IMPORTANT: PLEASE READ BEFORE INSTALLATION OR USE OF THE CLOUDMOSA, INC. (“LICENSOR”) SOFTWARE AND PLATFORM (EACH DEFINED BELOW) AND RELATED DOCUMENTATION (COLLECTIVELY, “PRODUCT”) FOR WHICH THE LICENSEE WHOSE ACCESS CREDENTIALS YOU ARE USING PURCHASED A LICENSE. BY INSTALLING OR IN ANY WAY USING THE PRODUCT, THE ENTITY OR COMPANY THAT YOU REPRESENT (“LICENSEE”) IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS LICENSE AGREEMENT (“AGREEMENT”) WITH LICENSOR. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN INSTALLATION OR USE THIS PRODUCT IS STRICTLY PROHIBITED. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. LICENSE GRANT
Subject to the terms of this Agreement, Licensor hereby grants Licensee a limited, personal, non-sublicensable, non-transferable, non-exclusive license to (a) authorize individual employees of Licensee (“Authorized Users”) to download, install, and use Licensee’s enterprise software product (“Software”) and (b) access and use Licensor’s software-as-a-service platform that allows Licensee to manage and administer use of the Software (“Platform”), in each case only for Licensee’s internal use in accordance with the related documentation only in support of the number of Authorized Users for which Licensee has purchased a license during the applicable license term (as set out in Licensee’s account information).
If any Product is provided for evaluation or testing, such Product is provided “as is” (without warranty of any kind), and Licensee’s license is limited to non-production, internal evaluation use and will automatically expire (and the Product will cease functioning) at the end of the applicable evaluation term.
2. LICENSE RESTRICTIONS
Except as expressly and unambiguously permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly:
(i) copy, modify, or distribute the Product;
(ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence, and organization of the Product (except where the foregoing is expressly permitted by applicable local law, and then only to the extent so permitted);
(iii) rent, lease, or use the Product for time sharing or service bureau purposes, or otherwise use the Product on behalf of any third party; or,
(iv) use the Product for performing comparisons or other "benchmarking" activities, either alone or in connection with any software (and Licensee will not publish or disclose any such performance information or comparisons).
(v) abuse the computing power and network resources of the Product.
(vi) use the Product to attack or hack any websites or users, or conduct any illegal activities, e.g., copyright infringement.
Licensee shall maintain and not remove or obscure any proprietary notices on the Product. Licensee will (a) be responsible for its (and its Authorized Users’) compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Product, and notify Licensor immediately of any such unauthorized access and/or use of which Licensee becomes aware, and (c) use the Product only in accordance with this Agreement, the Documentation, and all applicable laws and government regulations.
As between the parties, title, ownership rights, and intellectual property rights in and to the Product, and any copies or portions thereof, shall remain in Licensor and its suppliers or licensors. Licensee understands that Licensor may modify or discontinue offering the Product at any time. The Product is protected by the copyright laws of the United States and international copyright treaties. This Agreement does not grant Licensee any rights not expressly granted herein.
Licensee acknowledges that the Product, its features and functionality, Documentation, and any other information provided by Licensor to Licensee that would reasonably be understood to be confidential given the nature and circumstances of disclosure (collectively, “Confidential Information”) are confidential to Licensor and its suppliers, and Licensee will at all times protect and preserve in strict confidence all such Confidential Information and use it only as expressly permitted herein.
Licensee agrees not to permit or authorize access to, or disclosure of, any such Confidential Information to any person other than Authorized Users who are bound in writing to terms no less restrictive than this Agreement and have a need to access the Product and documentation for the benefit of the Licensee. Without limiting the foregoing, Licensee will afford Confidential Information the same protections that Licensee affords its own information of similar importance. Upon Licensor’s reasonable request, Licensee will return to Licensor or destroy all Confidential Information in Licensee’s possession or under Licensee’s control.
4. LICENSEE CONTENT & OBLIGATIONS
Licensee grants Licensor a worldwide, non-exclusive, royalty-free license to use the information and data entered into or collected by the Product, when used by Licensee and Authorized Users (“Licensee Content”). Licensor may calculate aggregate, anonymized statistics about its customers’ content and use those statistics (but not the underlying Licensee Content) for purposes of sales, marketing, business development, product enhancement, or customer service.
5. SUPPORT & REPORTING
This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Product (collectively, “Support”) unless Licensee enters into a separate agreement for Support with Licensor and pays any fees associated with such Support as designated by Licensor. Any such Support for the Product that may be made available by Licensor (whether voluntarily, or under a separate agreement) shall become part of the Product and subject to this Agreement.
Licensee acknowledges that the Product may contain automated reporting routines that will automatically identify and analyze certain aspects of use (including numbers of users) and performance of the Product and/or the systems on which the Product (or any component thereof) are installed (including problems and issues that arise in connection therewith), and provide information back to Licensor. Licensor will be free to use for development, diagnostic, compliance monitoring, and corrective purposes any data and information it so collects, for no consideration.
Licensee shall pay Licensor (or, if applicable, Licensor’s authorized reseller, OEM or channel partner (each, a “Reseller”)) the fees for the Product designated by Licensor (or its applicable partner). All fees shall be non-refundable and payable in US dollars on the date they come due. Licensee shall also pay all sales, use, value-added and other taxes, tariffs and duties of any type assessed against Licensor except for taxes on Licensor’s income.
During the term hereof and for one (1) year thereafter, Licensor shall have the right to reasonably inspect and audit Licensee’s facilities, systems and relevant books and records to confirm the Licensee’s compliance with the terms of this Agreement.
7. REPRESENTATIONS AND WARRANTIES; INDEMNITY.
Licensee represents and warrants that:
(i) it owns the Licensee Content or otherwise has the right to grant the rights set forth in this Agreement;
(ii) the Licensee Content does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person;
(iii) the posting of Licensee Content does not result in a breach of contract between Licensee and any third party; and
(iv) Licensee has the right to authorize Licensor to monitor, and provide reports to Licensee regarding, Authorized Users’ internet usage.
Licensee will indemnify and defend Licensor from and against any and all third party claims, actions, suits or proceedings made or brought against Licensor and arising out of or related to any allegation that, if true, would constitute a breach of Licensee’s representations and warranties in this Agreement.
8. WARRANTY DISCLAIMER
Except for evaluation copies (which are provided “as is”), Licensor warrants that the Product will perform substantially in conformance with the Documentation for 30 days from the date of first use of the Product. If the Product fails to substantially conform to such warranty during the warranty period, then, subject to delivery of prompt written notice by Licensee to Licensor during the warranty period, Licensor will use reasonable commercial efforts to provide Licensee with a work-around or correction for the nonconformity within a reasonable period of time. Licensor does not warrant that the operation of the Product will be uninterrupted, entirely secure or error-free. The foregoing warranty does not apply to defects or nonconformities in the Product caused by: (a) Licensee’s failure to follow Licensor’s installation, operation or maintenance instructions or procedures; (b) Licensee’s mishandling, misuse, negligence, or improper installation, de-installation, storage, servicing or operation of the Product; (c) modifications or repairs not made by Licensor or a Licensor-certified individual; and (d) power failures, surges, earthquakes, fires, floods, accidents, actions of third parties or other events outside Licensor’s reasonable control. THE EXPRESS LIMITED WARRANTY IN THIS PARAGRAPH: (1) IS LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND LICENSOR'S ENTIRE LIABILITY FOR NONCONFORMING PRODUCT, AND IS IN LIEU OF, AND LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY, RELIABILITY OR PERFORMANCE; AND (2) IS BETWEEN LICENSOR AND LICENSEE (AS THE ORIGINAL PURCHASER) AND MAY NOT BE TRANSFERRED OR ASSIGNED, BY OPERATION OF LAW OR OTHERWISE, WITHOUT LICENSOR'S PRIOR WRITTEN CONSENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
9. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL LICENSOR, ITS AFFILIATES, OFFICERS, EMPLOYEES, OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE’S USE OF THE PRODUCT. LICENSOR’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT OR THE PRODUCT SHALL BE LIMITED TO THE FEES PAID BY LICENSEE FOR THE APPLICABLE PRODUCT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
10. TERM AND TERMINATION
This Agreement shall continue until the end of the license term agreed upon with Licensor or Reseller, and as set out in Licensee’s account information, or as otherwise terminated as set forth in this section. Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach is not cured within fifteen (15) days (or five (5) days in the case of non-payment) of such party’s receipt of written notice describing the breach. Any termination of this Agreement shall also terminate the licenses granted hereunder.
Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Product, and shall so certify to Licensor that such actions have occurred. Sections 2, 3, 4, the last sentence of Section 5, 7 – 10, and 13, and all accrued rights to payment, shall survive termination of this Agreement.
11. GOVERNMENT USE
If Licensee is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Product is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Product is “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Product by the Government shall be governed solely by the terms of this Agreement.
12. EXPORT CONTROLS
Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Product or any related technical information in violation of any such restrictions, laws or regulations.
By installing or using the Product, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
This Agreement represents the complete agreement concerning the Product between the parties, to the exclusion of any pre-printed or contrary terms of any Licensee purchase order (or similar document), and supersedes all prior agreements and representations between them; provided, however, that if there is already a mutually signed agreement directly between Licensor and Licensee (not including any Licensee purchase order or similar document) covering Licensee’s license of the Product, then the express terms of that signed agreement will govern to the extent they are expressly contrary to this Agreement.
This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
The failure of Licensor to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Licensor’s rights with respect to such breach or any subsequent breaches.
This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without Licensor’s consent and any action or conduct in violation of the foregoing shall be void and without effect. Licensor expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.
This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in California and each party hereby consents to the jurisdiction of such courts for any such dispute. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.