License Agreement

Thank you for choosing Vivid. This is a license agreement between you and Vivid and is valid for the order to which this agreement accompanies.

This agreement describes your rights and the conditions upon which you may use the licensed materials. You should review the entire agreement, including any supplemental license terms that apply to the licensed materials and any linked terms, because all the terms are important and together constitute this agreement that applies to you. The agreement also applies to any updates, supplements, and network-based services. Vivid licenses the materials only on the condition that licensee accepts all terms contained or referenced in this agreement.

By accepting this agreement or using the licensed materials, you agree to all of these terms. If you do not accept and comply with these terms, you may not use the licensed materials or its features. You may contact your point of purchase to determine its return policy and fulfill your obligations under that policy in exchange for a refund or credit under that policy.

Under applicable law, you may have certain rights that can't be limited by a contract. This agreement is in no way intended to restrict those rights.

Upon Vivid's acceptance of your order, Vivid grants you a non-exclusive, non-assignable, non-sublicensable, royalty-free right to use the licensed materials and receive any services you ordered solely for your internal business operations and subject to the terms of this agreement, including the definitions and rules stated in your order and the materials' documentation; however, certain deliverables may be subject to additional license terms provided in the ordering document. You may allow your personnel, employees, agents, contractors, and customers to use the materials for this purpose, and you are responsible for their compliance with this agreement in such use. Documentation is either shipped with the materials or accessible to you online at https://vivid-inc.net/. Services are provided based on Vivid's policies for the applicable services ordered, which are subject to change.

The services provided under this agreement may be related to your license to use materials which you acquire under a separate order. The agreement referenced in that order shall govern your use of such materials. As noted elsewhere, other terms and conditions governing use of the licensed materials are incorporated herein by reference, including the terms and conditions in your other agreements with Vivid. Any services acquired from Vivid are bid separately from such licenses, and you may acquire either services or such licenses without acquiring the other.

In order to satisfy the rights and fulfill the obligations agreed to in this license, you may need to access Vivid services, such as Vivid Support. Usage of Vivid services are bound by agreements separate to this one, such as Terms of Use, available online at https://vivid-inc.net/en/legal/terms-of-use.html. Your agreement to this license entails agreement with all other related agreements necessary to exercise your rights and fulfill your obligations indicated in this license. Those specific agreements, if any, can be found amongst the full index of agreements, available online at https://vivid-inc.net/en/legal/.

You are responsible for ensuring that the digital license keys registered in installations of the licensed materials are not tampered with and for safe-guarding the digital license keys such that copies do not escape your control.

Primary usage. You are granted permission to install and use the licensed materials as long as the license accommodates each of the following applicable conditions:

1. The start and end dates for which the materials are licensed (the "license term"). Unless otherwise defined in this agreement or in your order, the license term is limited to one year from the date of purchase.
2. Maximum number of users that are permitted to use the licensed materials.
3. Co-works that the licensed materials interoperate with.

These installations are for your primary usage, which often also goes by the terms "deployment", "production", and "release" environments.

Failover. You may install and utilize the licensed materials in a plurality of discrete installations that, when executing:

1. Interoperate with each other to form a single failover system whose intent is to survive node failure and minimize unscheduled downtime, as your primary usage system.
2. Act as a standby until promoted to become a primary usage system.

Your order stipulates the maximal permitted configuration of failover designs. In the case of a single multi-instance/multi-node failover system, while the maximum number of instances are by definition two or more, the limits placed on other aspects in your order apply to each failover system as a whole, and not to each of the system's individual member instances. Failover configurations often go by the terms "failover", "high availability", "hot standby", "multi-node", "redundant", "standby", "warm standby", and variations thereof. When your order doesn't specify the maximal permitted configuration, you may run one multi-node failover configuration as your primary usage system.

Testing. Your license includes the right to run a single copy of each licensed material on a testing system expressly for the following purposes:

1. Applying proposed changes (including settings and processing loads) to a testing system to verify the effects of the changes, judging the results, and applying desirable changes to a primary usage instance.
2. Verifying your backup and restoration procedures of primary usage systems.

Testing instances may be licensed with the same digital licensing manner as the primary usage systems. Testing systems often go by the terms "testing", "staging".

Development. You may run any number of instances strictly for the purpose of developing with the licensed offerings. Development instances must be licensed with a separate digital license key issued for this purpose.

Backup and archive. You may make a sufficient number of archival copies of the materials for your licensed use e.g. disaster recovery procedures, and satisfying compliance obligations.

Trial periods. You may order trial materials, or Vivid may include additional materials with your order which you may use for trial purposes only. You have the time period from the delivery date to evaluate these materials as stated in the materials' literature. If you decide to use any of these materials after the trial period, you must obtain a non-trial license for such materials from Vivid or an authorized distributor. If you decide not to obtain a non-trial license for any materials after the trial period, you will cease using and will delete any such materials from your computer systems. Materials licensed for trial purposes are provided "as is"; Vivid is not obligated to provide technical support and does not offer any warranties for these materials.

The licensed materials might run in conjunction with or dependent upon other materials, either as host platform, accessed through APIs, or other means ("co-works"). In such cases where co-works impose a licensing model, licenses you obtain subject to this license agreement may be shaped by user tiers, refund policies, and other such terms as stipulated by the co-works. This section elaborates on such cases.

Atlassian. Licenses for the licensed materials are additionally subject to the terms provided in your order with Atlassian, if any. Please refer to your licensing agreements with Atlassian and related parties to understand your rights and obligations under those agreements in conjunction with this license. When the licensed materials are operated upon an Atlassian host platform, Atlassian's licensing rules take effect with respect to the co-work and license limitations, to which certain rules in this document are subordinate, as applicable, e.g.:

1. Settlement of fees and taxes.
2. Your order includes technical support according to the terms of your order with Atlassian.
3. The support lifecycle of the licensed materials is affected by the support lifecycle of the co-work, e.g. Atlassian Jira.
4. Trial periods.

For purposes of the ordering document, technical support consists of materials updates, product support, and other annual technical support services you may have ordered. If ordered, technical support (including first year and all subsequent years) is provided under Vivid's technical support policies in effect at the time the services are provided and is applicable to properly licensed materials. The technical support policies, incorporated in this agreement, are subject to change at Vivid's discretion; however, Vivid will not materially reduce the level of services provided for supported materials during the period for which fees for technical support have been paid. You should review the policies prior to entering into the ordering document for the applicable services. You may access the current version of the technical support policies at the material's website.

Technical support is effective upon the effective date of the ordering document. If your order was placed through Vivid, the effective date is the date your order was accepted by Vivid. Materials updates or product support acquired with your order may be renewed annually and, if you renew the materials updates or product support for the same number of licenses for the same materials. If your order is fulfilled by a Vivid Partner, the fee for materials updates or product support for the first renewal year will be the price quoted to you by your partner.

A component of Vivid materials and particular versions thereof is the support lifecycle. Vivid manages the support lifecycle for the licensed materials and particular versions thereof, including determination and enactment of new versions, sunset dates, end-of-support dates, and retractions, and any obligations that Vivid may have to support prior versions during the license term may end upon a change to its lifecycle status. Vivid may notify you in advance when Vivid determines materials are scheduled for end of support by updating the associated lifecycle documents. These notices, which are posted at Vivid's website for the materials, contain dates, information about availability of extended maintenance and support, and information about migration paths for certain changes.

Vivid retains all ownership and intellectual property rights to the materials and anything developed by Vivid and delivered to you under this agreement. You have only the limited licenses granted with respect to the licensed materials expressly set forth in this agreement, and you have no other rights, implied or otherwise. You acknowledge and agree that the licensed materials are licensed, not sold, and that rights to install and access the licensed materials are acquired only under the license from Vivid.

1. You may not remove or modify any materials markings or any notice of Vivid's proprietary rights.
2. You may not make the materials resulting from the services available in any manner to any third party for use in the third party's business operations, unless such access is expressly permitted for the specific materials license or materials from the services you have acquired. You may not use or offer the licensed materials on a service bureau basis.
3. Except when expressly permitted by Vivid, either as prior written permission or by an explicit open-source declaration made by the materials, cause or permit reverse engineering (unless required by law for interoperability), disassembly, decompilation, or otherwise attempt to discover the source code of the materials.
4. You may not circumvent any form of technical protection in the licensed materials designed to enforce the terms of this agreement.
5. Each licensed material in your order is licensed to you as a single product to be used as a single product as permitted herein. You may not unbundle the component parts of any licensed material for use on different installations.

Fees. All fees, and any other fees that may be payable pursuant to agreement of the parties, are due on the dates and for amounts as indicated in the order. Vivid is not responsible for any communication fees you incur in relation to your access and use of Vivid offerings.

Taxes. You will pay any sales, value-added, or other similar taxes imposed by applicable law that Vivid must pay based on the offerings you ordered, except for taxes based on Vivid's income.

Future functionality. In entering into the payment obligations in your order, you:

1. Have not relied on the future availability of any materials or updates;
2. Are not dependent on any oral or recorded comments made by Vivid regarding future functionality or features.

Vivid warrants that the materials licensed to you will perform substantially as described in the applicable materials documentation during the license term. This limited warranty starts when the licensee first acquires the materials and proper licensing for them according to the date of purchase in your order, and, unless noted in your order, lasts for one year.

Only substantial variation from the product documentation establishes a warranty right. Vivid does not guarantee that the materials and services will perform error-free or uninterrupted or that Vivid will correct all errors in the materials and services. This limited warranty does not cover problems that you cause, that arise when you fail to follow instructions, or that are caused by events beyond the reasonable control of Vivid, or the materials manufacturer or installer. This limited warranty does not apply to evaluations, not-for-resale, pre-release, sampler, starter, and trial materials, nor to any online services offered to you without charge, which are made available as-is and as-available and without warranty from Vivid. To the maximum extent permitted by law, these warranties are exclusive and there are no other express or implied warranties or conditions, including warranties or conditions of merchantability and fitness for a particular purpose, and non-infringement. If your local law does not allow the exclusion of implied warranties, then any implied warranties, guarantees, or conditions last only during the term of the limited warranty and are limited as much as your local law allows. If your local law requires a longer limited warranty term, despite this agreement, then that longer term will apply, but you can recover only the remedies this agreement allows. For any breach of the above warranties, your only remedy, and the entire liability of Vivid, shall be, at Vivid's election, either:

1. The correction of materials errors that cause breach of the warranty, or if Vivid cannot substantially correct such breach in a commercially reasonable manner, you may end your materials license and recover the fees paid to Vivid for the materials license and any unused, prepaid technical support fees you have paid for the materials license;
2. The re-performance of the deficient services, or if Vivid cannot substantially correct a breach in a commercially reasonable manner, you may end the relevant services and recover the fees paid to Vivid for the deficient services.

For service or refund, you must provide a copy of your proof of purchase and comply with Vivid's return policies. Recovered fees are prorated according to the remaining license term. You must notify Vivid of any services warranty deficiencies for the shorter period of: (a) within 90 days from performance of the services described in the ordering document; or (b) the license term when the materials are used in compliance with this agreement.

Neither party shall be liable for any direct, indirect, incidental, special, punitive, or consequential damages, or any loss of profits, revenue, data, or data use. The damage exclusions and remedy limitations in this agreement apply even if repair, replacement, or a refund does not fully compensate you for any losses, if Vivid knew or should have known about the possibility of damages, or if the remedy fails of its essential purpose. Vivid's maximum liability for any damages arising out of or related to this agreement or your order, whether in contract or tort, or otherwise, shall be limited to the fees you paid Vivid for the deficient items under this agreement as specified in your order, or 1,000 Japanese Yen, whichever is lower. In no event shall Vivid's liability arising out of or related to this agreement exceed that amount.

For any dispute, claim, or controversy arising out of or in connection with this agreement, breach or violation, termination, performance, interpretation, or validity of this agreement, or the use of Vivid products, services, and properties, you agree to first try to resolve the matter informally by contacting us. If the matter is not resolved within 30 days of submission, Vivid shall exercise its rights in accordance with the bound agreements and the above shall be resolved by the Tokyo District Court as the agreed court of exclusive jurisdiction in the first instance. You unconditionally and irrevocably attorn to the exclusive jurisdiction of the Tokyo District Court arising in connection with this agreement. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Notwithstanding the foregoing, in the event of customer or others' unauthorized access to or use of the licensed materials in violation of this agreement you agree that Vivid is entitled to apply for injunctive remedies (or an equivalent type or urgent legal relief) in any jurisdiction.

Benchmarks and performance claims. Any performance tests and ratings provided in the services are measured using specific computer systems or components and reflect the approximate performance of Vivid products as measured by those tests. A difference in system hardware or software design or configuration may affect actual performance. You should consult other sources of information and performance tests to assist you in fully evaluating your contemplated purchases, including the performance of that product when combined with other products.

Non-Vivid benchmarks. Vivid does not control or audit the design or implementation of third party benchmarks or services referenced in the materials or on the services. Vivid encourages all of its customers to visit the referenced services or others where similar performance benchmarks are reported and confirm whether the referenced benchmarks are accurate and reflect performance of systems available for purchase.

Simulated benchmarks. Results that have been simulated are provided for informational purposes only. Results were derived using simulations run on a system expressly designed for this purpose. Any difference in system hardware or software design or configuration or operational environment factors may affect actual performance.

Entire agreement. This agreement, the information incorporated into the agreement by reference, together with the applicable order are the complete agreement between you and Vivid for the Vivid offerings ordered by you, and that this agreement supersedes all prior and contemporaneous agreements, proposals, and representations, written or oral. In the event of an inconsistency between this agreement and the order form, the order form shall prevail to the extent necessary to remedy the inconsistency. If any term of this agreement is found to be invalid, illegal, or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, the remaining provisions will remain effective. The terms of this agreement and any Vivid ordering document shall supersede the terms in any purchase order or other non-Vivid ordering document and no terms included in any such purchase order or other non-Vivid ordering document shall apply to the Vivid offerings ordered.

End of agreement. If either of us breaches a material term of this agreement and fails to correct the breach within 30 days of written specification of the breach, the other party may terminate this agreement. If Vivid ends this agreement as specified in the preceding sentence or under the Indemnification section, you must pay within 30 days all amounts which have accrued prior to the end of this agreement, as well as all sums remaining unpaid for materials ordered and services received under this agreement plus related taxes and expenses. Except for nonpayment of fees, we each agree to extend the 30-day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under this agreement, you may not use those offerings ordered. No action, regardless of form, arising out of or relating to this agreement may be brought by either party more than two years after the cause of action has accrued, with the exceptions:

1. Provisions that survive termination or expiration include those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
2. Actions of nonpayment.
3. Breach of Vivid's proprietary rights.

Severability and waiver. No term of provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different or subsequent breach. Unless as otherwise stated in these terms, should any provision of these terms be held invalid or unenforceable for any reason or to any extent, the remaining provisions of these terms will not be affected, and the application of that provision shall be enforced to the extent permitted by law. Any failure by Vivid or any third-party beneficiary to enforce these terms or any provision thereof shall not waive Vivid's or the applicable third-party beneficiary's right to do so.

Force majeure. Neither of us will be responsible for failure or delay of performance resulting from circumstances outside the reasonable control of the obligated party. Such events include but are not limited to outbreak of war, natural disaster, and government restrictions. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party's obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for services provided.

Errata. Materials, products, and services may contain design defects or errors known as errata which may cause the product or service to deviate from published specifications and may include technical inaccuracies or typographical errors. Vivid updates errata on a best-effort basis and otherwise may make improvements at any time. Please contact Vivid using an appropriate method listed in , available online at https://vivid-inc.net/en/contact/. to obtain the latest specifications before placing your order.

Assignment. Vivid may assign any or all of these Terms, and may assign or delegate, in whole or in part, any of its rights or obligations under these terms. You may not assign these Terms, in whole or in part, nor transfer or sublicense your rights and obligations and your contractual status under these terms or any interest in them to any third party without Vivid's prior written approval.

Confidential agreement. Neither party will publicly disclose, issue any press release or make any other public statement, or communicate with the media, concerning the existence of this agreement or the subject matter thereof, without the prior written approval of the other party.

Notices. Notice required under this agreement given by one party to the other shall be sufficiently given if:

1. Electronic transmission with a person representing the counterparty acknowledging receipt of the notice by responding in kind.
2. Personally delivered or couriered;
3. Mailed by regular mail with delivery tracing;

Such notices shall be sent to the parties at the addresses provided in the order. In the case of notification sent to Vivid, the primary notification point is Vivid Support, available online at https://vivid-inc.net/.

Nondisclosure. By virtue of this agreement, the parties may have access to information that is confidential to one another. Confidential information shall be limited to the terms and pricing under this agreement, and all information clearly identified as confidential. A party's confidential information shall not include information that:

1. Is or becomes a part of the public domain through no act or omission of the other party;
2. Was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party ether directly or indirectly from the disclosing party;
3. Is lawfully disclosed to the other party by a third party without restriction on the disclosure; or
4. Is independently developed by the other party.

We each agree to hold each other's confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to prevent either party from disclosing the terms or pricing under this agreement or orders submitted under this agreement in any legal proceeding arising from or in connection with this agreement.

Indemnity. You agree to defend, indemnify and hold harmless Vivid, its subsidiaries, affiliates, officers, agents, employees, partners, and licensors from and against any and all claims, demands, damages, costs, losses, liabilities, expenses and settlement amounts incurred in connection with any suit, claim, or action by any third party alleging that the licensed material infringes or misappropriates any patent, copyrights, moral rights, trademark, trade secret, and design rights, whether registered or unregistered, and including any application for registration of the foregoing and all rights or forms of protections of a similar nature having equivalent or similar effect to any of these, which may subsist anywhere in the world, of such third party.

Construction. Ambiguities in this Agreement will not be construed against the drafter. Headings in the agreement are for convenience only and have no legal meaning or effect.

Language. The English language version of this agreement is legally binding in case of any inconsistencies between the English version and any translations. Where Vivid has provided you with a translation of the English language version of this License Agreement, you agree that the translation is provided for your convenience only. The parties confirm that it is their wish that this Agreement, as well as all other related documents, including notices, have been and shall be written in the English language only.

Governing law. This agreement shall be governed by and construed in accordance with the laws of Japan.

Trade compliance. Certain Vivid products and services might be subject to trade control laws, including the export control and economic sanctions laws of Japan, the European Union, and other jurisdictions (collectively, "trade control laws"). You represent and warrant that you are:

1. Not located in, organized under the laws of, or ordinarily resident in any country or territory subject to territorial sanctions ("Sanctioned Country"), nor are you owned by or acting on behalf of a Government subject to asset-blocking sanctions or any person or entity organized, located or ordinarily resident in a Sanctioned Country;
2. Not a person identified on, or more than 50% owned or controlled, directly or indirectly, by or acting on behalf or at the direction of any entity identified on, Japan, E.U., or other applicable government restricted party lists, such as the Consolidated list of persons, the Specially Designated Nationals List maintained by OFAC, groups and entities subject to EU financial sanctions, or the UK Consolidated List.

You agree to comply with all applicable trade control laws in your use of the licensed materials. Specifically, you agree not to, directly or indirectly, use, sell, supply, export, reexport, transfer, divert, release, or otherwise dispose of any products, materials, or technology (including products derived from or based on such technology) received from Vivid under this agreement to any destination, entity, or person or for any end use prohibited by applicable trade control laws. Vivid shall not be required to act in any way that is prohibited under applicable trade control laws, and it shall be in the sole discretion of Vivid to refrain from being directly or indirectly involved in the provision of products or services that may be prohibited under applicable trade control laws.

Elimination of anti-social forces. (Japan legal code "反社会的勢力対応") You declare that you are not, and are not involved in any transactions with, anti-social forces (defined below). You shall not engage in any transactions with anti-social forces including criminal and extremist elements. If you have knowingly or otherwise dealt with anti-social forces, Vivid may terminate this agreement immediately without any liability. Anti-social forces means persons or entities which fall under any of the following items according to Japanese law:

1. An organized crime group, a member of an organized crime group, a related company or association of an organized crime group, and any other equivalent person of above;
2. A person who themselves or through the use of third parties conducts a demand with violence, an unreasonable demand beyond its legal entitlement, use of intimidating words or actions, damages the credit or obstructs the business of the other party by spreading false rumors or by the use of fraudulent, or any other equivalent actions of above.

Changes to this agreement. This agreement and ordering documents may not be modified and the rights and restrictions may not be altered or waived except in a prior express writing signed or accepted online through Vivid by authorized representatives of you and of Vivid, and neither the course of conduct between you and Vivid, nor any trade practice, shall act to modify any provision thereof.

Not withstanding the foregoing, we may make changes to this agreement, including to any additional Vivid terms and conditions incorporated by reference herein. If and when we make such changes, we will inform you by updating this License Agreement and revising the "Effective Date" on this document. For material changes, we may attempt to inform you by email. Your use of the licensed materials following any changes to this agreement will constitute your acceptance of such changes.

Customer confirmation. You acknowledge that you have carefully read and understood this agreement, including all terms included by reference, and understand that you have been advised to obtain independent legal advice before entering into the agreement, and have either done so or chosen to not do so. Consequently, any statutory "form contract" ("adhesion contract") regulations shall not be applicable to this agreement.

1. Agreement term, license term: The period within which you have the right to use the licensed materials consistent with this agreement, starting from the date of purchase as specified in your order and ending on either the expiration or termination of this agreement.
2. Customer, licensee, "user", "you": Means you and any legal entity that obtained the licensed materials and on whose behalf they are used; for example, and as applicable, your employer.
3. Date of purchase: The date that your purchase was made as it is recorded in your order.
4. Digital license key: A short data document prepared either by Vivid or a co-work that you input into the licensed materials in order to obtain the materials' benefits in accordance with this agreement.
5. Documentation: Refers to any explanatory or written materials provided with the licensed materials, but excluding content by third parties.
6. Instance: You create an instance of software by executing the software's setup or install procedure or by duplicating an existing instance. You run an instance of software by loading it into memory and executing one or more of its instructions. Once running, an instance is considered to be running (whether its instructions continue to execute) until it is removed from memory.
7. Licensed materials: All software files, data, information, content, and documents provided with or in connection with this agreement, and any modified versions and copies of, and upgrades, updates, and additions to such information, provided by Vivid to customer at any time, to the extent not provided under separate terms.
8. Offerings: All products and services, including all materials and other information, produced by and owned by Vivid and offered to our customers.
9. Services: The content and services that are owned and operated by or hosted on Vivid properties.
10. Transmit: Upload, submit, post, send, email, attach, send, transmit, or otherwise make content available into Vivid's services.
11. Vivid, Vivid Inc., "controller", "our", "us", "we": Vivid Inc., 6-19-15 Jingumae, Shibuya, Tokyo 150-0001 Japan, or, based on where principal place of business is located, a subsidiary or affiliate thereof.