This Online Subscription Agreement (this "Agreement") is a legal agreement between you ("Customer") and Eucalyptus Systems, Inc., a Delaware corporation ("Eucalyptus"). By clicking the "I Accept" button on the Eucalyptus website or by accessing, installing or using any Licensed Software or Services, Customer agrees to be bound by the terms of this Agreement. If Customer does not agree to such terms, Customer is not authorized to use the Licensed Software or the Services.
- 1. DEFINITIONS.
1.1 "Confidential Information" means (i) with regard to Eucalyptus, the Licensed Software, and (ii) with regard to both parties, all confidential, proprietary or trade secret information of the disclosing party that is designated in writing to be confidential or proprietary, or if disclosed verbally, is designated at the time of disclosure as confidential or proprietary. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which (i) is shown by written record to be in the public domain at the time of the disclosure or becomes available to the public thereafter without restriction, and not as a result of the act or omission of the receiving party, (ii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, (iii) is shown by written record to be lawfully in the possession of the receiving party at the time of the disclosure, (iv) is approved for release by written authorization of the disclosing party, or (v) is shown by written record to be developed independently and separately by the receiving party without use of the disclosing party's Confidential Information.
- 1.2 "Delivery" means delivery by electronic download of the Licensed Software by Customer, which may require a license key from Eucalyptus.
- 1.3 "Documentation" means all documentation and information in connection with the installation, use, operation, modification, support and maintenance of the Licensed Software made available by Eucalyptus to Customer including, without limitation, any on-line help files, written instruction manuals or written correspondence, including emails.
- 1.4 "Intellectual Property Rights" means all current and future worldwide patents and other patent rights (including patent applications and disclosures), utility models, copyrights, moral rights, mask work rights, trade secrets, know-how and all other intellectual property rights.
- 1.5 "Licensed Software" means the Eucalyptus software subscribed to by Customer set forth in the Order Form, including any modifications, customizations, enhancements or extensions thereto, and any Upgrades thereof, and any Documentation.
- 1.6 "Order Form"* means the order form accepted by Eucalyptus that evidences the Subscription. The Order form may be online or in another form approved by Eucalyptus.
- 1.7 "Services" means the Support Services and any other Eucalyptus services subscribed to by Customer.
- 1.8 "Subscription" shall mean the right to use the Licensed Software and receive the Services, during the Subscription Period, in accordance with the terms and conditions of this Agreement.
- 1.9 "Subscription Fees" means the fees payable for the Subscription set forth in the Order Form.
- 1.10 "Subscription Period" means the period of time set forth in the Order Form. The initial Subscription Period shall commence on the date of specified in the Order Form.
- 1.11 "Support Services" means the (i) the maintenance and upgrade services described in Section 3.2 of this Agreement and (ii) the support services described in Section 3.3 of this Agreement.
- 1.12 "Upgrade" means any new version, revision or correction of the Licensed Software that is not separately marketed by Eucalyptus.
- 2. Licensed Software.
2.1 License Grant. Subject to the terms and conditions of this Agreement and the payment of the applicable Subscription Fees, Eucalyptus grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right to install and use the Licensed Software, during the Subscription Period, in object code version only, on the number of servers for which Customer paid Subscription Fees, to run its internal business operations only.
- 2.2 Backup Copies. Customer may make one backup copy of the Licensed Software, provided the backup copy is not installed or used on any computer and further provided that the copy shall bear the original and unmodified copyright, patent and other intellectual property markings that appear on or in the Licensed Software.
- 2.3 Ownership. Customer acknowledges that the Licensed Software is the intellectual property of, and is owned by, Eucalyptus and its licensors. The structure, sequence and organization of the Licensed Software are the valuable trade secrets and confidential information of Eucalyptus and its licensors. The Licensed Software is protected by intellectual property laws, including without limitation by United States copyright law, international treaty provisions and applicable laws in the country in which it is used. Customer acknowledges that Eucalyptus, or its licensors, retain the ownership of all Intellectual Property Rights pertaining to the Licensed Software. Customer will take no actions which adversely affect Eucalyptus' Intellectual Property Rights in or to the Licensed Software. This Agreement is a subscription license and is not an agreement for sale. No title to, or ownership of, the Licensed Software, or any Intellectual Property Rights therein, are transferred to Customer.
- 2.4 Restrictions. The Licensed Software is licensed solely for internal use within Customer's organization and any other use including for third parties is expressly prohibited. Eucalyptus and its licensors reserve all rights not expressly granted to Customer in this Agreement. Without limiting the generality of the foregoing, Customer shall not, nor shall it permit any other party to: (i) make copies of the Licensed Software except as expressly set forth in this Agreement, or (ii) disassemble, decompile, reverse engineer, or translate any part of the Licensed Software, or otherwise attempt to reconstruct or discover the source code of the Licensed Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or (iii) modify or create derivative works based upon the Licensed Software, or (iv) externally distribute, sublicense, resell, encumber or otherwise transfer the Licensed Software, or (v) rent, lease, lend, or use the Licensed Software, or any part thereof, for timesharing or bureau use, or (vi) allow a third party to copy, access, or use the Licensed Software (except as expressly provided in this Agreement), or (vii) alter or remove any copyright, trademark or other proprietary notice which may appear on the Licensed Software, or (viii) take any action that would cause the Licensed Software to be placed in the public domain or become subject to an open source license agreement.
- 3. Customer Services.
3.1 General. Subject to the terms and conditions of this Agreement and the payment of the applicable Subscription Fees, and during the Subscription Period, Eucalyptus will provide the Support Services.
3.2 Support Services.
(a) The release status of the Licensed Software is defined by version, revision and correction. Each new version of the Licensed Software will generally include bug fixes and improvements in functionality. A correction of any version or revision will include only fixes necessary to cause the Licensed Software to perform in accordance with this Agreement. Subject to Customer's application of all revisions and corrections in accordance with Eucalyptus' recommendations, Eucalyptus will support each major version of the Licensed Software for period of 12 months after general availability; and will support each minor revision of the Licensed Software for a minimum of 6 months after the general availability.
(b) Eucalyptus will use commercially reasonable efforts to announce the availability of Upgrades as soon as practicable. Eucalyptus will provide implementation and training services in connection with installation of any Upgrade only upon mutual agreement of the parties.
(c) Eucalyptus will use commercially reasonable efforts to provide a migration path and procedure to be used in connection with the implementation of any new versions of the Licensed Software. Eucalyptus will notify Customer of any necessary upgrades or updates to its operating environment.
3.3 Support Services. Eucalyptus will provide the following support services:
(a) Advice on how to use the Licensed Software
(b) Installation and configuration
(c) Problem diagnosis troubleshooting, workarounds and/or corrections
(d) Customer portal for opening support cases and self solve through Eucalyptus knowledgebase.
(e) Advice on Upgrades. NOTE: Implementation and Upgrade services can be provided by Eucalyptus consulting if desired.
3.4 Support Service Levels. Eucalyptus will provide the support services described in Section 3.3 on the following levels:
Starter: Customer is entitled to web support during Eucalyptus' normal business days (Monday through Friday excluding holidays) between the hours 9:00 A.M. and 5:00 P.M. Customer local time.
Standard: Customer is entitled to web support and phone support during Eucalyptus' normal business days (Monday through Friday excluding holidays) between the hours 9:00 A.M. and 5:00 P.M. Customer local time.
Premium: Customer is entitled to web support and phone support on a 24-hour basis.
- 3.5 Response Times. In the event that Customer requires support services with respect to the Licensed Software, Eucalyptus shall prioritize problems/requests reported by Customer according to the severity levels and respond according to the support levels found on its support site at support.eucalyptus.com.
3.6 Limitations. The following services will not be provided by Eucalyptus under this Agreement:
(a) Consulting and other professional services beyond telephone support. For example, questions which are specific to Customer's operating environment and questions regarding the operation of customizations specifically performed for Customer are not included as Support Services under this Agreement.
(b) Services for the correction of problems caused by unauthorized modification of the Software by Customer or any third party or the use of the Software with third party products or in an operating environment other than as specified or approved by Eucalyptus.
- 3.7 Changes. Eucalyptus may make changes to the Support Services from time to time at its sole discretion. Eucalyptus will notify Customer of any material change by posting a notification of such change on Eucalyptus' website.
- 4. Payment Provisions.
4.1 Fees. Customer will pay Eucalyptus the Subscription Fees set forth in the Order Form. The Subscription Fees are due (a) for the initial Subscription Period, upon Eucalyptus' acceptance of the Order Form or, (b) for any renewal of the Subscription Period, at the start of the then-current renewal. All Subscription Fees must be paid in US Dollars and are non-refundable.
- 4.2 Payment Terms. Customer will pay Eucalyptus the Subscription Fees at the beginning of the Subscription Period. If Customer is paying by credit card, Customer (a) authorizes Eucalyptus to charge Customer's credit card for the initial Subscription Fees and all subsequent renewal fees, until a written cancellation is submitted to Eucalytus, and (b) agrees to provide updated credit card information to Eucalyptus for renewal purposes.
- 4.3 Taxes. Unless reflected on the Order Form, all fees, expenses and other amounts payable to Eucalyptus hereunder do not include any sales, use, value added or other applicable taxes, tariffs or duties, payment of which will be the sole responsibility of Customer (excluding any taxes based on Eucalyptus' net income). Customer will promptly reimburse Eucalyptus for any such amounts that Eucalyptus pays on Customer's behalf.
- 5. Term and Termination.
5.1 Term. This Agreement is effective for the initial Subscription Period. At the end of the initial Subscription Period, this Agreement will automatically renew for an additional renewal Subscription Period, and will continue to automatically renew thereafter for additional renewal Subscription Periods, unless either party terminates this Agreement by giving the other party written notice of its intent to terminate 30 days prior to the end of the then-current Subscription Period.
- 5.2 Termination. This Agreement may be terminated by Eucalyptus if Customer (a) breaches any material provision of this Agreement; (b) becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed with prejudice within 60 days after filing; or (c) if Customer fails to pay any Subscription Fees when due. Any termination of this Agreement shall become effective immediately upon of a notice of termination to Customer by Eucalyptus.
- 5.3 Effect of Termination. Upon the termination of this Agreement: (i) each party will promptly return to the other party all Confidential Information of the other party in its possession or control; and (ii) the licenses granted under this Agreement shall automatically terminate and Customer must immediately uninstall the Licensed Software. This shall not limit or affect any remedy available to Eucalyptus for Customer's breach of this Agreement.
- 5.4 Survival. Termination of this Agreement for any reason shall not affect the obligations accrued prior to the effective date of termination. Moreover, the rights and obligations of the parties contained in Sections 2.3, 2.4, 5.3, 5.4, 7, 8 and 11 will survive the expiration or termination of this Agreement.
6. Limited Warranty. Eucalyptus warrants that the original copy of the Licensed Software will perform substantially in accordance with the accompanying Documentation for a period of one month from the beginning of the initial Subscription Period. Eucalyptus does not warrant that functions contained in the Licensed Software will meet Customer's requirements or that the operation of the Licensed Software will be error-free or uninterrupted. As Customer's exclusive remedy for breach of Eucalyptus' warranty, Eucalyptus shall use reasonable efforts to provide Support Services in a timely manner. This limited warranty is void if failure of the Licensed Software has resulted from accident, abuse, alteration or misapplication. Eucalyptus is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system for which the Licensed Software or any Upgrade is procured, nor is Eucalyptus responsible for problems which occur as a result of the use of the Licensed Software in conjunction with software of third parties or with hardware, which does not meet Eucalyptus' specific requirements.
7. Disclaimer of Warranties; Limitation of Liability. EXCEPT AS EXPRESSLY WARRANTED ABOVE IN SECTION 6, THE LICENSED SOFTWARE IS PROVIDED "AS IS," WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER EUCALYPTUS NOR ITS LICENSORS REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE WILL SATISFY CUSTOMER'S REQUIREMENTS OR THAT IT IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL EUCALYPTUS OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF EUCALYPTUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, EUCALYPTUS' ENTIRE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR LOSS OR DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER TO EUCALYPTUS FOR THE LICENSED SOFTWARE, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND EUCALYPTUS' SOLE AND EXCLUSIVE LIABILITY ARE SET FORTH IN THIS AGREEMENT. This Agreement defines a mutually agreed-upon allocation of risk and forms an essential basis of the bargain between the parties.
- 8. CONFIDENTIAL INFORMATION.
8.1 Use and Disclosure Restrictions. Each party will not use the other party's Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect the other party's Confidential Information from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance.
- 8.2 Exclusions. The foregoing obligations will not restrict either party from disclosing the other party's Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
- 8.3 Injunctive Relief. The parties agree that any breach by either party or any of its officers, directors, or employees, of any provision of this Section 8 may cause immediate and irreparable injury to the other party and that, in the event of such breach, the injured party will be entitled to seek injunctive relief as well as any and all other remedies available at law or in equity.
9. Export Restrictions. Customer agrees to comply with all export and reexport restrictions and regulations imposed by the United States or any other country in which Customer conducts business. Without limiting the generality of the foregoing, and regardless of any disclosure made by Customer to Eucalyptus regarding an ultimate destination of the Licensed Software, Customer represents and warrants that it understands that the U.S. law currently prohibits the export or reexport, directly or indirectly (including via remote access) of U.S. origin products and technology to certain proscribed countries (including Cuba, Iran, North Korea, Sudan and Syria and/or any other country that may become subject to an embargo by the United States), entities, organizations and individuals, without prior authorization from the U.S. Government. Customer will not commit any act or omission that will result in a breach of any such export restrictions. Customer's breach of this Section shall constitute cause for immediate termination of this Agreement.
10. High Risk Activities. The Licensed Software is not designed, manufactured or intended for use or resale, and may not be used, as online control equipment in hazardous environments requiring fail-safe performance, in which the failure of the Licensed Software could lead directly to death, personal injury, or severe physical or environmental damage, or other high risk activities. Eucalyptus specifically disclaims any express or implied warranty of fitness for these high risk activities.
- 11. General Provisions.
11.1 Assignment. Customer shall not transfer or assign any of its rights or delegate any of its obligations, in whole or in part, under this Agreement whether through sale of substantially all assets, reorganization, merger, reverse merger or similar assignment or change of control, without the prior written consent of the other party, which shall not be unreasonably withheld. Any purported transfer, assignment, or delegation by either party without such prior written consent shall be null and void and of no force or effect.
- 11.2 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of California, excluding its body of law controlling conflicts of law.
- 11.3 Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Santa Barbara, California, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The award rendered thereon by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
- 11.4 Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the Order Form or to such other address as may be specified by either party to the other party in accordance with this Section.
- 11.5 Waiver. The waiver of any breach or default of any provision of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent breach or default.
- 11.6 Entire Agreement. This Agreement constitutes the entire and exclusive agreement of the parties regarding its subject matter and supersedes any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter.
- 11.7 Amendments. Eucalyptus may amend this Agreement from time to time in its sole discretion by posting a description of the amendment on its website or otherwise providing notice to Customer. Any such amendment will be effective as to Customer 30 days following the date when Eucalyptus made the amendment.
- 11.8 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
- 11.9 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
- 11.10 US Government Rights. If Customer is a unit or agency of the United States Government, the following applies: The Licensed Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in Subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in Subparagraph 252.227-7013 (c)(1)(ii) of the Rights in Technical Data and Computer Software at DFARS, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Eucalyptus Systems, Inc.
- 11.11 English Language. This Agreement is in the English language only, and will only be provided in the English language, which language will be controlling in all respects, and all versions hereof in any other language will not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
- 11.12 Construction. No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of this Agreement.