End-User License Agreement
BY INSTALLING OR USING THE SOFTWARE (THE “SOFTWARE”) THAT ACCOMPANIES THESE End-User License Agreement (“TERMS”) OR BY ACCESSING OR USING ANY OF THE FEATURES OR FUNCTIONALITY OF THE SERVICE (THE “SERVICE”) PROVIDED BY CLOUDVELOX, INC. (“CLOUDVELOX”) AND MADE AVAILABLE SOLELY FOR USE IN CONJUNCTION WITH THE SOFTWARE, YOU (“YOU” OR “YOUR”) AGREE TO THESE TERMS. YOU MAY NOT USE THE SOFTWARE OR THE SERVICE, OR ACCEPT THESE TERMS, IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH CLOUDVELOX. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
- Definitions. Capitalized terms shall have the meanings set forth in this Section or in the Section where they are first used.
- 1.1 “Documentation” means all specifications, user manuals, and other technical materials relating to the Software.
- 1.2 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
- 1.3 “Users” means Licensee and its employees, contractors, or third parties (if any) whom Licensee authorizes to use the Software in accordance with these Terms.
- License Grant and Restrictions.
- 2.1 License Grant. Subject to these Terms, CloudVelox hereby grants to Licensee a non-exclusive, royalty-bearing, non-transferable license to reproduce, display, and perform the Software solely for its internal business purposes in accordance with the Documentation.
- 2.2 Limitations. Licensee agrees that it will not: (a) permit any party to access and/or use the Software, other than the Users authorized under these Terms; (b) rent, lease, loan, or sell access to the Software to any third party; (c) interfere with, disrupt, alter, translate, or modify the Software or any part thereof, or create an undue burden on the Software; (d) reverse engineer or access the Software in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Software, or (iii) copy any ideas, features, functions or graphics of the Software; (e) without CloudVelox’s express written permission, introduce software or automated agents or scripts to the Software so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Software; (f) publish any performance or benchmark tests or analyses relating to the Software or the use thereof; (g) modify, adapt, alter, translate, or create derivative works from the Software; (h) merge the Software with other software; (i) sublicense, lease, rent, loan, distribute or otherwise transfer the Software to any third party; or (j) use or reproduce the Software except as expressly permitted in Section 2.1.
- 2.3 IP Ownership. The Software and any and all of CloudVelox’s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to Licensee by CloudVelox in providing the Software (collectively, the “CloudVelox Technology”), and all Intellectual Property Rights in the foregoing, is the exclusive property of CloudVelox or its suppliers. Licensee acknowledges and agrees that any comments, ideas and/or reports it provides to CloudVelox (“Feedback”) shall be the property of CloudVelox and Licensee hereby irrevocably transfers and assigns to CloudVelox all Intellectual Property Rights embodied in or arising in connection with such Feedback. Licensee agrees to provide CloudVelox any reasonable assistance it may reasonably require to document, perfect, and maintain its rights in the Feedback. Except as expressly set forth in this Section 2, no express or implied license or right of any kind is granted to Licensee regarding the CloudVelox Technology or Software, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the CloudVelox Technology or Software. All rights not expressly granted to Licensee are reserved to CloudVelox.
- 2.4 Data Usage. CloudVelox may collect information and data on how the Software is used by customers (“Use Data”). CloudVelox reserves the right to use the Use Data for its internal business purposes and disclose to and share with third parties the Use Data in an anonymous and aggregated form, at its discretion.
- 3.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS,” AND CLOUDVELOX (AND ITS SUPPLIERS) MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY CLOUDVELOX. CLOUDVELOX (AND ITS SUPPLIERS) DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, THAT OPERATION OF THE SOFTWARE SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT LICENSEE’S CONTENT OR PROGRAMS WILL BE SECURE OR NOT LOST OR DAMAGED. CLOUDVELOX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
- Limitation of Liability
- 4.1 Types and Amounts of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CLOUDVELOX BE LIABLE TO LICENSEE FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE OR GOODWILL, ARISING OUT OF OR RELATING TO THE SOFTWARE, ANY OTHER PRODUCTS OR SERVICES PROVIDED BY CLOUDVELOX, OR THESE TERMS, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF CLOUDVELOX HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL CLOUDVELOX BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF CLOUDVELOX ARISING OUT OF OR RELATING TO THE SOFTWARE, ANY OTHER PRODUCTS OR SERVICES PROVIDED BY CLOUDVELOX, AND THESE TERMS SHALL NOT EXCEED THE FEES PAID BY LICENSEE TO CLOUDVELOX DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS WILL NOT INCREASE CLOUDVELOX’S LIABILITY. IN NO EVENT SHALL CLOUDVELOX SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CLOUDVELOX WILL NOT BE LIABLE TO LICENSEE IN CONNECTION WITH ANY ACTS OR OMISSIONS OF ANY THIRD PARTY SERVICE PROVIDER.
- 4.2 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and these Terms entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- 4.3 Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to Licensee.
- Indemnification. Licensee agrees to defend, indemnify and hold CloudVelox harmless from and against any claims, suits, losses, damages, liabilities, fines, penalties, sanctions, costs, and expenses (including reasonable attorneys’ fees) brought by third parties based upon, resulting from or related to: (a) any improper or unauthorized use of the Software by Licensee or its Users; (b) any breach or inaccuracy of any covenant, representations or warranties made by Licensee in these Terms; or (c) any breach of import and export compliance laws and regulations.
- 6.1 Termination by CloudVelox. CloudVelox may at any time terminate these Terms if (a) Licensee has breached any provision of these Terms (or have acted in a manner that clearly shows that Licensee does not intend to, or are unable to, comply with these Terms); (b) CloudVelox is required to do so by law (for example, where the provision of the Software is, or becomes, unlawful); or (c) CloudVelox has elected in its sole discretion to discontinue the Software (or any part thereof).
- 6.2 Effect of Termination. Termination includes: (a) removal of access to Software; and (b) barring of further use of the Software. Upon termination of these Terms, Licensee shall promptly discontinue use of the Software and permanently erase all copies of the Software. Those sections of this Term which by their nature were intended to survive, will survive the termination of these Terms for any reason.
- 7.1 Governing Law and Venue. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Any action or proceeding arising from or relating to these Terms must be brought in a federal court located in the Northern District of California or in state court in Santa Clara County, California, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding, except that CloudVelox may file a claim or take action in any court having jurisdiction to protect its intellectual property or confidential or proprietary information. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
- 7.2 Import and Export Compliance. Licensee acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software. Licensee agrees to comply with all applicable import, re-import, export, and re-export laws, rules, and regulations of the United States and foreign jurisdictions, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the U.S. Department of State, in connection with Licensee’s use of the Software. Licensee is solely responsible for compliance related to the manner in which Licensee chooses to use the Software.
- 7.3 Severability; Waiver; Construction. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. “Includes” and “including” are not limiting.
- 7.4 Remedies. The parties acknowledge that any actual or threatened breach of the Section 2 (License Grant and Restrictions) will constitute immediate, irreparable harm to CloudVelox for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
- 7.5 No Assignment. Licensee shall not assign or otherwise transfer these Terms, or its rights and obligations herein, without obtaining the prior written consent of CloudVelox, and any attempted assignment or transfer in violation of the foregoing will be null and void. These Terms shall be binding upon the parties and their respective successors and permitted assigns.
- 7.6 Proprietary Notices. Licensee agrees to maintain and reproduce all copyright, proprietary, and other notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in the Terms, Licensee shall not make any copies or duplicates of any Software without the prior written permission of CloudVelox.
- 7.7 Entire Agreement. No modification of or amendment to these Terms, or any waiver of any rights under these Terms, will be effective unless in writing and signed by Licensee’s authorized signatory and an officer of CloudVelox. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters.