End User License Agreement

Transcription

1 End User License Agreement Pluribus Networks, Inc.'s ("Pluribus", "we", or "us") software products are designed to provide fabric networking and analytics solutions that simplify operations, reduce operating expenses, and introduce applications online more rapidly. Before you download and/or use any of our software, whether alone or as loaded on a piece of equipment, you will need to agree to the terms of this End User License Agreement (this "Agreement"). IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DONWLOADING OR USING ANY OF OUR SOFTWARE. THIS AGREEMENT GOVERNS YOUR USE OF THE SOFTWARE, UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE. WE ARE ONLY WILLING TO LICENSE THE SOFTWARE TO YOU IF: (I) YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOU HAVE LICENSED THE SOFTWARE FROM AN APPROVED SOURCE; AND (III) YOU OR THE ENTITY THAT YOU REPRESENT (COLLECTIVELY, CUSTOMER, OR YOU ) ARE THE REGISTERED END USER OF THE SOFTWARE. IF YOU ARE NOT THE REGISTERED END USER OF THE SOFTWARE, YOU HAVE NO LICENSE TO USE THE SOFTWARE, AND THE LIMITED WARRANTY IN THIS END USER LICENSE AGREEMENT DOES NOT APPLY TO YOU. BY DOWNLOADING, INSTALLING, OR USING ANY OF OUR SOFTWARE, OR BY OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, BY INDICATING YOUR AGREEMENT TO AND/OR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT AS PART OF THE INSTALLATION OR PURCHASING PROCESS), YOU ARE CONFIRMING THAT: (I) YOU ARE THE REGISTERED END USER OF THE SOFTWARE; (II) YOU UNDERSTAND AND ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (III) YOU ARE NOT BARRED FROM RECEIVING OR USING THE SOFTWARE BY THE APPLICABLE LAWS OF THE UNITED STATES OR OTHER COUNTRIES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT COMPANY OR LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE YOU WILL MEAN THAT COMPANY OR LEGAL ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, IF YOU ARE NOT THE REGISTERED END USER OF THE SOFTWARE, IF YOU ARE BARRED FROM RECEIVING OR USING THE SOFTWARE BY APPLICABLE LAW, OR IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MAY NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE. A. DEFINITIONS 1. Software means the object-code version(s) of our proprietary software applications. Software includes all applicable Documentation, as well as any

2 Updates to the Software that we provide you or that you can access under this Agreement. 2. Documentation means any written information (whether contained in user or technical manuals, training materials, specifications, or other such materials that we provide to you) related to the Software that we make generally available to our customers. Documentation is considered part of the Software. 3. An Update is a Software release that we make generally available to our customers, along with any corresponding changes to Documentation. An Update may be an error correction or bug fix, usually indicated by a change in the digit to the right of the second decimal point (e.g., a change from version x.x.x to x.x.y); or it may be an enhancement, a new feature, or new functionality, usually indicated by a change in the digit to the right of the first decimal point (e.g., x.x.x to x.y.x) or to the left of the first decimal point (e.g., x.x.x to y.x.x). 4. The Effective Date is the earlier of the following dates: (i) the date that you indicate your acceptance of this Agreement (including, without limitation, by indicating your agreement to and/or acceptance of the terms of this Agreement as part of the installation or purchasing process); or (ii) the date that you first download, install, or use the Software. 5. Approved Source means either (i) Pluribus; or (ii) a distributor, reseller, or systems integrator that has been authorized by Pluribus to provide the Software to you. If you do not know whether you are obtaining the Software from an Approved Source, contact Pluribus for assistance. B. LICENSE GRANT; RESTRICTIONS; OSS COMPONENTS 1. Subject to your continued compliance with the terms of this Agreement, Pluribus hereby grants you a worldwide, non-assignable, non-transferable, and nonexclusive license to use a single production instance of the Software, for your internal business purposes, in accordance with the Documentation, and solely in conjunction with the equipment on which Pluribus has authorized the Software to operate. Depending on the type of Software and the license fee you pay, the license granted above may be perpetual (during the term of this Agreement) or time-limited. In order to use the Software you may be required to input a registration number or product authorization key, and register your copy of the Software online on our website to obtain the necessary license key or license file. 2. You may not (and you may not permit anyone else to) copy, modify, or create derivative works of the Software or any Documentation, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Pluribus, in writing. 3. This is a license, not a transfer of title, to the Software and Documentation, and Pluribus retains ownership of all copies of the Software and Documentation, and all associated intellectual property rights therein. We reserve all rights in and to the Software that are not expressly granted to you in this Agreement. You acknowledge that the Software and Documentation contain trade secrets of Pluribus, its suppliers and licensors, including but not limited to the specific internal design and structure of individual programs and associated interface

3 information. You specifically agree not to, and will not permit nor authorize any third party to: a. Transfer, assign, sell, rent, lease, distribute or sublicense the Software to third parties; b. Make error corrections to or otherwise modify or adapt the Software, or create derivative works based upon the Software; c. Interfere with or disrupt the normal operation of the Software; d. Reverse engineer, decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction or except to the extent that is legally required to permit a specific activity pursuant to an applicable open source license; e. Publish any results of benchmark tests run on the Software; f. Host the Software for the benefit of third parties, or use or permit the Software to be used on a service bureau or time sharing basis as relates to direct shared use of such Software (and not to applications or services running upon or utilizing such Software), without the express written authorization of Pluribus; g. Disclose, provide, or otherwise make the Software available to any third party without the prior written consent of Pluribus; h. Hack or modify any license key, or try to avoid or change any license or registration process that we may implement; i. Modify, obscure, or delete any proprietary rights notices included in or on the Software or the Documentation; j. For licenses that are time-limited, use the Software beyond the license term for which you have paid the applicable fees; or k. Use or copy the Software in any manner not expressly permitted by this Agreement. 4. The Software may contain open source components ( OSS Components ). As a result, in addition to the proprietary code that you are licensing from us under this Agreement, your use of the OSS Components in the Software may be subject to certain open source licenses. We will give you copies of those licenses, if you ask us for them. You agree that you are responsible for complying with the terms of all applicable open source licenses in your use of the Software. 5. You acknowledge and agree that we have the right to periodically audit your use of the Software to verify that you are using the Software in accordance with this Agreement (including, without limitation, whether you are using the Software beyond any applicable license term). If we determine that you are using any Software beyond its applicable license term, in addition to any other remedies we might have at law or in equity, you agree to pay us the then-current license fees for your use of that Software, starting from the date that your original license term expired.

4 C. SUPPORT 1. Support for the Software is not included with your license to the Software, and must be purchased separately. If you have purchased support, we will provide that support to you pursuant to our then-current support terms and conditions. D. INSTALLATION; UPDATES 1. Pluribus may make Updates available to you from time to time, at the same time that we make such Updates generally available to our customers. You are responsible for: (i) installing the Software and all available Updates; (ii) maintaining the confidentiality of the usernames and passwords that are being used to access and use the Software, including the ones you use to download the Software and any Updates; and (iii) any activity that takes place using your usernames and passwords, whether or not you were aware of such activity. You acknowledge and agree that Pluribus may make Updates available without notice to you, and that prior versions of the Software may no longer be available once the Update is provided. E. USAGE INFORMATION; FEEDBACK 1. As part of providing support to you, you may elect to send us certain information, including information related to how you are using the Software (collectively, Usage Information ). We will use and maintain your Usage Information in accordance with our then-current Privacy Policy, located at 2. You agree to allow us to collect any Usage Information that you provide to us, and you grant us a perpetual, irrevocable, worldwide, royalty-free, non-exclusive license to use (including, but not limited to, the rights to reproduce, adapt, and modify) your Usage Information for our internal business purposes. 3. Furthermore, you grant us a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to create aggregations, analyses, and summaries of your Usage Information or portions thereof and to use, disclose, and distribute such aggregations, analyses, and summaries privately, publicly, and to any third party in support of our business (both during the period that this Agreement is in effect, and thereafter), throughout the world and in any form of media, provided that such aggregations, analyses, and summaries do not directly or indirectly identify you. 4. During the term of this Agreement, you may provide us with feedback concerning the Software, or you may provide us with other comments or suggestions for new products, features, or improvements (collectively, Feedback ). You acknowledge that we will own all right, title, and interest in and to the Feedback, and you hereby irrevocably transfer and assign to us all of your right, title and interest in such Feedback, including all intellectual property rights therein. At our request and expense, you agree to execute documents or

5 take such further actions as we may reasonably request to help us acquire, perfect, and maintain our rights in the Feedback. F. CONFIDENTIALITY 1. For the purposes of this Agreement, Confidential Information means any nonpublic business or technical information that we disclose to you, whether in writing, orally, or by any other means, and including things like computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, and financial information. For the purposes of this Agreement, the source code of the Software will be deemed to be Confidential Information, regardless of whether it is marked as such. You will not use the Confidential Information, except as permitted under this Agreement. You agree to maintain the Confidential Information in strict confidence, and to protect the Confidential Information using at least the same degree of care as you use for its own information of a similar nature (but in all events at least a reasonable degree of care). You agree to take all reasonable precautions to prevent any unauthorized disclosure of the Confidential Information, including, without limitation, disclosing Confidential Information only to your employees and legal and financial advisors (collectively, Representatives ): (i) with a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this Section F.1, and (iii) who are informed of the nondisclosure obligations imposed by this Section F.1. You are responsible for all acts and omissions of your Representatives. The foregoing obligations will not restrict you from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that you give us reasonable notice to enable us to contest such order or requirement. The restrictions set forth in this Section F.1 will not apply with respect to any Confidential Information that you can prove via written evidence: (i) was or becomes publicly known through no fault of yours or your Representatives; (ii) was rightfully known or becomes rightfully known to you without confidentiality or proprietary restrictions from a source other than Pluribus who has a right to disclose it; (iii) is approved by Pluribus for disclosure without restriction in a written document which is signed by a duly authorized officer of Pluribus; or (iv) you independently developed the information without access to or use of the Confidential Information G. TERM AND TERMINATION 1. This Agreement begins on the Effective Date, and will remain in effect until terminated. This Agreement will automatically terminate, without the requirement of notice, if you breach any provision of this Agreement. 2. When this Agreement terminates or expires: (i) you will no longer have the right to use the Software or the Documentation; (ii) all licenses that we grant to you in this Agreement will automatically expire; (iii) you will destroy all copies of

6 Software and Documentation in your possession or control; and (iv) you will return to us (or, at our request, destroy) all of our Confidential Information, and, upon our request, certify in writing that you have done so. 3. Sections A, B.2, B.3, B.4, E, F, G.2, G.3, and I through L will survive the termination or expiration of this Agreement for any reason. H. LIMITED WARRANTY 1. We offer you (and only you) the following limited warranty with respect to the Software: that, for ninety (90) days from the Effective Date, the unmodified Software will substantially conform to its Documentation. This limited warranty extends only to Software licensed from an Approved Source, by a user who is the first registered end user. Your sole and exclusive remedy and the entire liability of Pluribus and its suppliers for any breach of this limited warranty will be, at our option and expense, to either repair or replace the Software. 2. In no event does Pluribus warrant that the Software is error free, or that you will be able to operate the Software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Pluribus does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack. For the sake of clarity, you understand that the foregoing warranty does not apply to the OSS Components, and that Pluribus does not warrant the OSS Components in any way. 3. This warranty does NOT apply if the Software (a) has been altered, except by Pluribus or its authorized representative; (b) has not been installed, operated, repaired, or maintained in accordance with the Documentation or other instructions supplied by Pluribus; (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (d) is licensed for beta, evaluation, testing or demonstration purposes; or (e) was not licensed from an Approved Source. I. EXCLUSION OF WARRANTIES 1. THE LIMITED WARRANTY DESCRIBED IN SECTION H, ABOVE IS THE ONLY WARRANTY WE MAKE WITH RESPECT TO THE SOFTWARE, WHICH IS OTHERWISE PROVIDED AS IS, AS AVAILABLE, AND WITH ALL FAULTS. WE DO NOT WARRANT THE OSS COMPONENTS IN ANY WAY. WE DO NOT MAKE ANY OTHER WARRANTIES TO YOU UNDER THIS AGREEMENT, AND WE HEREBY SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. 2. IN PARTICULAR, PLURIBUS DOES NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR USE OF THE SOFTWARE OR DOCUMENTATION

7 WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SOFTWARE OR ACCESS TO THE DOCUMENTATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR; (III) ANY INFORMATION THAT YOU OBTAIN AS A RESULT OF YOUR USE OF THE SOFTWARE OR DOCUMENTATION WILL BE ACCURATE OR RELIABLE; OR (IV) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU WILL BE CORRECTED. 3. YOU ACKNOWLEDGE THAT ANY MATERIAL YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH YOUR USE OF THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU, AND NOT PLURIBUS, WILL BE RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. 4. YOU ACKNOWLEDGE THAT NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM PLURIBUS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. J. LIMITATION OF LIABILITY 1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, DATA, GOODWILL, OR ANY INTERRUPTION OF BUSINESS) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED FIVE THOUSAND DOLLARS ($5,000). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. 3. You understand and agree that we have set our prices and entered into this Agreement with you in reliance upon the limitations of liability set forth in this Agreement, which allocate risk between us and form the basis of a bargain between the parties. K. AUDIT

8 1. We reserve the right to take steps that we believe are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that Pluribus has the right, without liability to you, to disclose any Usage Information to law enforcement authorities, government officials, and/or third parties, as Pluribus believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to Pluribus right to cooperate with any legal process relating to your use of the Software, and/or a third-party claim that your use of the Software is unlawful and/or infringes such third party s rights). L. GENERAL TERMS 1. This Agreement constitutes the entire agreement and understanding between you and Pluribus with respect to its subject matter, and supersedes any and all prior or contemporaneous agreements or understandings, whether oral or written, between you and Pluribus with respect to its subject matter. 2. Any legal notice, request, demand or other communication required or permitted under this Agreement should be in writing, should reference this Agreement, and will be deemed to be properly given: (i) upon receipt, if delivered personally; (ii) upon confirmation of receipt by the intended recipient, if by e- mail; (iii) five (5) business days after it is sent by registered or certified mail, with written confirmation of receipt; or (iv) three (3) business days after deposit with an internationally recognized express courier, with written confirmation of receipt. Notwithstanding the foregoing, however, you agree that Pluribus may provide you with notices, including legal notices, if any, pursuant to this Agreement, by , regular mail, or via the user interface implemented by the Software. 3. Your obligations under this Agreement can only be waived in a writing signed by an authorized representative of Pluribus, which waiver will be effective only with respect to the specific obligation described. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision, or of such provision on any other occasion. 4. If any court of law or arbitration panel having jurisdiction rules that any provision of this Agreement is invalid, illegal, or unenforceable, the court or panel will modify or reform that provision to give as much effect as possible to that provision. Any provision that cannot be modified or reformed in this way will be deemed deleted, and the remaining provisions of this Agreement will continue to be valid and enforceable. 5. You agree that this Agreement, and your relationship with Pluribus under this Agreement, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Any legal action or proceeding arising under, related to or connected with this Agreement will be brought exclusively in the federal (if they have jurisdiction) or state courts located in San Mateo County, California, and

9 the parties irrevocably consent to the personal jurisdiction and venue of such court(s). 6. We do not develop any technical data or computer software pursuant to this Agreement. The Software and Documentation have been developed solely with private funds, are considered commercial computer software and commercial computer software documentation, respectively, pursuant to DFARS and FAR and FAR , as applicable, and are licensed to U.S. Government end users as restricted computer software and limited rights data. Any use, modification, reproduction, release, distribution, performance, display or disclosure of the Software or Documentation by the United States Government, its end users or contractors shall be governed solely by this Agreement. 7. You will comply with all applicable laws and regulations related to your use of the Software and the Documentation, including, without limitation, all applicable laws governing the import and export of the Software and the Documentation. The Software and Documentation may be subject to applicable import and export laws and regulations of the United States and other countries, and you agree that you will comply, at your expense, with all applicable export and import laws and regulations, including those of the United States that prohibit or limit export to certain countries, for certain uses, or to certain end users. As between the parties, you will be responsible for obtaining any licenses required to export, re-export, or import the Software and Documentation, as necessary for your permitted use under this Agreement. 8. Except as expressly provided herein, all disputes concerning the validity, interpretation, enforcement or breach of this Agreement or otherwise arising from or relating to this Agreement (each, a Dispute ) will be finally settled by binding arbitration in San Mateo County, California under the Rules of the American Arbitration Association ( AAA'') in accordance with the AAA rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) will apply California law to the merits of any dispute or claim, without reference to roles of conflicts of laws, and will have the authority to award any and all available remedies, including legal and equitable relief. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this Agreement and without any abridgment of the powers of the arbitrator(s). The arbitral proceedings and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation, accompanied by the original or true copy thereof. The prevailing party in any action brought to enforce or interpret this Agreement or for relief for its breach shall be entitled to recover its costs and its reasonable attorneys' fees incurred to prosecute or defend such action. 9. You are not allowed to assign or transfer any of your rights or obligations in this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent, and any attempt by you to do so without our consent will be null and void. We can assign this Agreement at our discretion, without your consent.

10 10. We will be excused from performing under this Agreement to the extent that we are unable to perform due to extraordinary causes beyond our reasonable control. That might include things like natural disasters or emergencies, strikes, lockouts, riots, acts of war, epidemics, or communication line and/or power failures. 11. We are each independent contractors with respect to the subject matter of this Agreement. Nothing contained in this Agreement will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither of us can bind the other contractually. 12. No modification, change, or amendment of this Agreement will be binding upon the parties unless we both agree to the change in a writing signed by each of our authorized representatives. 13. This Agreement is the only agreement between us, and the terms of any purchase order, written terms or conditions, or other document that you send to us that contains terms that are different from, in conflict with, or in addition to the terms of this Agreement are hereby rejected by Pluribus, and will be void and of no effect.