End User Agreement for AWS Marketplace
This End User Licence Agreement (the “EULA”) is a legally binding agreement between you and Diffblue regarding your use of the Diffblue Product via the AWS Marketplace. By subscribing to, accessing or using the Diffblue Product, you agree to be bound by the terms and conditions of this EULA. If you do not agree with these terms and conditions, you are not authorised to use the Diffblue Product.
1.1 “Affiliate” means any entity from time to time controlling, controlled by, or under common control with a party. An entity shall be deemed to "control" if it owns, directly or indirectly, in excess of 50% of voting power, issued share capital or other securities of the entity
1.2 “AWS” means Amazon Web Services, Inc.
1.3 “AWS Marketplace” means an online catalogue of products and services to which you can subscribe via your existing AWS customer account using AWS hosted infrastructure.
1.4 “Confidential Information” means any information expressly identified as confidential or which would reasonably be considered confidential or proprietary under the circumstances, including but not limited to product roadmaps, source code and trade secrets.
1.5 “Customer Content” means content that you upload or submit to the Diffblue Product.
1.6 “Diffblue” means Diffblue Limited, a company registered in England and Wales number 09958102, with its registered office at Ramsey House, 10 St. Ebbes Street, Oxford, OX1 1PT, UK.
1.7 “Diffblue Product” means the software program licensed by Diffblue and hosted on the AWS Marketplace platform, and any Upgrades or Updates that Diffblue provides to you.
1.8 “Documentation” means the end-user documentation for the Diffblue Products as made commercially available and provided by Diffblue.
1.9 “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including without limitation know-how and trade secrets) and any other intellectual property rights, including without limitation all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
1.10 “Update” means a version or release of the Diffblue Product intended to have updated functionality, a software maintenance update, a patch or a bug-fix (as indicated by a number change to the right of the decimal point e.g. v 1.1, 1.2, 1.3).
1.11 “Upgrade” means a version or release of the Diffblue Product encompassing substantially new or enhanced features or functionality (as indicated by a number change to the left of the decimal point e.g. v 1.0, 2.0, 3.0).
2.1 Licence Grant. Subject to your payment of the fees when due and your compliance with the terms and conditions of this EULA, Diffblue grants you a non-exclusive, non-sublicensable, non-transferable, limited term licence to use the Diffblue Product via the AWS Marketplace solely for your internal business purposes of unit test generation, security scanning and/or refactoring (as applicable to the Diffblue Product) performed on code developed by you and your Affiliates. The Licensed Product may also contain third party components with separate notices and licensing terms as specified in the Documentation.
2.2 Restrictions. You must not: (i) translate or create derivative works of the Diffblue Product; (ii) (except as expressly provided by Clause 2.3) sublicense, assign, transfer or otherwise make the Diffblue Product available to any third party or use the Diffblue Product for the benefit of any third party; (iii) (except to the extent that this restriction is prohibited by applicable law) modify, adapt, alter, copy, reverse engineer, decompile, make error corrections, disassemble, or otherwise attempt to derive the source code for the Diffblue Product in whole or in part; (iv) disclose any performance information or analysis (including without limitation benchmarks) from relating to the Licensed Product; (v) remove, alter, obscure or destroy any proprietary notices on the Diffblue Product; (vi) use the Diffblue Product as a consumer; or (vii) use the Diffblue Product in any manner other than as described in the Documentation or this EULA.
2.3 Third Parties. Diffblue agrees that your Affiliates and service providers may use the Diffblue Product provided that: (i) use by service providers is limited solely to providing services to you and your Affiliates; (ii) the Affiliates and service providers comply with this EULA; and (iii) you assume liability for the acts and omissions of the Affiliates and service providers.
2.4 Ownership. The Diffblue Product, and all Intellectual Property Rights therein, are and shall remain the exclusive property of Diffblue (and its suppliers, licensors and contributors, if any). Except for the rights expressly granted under this EULA, (i) Diffblue (and its suppliers, licensors and contributors) reserves all right, title and interest in and to the Diffblue Product and all Intellectual Property Rights therein, and (ii) no right, title, interest or license in or to the Diffblue Product or any other Intellectual Property Rights, whether by implication, inducement, estoppel or otherwise, is granted, assigned or transferred to you. The Diffblue Product is licensed, not sold or given.
2.5 Suggestions. If you provide Diffblue with any suggestions or other input relating to the Diffblue Product, you (i) grant Diffblue an irrevocable, perpetual, royalty-free, sub-licensable and transferable licence to use such suggestions and input for any purpose, and (ii) warrant that Diffblue's use of such suggestions and input does not infringe the Intellectual Property Rights of any third party.
3.1 Term. This EULA and your licence to use the Diffblue Product begins on the day on which you commence a paid or free trial subscription for such Diffblue Product and shall continue until: (i) expiry of your subscription term; (ii) termination by either party of the subscription term in accordance with the Cancellation Policy; (iii) your failure to remedy any breach of this EULA (if remediable) within fourteen (14) days of a notice requiring remedy; (iv) we terminate your subscription due to non-payment of fees due under this EULA; (v) AWS terminates your AWS Marketplace customer account for any reason; (vi) you become insolvent or appoint an administrator; or (vii) we terminate your subscription because AWS suspends or withdraws the Diffblue Product from the AWS Marketplace or suspends or ceases to operate the AWS Marketplace for any reason.
3.2 Survival. Clauses 2, 3, 7, 8, 9, 10, 11 and 12 shall survive expiry or termination of this EULA for any reason.
4. Support and Maintenance
4.1 Requesting Support. You may report a suspected error or ask questions about the Diffblue Product via email@example.com and Diffblue will use commercially reasonable endeavours to assist you within a reasonable period. In order to receive support you must: (i) assist Diffblue in identifying and correcting errors; (ii) execute reasonable diagnostic routines instructed by Diffblue; (iii) ensure that the person requesting support is sufficiently familiar with the Diffblue Product and your systems; (iv) enable remote access by Diffblue for troubleshooting purposes where required; and (v) implement the latest Upgrades if the Upgrades are known to resolve or otherwise assist with remediation of the reported error.
4.2 Exclusions. Diffblue shall have no obligation to correct errors caused by: (a) improper installation of the Diffblue Product; (b) alterations or modifications to the Diffblue Product; (c) use of the Diffblue Product in a manner inconsistent with its Documentation; (d) any combination of the Diffblue Product with hardware or software not specified in its Documentation; (e) accident, hardware malfunction, abuse or improper use.
4.2 Updates and Upgrades. Diffblue will provide Updates for the Diffblue Product during your subscription period in accordance with its normal Update cycle. Upgrades may be provided at Diffblue’s discretion, or otherwise available as an option for an additional subscription fee as specified in the Price List. You hereby expressly consent to receive automatic Updates and free Upgrades offered by Diffblue from time to time.
Diffblue may change or retire a Diffblue Product or a version of a Diffblue Product at any time. In the event of retirement, (i) you may continue to use the Diffblue Product until your current subscription period ends; and (ii) you may continue to receive support for such Diffblue Product or version in accordance with Clause 4 for a period of ninety (90) days (or until your subscription period ends if earlier). Unless required by applicable law, Diffblue will not provide a refund for changes or retirements.
6. Customer Content
6.1 Licence. You grant Diffblue and AWS a worldwide, royalty-free, transferable licence to host and use Customer Content for the purpose of providing the Diffblue Product.
6.2 Acceptable Use. You acknowledge and agree that neither Diffblue nor AWS are responsible for Customer Content. Customer Content must not (i) breach any contract, law or regulation; (ii) be fraudulent, defamatory, violent, obscene, offensive, threatening, or likely to cause anxiety to any person; (iii) discriminate by race, sex, religion, nationality, disability, sexual orientation or age; or (iv) infringe the Intellectual Property Rights of any person. While neither Diffblue nor AWS are obliged to monitor Customer Content, Diffblue reserves the right to suspend or terminate your subscription to the Diffblue Product if Diffblue reasonably believes that you are in breach of this Clause 6.2.
6.3 Deletion. You acknowledge and agree that Diffblue (or AWS as applicable) may delete your Customer Content at any time after expiry or termination of your subscription to the Diffblue Product.
7. Customer Content
7.1 Fees. Subscription fees for the Diffblue Product and optional Upgrades are specified in the Price List. Payment of all fees shall be made by you via AWS in US dollars. All fees are exclusive of value added tax or other applicable sales tax, which shall be payable by you as prescribed by applicable law. If any withholding is required by law, you shall gross up such fees in order to leave Diffblue with the same amount as it would be entitled to receive in the absence of any such withholding.
7.2 Refunds. All fees paid are non-refundable except as expressly provided in the Cancellation Policy. Any permitted refunds will be processed and paid via AWS.
7.3 Variations. Diffblue may vary its Price List at any time. Such variation shall not affect your current subscription period. If you have signed up to auto-renew an annual subscription, such price change will not apply to your renewal unless Diffblue notified you of the new price at least ninety (90) days’ prior to renewal.
7.4 Monthly Subscriptions. Monthly subscriptions have two (2) fee elements: (i) a fixed monthly fee regardless of usage; and (ii) an hourly rate for usage per instance. Hourly usage is rounded up to the nearest whole hour.
7.5 Annual Subscriptions. Each annual subscription fee includes one (1) year’s usage of one EC2 instance of one instance type. If you use the Diffblue Product after expiry of your annual subscription or exceed the number of instances to which you have subscribed, you may be charged an hourly rate for usage per instance. Hourly usage is rounded up to the nearest whole hour.
7.6 AWS Charges. Your use of the Diffblue Products via the AWS Marketplace may also incur AWS infrastructure prices for which you are solely responsible. Such prices, payment terms and refunds are determined between you and AWS.
8. Confidentiality and Data Protection
8.1 Obligations. A receiving party (the “Recipient”) shall maintain the confidentiality of all Confidential Information of the disclosing party (the “Discloser”) and shall not use such Confidential Information other than as necessary for the performance of its rights and obligations under this EULA or as otherwise permitted herein. The Recipient shall not disclose Confidential Information to any third party without the Discloser’s prior written consent save for those Affiliates, directors, officers, employees, agents, suppliers and contractors who have entered into a written agreement with the Recipient that is no less protective of the Discloser’s Confidential Information than this EULA and who have a need to know such information. The Recipient shall assume liability for use of the Confidential Information by such persons. The Recipient shall use the same measures to protect the Discloser’s Confidential Information that it uses to protect its own confidential information, but in no event less than reasonable measures.
8.2 Exclusions. The restrictions of this Clause 8 shall not apply to information that: (i) is independently developed by the Recipient without any access to the Confidential Information of the Discloser; (ii) becomes known to the Recipient, without restriction, from a third party without breach of any confidentiality obligation to the Discloser; (iii) is or comes in the public domain through no act or omission of the Recipient; or (iv) is required to be disclosed by an order or requirement of a court of competent jurisdiction (provided that the Recipient shall, to the extent legally permitted, provide prompt notice thereof to the Discloser and use reasonable efforts to prevent and restrict public disclosure of such information).
8.3 Personal Data. Diffblue processes certain personal data for the purposes outlined in the privacy notice at https://www.diffblue.com/privacy. Such purposes include without limitation customer account management, financial accounting, sending you communications related to the Diffblue Product, and conducting export control and other compliance checks. Unless expressly agreed otherwise in a separate data processing agreement between the parties, Diffblue is not required to act as a processor on your behalf, and accordingly, you acknowledge and agree that you must not submit or upload personal data, health data or payment data to the Diffblue Product.
9.1 Warranty Period. For a period of thirty (30) days from the commencement of your subscription (the “Warranty Period”), Diffblue warrants to you that the Diffblue Product, when used as permitted under this EULA and in accordance with the Documentation, will operate in substantial conformity with the Documentation. If you notify Diffblue in writing of any suspected breach of the warranty in this Clause 9.1 during the Warranty Period, Diffblue shall, at Diffblue’s sole option, and as your sole and exclusive remedy: (i) repair or replace the Diffblue Product within a reasonable period, or (iii) terminate your subscription to the Diffblue Product and provide a pro rata refund of fees paid for the period after termination. A repaired or replaced Diffblue Product shall be warranted for the remainder of the original Warranty Period only.
9.2 Warranty Exclusions. The warranty in Clause 9.1 shall not apply if in Diffblue’s reasonable opinion: (i) the non-conformity cannot be verified and replicated by Diffblue; (ii) the non-conformity is due to issues, deficiencies or incompatibilities with your IT system, network, materials or other software, or your negligence, misuse or abuse of the Diffblue Product; (iii) you have used the Diffblue Product inconsistently with this EULA or the Documentation; (iv) the Diffblue Product has been modified or altered in any way except by Diffblue; (v) you have not installed Updates made available by Diffblue or taken actions recommended by Diffblue; or (vi) the issue otherwise results from a cause outside of Diffblue’s reasonable control.
9.3 DISCLAIMER. THE DIFFBLUE PRODUCT, DOCUMENTATION AND SUPPORT SERVICES ARE PROVIDED “AS IS.” EXCEPT FOR THE EXPRESS WARRANTY IN CLAUSE 9.1, DIFFBLUE (AND ITS SUPPLIERS, LICENSORS AND CONTRIBUTORS) MAKES NO OTHER WARRANTIES CONDITIONS REPRESENTATIONS OR UNDERTAKINGS OF ANY KIND AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES RELATING TO MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ABILITY TO ACHIEVE A PARTICULAR RESULT AND REASONABLE CARE AND SKILL WHICH ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. DIFFBLUE DOES NOT WARRANT THAT THE DIFFBLUE PRODUCT, DOCUMENTATION OR SUPPORT SERVICES WILL BE PROVIDED ERROR FREE, WILL MEET YOUR REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, WILL IDENTIFY ALL VULNERABILITIES OR WILL IDENTIFY ALL UNIT TESTS. TO THE EXTENT THAT DIFFBLUE CANNOT DISCLAIM ANY SUCH WARRANTY UNDER APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.
10. Limitation of Liability
10.1 EXCLUSION OF LIABILITY. SUBJECT TO CLAUSE 10.3, NEITHER PARTY (NOR THEIR SUPPLIERS, LICENSORS AND CONTRIBUTORS) WILL BE LIABLE UNDER ANY CIRCUMSTANCES WHATSOEVER TO THE OTHER PARTY (OR ANY PERSON CLAIMING UNDER OR THROUGH IT), WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL LOSS. IN PARTICULAR, BUT WITHOUT LIMITATION, DIFFBLUE SHALL NOT BE LIABLE FOR (i) ANY LOSS OF PROFITS; (ii) ANY LOSS OR CORRUPTION OF DATA; (iii) ANY LOSS OR CORRUPTION OF COMPUTER SOFTWARE OR SYSTEMS; (iv) ANY LOSS OR DAMAGE TO EQUIPMENT; (v) ANY LOSS OF CONTRACT OR BUSINESS OPPORTUNITY; (vi) ANY BUSINESS INTERRUPTION; (vii) ANY LOSS OF SAVINGS (WHETHER ACTUAL OR ANTICIPATED); (viii) ANY HARM TO REPUTATION OR LOSS OF GOODWILL; (ix) ANY COST OF SUBSTITUTE SOFTWARE, GOODS OR SERVICES.
10.2 LIABILITY CAP. SUBJECT TO SECTIONS 10.1 AND 10.3, NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, WILL EXCEED AN AMOUNT EQUIVALENT TO THE ANNUAL FEES PAYABLE BY YOU FOR THE DIFFBLUE PRODUCT OR SERVICES GIVING RISE TO SUCH LIABILITY.
10.3 NON-EXCLUDED LIABILITIES. NOTHING IN THIS EULA SHALL EXCLUDE OR LIMIT: (i) YOUR LIABILITY FOR BREACH OF THE OBLIGATIONS UNDER CLAUSES 2, 8, 11.5 OR 12.4; (ii) YOUR OBLIGATION TO PAY FEES FOR THE DIFFBLUE PRODUCT WHEN DUE; (iii) A PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (iv) A PARTY’S LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION; OR (v) ANY OTHER MATTER IN RESPECT OF WHICH IT WOULD BE UNLAWFUL TO EXCLUDE OR RESTRICT LIABILITY.
10.4 AWS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PROVISION OF INFRASTRUCTURE BY AWS TO HOST THE DIFFBLUE PRODUCT IS A SEPARATE CONTRACT BETWEEN YOU AND AWS, AND THAT DIFFBLUE IS NOT LIABLE FOR ANY LOSS OR DAMAGE TO THE EXTENT THAT IT IS CAUSED BY AWS OR THE AWS INFRASTRUCTURE.
11.1 Diffblue’s Obligation. Subject to Clauses 11.2 to 11.4 inclusive, Diffblue will (i) defend and/or settle at its own expense any action brought against you by a third party, to the extent that such action is based upon a claim that the Diffblue Product licensed hereunder infringes any third party's copyright, database rights and registered trademarks in the United States or the United Kingdom (the “Claim”), and (ii) indemnify you against any costs and damages finally awarded against you that are specifically attributable to such Claim, or those costs and damages agreed to by Diffblue in a monetary settlement of such Claim.
11.2 Your Obligation. You must: (i) notify Diffblue promptly in writing of such Claim; (ii) not make any admission of liability, agreement or compromise without the prior written consent of Diffblue; (iii) give Diffblue sole control of the defence of the Claim and any related counterclaim or settlement negotiations; (iv) provide reasonable cooperation and assistance in such defence, counterclaim and settlement at Diffblue’s expense. You may also participate in the defence with counsel of your own choice at your own expense.
11.3 Remedies. If the Diffblue Product is or is likely to be the subject of a Claim, then Diffblue may (at its option and expense) either (i) procure the right for you to use the affected Diffblue Product; (ii) replace or modify the affected Diffblue Product so that it becomes non-infringing; or (iii) terminate your subscription to the affected Diffblue Product and provide a pro rata refund of fees which relate to the period after termination.
11.4 Exclusions. Diffblue will have no obligation under this Clause 11 or otherwise to the extent that any claim is based upon: (i) third party open source software; (ii) use of the Diffblue Product other than in accordance with this EULA or the Documentation; (iii) use of the Diffblue Product in combination with any other product, equipment, software or data not provided by Diffblue; (iv) modification of the Diffblue Product by anyone other than Diffblue; or (v) use of the affected Diffblue Product after Diffblue has provided one of the remedies under Clause 11.3. The indemnity given under this Clause 11 shall be your sole and exclusive remedy in respect of any infringement.
11.5 Customer Indemnity. You agree to indemnify and hold Diffblue harmless from: (i) any claim or action alleging that Customer Content infringes the Intellectual Property Rights of or breaches confidentiality obligations to a third party; (ii) any claim or action alleging that your Customer Content or use of the Diffblue Product breaches applicable laws or regulations; (iii) any breach of Clause 12.4; and/or (iv) any loss or damage caused by your gross negligence, wilful misconduct or fraud.
12.1 Notices. All notices to Diffblue must be sent by email to firstname.lastname@example.org. Diffblue will deliver all notices to you to the email address or mailing address provided by you during the subscription process unless you notify Diffblue of an alternative address. AWS may also deliver notices on Diffblue’s behalf to contact details you provided via your AWS account. Email notices will be effective on delivery and postal notices will be effective two (2) working days from sending.
12.2 Parties. The parties are independent. This EULA does not create an agency, employment, partnership or other relationship. This EULA does not confer any rights on any person under the Contracts (Rights of Third Parties) Act 1999.
12.4 Export. You must comply with all applicable export and import control laws, regulations, sanctions and trade embargoes of the United States, United Kingdom and foreign jurisdictions in which the Diffblue Product is used. You will not export or re-export the Diffblue Product: (i) without all required United States, United Kingdom and foreign government licenses; or (ii) to any person in the Crimea Region of the Ukraine, Cuba, Iran, Syria, Sudan, South Sudan or North Korea.
12.5 Assignments. You may not assign or transfer any of your rights or obligations under this EULA. You give general consent that Diffblue may assign, transfer or subcontract all or any of its rights or obligations under this EULA. This EULA will bind and inure to the benefit of each party’s permitted successors, transferees and assigns.
12.6 Anti-bribery. Each party warrants that it shall comply with the United Kingdom Bribery Act 2010 and any other applicable anti-bribery and anti-corruption laws.
12.7 Governing Law. This EULA and any disputes or claims arising out of or in connection with it or its subject matter or formation (including but not limited to non-contractual disputes or claims) will be governed by the laws of England and Wales.
12.8 Jurisdiction. The parties hereby submit to the exclusive jurisdiction of the English court to settle any dispute or claim arising out of or in connection with this EULA or its subject matter or formation (including but not limited to non-contractual disputes or claims). This EULA is written and will be construed in the English language. You acknowledge that any actual or threatened disclosure of Diffblue Confidential Information or infringement of Diffblue Intellectual Property Rights will constitute immediate and irreparable harm to Diffblue for which monetary damages would be an inadequate remedy and for which Diffblue will be entitled to seek injunctive relief. Nothing in this Clause 12.8 will prevent Diffblue from seeking injunctive relief, protecting its Intellectual Property Rights and Confidential Information, or recovering overdue payments from any court of competent jurisdiction.
12.10 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.11 Severability. If any provision of this EULA is deemed to be invalid, unenforceable or illegal, such provision will be modified to achieve the objectives of such provision. If modification is not possible, the relevant provision shall be deleted. Any modification or deletion under this Clause 12.11 shall not affect the validity and enforceability of the rest of this EULA.
12.12 Force Majeure. Diffblue shall not be liable for any failure or delay in performance caused by reasons beyond its reasonable control, including without limitation: (i) unavailability, reduced performance, failure or delay of AWS or other hosting provider, supplier, utility service provider or telecommunications network, (ii) explosion, terrorist attack, war, riot, civil commotion or malicious damage, (iii) compliance with any law or governmental order, (iv) fire, flood, storm, act of God, epidemic or other natural disaster. In such event, the time for performance shall be extended for the period of delay or inability to perform.
12.13 Entire Agreement. This EULA, and any document referred to in it, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior agreements and communications. You acknowledge and agree that you have not based your purchasing decision on the future availability of any new products, versions and/or features. Nothing in this Clause 12.13 shall limit or exclude any liability for fraud.
12.14 Variation. Diffblue may amend this EULA at any time by posting a revised version online or sending you a notice. Such changes shall apply from the date of revision. Otherwise, this EULA may only be amended by a written document signed by the authorised representatives of both parties.
If you have any questions regarding this EULA, please contact us via email to email@example.com.