End User License Agreement
THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU AND MAXTA INC. (“LICENSOR”). PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “I ACCEPT” BUTTON OR TAKING ANY STEP TO DOWNLOAD, SET-UP, INSTALL OR USE THIS SOFTWARE, YOU AGREE, ON BEHALF OF YOURSELF AND YOUR COMPANY, IF THE SOFTWARE IS TO BE USED FOR BUSINESS PURPOSES, (COLLECTIVELY “LICENSEE”), TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK “I DO NOT ACCEPT” AND LICENSEE WILL NOT BE PERMITTED TO DOWNLOAD THE SOFTWARE. IF WE HAVE AN EXISTING FORMAL WRITTEN SOFTWARE LICENSE AGREEMENT GOVERNING THE SOFTWARE, THEN THE TERMS IN THAT SOFTWARE LICENSE AGREEMENT WILL SUPERSEDE ANY CONTRARY TERMS IN THIS AGREEMENT.
1. License Grant. Subject to the terms of this Agreement and Provided Licensee has paid the applicable fees, Licensor grants to Licensee a limited, worldwide, nonexclusive, non-sub licensable, nontransferable license to use the Licensor software (the “Software”), specified in an accepted Order, in the licensed configuration only, for internal business purposes, throughout the license term only as set forth therein. Licensee is permitted to make a single copy of the Software for backup purposes. Licensee’s licensed Capacity and licensed Number of Clusters is set forth in the Order; Once Licensee have reached the maximum licensed Capacity OR Licensee have reached the maximum licensed Number of Clusters, Licensee may bring its license back into compliance by reducing the size of the managed capacity or reducing the number of clusters. If Licensee desires to acquire additional capacity OR additional clusters for the Software, Licensee may purchase additional capacity OR additional clusters from Licensor. Licensee shall not use the Software in any way in more clusters than the Number of Clusters that are provided in the Order and in any event not more than aggregate Capacity set forth in the Order. Without limiting any of Licensor’s rights and remedies hereunder, Licensor reserves the right to charge Licensee with overage fees for such unauthorized excess use. Use of the Software outside the scope of Licensee’s Order or documentation is unauthorized and shall constitute a material breach of this EULA and void the warranty and/or support obligations of which Licensee may otherwise be entitled.
2. License Restrictions: Licensee shall not be permitted to decompile, split, breakup or reassign the Software or any parts of the Software. Except as expressly permitted by this Agreement, Licensee shall not, nor allow anyone else to, directly or indirectly: (1)copy, modify or distribute, in whole or in part, Software or any related documentation; (2)decompile, reverse engineer, disassemble or attempt to discover the source code or structure, sequence and organization of all or any portion of the Software; (3)rent, lease, license, sublicense, distribute, transfer or sell the Software; create derivative works of the Software; or use the Software to process data or provide any timesharing service bureau activity for any third party, or otherwise use the Software on behalf of a third party;. (4)publish or disclose any information or results relating to performance comparisons or other benchmarking activities; This Agreement does not give Licensee any rights not expressly granted herein. Any action of Licensee in contravention of this Section 2 may result in the termination of this Agreement, including the license grant for the Software, as described in the Term and Termination section below.
3. Ownership. The Software, any related documentation and all intellectual property rights therein are owned by Licensor, its affiliates and/or its suppliers. Licensee is purchasing a Software license ONLY; Licensee is not purchasing the software. United States Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties, protect the Software Licensee will not remove, alter or destroy any copyright, proprietary or confidential notices placed on the Software or any related documentation. Licensee agrees that aspects of the Software, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted or patented material of Licensor, its affiliates and/or its suppliers. Licensee agrees not to disclose, provide, or otherwise make available such trade secrets or material in any form to any third party without the prior written consent of Licensor. Licensee agrees to implement reasonable security measures to protect such trade secrets and material.
4. Support and Upgrades. This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements or fixes for the Software (collectively, “Support”). Licensee must make separate arrangements for Support and pay any fees associated with such Support. Any software upgrades, patches, enhancements or fixes provided as part of Support for the Software that may be made available by Licensor shall become part of the Software and subject to this Agreement.
5. NO WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO ANY STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, THE SOFTWARE AND ANY RELATED DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS.” LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS AND EXCLUDES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL REPRESENTATIONS, ORAL OR WRITTEN, TERMS, CONDITIONS, AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NONINFRINGEMENT. WITHOUT LIMITING THE ABOVE, LICENSEE ACCEPTS THAT THE SOFTWARE MAY NOT MEET LICENSEE’S REQUIREMENTS, OPERATE ERROR FREE, OR IDENTIFY ANY OR ALL ERRORS OR PROBLEMS, OR DO SO ACCURATELY. LICENSEE USES THE SOFTWARE AT HIS/HER OWN RISK. This Agreement does not affect any statutory rights Licensee may have as a consumer.
6. EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR, ITS AFFILIATES OR ITS SUPPLIERS BE LIABLE TO LICENSEE, LICENSEE’S CUSTOMERS, OR OTHER USERS, FOR damages of any kind including, WITHOUT LIMITATION, DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE LICENSE OF, USE OF, OR INABILITY TO USE THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, DATA LOSS OR CORRUPTION, ECONOMIC LOSS, LOSS OF GOODWILL, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF CONFIDENTIAL INFORMATION, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, BUSINESS INTERUPTION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY OF REASONABLE CARE OR NEGLIGENCE) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING BUT NOT LIMITED TO FAULT, TORT, STRICT LIABILITY, NEGLIGENCE, BREACH OF CONTRACT, BREACH OF STATUTORY DUTY OR BREACH OF WARRANTY OF LICENSOR, ITS AFFILIATES OR SUPPLIERS AND EVEN IF LICENSOR, ITS AFFILIATES OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTIAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR’S LIABILITY EXCEED THE LICENSE FEE PAID BY LICENSEE. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT LICENSOR’S LIABILITY TO LICENSEE FOR ANY LIABILITY THAT CANNOT, AS A MATTER OF APPLICABLE LAW, BE EXCLUDED OR LIMITED.
8. Audit. Licensee agrees to give Maxta or its licensors and its independent accountants the right to examine Licensee books, records, systems and usage associated with the Software during regular business hours upon reasonable notice to verify compliance with this EULA. If such audit discloses non-compliance with this EULA, Licensee shall promptly pay to Licensor the appropriate license fees, plus the reasonable costs of conducting such audit.
9. Termination. Unless otherwise expired under the terms of an Order, this EULA is effective until terminated. Licensor may terminate this EULA immediately and without notice if Licensee fails to comply with any term of this EULA. Licensor may immediately terminate this Agreement and the license granted hereunder if Licensee fails to comply with the terms and conditions of this Agreement. Upon such termination, Licensee must immediately cease using the Software, destroy or delete all copies of the Software and upon the request of Licensor, certify the destruction or deletion of the Software. Termination of this EULA shall not relieve Licensee from its’ obligations to immediately pay Licensor the fees payable under this EULA and Order, including in instances where the license to use the Software was granted for a limited term pursuant to an Order. In the event of early termination of an Order by a Licensee for any reason other than an uncured breach by Licensor, Licensee shall not be entitled to a refund and Licensee shall pay Licensor as liquidated damages and not as a penalty any fees not prepaid and owed by Licensor at the time of such termination for the reminder of the term set forth in such Order. Upon termination, all rights to use the Software will cease, and Licensee shall promptly destroy the original and all copies of the Software and any license enablement keys in Your possession or under Your control. ALL DISCLAIMERS, LIMITATIONS OF LIABILITY AND ANY OTHER PROVISIONS INTENDED TO SURVIVE TERMINATION WILL SURVIVE ANY TERMINATION AND CONTINUE IN FULL FORCE AND EFFECT.
10. International Trade Compliance & Export Controls Licensee shall take all necessary actions and precautions to comply with all export laws, restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or other United States, European Union, Singapore or other foreign agency or authority, and Licensee shall not sell, lease, transfer, export, or allow the export or re-export of the Software, in violation of any such restrictions laws or regulations. Licensee is responsible for obtaining any licenses required to export, re-export or transfer or import the Software. The Software may not, in the absence of authorization by US and local law and regulations, as required, be used by or exported or re-exported to (i) any US Sanctioned or embargoed country, or to nationals or residents of such countries; or (ii) to any person, entity, organization or other Party identified on the US Department of Commerce’s Debarred Parties List, as published and revised from time to time; or (iii) any party where the end use involves nuclear weapons, chemical/biological weapons, or missile technology. Licensee agrees that any product, technology or information it obtains pursuant to this Agreement will not be used in relation to nuclear, biological or chemical weapons, or missiles capable of delivering those weapons, and will not be re-exported or sold to a third party who is known or suspected to be involved in relation to nuclear, biological or chemical weapons or missiles capable of delivering these weapons or to any sanctioned entities.
11. Governing Law. This Agreement constitutes the entire agreement between Licensor and Licensee and governs Licensee’s use of the Software, superseding any prior agreement between Licensor and Licensee relating to the subject matter hereof. Any change or modification to this Agreement will only be valid if it is in writing and signed on behalf of Licensor and Licensee. A failure by either party to enforce its rights under this Agreement is not a waiver of those rights or any other rights it has under this Agreement. The laws of the State of California, United States, without regard to conflicts of laws principles, govern this Agreement. . To the extent permitted by applicable law, any dispute arising under this Agreement or relating to the Software shall be resolved by a court of proper jurisdiction in Santa Clara County, California, United States. Licensee and Licensor irrevocably submit to the jurisdiction of such courts and waive any and all objections to jurisdiction a party may have under applicable law. If applicable law does not permit the parties to agree to the governing law, the laws of the country in which Licensee downloads or acquires the Software govern this Agreement. Notwithstanding the foregoing, if the Software is downloaded or acquired in the People’s Republic of China, any dispute arising under this Agreement or relating to the Software shall be resolved by binding arbitration, held in Santa Clara County, California, United States, under the Judicial Arbitration and Mediation Services (JAMS) International Arbitration Rules. The terms of this Agreement are severable. If any provision of the Agreement is unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remainder of the Agreement will remain in full effect. The Software and any related technical data are provided with restricted rights. To the extent permitted by applicable law, Licensee may not assign this Agreement, and any attempted assignment will be null and void, provided however that each party may assign this Agreement without consent to (i) a parent or subsidiary of such party, (ii) an acquirer of all or substantially all of the capital stock or assets of such party, or (iii) in connection with a reorganization or merger of a party. Maxta name and logo are the trademarks of Maxta Inc. or its affiliates.
NOTICE: EXCEPT FOR THE LICENSE RIGHTS GRANTED HEREIN, NO INTELLECTUAL PROPERTY RIGHTS ARE TRANSFERRED.
Any inquiries regarding this Agreement or the Software may be addressed to Licensor at:
100 Mathilda Place, #170, Sunnyvale, CA 94086 or www.maxta.com.