RSTUDIO IDE SERVER PROFESSIONAL LICENSE AGREEMENT
This RSTUDIO IDE SERVER PROFESSIONAL LICENSE AGREEMENT and all appendices attached hereto ("License Agreement") is made and entered into by and between RStudio, Inc., a Delaware corporation ("RStudio" or "we", "us", or "our"), and the person or entity that enters into this License Agreement ("You" or "Your") and any other person or entity who uses the IDE that you have provided to them (Your "Users").
IF THIS LICENSE AGREEMENT IS MADE AVAILABLE AS A CLICKWRAP AGREEMENT, CLICK THE "ACCEPT" BUTTON IF YOU HAVE THE AUTHORITY TO ENTER INTO THIS LICENSE AGREEMENT AND THAT YOU HAVE READ AND FULLY UNDERSTAND THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ON BEHALF OF YOU AND YOUR USERS. IF THIS LICENSE AGREEMENT IS MADE AVAILABLE AS A CLICKWRAP AGREEMENT, CLICKING "ACCEPT" ESTABLISHES A BINDING AGREEMENT ON THESE TERMS AND CONDITIONS BETWEEN YOU, YOUR USERS AND RSTUDIO.
1.1 The RStudio Integrated Development Environment Server, Professional Edition, (the "IDE," and specifically including the RStudio system files and other software, documentation, packaged application programming interfaces ("APIs"), and RStudio API add-ons) is licensed to You and Your Users subject to the terms of this License Agreement. This License Agreement forms a legally binding contract between You, Your Users, and RStudio in relation to use of the IDE by You and Your Users. You are responsible for the compliance of Your Users with the terms and conditions of this License Agreement and shall be liable for any breach of this License Agreement by Your Users.
2. Accepting this License Agreement
2.1 In order to use the IDE pursuant to these terms, You and Your Users must first agree to the terms and conditions of this License Agreement, either by explicitly accepting them or by using the IDE. Acceptance of this License Agreement will entitle You and Your Users to use the IDE for a set evaluation period; accordingly, the IDE includes mechanisms that disable the operation of the IDE after the evaluation period. You may convert the evaluation period into a renewable license of limited term by paying the fees asked of You by RStudio and agreeing to use the IDE under this License Agreement, at which point RStudio will provide you with commercial support terms and an Appendix A to this License Agreement (which Appendix A shall be incorporated by reference herein) that specifies the term of the renewable license, the number of users and the permitted installations of the IDE; accordingly, the IDE includes mechanisms that disable the operation of the IDE if the license is not renewed by paying the requested fees. RStudio will invoice You for the applicable fees as set forth in Appendix A. You shall pay any taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental agencies of whatever kind and imposed with respect to all transactions under this License Agreement including penalties and interest but specifically excluding any income taxes payable by RStudio. Such taxes added to the invoice, as prescribed by applicable law, shall be due and payable by You at the time such invoice is payable.
2.3 If You and Your Users do not accept this License Agreement or, after conclusion of the evaluation period, do not pay the fees charged by RStudio for the renewable limited term license, then You and Your Users are not permitted to use the IDE.
2.4 You and Your Users may not use the IDE and may not accept this License Agreement if You or Your Users are a person barred from receiving the IDE under the laws of the United States or other countries including the country in which You or Your Users are resident or from which You or Your Users use the IDE.
3. IDE License from RStudio
3.1 Subject to the terms of this License Agreement, RStudio grants You and Your Users a limited, worldwide, royalty-free, non-assignable, non-transferable, non-sublicensable and non-exclusive license pursuant to this License Agreement to use the IDE and accompanying documentation to develop software (each a "Product") designed to be licensed, sold, transferred, used or distributed for use with R, the open source programming language and software environment for statistical computing and graphics (the "Platform"). During the evaluation period, Your use of the IDE is limited to a single computer system unless otherwise agreed to in a writing between You and RStudio. During the limited term renewable license, use of the IDE by You and Your Users is limited to the number of users and the number of computer systems specified in Appendix A.
3.2 You and Your Users agree that RStudio and its licensors own all legal right, title and interest in and to the IDE, including without limitation all enhancements, improvements, bug fixes, updates, upgrades, modifications and derivative works thereof, and any Intellectual Property Rights therein. "Intellectual Property Rights" means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights. RStudio reserves all rights not expressly granted to You and Your Users.
3.3 Except to the extent explicitly permitted by this License Agreement, You and Your Users shall not (and shall not permit any third party to) (i) copy (except for backup purposes), modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the IDE or any part of the IDE or otherwise attempt to discover the source code of the IDE, (ii) combine any part of the IDE with other software, (iii) distribute any software or device incorporating a part of the IDE, (iv) use the IDE except on Your own internal computer networks, (v) otherwise use the IDE on any computer that You do not own or control, or (vi) transfer, distribute, sell, lease, rent, or sublicense the IDE to any third party, use or make available the IDE or any part of the IDE for the benefit of any third party such as commercial time-sharing, application hosting, or service bureau use or make the IDE or any part of the IDE publicly available for download or use via an internet website.
3.4 Use, reproduction and distribution of those components of the Platform that are licensed under an open source software license are governed solely by the terms of that open source software license and not this License Agreement. The open source software components of the Platform are as set forth in the publicly available documentation for the Platform as the same may be updated by RStudio from time to time.
3.5 You and Your Users agree that the form and nature of the IDE that RStudio provides may change and that future versions of the IDE may be incompatible with Products You or Your Users developed on previous versions of the IDE. You and Your Users agree that RStudio may stop (permanently or temporarily) providing the IDE (or any features within the IDE) to You and Your Users or to users generally at RStudio's sole discretion, without prior notice to You and Your Users. If RStudio ceases to provide the IDE to You and Your Users for more than thirty (30) consecutive days, You may terminate this License Agreement by written notice to RStudio and will receive a refund of any pre-paid license and maintenance fees for the remainder of the then-current term. You and Your Users agree that RStudio will provide support and maintenance for the IDE under the terms and conditions set forth at http://www.rstudio.com/shiny/commercial/support-agreement.html and provided that You have paid RStudio all support and maintenance fees payable thereunder. RStudio is under no obligation to provide any maintenance, technical or other support for the IDE during the evaluation period. This License Agreement governs any releases, revisions or enhancements to the IDE which we may furnish to You and Your Users.
3.6 Nothing in this License Agreement gives You and Your Users a right to use any of RStudio's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
3.7 You and Your Users agree not to remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the IDE.
3.8 You and Your Users agree not to, through use of the IDE or otherwise, create any application or other program that would disable, hack or otherwise interfere with any security, digital rights management, verification or authentication mechanisms implemented in or by the Platform or the IDE.
4. Use of the IDE by You and Your Users
4.1 RStudio agrees that it obtains no right, title or interest from You and Your Users (or Your licensors) under this License Agreement in or to any Products that You and Your Users develop using the IDE.
4.2 You and Your Users agree to use the IDE and develop Products only for purposes that are permitted by (a) this License Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
4.3 You and Your Users agree to be solely responsible for (and that RStudio has no responsibility to You and Your Users or to any third party for) any data, content, or resources that You and Your Users create, transmit or display through the Product, and for the consequences of your actions (including any loss or damage which RStudio may suffer) by doing so.
4.4 Upon request by RStudio, You and Your Users agree to provide RStudio with feedback regarding the quality, performance and usability of the IDE and any problems or defects in the IDE (collectively, the "Feedback") within a reasonable time after RStudio requests. You and Your Users hereby assign all right, title and interest in and to the Feedback, including all intellectual property embodied therein, to RStudio.
5.1. Information Deemed Confidential
You and Your Users agree that this License Agreement, the IDE and any non-public information that You and Your Users learn or receive about RStudio's products, the IDE, Feedback, designs, research, development, know-how, or RStudio's business, finances, or personnel, or non-public third party information, in connection with this License Agreement or in connection with your use of any part of the IDE is "RStudio Confidential Information".
5.2. Information Not Deemed Confidential
RStudio works with many application and software developers and some of their products may be similar to or compete with your applications. RStudio may also be developing its own similar or competing applications and products or may decide to do so in the future. To avoid potential misunderstandings, RStudio cannot agree, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information that You and Your Users may provide in connection with the IDE or the Platform. You and Your Users agree that any such disclosures will be non-confidential. RStudio will be free to use and disclose any disclosures on an unrestricted basis without notifying or compensating You and Your Users. You and Your Users release RStudio from all liability and obligations that may arise from the receipt, review, use, or disclosure of any portion of any such disclosures. The following information that otherwise would be deemed Confidential Information is not Confidential Information: (i) information that is generally available to the public through no fault of or breach by You and Your Users, (ii) information that is independently developed by You and Your Users without the use of any RStudio Confidential Information, (iii) information that was rightfully obtained from a third party who had the right to transfer or disclose it to You and Your Users without limitation, or (iv) any open source code included with the IDE and accompanied by licensing terms that do not impose confidentiality obligations on its use or disclosure.
5.3. Obligations Regarding Confidential Information
You and Your Users agree to protect RStudio Confidential Information using at least the same degree of care that you use to protect your own confidential information of similar importance, but no less than a reasonable degree of care. You and Your Users agree to use RStudio Confidential Information solely for the purpose of exercising your rights and performing your obligations under this License Agreement and agree not to use RStudio Confidential Information for any other purpose, or for your own or any third party's benefit, without the express prior written consent of an authorized representative of RStudio. You and Your Users further agree not to disclose or disseminate RStudio Confidential Information to anyone, or to discuss anything about the RStudio Confidential Information with anyone, other than (i) those of Your employees and contractors who have a need to know and who are bound by a written agreement at least as protective of the RStudio Confidential Information as this License Agreement, or (ii) except as otherwise agreed in writing by RStudio. You and Your Users may disclose RStudio Confidential Information to the extent required by law, provided that you take reasonable steps to notify RStudio of such requirement before disclosing the RStudio Confidential Information and to obtain protective treatment of the RStudio Confidential Information. You and Your Users acknowledge that damages for improper disclosure of RStudio Confidential Information may be irreparable; therefore, RStudio is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.
6. Third Party Applications for the RStudio Platform
6.1 If You or Your Users use the IDE with applications developed by a third party or to access data, content or resources provided by a third party, You and Your Users agree that RStudio is not responsible for those applications, data, content, or resources. You and Your Users understand that all data, content or resources which You and Your Users may access through such third party applications are the sole responsibility of the person from which they originated and that RStudio is not liable for any loss or damage that You and Your Users may experience as a result of the use or access of any of those third party applications, data, content, or resources.
6.2 You and Your Users acknowledge that the data, content, and resources presented to You and Your Users through such a third party application may be protected by intellectual property rights which are owned by the providers (or by other persons or companies on their behalf) and not RStudio. You and Your Users use of those resources may require rights beyond those granted by this License Agreement
6.3 You and Your Users acknowledge that any use of third party applications, data, content, or resources may be subject to separate terms between You, Your Users, and the relevant third party. In that case, this License Agreement does not affect your legal relationship with these third parties.
7. Terminating this License Agreement
7.1 This License Agreement, unless earlier terminated as provided for in this Section 7, will commence on the date the IDE is made available to You or your Users for download and will continue to apply (i) if You have an evaluation license, until the end of Your evaluation period, or (ii) if You have purchased and paid for a limited term renewable license, until the expiration of the subscription term set forth on Appendix A.
7.2 Either party may terminate this License Agreement immediately upon written notice to the other party in the event of the occurrence of any of the following: (i) in the case of RStudio, if You fail to pay any amount due hereunder within ten (10) days after written demand by RStudio for payment thereof, (ii) if the other party fails to observe or perform any term or condition of this License Agreement and does not cure such failure within thirty (30) days after written demand by the non-breaching party, or (iii) if the other party makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed against the other party and is not dismissed within thirty (30) days after the filing, or if a receiver or trustee is appointed for all or any part of the property or assets of the other party.
7.3 When this License Agreement terminates or expires, all licenses granted to You and Your Users in this License Agreement shall immediately terminate and You and Your Users shall immediately cease any and all use of RStudio's Confidential Information. You and Your Users shall remove the IDE from any and all computers and computer systems on which it was installed and shall destroy all copies of the IDE in Your and Your Users possession, unless such removal and destruction is not commercially practicable and provided that any copies that are retained may not be used or accessed for any reason and will remain subject to the terms and conditions of this License Agreement. You and Your Users shall return all RStudio Confidential Information to RStudio within 10 days following termination or expiration. Sections 4, 5, 7-10, and 12 shall survive any termination or expiration of this License Agreement.
8. DISCLAIMER OF WARRANTIES
8.1 YOU AND YOUR USERS EXPRESSLY UNDERSTAND AND AGREE THAT USE BY YOU AND YOUR USERS OF THE IDE IS AT THE SOLE RISK OF YOU AND YOUR USERS AND THAT THE IDE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.8.2 USE BY YOU AND YOUR USERS OF THE IDE AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE IDE IS AT THE DISCRETION AND RISK OF YOU AND YOUR USERS AND YOU AND YOUR USERS ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
8.3 RSTUDIO FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
8.4 IF YOU AND YOUR USERS ARE PARTICIPATING IN A BETA TEST EVALUATION OF THE IDE, YOU AND YOUR USERS ACKNOWLEDGE AND AGREE THAT (1) THE IDE HAS NOT BEEN FULLY TESTED AND MAY CONTAIN BUGS, ERRORS AND OTHER ANOMALIES AND (2) THE PURPOSE OF THIS LICENSE AGREEMENT IS TO PROVIDE FOR YOU AND YOUR USERS TO TEST AND EVALUATE THE IDE AND TO PROVIDE RSTUDIO WITH RESULTS OF SUCH TESTING AND EVALUATION.
9. LIMITATION OF LIABILITY
9.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, RSTUDIO, ITS SUBSIDIARIES, AFFILIATES AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU OR YOUR USERS UNDER STRICT LIABILITY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY FOR ANY (A) INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS OR LOSS OF DATA, OR (B) ANY DIRECT DAMAGES THAT EXCEED IN THE AGGREGATE $100, IN EACH CASE, WHETHER OR NOT RSTUDIO OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES.
10.1 To the maximum extent permitted by law, You and Your Users agree to defend, indemnify and hold harmless RStudio, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees) arising out of or related to (a) use by You and Your Users of the IDE, (b) any modifications you make to the IDE and any Product You and Your Users develop, including without limitation any claim that the modifications and/or your Product infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) any non-compliance by You and Your Users with this License Agreement.
11. Changes to the License Agreement
11.1 This License Agreement is a click through license that is made available on the website where the IDE will be made available (the "IDE Website"). RStudio may make changes to this License Agreement from time to time in its sole discretion and when these changes are made, RStudio will make a new version of the License Agreement available on the IDE Website. Continued use of the IDE by You and Your Users after any such changes constitutes your acceptance of the new License Agreement; provided, however, if You have purchased a limited term renewable license, these changes will not be effective for You and Your Users until the date on which Your then-current subscription term renews. If You and Your Users do not agree to abide by this License Agreement or any future License Agreement, do not use (or continue to use) the IDE.
12. General Legal Terms
12.1 This License Agreement constitutes the whole legal agreement between You, Your Users, and RStudio and governs your use of the IDE (excluding any services which RStudio may provide to You and Your Users under a separate written agreement), and completely supersedes and replaces any prior and contemporaneous agreements between You, Your Users, and RStudio in relation to the IDE.
12.2 You and Your Users agree that if RStudio does not exercise or enforce any legal right or remedy which is contained in this License Agreement (or which RStudio has the benefit of under any applicable law), this will not be taken to be a formal waiver of RStudio's rights and that those rights or remedies will still be available to RStudio.
12.3 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this License Agreement is invalid, then that provision will be removed from this License Agreement without affecting the rest of this License Agreement. The remaining provisions of this License Agreement will continue to be valid and enforceable.
12.4 You and Your Users acknowledge and agree that each member of the group of companies of which RStudio may be the parent (or of which RStudio may be a subsidiary) shall be third party beneficiaries to this License Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this License Agreement that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to this License Agreement. Neither party shall be deemed to be an employee, agent or other legal representative of the other party for any purpose whatsoever, or have the right or authority to assume or otherwise create any obligation or responsibility, express or implied on behalf of the other party or to bind the other party in any manner whatsoever.
12.5 EXPORT RESTRICTIONS. THE IDE IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU AND YOUR USERS MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE IDE. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE.
12.6 The rights granted in this License Agreement may not be assigned or transferred by You or Your Users without the prior written approval of RStudio. You and Your Users shall not delegate your responsibilities or obligations under this License Agreement without the prior written approval of RStudio. RStudio may freely transfer and/or assign this License Agreement without Your or Your Users consent.
12.7 This License Agreement, and the relationship between You and Your Users and RStudio under this License Agreement, shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. You, Your Users, and RStudio agree to submit to the exclusive jurisdiction of the courts located within Suffolk County, Massachusetts to resolve any legal matter arising from this License Agreement. Notwithstanding this, You and Your Users agree that RStudio shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
12.8 Up to once per year, RStudio may cause an audit to be made of Your books, records and systems as may be reasonably necessary to ascertain whether You and Your Users are using and have used the IDE in accordance with this License Agreement and are in compliance with the terms and conditions of this License Agreement. Any audit and results thereof will be subject to the confidentiality provisions herein. RStudio shall pay the costs of each audit unless such audit has determined that (i) You have underpaid any amounts due and payable to RStudio by more than five percent (5%) or (ii) You have materially breached its obligations under this License Agreement, in which case You shall pay the reasonable costs of the audit and any amounts underpaid within ten days from receipt of RStudio's invoice.