Terms of Use

EUCALYPTUS SYSTEMS, INC.

Welcome to www.eucalyptus.com (the "Website") that is owned and operated by Eucalyptus Systems, Inc. (collectively "Eucalyptus," "we," "our," or "us").

IMPORTANT — PLEASE READ CAREFULLY — THESE TERMS OF USE (THE "TERMS") IS A LEGALLY BINDING AGREEMENT WHICH GOVERN YOUR USE OF THIS WEBSITE. BY ACCESSING, VIEWING, BROWSING, VISITING OR USING THIS WEBSITE OR ANY CONTENT OFFERED THROUGH THE WEBSITE YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THE TERMS. IF YOU DO NOT ACCEPT ANY OF THE TERMS STATED HERE, PLEASE DO NOT USE THIS WEBSITE.

Authorized Use

Eucalyptus grants you a non-exclusive, non-transferable, limited right to access, use and display the Website and the materials thereon for your personal use only, provided that you comply fully with these Terms. You shall not interfere or attempt to interfere with the operation of the Website in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or the means expressly prohibited by any provision of these terms and conditions of use. Except as expressly provided herein or otherwise allowed by Eucalyptus, you may not use the Website for any commercial purpose.

Additional terms and conditions may apply to your use of any products and services offered through this Website. Please review all such terms and conditions before you use any of our products and services.

Registration

You are not required to register in order to access the Website. However, in order to use certain features of the Website or products and services offered through the Website, you will have to register and create a unique, password-protected account ("Account"). You agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. We reserve the right to delete your Account without warning if you are found to have misrepresented your age or any of the registration information submitted. You are responsible for maintaining the confidentiality of your password and email address. You agree to (a) immediately notify us of any unauthorized use of your password or account, or any other breach of security, and (b) ensure that you exit from your account at the end of each session. You will be solely responsible for safeguarding your password and also for any actions under your password and Account, whether authorized by you or not.

Responsibility of Contributors

Those who post material to, provide links to material from, or otherwise make material available by means of the Website ("Contributors") are entirely responsible for the content of, and any harm resulting from, that material.

By acting as a Contributor, you represent and warrant that: (i) the downloading, copying and use of the materials you make available will not infringe the proprietary rights, including but not limited to intellectual property rights, of any third party; (ii) you have fully complied with any third-party licenses relating to such materials, and have done all things necessary to successfully pass through to end users any required terms; (iii) the materials you make available do not contain any viruses, worms, Trojan horses or other harmful or destructive content; (iv) the materials you make available are not obscene or libelous, and do not violate the right of privacy or publicity of any third party; and (v) you have, in the case of computer code, accurately categorized and described the type and nature of the materials if and when requested by Eucalyptus to do so.

Without limiting any of those representations or warranties, Eucalyptus has the right (though not the obligation) to, in Eucalyptus sole discretion: (a) remove any content that, in Eucalyptus reasonable opinion, violates any Eucalyptus policy or is in any way harmful or objectionable; or (b) require changes in any license agreement relating to any materials made available by any Contributor.

Responsibility of Website Users

Eucalyptus has not reviewed, and cannot review, all of the material, including computer software, available on or by means of the Website, and cannot therefore be responsible for that material, its use or effects. By operating the Website, Eucalyptus does not represent or imply that it endorses the material there available, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses and other harmful or destructive content. The Website may contain content that is offensive, indecent or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes and other errors. The Website may also contain material that violates the privacy or publicity rights, or infringes the proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Eucalyptus disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content available on or by means of the Website.

Acceptable Use Policy

As a condition of your use of the Website, you warrant to Eucalyptus that you: (i) will only use the Website for lawful purposes in accordance with these Terms; (ii) agree and consent to our Privacy Policy; (iii) agree not to infringe the proprietary rights, intellectual property rights, rights of publicity or privacy rights of Eucalyptus or third parties in connection with your use of the Website; (iv) will not intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to any regulations having the force of law, while using or accessing the Website; (v) will not harvest, gather or otherwise collect contact information of other users of the Website, for any purpose including, without limitation, transmitting any unsolicited advertising, junk mail, spam, or chain letters; (vi) will refrain from using unlawful, tortuous, profane, vulgar, harassing, abusive, threatening, inflammatory, libelous, defamatory, fraudulent or similarly harmful or discourteous language in any e-mail or form entry created through the Website; (vii) will not interfere with others' right of enjoyment of the Website; and (viii) will not access or attempt to access unauthorized areas of the Website, tamper with other users' postings, or unreasonably load or burden the Website servers. Members who violate these terms and conditions of use, at Eucalyptus' sole discretion, may have their Account suspended or terminated, and may be prohibited from receiving any services thereafter.

Changes

Content contained on the Website, including these Terms, may be changed at the sole discretion of Eucalyptus and without notice. You are bound by any such updates or changes, and so should periodically review these Terms. If any modification is not acceptable to you, your sole remedy and recourse is to discontinue use of the Website.

Third Party Websites

Eucalyptus has not reviewed, and cannot review, any of the material, including computer software, made available through the websites to which the Website links, and that link to the Website. Eucalyptus does not have any control over those non-Eucalyptus websites, and is not responsible for their contents or their use. By linking to a non-Eucalyptus website, Eucalyptus does not represent or imply that it endorses such website. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses and other harmful or destructive content. Eucalyptus disclaims any responsibility for any harm resulting from your use of non-Eucalyptus websites.

Disclaimer of Warranties

EXCEPT AS OTHERWISE EXPRESSLY STATED, INCLUDING BUT NOT LIMITED TO IN A LICENSE OR OTHER AGREEMENT GOVERNING THE USE OF SPECIFIC CONTENT, ALL CONTENT LOCATED AT OR AVAILABLE FROM THE WEBSITES IS PROVIDED "AS IS," AND EUCALYPTUS, ITS CONTRACTORS AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. WITHOUT LIMITING THE FOREGOING, EUCALYPTUS, ITS CONTRACTORS AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY THAT CONTENT LOCATED AT THE WEBSITE IS FREE FROM ERROR OR SUITABLE FOR ANY PURPOSE; NOR THAT THE USE OF SUCH CONTENT WILL NOT INFRINGE ANY THIRD PARTY COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT THROUGH THE WEBSITE AT YOUR OWN DISCRETION AND RISK, AND THAT EUCALYPTUS, ITS CONTRACTORS AND ITS LICENSORS WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH CONTENT. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability

EXCEPT AS OTHERWISE EXPRESSLY STATED, INCLUDING BUT NOT LIMITED TO IN A LICENSE OR OTHER AGREEMENT GOVERNING THE USE OF SPECIFIC CONTENT, IN NO EVENT WILL EUCALYPTUS, ITS CONTRACTORS OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, REGARDLESS OF THE BASIS OR NATURE OF THE CLAIM, RESULTING FROM ANY USE OF THE WEBSITE, OR THE CONTENTS THEREOF OR OF ANY HYPERLINKED WEB SITE, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHERWISE, EVEN IF EUCALYPTUS, ITS CONTRACTORS OR ITS LICENSORS WERE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

General Representation and Warranty

You represent and warrant that your use of the Website will be in accordance with Eucalyptus' Privacy Policy, with these Terms, with any applicable laws and regulations, and with any other applicable policy or terms and conditions.

Indemnification

You agree to defend, indemnify and hold harmless Eucalyptus, its contractors and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys' fees, arising out of your use of the Website, including but not limited to out of your violation of any representation or warranty contained in these Terms.

Copyright Notice

If you believe that content available by means of one of the Website infringes one or more of your copyrights, please immediately notify Eucalyptus' Copyright Agent by means of a mailed or faxed notice ("Infringement Notice") providing the information described below to the address or fax number listed below. If Eucalyptus takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by such party to Eucalyptus. Please be advised that you may be held liable for damages based on certain material misrepresentations contained in an Infringement Notice. Thus, if you are not sure content located on or linked-to by the Website infringes your copyright, you should consider first contacting an attorney.

All Infringement Notices should include the following:

  • A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
  • An identification of the copyright claimed to have been infringed;
  • A description of the nature and location of the content that you claim to infringe your copyright, in sufficient detail to permit Eucalyptus to find and positively identify that content;
  • Your name, address, telephone number and email address; and
  • A statement by you: (i) that you believe in good faith that the use of the content that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner's agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.

Infringement Notices should be sent to the following:

By mail:
Eucalyptus Systems, Inc.
6750 Navigator Way, Suite 200
Goleta, CA 93117
Attn: Legal Department

By fax:
(___) ___-____
Attn: Legal Department

Miscellaneous

These Terms shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Products is excluded and does not apply to these Terms. If any dispute relating in any way to these Terms or the policies or your use of the Website shall be submitted to confidential arbitration in Santa Barbara County, California, USA, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of California, USA and you consent to exclusive jurisdiction and venue in such courts. Arbitration under these Terms shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms shall be joined to an arbitration involving any other party subject to these Terms, whether through class arbitration proceedings or otherwise. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of these Terms is found to be unenforceable, such portion will be modified to reflect the parties' intention and only to the extent necessary to make it enforceable, and the remaining provisions of these Terms will remain in full force and effect. These Terms constitute the entire and exclusive understanding and agreement between you and us regarding this subject matter, and supersedes any and all prior or contemporaneous agreements or understandings, written and oral.