning set out in Section 3.

(f) "Intellectual Property Rights" means patents, trade or service marks, registered designs (or applications for any of the foregoing), copyright, design rights, database right and any other industrial or intellectual property right.

(g) "Licensee" means the person or entity to whom Plotly (or an authorized distributor or Plotly) provides the Software for installation and use conditional on such person or entity agreeing to the terms and conditions set out in this Agreement.

(h) "Plotly" includes Plotly Inc. and its licensors, successors and assigns, if any.

(i) "Software" means the Plotly and, if applicable, Dash software provided to Licensee by Plotly (or an authorized distributor of Plotly).

(j) "Source Code" means computer programming code, libraries, packages, and any documentation or computer instructions necessary to compile and execute the Software.

(k) "Term" means the period of time commencing on the Effective Date and continuing for the earlier of: (i) the day that is one year after the Effective Date; and (ii) the date on which this Agreement is terminated in accordance with its terms.

2. Ownership and License Grant

Subject to Licensee's compliance with this Agreement, Plotly will grant Licensee, a non-exclusive, non-transferable license during the Term to use the Software only as described in Section 4 and subject to the restrictions set out in Section 5 ("Prohibited Uses"). This License will be registered in the Licensee's name, and is effective during the Term, as provided below. This License will terminate automatically upon any violation of its terms by Licensee or upon the end of the Term (whichever comes first).

Plotly will, at all times during and after the Term, own and continue to own all Intellectual Property Rights in the Deliverables. Licensee's rights to any Deliverables are only those expressly specified in this Agreement, and Plotly retains all rights not expressly granted to Licensee in this Agreement. The Software is protected by copyright laws and international treaty provisions. Except for the rights expressly granted in this Agreement, the License transfers to Licensee no right, title, or interest in the Software, or any Intellectual Property Right in the Software. Plotly retains sole and exclusive title to all portions of the Software and any copies thereof. The Software is licensed, not sold.

3. Fees and Payment

Licensee will pay to Plotly (or, if applicable, to the authorized distributor of Plotly) the licensing and other fees and amounts notified by Plotly (or the applicable authorized distributor of Plotly) as of the Effective Date or, if no such notification is provided by Plotly (or the applicable authorized distributor of Plotly), then the applicable licensing and other fees and amounts generally charged by Plotly (or the applicable authorized distributor of Plotly) in respect of the Software as of the Effective Date (such licensing and other fees and amounts, in each case, the "Fees"). Plotly (or the applicable authorized distributor of Plotly) may prepare and send invoices to Licensee for any Fees that become due and payable pursuant to this Agreement.

4. Permitted Uses

The License is subject to the following restrictions:

(a) Licensee has access to the number of developers/authors specified in the On Premise License Key generated by Plotly

(b) Licensee may only use the Software on systems that are owned, controlled or leased by Licensee.

(c) Licensee will not permit anyone else to use the Software, and will use best efforts to prevent anyone else from using the Software.

(d) Licensee may only make one copy of the Software for backup purposes.

5. Prohibited Uses

Licensee may NOT, without the prior written permission of Plotly:

(a) disassemble, decompile, edit, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct the Software or discover any Source Code or underlying algorithms of Software;

(b) use, disseminate, duplicate, reproduce, copy, modify or merge any Deliverables, except as permitted in this Agreement;

(c) sell, lease, assign, transfer, sublicense or translate any Deliverables;

(d) sell, transfer, assign, rent, lease, or sublicense the License;

(e) remove, obfuscate, or hide links and references to Plotly visible in charts, graphs; and elsewhere in the Deliverables.

6. Restrictions in Respect of Documentation, Source Code and Derivative Works

(a) Licensee will not make any Derivative Works or permit any third-party to make any Derivative Works, unless authorized by Plotly in writing.

(b) Licensee will not grant, either expressly or impliedly, any rights, title, interest, or licenses to any Derivative Works to any third party.

(c) Licensee will not distribute, disclose or otherwise make available any Deliverable, in each case in whole or in part, to any third party without the express, prior written consent of Plotly.

(d) Without limiting any other provision of this Agreement, Licensee will not under any circumstances use the Source Code in whole or in part, as the basis for creating a product that provides the same, or substantially the same, functionality as any Plotly product. Licensee will not take any action, or assist or otherwise aid anyone else in taking any action, that would limit Plotly independent development, sale, assignment, licensing or use of its own software or any modification, enhancement, derivative work and/or extension thereto.

(e) Licensee will not modify or delete, in whole or part, any copyright, trade secret, proprietary, confidential or other notice embedded or contained in any Deliverable without the express, prior written consent of Plotly.

7. Copyright Notices

Except as expressly provided herein, all title and Intellectual Property Rights in and to the Deliverables (including but not limited to any images, photographs, animation, video, audio, music, text and Plotly references incorporated into the Deliverables) are owned by Plotly or its suppliers and any notices contained in the Deliverables to that effect must not be removed, obfuscated, or hidden.

8. Termination

This Agreement and the License granted hereunder will commence on the Effective Date and continue during the Term, unless terminated earlier as provided herein. Plotly may terminate this Agreement and the License granted hereunder, immediately and without notice, if Licensee fails to comply with any of the terms and conditions of this Agreement, including but not limited to Licensee failing to pay any Fees in accordance with Section 4. Licensee may terminate this Agreement by giving Plotly 30-day prior written notice and destroying the Software and any copies of the Deliverables in Licensee's possession on or before the effective date of termination.

Upon termination of this Agreement for any reason:

(a) the License granted to Licensee hereunder will terminate automatically and Licensee will immediately cease use and distribution of the Software. Licensee must also destroy all copies of the Deliverables provided by Plotly in connection with this Agreement; and

(b) no part of any Fees will be refunded to Licensee.

9. Confidentiality

Licensee acknowledge that the Deliverables provided to Licensee in connection with this Agreement include valuable trade secrets of Plotly. Licensee agrees to maintain the confidentiality of the Deliverables by using at least the same physical and other security measures as Licensee use for Licensee's own confidential technical information and documentation, but in no event less than the industry standard for information technology security. Unless compelled to do so by applicable law, Licensee further agrees not to disclose any Deliverable, in whole or in part, to any third party other than Licensee's employees or contractors who have a need to know or obtain access to such information in order to support Licensee's use of the Software pursuant to the License, and who are bound to protect such information against any other use or disclosure by no less stringent confidentiality obligations than those set out herein. Licensee agrees to be fully responsible for such employees' or contractors' use or misuse of any disclosed Deliverable as if it was Licensee's use or disclosure. These obligations will not apply to any information generally available to the public, independently developed or obtained without reliance on any Deliverable or other information of Plotly obtained by Licensee in connection with this Agreement, or as otherwise approved in writing for release by Plotly.

10. Limited Warranty

(a) Plotly does not warrant that any Deliverable will be error-free. The Software is licensed "as is".

(b) The Software may be provided with third-party components or plug-ins or other third-party software. All such third-party components are provided "as is" by the third party licensors who disclaim all liabilities, damages, (even if they have been advised of the possibility of such damages), warranties, indemnities and other obligations of any kind, express or implied, with regard to such components. Plotly uses open-source tools and other third-party plug-ins, but Plotly does not warrant that any third-party software will be error-free.

(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, PLOTLY AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE, INCLUDING, BUT NOT LIMITED TO, ANY COLLATERAL WARRANTIES, ANY IMPLIED WARRANTIES OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ALL DELIVERABLES.

(d) Some jurisdictions do not allow the exclusion or limitation of implied warranties, so the above exclusions might not apply to Licensee.

11. Limitation of Liabilities

IN NO EVENT WILL PLOTLY OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF PLOTLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH RISKS OR DAMAGES.

IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF PLOTLY UNDER OR IN CONNECTION WITH THE LICENSE OR THIS AGREEMENT (WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, STATUTORY LIABILITY OR ANY OTHER LEGAL THEORY), EXCEED THE FEES PAID BY LICENSEE TO PLOTLY HEREUNDER IN THE PRECEDING SIX MONTHS (OR, IF NO FEES HAVE BEEN PAID TO PLOTLY IN THE PRECEDING SIX MONTHS, THEN$700.00. FOR GREATER CERTAINTY, THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.

12. General

(a) Relationship of Parties. The Parties are independent contractors, and not agents, employees or joint ventures of one another, and do not have any authority to bind the other Party by contract or otherwise to any obligation, except as regards this license. Neither Party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.

(b) Governing Law. This Agreement will be governed by the law of the Province of Ontario, Canada, without regard to the conflict of laws principles thereof. If any provision of this Agreement is to be held unenforceable, such holding will not affect the validity of the other provisions hereof. Failure of a Party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision.

(c) Trademark Usage and Publicity. Plotly may use Licensee's name and logos in its marketing, promotion and website, as is reasonably necessary to describe and promote the Software.

(d) Complete Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both Parties. Each notice required to be given under or in connection with this Agreement will be: (i) if to Plotly, sent by mail to: 5555 Avenue de Gaspé, suite 201, Montreal, QC H2T 2A4, or email to: jack@plot.ly (in each case, as may be modified from time to time by Plotly upon prior notice to Licensee); and (ii) if to Licensee, then to Licensee's mailing or email address on file with Plotly. Each Party will notify the other Party in writing if any of the address or contact information changes.

(e) Assignment. Licensee may not assign this Agreement or any of Licensee's rights or obligations hereunder (including the License) without Plotly's prior written consent. Plotly may assign this Agreement and any of Plotly's rights and obligations hereunder without Licensee's consent to any third party that acquires all or substantially all of Plotly's assets or business operations related to the Software.

(f) CHOICE OF LANGUAGE. IT IS THE EXPRESS DESIRE OF THE PARTIES THAT THIS AGREEMENT BE DRAWN UP IN THE ENGLISH LANGUAGE. C'EST LA VOLONTÉ EXPRESSE DES PARTIES QUE LA PRÉSENTE CONVENTION AINSI QUE LES DOCUMENTS QUI S'Y RATTACHENT SOIENT RÉDIGÉS EN ANGLAIS.

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