IMPORTANT: Read this carefully before downloading any Software. This is a legal agreement between you (the "Subscriber") and Cumulus Systems Incorporated (the "Licensor").
BY DOWNLOADING THE SOFTWARE, INSTALLING THE SOFTWARE, APPLYING FOR AN ACTIVATION KEY OR ACCESSING OR EXECUTING THE SOFTWARE, YOU REPRESENT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT AND YOU AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT.
If you do not agree to be bound by all of the terms of this Agreement, do not download, install, or use the Software.All questions concerning this Agreement should be directed to: Licensing, Cumulus Systems Incorporated, 2680 Bayshore Parkway, Suite 515, Mountain View, California 94043, USA.
- 1. Software. The term “Software” shall mean, collectively, those products and services made available to you by Licensor, which may include: (a) the executable code version of any Licensor client software product; (b) Licensor’s hosted platform service accessed by Subscriber via the Licensor client software product; (c) the executable code version of Licensor’s platform software product; and (d) related documentation. As used in this Agreement, “documentation” means any and all information, in any form, written, electronic or otherwise, describing the Software, its operation and use that is made available by Licensor.
- 2. Activation Key. This Agreement provides for a limited, time based use license which may be obtained by payment of Licensor's then applicable license fee including all applicable taxes and duties ("License Fee") for the associated subscription period (“Term”). Prior to using the Software, Subscriber must complete a registration form provided by Licensor, and apply for an activation key ("Activation Key"). The registration form will specify the Term for that Activation Key. An Activation Key shall be required for each Term for which a License Fee is paid. Subscriber may apply for an unlimited number of Activation Keys and Terms, subject to the payment of the applicable License Fees. The Software may be deactivated automatically upon expiration of the Term, and the Software may cease to function in some or all respects and Subscriber may lose access to data made with or stored using the Software. Subscriber acknowledges that deactivating the Software is a key feature of the license rights and responsibilities conveyed under this Agreement.
- 3. License Grant and Limitations. Upon issuance of an Activation Key, and subject to the payment of the applicable License Fee and all other terms of this Agreement, Licensor grants Subscriber a nonexclusive, nontransferable, nonsublicensable, right to download, install, and use the Software solely for Subscriber's internal operations. Subscriber may make copies of the Software solely for back-up and archival needs.
Subscriber must use the Software in compliance with all applicable laws and regulations. Except as otherwise expressly permitted by applicable law, Subscriber will not and will not allow any third party to: (a) alter, translate, decompile, disassemble, or reverse engineer any portion of the Software, make any attempt to discover any source code or underlying ideas or algorithms of the Software or make any attempt to disable the Activation Key; or (b) rent, lease, or otherwise permit third parties to use the Software.
Subscriber will use reasonable efforts to prevent any unauthorized use of the Software and immediately notify Licensor in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Software directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Licensor to prevent or terminate unauthorized use of the Software.
The Software contains materials licensed by Licensor from third parties and Subscriber acknowledges and agrees that such third parties shall be considered third party beneficiaries of this Agreement with an independent right of enforcement, in their own name.
Licensor and its licensors retain all ownership, right, title, and interest in and to the Software and copies of the Software, and to all components, enhancements, modifications, translations, and derivatives thereof, including without limitation all copyrights, patents, and trade secrets. Subscriber will maintain the copyright notice on the Software and on any copies.
All of the limitations and restrictions on the Software in this Agreement also apply to all documentation. All rights not specifically granted to Subscriber herein are reserved to Licensor.
- 4. Payments and Taxes. All payments to Licensor shall be made in U.S. dollars and within thirty (30) days of the date of invoice. Subscriber will pay all taxes (including, without limitation, sales, withholding, value-added and similar taxes) and customs duties arising out of this Agreement, however designated, levied, or based, exclusive of taxes based on Licensor’s net income. All payments are non-refundable and Subscriber is not eligible for any compensation if this Agreement and Subscriber’s use of the Software is terminated before the end of the Term.
- 5. Maintenance and Support. Subject to the terms of this Agreement, Licensor’s standard maintenance and support will be provided at no additional charge. All maintenance and support will be provided on-line, or by email, or telephone by the applicable regional support facility during its normal business hours. Licensor may place reasonable limits on the number of people who may contact Licensor. Licensor will use efforts to correct reproducible errors that render the Software nonconforming with Licensor's documentation for the Software that are commensurate with the severity of the error as determined by Licensor.
During the Term, Licensor will make available to Subscriber, all maintenance updates for the Software that are made generally available to Licensor's customers. Maintenance updates are releases containing error corrections and/or minor enhancements.
Subject to the payment of additional fees, Licensor may offer Software upgrades which provide new features or functionality. It is understood that all such updates and upgrades shall be used solely as version replacements for the Software and shall not expand the scope of the license granted hereunder.
All maintenance and support services shall be subject to Subscriber: (i) providing sufficient information to identify and reproduce any errors in the Software; (ii) providing Licensor at no charge with reasonable access to all necessary personnel, information and materials regarding Subscriber's installation and use of the Software; and (iii) providing reasonable cooperation and assistance to Licensor in connection with the maintenance and support services.
Licensor may require Subscriber to update or upgrade to the current release of the Software at then prevailing rates prior to providing maintenance and support hereunder. In no event shall Licensor be responsible for any maintenance and support services relating to problems arising out of: (i) any alterations of or additions to the Software performed by any party other than Licensor; (ii) accident, negligence, or use of the Software in a manner for which it was not intended, designed or licensed hereunder; (iii) use of the Software other than that for which an applicable Activation Key was issued and for which the applicable License Fee was paid; or (iv) use of the Software with any third party software that was not provided by Licensor.
- 6. Term and Termination. This Agreement shall remain in effect for the Term(s) for which the License Fee(s) have been paid; provided that, this Agreement shall automatically terminate upon any failure by Subscriber to fully comply with the terms of this Agreement. Upon termination, or if this Agreement ceases to be effective, Subscriber shall immediately cease all use of the Software and destroy or return all copies of the Software and, on request, so certify to Licensor. Except as otherwise expressly provided herein, the terms of this Agreement shall survive its termination for any reason.
- 7. Limited Warranty and Disclaimer. Licensor warrants that at the time the Software is installed by Subscriber the Software will substantially conform to Licensor’s then current Subscriber documentation for the Software. ANY LIABILITY OF LICENSOR WITH RESPECT TO THIS LIMITED WARRANTY SHALL BE LIMITED EXCLUSIVELY TO REFUND OF THE LICENSE FEE. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE USE OF THE SOFTWARE WILL BE ERROR FREE OR SECURE.
- 8. Limitation of Liability. THE TOTAL LIABILITY OF LICENSOR ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE RECEIVED BY LICENSOR FOR THE TERM IN WHICH THE CAUSE OF ACTION ARISES. IN NO EVENT SHALL LICENSOR HAVE ANY LIABILITY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, OR FOR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY LICENSOR TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDIES, AND LICENSOR’S SOLE AND EXCLUSIVE LIABILITIES.
- 9. Confidentiality. “Confidential Information” means: (i) the Software, and any trade secrets, confidential data, or other confidential information relating to or used in the Software; and (ii) either party’s business or technical information identified as “confidential” by the disclosing party. The parties acknowledge that in the course of performance of this Agreement, Licensor may have access to certain information that Subscriber deems “confidential”.
Each party will protect the other’s Confidential Information from unauthorized dissemination and use with the same degree of care that each such party uses to protect its own like information. Neither party will use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose to third parties the other’s Confidential Information without the prior written consent of the other party; provided that, neither party shall be liable for the disclosure of Confidential Information or further restricted on use if the information comes into the public domain, was known to the receiving party at the time of disclosure, becomes known to the receiving party through another source without breach of an obligation of confidentiality, is disclosed without obligation of confidentiality to a third party by the disclosing party, or the same information is developed independently without access to the Confidential Information.
Should any Confidential Information be compromised by disclosure, the parties shall cooperate fully to enforce their proprietary rights. Upon request by the disclosing party, all items of Confidential Information will be returned to the disclosing party or destroyed.
- 10. Notice to Government End-Users. The Software includes software and documentation, developed solely at private expense, that are "Commercial Items," as that term is defined Section 2.101 of the Federal Acquisition Regulations (FAR) (48 C.F.R. §2.101) (August 2010), consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are defined in FAR Section 2.101 and Section 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (DFARS) (48 C.F.R. §252.227-7014) (June 1995) and used in FAR Section 12.212 (48 C.F.R. §12.212) (July 2010) or DFARS Section 227.7202 (48 C.F.R. §227.7202) (September 2007), as applicable. Consistent with FAR Section 12.212 or DFARS Section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users as Commercial Items subject to the rights specified in the license under which this Commercial Computer Software or Commercial Computer Software Documentation was obtained.
- 11. Export Restrictions.
The Software may be subject to U.S. export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Subscriber warrants that he or she is (1) not located in Cuba, Iran, North Korea, Sudan, or Syria, and (2) is not a denied party as specified in the regulations listed above.
Subscriber agrees to comply with all applicable export and reexport control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, Subscriber covenants that it shall not, directly or indirectly, sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Licensor under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
Subscriber agrees to indemnify, to the fullest extent permitted by law, Licensor from and against any fines or penalties that may arise as a result of Subscriber’s breach of this provision. This export restrictions Section will survive termination or cancellation of this Agreement.
- 12. General.
If Subscriber provides any feedback to Licensor concerning the Software (including identifying potential errors and improvements), Subscriber hereby grants to Licensor a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully-paid right to use that feedback in any manner and for any purpose.
Subscriber will indemnify and hold harmless Licensor and its affiliates (including their respective officers, employees, directors, subsidiaries, representatives, agents, and licensors) and Licensor’s suppliers from and against any damages (including attorney’s fees and expenses), claims, and lawsuits that arise or result from Subscriber’s use of the Software.
Subscriber may not assign this Agreement without the prior written consent of Licensor. Any attempt to do so shall be void. Licensor may assign this Agreement in whole or in part without consent.
Any notice required or permitted hereunder shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier.
Nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.
The failure or delay of either party to enforce, at any time or for any period of time, the provisions hereof shall not be construed as a waiver of such provision and shall in no way affect that party's right to enforce such provisions.
No waiver of any provision hereof shall be deemed effective unless in writing and signed by the party to be charged therewith.
If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, that 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.
This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Licensor and Subscriber agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, State of California, USA, to resolve any legal matter arising from this Agreement.
No alteration or modification of any provision of this Agreement shall be valid or binding unless in writing and signed by duly authorized representatives of both parties.
This Agreement sets forth the entire understanding and agreement of the parties regarding the subject matter hereof, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement and supersedes any conflicting or inconsistent provisions of any purchase order or other document issued by Subscriber.