END USER LICENSE AGREEMENT
IMPORTANT - ALL USE OF THE WANDISCO, INC. ("WANDISCO") SOFTWARE PROVIDED WITH THIS AGREEMENT IS GOVERNED BY, AND SUBJECT TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY DOWNLOADING THE SOFTWARE, YOU ARE AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT DOWNLOAD THE SOFTWARE AND MATERIALS. WANDISCO’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY WANDISCO, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND WANDISCO.
Subject to all of the terms of this Software License Agreement ("License"), WANdisco grants to you, or to the company on whose behalf you are installing the Software, (“You”) a personal, non-exclusive, non-transferable, object code only license to use the WANdisco proprietary software object code, including all updates, upgrades and revisions, provided to You by WANdisco or its authorized resellers ("Software") in accordance with the associated documentation. You are granted no title or ownership rights in or to the Software or documentation, in whole or in part, and You acknowledge that title to and all copyrights, patents, trade secrets and/or any other intellectual property rights in and to all Software and associated documentation are and shall remain the property of WANdisco and its suppliers. WANdisco reserves the right to periodically conduct audits upon advance written notice to verify Your compliance with the terms of this Agreement.
Some code contained in the Software may be open source code (“Open Source Code”), licensed to You under the applicable Open Source Code license agreement. The license agreement, and the applicable source code, will be made available to You upon request.
The Software and associated documentation contain “trade secrets” of WANdisco and its suppliers. Such “trade secrets” include, without limitation, the specific design, structure and logic of individual Software programs, their interactions with other portions of the Software, both internal and external, the programming techniques employed therein, and instructions on its use. There can be no adequate remedy at law for any breach of Your obligations hereunder and upon any such breach, or threat thereof, WANdisco shall be entitled, without the necessity of posting any bond, to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
WANdisco' suppliers holding any intellectual property rights in any Software, and any third party owning any intellectual property rights in software from which the Software was derived, are intended third party beneficiaries of this License. You represent and warrant that (i) You are not purchasing the rights granted by this License in anticipation of reselling those rights, and (ii) if applicable, You have all necessary authorization to enter into this License on behalf of the company for whom You have acquired and/or are installing the Software. All rights to the Software not expressly granted herein are reserved by WANdisco and its suppliers.
You will:
· Hold the Software in confidence for the benefit of WANdisco and its suppliers using no less a degree of care than You use to protect Your own most confidential and valuable information, but in no event less than reasonable care;
· Keep a current record of the location of each copy of the Software made by You;
· Affix to each authorized copy of the Software made by You in the same form and location, a reproduction of the copyright notices, trademarks, and all other proprietary legends and/or logos of WANdisco and/or its suppliers, appearing on the original copy of such Software delivered to You; and retain the same without alteration on all original copies;
· Issue instructions to each of Your authorized employees to whom the Software is disclosed, advising them of the confidential nature of the Software and to provide them with a summary of the requirements of this License; and
· Return the Software and all copies to WANdisco at such time as (i) You choose to permanently cease using it, or (ii) WANdisco terminates this License.
The license granted herein does not allow You to, and You will not, and will not permit any third party to:
· Rent, lease, timeshare, operate a service bureau with, use commercially or for the benefit of a third party, or otherwise use the Software for any purpose other than Your own internal operations;
· Use the Software to infringe the intellectual property or proprietary rights of any third party or to violate any law, statute, ordinance or regulation;
· Allow anyone other than Your employees with a “need to know” to have physical access to the Software;
· Make any copies of the Software except such limited number of object code copies in machine readable form only, as may be reasonably necessary for execution or archival purposes only;
· Make any modifications, enhancements, adaptations, or translations to or of the Software, except as may result from Your interactions with the Software associated with normal use and explained in the associated documentation;
· Remove any proprietary notices or labels on the Software.
· Attempt to reverse engineer, disassemble, reverse translate, de-compile, or in any other manner decode the Software, in order to derive the source code form or for any other reason; or
· Make full or partial copies of any documentation or other similar printed or machine-readable matter provided with the Software.
Neither this License nor any rights acquired by You through this License may be assigned, by operation of law or otherwise, by You. Any attempted assignment of rights and/or transfer of the Software not specifically allowed shall be void and conclusively presumed a material breach of this License.
If WANdisco: (i) claims a material breach of this License; and (ii) provides written notice of such claimed material breach to You; and (iii) observes that such claimed material breach remains uncorrected and/or unmitigated more than thirty (30) days following Your receipt of written notice specifying in reasonable detail the nature of the claimed material breach, then this License may be immediately terminated by WANdisco and such termination shall be without prejudice to any other rights and remedies that WANdisco may have at law or in equity.
Subject to the terms in this Agreement, WANdisco shall provide "Support Services" to You for a period of twelve (12) months from the date the Software is downloaded, which You may renew upon mutual agreement with WANdisco. WANdisco will offer such Support Services to You as long as 1) WANdisco is generally offering Support Services for the version of the Software licensed by You and 2) You make the annual payment in advance for such services. The current annual fee for Support Services is equal to 50% of the annual license fee for the Software. The subsequent annual fee is subject to change. Support Services are provided online during normal business hours for the UK or US, depending on Your location.
Support Services shall include:
· Incident Support - Identifying and troubleshooting problems in the system
Support Services do not include:
· End of Life, Beta, Release Candidate or Development releases
· Customized versions of WANdisco products (“customized” means that the original product code has been modified)
· Third-party application integrations or third-party plugins
You agree that WANdisco shall have no liability whatsoever for any use You or any third party makes of the Software. You hereby agree to indemnify and hold harmless WANdisco from any and all damage, liability, cost, and expense (including attorneys' fees) arising from claims related to Your, or such third party's, use of the Software.
THE SOFTWARE IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WANDISCO DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE AND THE ACCOMPANYING DOCUMENTATION. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, WANDISCO MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL WANDISCO OR ITS SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES. IN NO EVENT WILL WANDISCO BE LIABLE FOR ANY DAMAGES IN EXCESS OF ONE U.S. DOLLAR ($1), EVEN IF WANDISCO SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
If You are or represent an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, or any related documentation of any kind, including technical data or related manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. The Software is commercial computer software and the related documentation is commercial computer software documentation. The use of the Software and related documentation is further restricted in accordance with the terms of this Agreement, or any modification hereto. If You are or represent an agency, department or other entity of a state government, the use of the Software is subject to the same or similar restrictions as set forth above and this Agreement shall be subject to immediate termination if any legislation is, or becomes, applicable to this Agreement that would vest any ownership in the Software or revise or place any constraints on this Agreement or its terms and conditions.
Neither the Software nor the Documentation and underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nations or the United States Commerce Department’s Table of Denial Orders. By downloading or using the Software You are agreeing to the foregoing and You are certifying that You are not located in, under the control of, or a national or resident of any such country or on any such list.
IN ADDITION, YOU SHOULD BE AWARE OF THE FOLLOWING: EXPORT OF THE SOFTWARE MAY BE SUBJECT TO COMPLIANCE WITH THE RULES AND REGULATIONS PROMULGATED FROM TIME TO TIME BY THE BUREAU OF EXPORT ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE, WHICH RESTRICT THE EXPORT AND RE-EXPORT OF CERTAIN PRODUCTS AND TECHNICAL DATA. IF THE EXPORT OF THE SOFTWARE IS CONTROLLED UNDER SUCH RULES AND REGULATIONS, THEN THE SOFTWARE SHALL NOT BE EXPORTED OR RE-EXPORTED, DIRECTLY OR INDIRECTLY, (A) WITHOUT ALL EXPORT OR RE-EXPORT LICENSES AND UNITED STATES OR OTHER GOVERNMENTAL APPROVALS REQUIRED BY ANY APPLICABLE LAWS, OR (B) IN VIOLATION OF ANY APPLICABLE PROHIBITION AGAINST THE EXPORT OR RE-EXPORT OF ANY PART OF THE SOFTWARE. SOME COUNTRIES HAVE RESTRICTIONS ON THE USE OF ENCRYPTION WITHIN THEIR BORDERS, OR THE IMPORT OR EXPORT OF ENCRYPTION EVEN IF FOR ONLY TEMPORARY PERSONAL OR BUSINESS USE. YOU ACKNOWLEDGE THAT THE IMPLEMENTATION AND ENFORCEMENT OF THESE LAWS IS NOT ALWAYS CONSISTENT AS TO SPECIFIC COUNTRIES. ALTHOUGH THE FOLLOWING COUNTRIES ARE NOT AN EXHAUSTIVE LIST THERE MAY EXIST RESTRICTIONS ON THE EXPORTATION TO, OR IMPORTATION OF, ENCRYPTION BY: BELGIUM, CHINA (INCLUDING HONG KONG), FRANCE, INDIA, INDONESIA, ISRAEL, RUSSIA, SAUDI ARABIA, SINGAPORE, AND SOUTH KOREA. YOU ACKNOWLEDGE IT IS YOUR ULTIMATE RESPONSIBILITY TO COMPLY WITH ANY AND ALL GOVERNMENT EXPORT AND OTHER APPLICABLE LAWS AND THAT WANDISCO HAS NO FURTHER RESPONSIBILITY AFTER THE INITIAL SALE TO YOU WITHIN THE ORIGINAL COUNTRY OF SALE.
The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). WANdisco expressly disclaims any express or implied warranty of fitness for High Risk Activities.
WANdisco may identify You as a customer in its promotional material. You may request that WANdisco cease identifying You at any time by submitting an email to sales@wandisco.com. Requests may take up to 30 days to process.
This License contains the entire agreement concerning the Software between You and WANdisco and supersedes any prior proposal, representation or understanding between the parties. In the event of any conflict between this License and any purchase order or similar document provided or received by You, the terms of this License shall prevail. This License may be amended, or any provision herein waived, only by a writing executed by both parties. A waiver of any term or condition in any one instance shall not be deemed or construed to be a waiver of such term or condition for any similar instance in the future or of any subsequent breach. If any provision of this License is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The prevailing party in any action to enforce this License shall be entitled to costs and attorneys’ fees. If any provision of this License is held to be illegal or unenforceable by a court of competent jurisdiction, that provision shall be limited or eliminated to the minimum extent necessary so that this License shall otherwise remain in full force and effect and enforceable. This License shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California. The sole and exclusive jurisdiction and venue for actions arising under this License shall be the State and Federal courts in Contra Costa County, California; You hereby agree to service of process in accordance with the rules of such courts.