Welcome to Dive!
Thank you for your interest in using our Dive software and services (“Dive”). Dive is provided by Buoyant, Inc, located at 703 Market St, Ste 1200, San Francisco, CA 94127, United States.
By accessing, downloading, installing, or using Dive, you (the individual or legal entity) agree to be bound by the terms of this agreement (“Agreement”). Please read them carefully.
This Agreement sets forth the terms and conditions under which you may access, download, install, use and test Dive during the Evaluation Term.
2.1 Evaluation and License. Subject to the terms of this Agreement and during the Evaluation Term, Buoyant hereby grants you a personal, non-transferable, non-sublicensable, non-exclusive license to access, download, install, and use Dive, in accordance with the documentation or instructions supplied by Buoyant, and solely for internal test and evaluation purposes (“Evaluation”).
2.2 Beta Version. Dive may be in a beta version which is a pre-production, beta release offering and is not at the level of performance of a commercially available product offering. The beta version of Dive may not operate correctly and may be substantially modified prior to first commercial release, or at Buoyant’s option may not be released commercially in the future.
2.3 Restrictions on Use. You agree not to (i) copy, modify, reverse engineer, decompile, disassemble, or otherwise attempt to discover any source code of Dive, make derivative works based upon Dive, or use Dive to develop any products; (ii) sell, license, rent, lease, transfer, pledge, or otherwise dispose of or in any way encumber Dive (or any part thereof or access thereto); (iii) disclose or otherwise make available to a third party any benchmarking or any comparative information, or other information for competitive purposes, involving Dive or other materials provided by Buoyant; or (iv) remove any product identification, legend, notices of any proprietary or copyright restrictions from Dive. You will not export, or allow the export or re-export of Dive or any Confidential Information, or any direct product thereof, in violation of any applicable export laws, restrictions or regulations of the United States or any applicable foreign agency or authority.
You acknowledge that Dive is licensed for Evaluation purposes only and that Buoyant at all times retains ownership of all right, title and interest to Dive and the intellectual property rights related thereto. Upon the request of Buoyant, you shall execute such instruments as reasonably necessary to evidence Buoyant’s ownership of Dive. You hereby assign to Buoyant, any feedback, invention (whether or not patentable), work of authorship, mask work, idea, information, or know-how that is conceived, learned or reduced to practice in the course of performance under this Agreement and all the right, title and interest (including, without limitation, all patent rights, design rights, copyrights, trade secret rights and all other intellectual property or proprietary rights) with respect thereto. You will also take any action reasonably requested by Buoyant to evidence, perfect, obtain, maintain, enforce or defend the foregoing. You shall have or retain all ownership rights in Your Data and all data, text, files, data, output, programs, files, information, or other information material that you provide, develop, generate, create, make available or uss in conjunction with Dive. “Your Data” means means all electronic data or information submitted by you to Dive.
EACH PARTY ACKNOWLEDGES THAT FEEDBACK, DIVE, AND ANY SUBJECT MATTER OF THIS AGREEMENT IS MADE AVAILABLE ON AN AS IS BASIS, AND SUCH PARTY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NONINFRINGEMENT.
This Agreement shall commence upon the acceptance of these terms or your access to Dive and remain in force unless terminated earlier in accordance with this Section 5 (the “Evaluation Term”). Either party may terminate this Agreement for any reason or no reason immediately by written notice to the other party. Upon expiration or termination of this Agreement, all licenses granted will terminate and you shall immediately cease use of Dive and delete any aspects of the software locally stored, any Buoyant Confidential Information and data (including all copies and extracts of thereof) then in your possession or control together with any and all documents, notes and other materials regarding Dive, and, if requested, confirm in writing as to such action. Upon expiration or termination of this Agreement for any reason, the terms of the following sections shall survive: 3-9.
BUOYANT SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (I) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (II) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, (IV) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF $1,000, OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, Dive, Your Data, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any confidentiality obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any confidentiality obligation owed to Disclosing Party or access to or reliance on Disclosing Party’s Confidential Information; or (iv) is received from a third party without breach of any confidentiality obligation owed to Disclosing Party. Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except as allowed by the terms of this Agreement or with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). Buoyant represents and warrants that it will maintain the confidentiality of Your Data and, except as required by applicable law, will not disclose Your Data to any third party for any purpose other than to provide Dive and to otherwise improve Dive. However, Buoyant may compile aggregate data related to your usage of Dive and may use and/or disclose such aggregate data to third parties, to the extent that you are not identified as the source of such data and as long as the data does not reveal the identity, whether directly or indirectly, of any individual, or specific data entered by or relating to any individual. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
7.1 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with (a) prior written notice of such compelled disclosure (to the extent legally permitted) and (b) reasonable assistance in contesting the disclosure, at Disclosing Party’s option and cost. Any actual disclosure shall be limited to the minimum amount of information necessary to comply with the disclosure demand as advised by legal counsel.
7.2 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
7.3 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and, upon request and to the extent practicable, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.
Buoyant employs reasonable security procedures in accordance with industry standards. Buoyant will provide Dive in accordance with its standard security policy, disaster recovery plan, and resilience plan. To the extent Your Data comprises “personal data” within the meaning of applicable data protection laws and regulations, you acknowledge and agree that Buoyant is acting on your behalf as a data processor. As data processor, Buoyant shall: a) process Your Data in accordance with this Agreement, your instructions, and applicable data protection laws and regulations, b) take and maintain appropriate organizational, administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Your Data, c) set up and maintain security measures against unauthorized access to or unauthorized alteration, disclosure, destruction or loss of Your Data, d) not access your user accounts, including Your Data, except as to respond to service or technical problems or otherwise at your request, and e) take reasonable steps to ensure that Buoyant’s personnel who are used to provide and support your use of Dive are under strict confidentiality provisions and are aware of and are suitably trained in any such technical, organizational and security measures.
This Agreement shall be governed by and construed under the laws of the State of California without giving effect to the principles of conflicts of law and without application of the UN Convention on Contracts for the International Sale of Goods. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of any right under this Agreement and all waivers must be in writing. In the event that any term of this Agreement is held by a court to be unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Although fully assignable and transferable by Buoyant, you may not assign this Agreement without the prior written consent of Buoyant, and any such attempted assignment or transfer shall be void and without effect. This Agreement may only be modified by a written document executed by the parties hereto. This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties with respect thereto.