Cloudian END USER License Agreement
This Cloudian End User License Agreement (“Agreement”) is an agreement between Cloudian, Inc., a Delaware corporation (“Cloudian”) and the company identified by you on this page (“Licensee”).
IT IS IMPORTANT THAT YOU READ THIS AGREEMENT CAREFULLY AND COMPLETELY. THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN CLOUDIAN AND LICENSEE. BY CHECKING THE “I HAVE READ AND AGREE TO THE AGREEMENT” BOX AND/OR CLICKING THE “SUBMIT” BUTTON ON THIS PAGE BY DOWNLOADING OR INSTALLING ANY CLOUDIAN SOFTWARE, OR BY INSTALLING ANY CLOUDIAN LICENSE KEY OR USING ANY CLOUDIAN PRODUCT IN ANY MANNER, YOU ARE BINDING LICENSEE TO THE TERMS OF THIS AGREEMENT, AND YOU ARE REPRESENTING TO CLOUDIAN THAT YOU ARE DULY AUTHORIZED BY LICENSEE TO DO SO AND THAT LICENSEE IS A CORPORATION OR OTHER BUSINESS ENTITY. IF LICENSEE IS NOT A CORPORATION OR OTHER BUSINESS ENTITY, IF YOU ARE NOT AUTHORIZED TO BIND LICENSEE TO THE TERMS OF THIS AGREEMENT, OR IF LICENSEE DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE “I HAVE READ AND AGREE TO THE AGREEMENT” BOX, DO NOT CLICK THE “SUBMIT” BUTTON, DO NOT DOWNLOAD OR INSTALL ANY CLOUDIAN SOFTWARE, DO NOT INSTALL ANY CLOUDIAN LICENSE KEYS, AND DO NOT USE ANY CLOUDIAN PRODUCT IN ANY MANNER. IF LICENSEE DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, THE CLOUDIAN PRODUCT MAY BE RETURNED TO THE SELLER FOR A REFUND OF THE PURCHASE PRICE ACTUALLY PAID BY LICENSEE.
1.1 “Cloudian Product” means any Cloudian product for which Cloudian provides to Licensee one or more license keys. “Cloudian Software Product” means any Cloudian Product that is a software-only product (with no hardware), and “Cloudian Appliance Product” means any Cloudian Product that is an appliance product.
1.2 “Cloudian-Powered Storage System” means an object storage system with a single shared namespace. The nodes of such system may be distributed across multiple data centers in multiple geographic regions.
1.3 “Documentation” means, with respect to a Cloudian Product, Cloudian’s standard end-user manuals for such Cloudian Product and any updates thereto that may be provided by Cloudian or Seller (if Seller is not Cloudian) to Licensee.
1.4 “Evaluation License Term” means, with respect to an Evaluation License, the license period encoded in the evaluation license key provided by Cloudian to Licensee for such Evaluation License; provided, however, that if, prior to the end of such period, a production license key is installed on any node of the Cloudian-Powered Storage System covered by such evaluation license key, the Evaluation License Term will terminate upon such installation of such production license key. For avoidance of doubt, there will be no Evaluation License Term for any Cloudian Product unless and until an evaluation license key is provided by Cloudian to Licensee for such Cloudian Product.
1.5 “Licensed Software” means (a) with respect to a Cloudian Software Product, such Cloudian Software Product and all corrections, updates and upgrades thereto that Cloudian or Seller (if Seller is not Cloudian) may provide to Licensee, and (b) with respect to a Cloudian Appliance Product unit, (i) the software installed on such unit at the time it is originally delivered to Licensee (“Preloaded Licensed Software”), (ii) any other software that Cloudian or Seller (if Seller is not Cloudian) may provide to Licensee for use with such product (“Non-Preloaded Licensed Software”), and (iii) any corrections, updates and upgrades to any of the foregoing that Cloudian or Seller (if Seller is not Cloudian) may provide to Licensee.
1.6 “Licensed Storage Amount” means, with respect to a Software License, the maximum amount of storage permitted for such Software License (which may be measured by the total data storage capacity of all storage devices that can be accessed by the applicable Cloudian Product, the amount of storage space configured for use by such Cloudian Product, or another metric defined by Cloudian), as encoded in the license key for such Software License.
1.7 “Permitted Purposes” means (a) with respect to an Evaluation License, the testing and evaluation of the applicable Cloudian Product in a non-production capacity, and (b) with respect to a Production License, Licensee’s internal business purposes.
1.8 “Production License Term” means, with respect to a Production License, the license period encoded in the production license key provided by Cloudian to Licensee for such Production License; provided that the Production License Term of each Production License for Licensed Software for a Cloudian Appliance Product will have a perpetual duration.
1.9 “Seller” means, with respect to a Cloudian Product, the entity from which such Cloudian Product is obtained by Licensee.
1.10 “Software License” means a license granted by Cloudian to Licensee under Section 2.1 in connection with a license key provided by Cloudian to Licensee. A Software License is an “Evaluation License” if the corresponding license key is an evaluation license key, and a “Production License” if the corresponding license key is a production license key.
1.11 “Third Party Software” means any software not developed by Cloudian that may be provided by Cloudian to Licensee together with separate license terms that govern such software.
2. LICENSE GRANTS
2.1 Licensed Software. Subject to the terms and conditions of this Agreement (including Section 3), Cloudian hereby grants to Licensee, with respect to each license key, a non-exclusive, non-transferable (except as permitted in Section 12.3), non-sublicensable license to do all of the following during the license period (i.e., the Evaluation License Term or Production License Term) encoded in such license key:
(a) if such license key is for a Cloudian Software Product, install and use such Cloudian Software Product to operate a single Cloudian-Powered Storage System solely for Permitted Purposes, subject to the applicable Licensed Storage Amount; or
(b) if such license key is for a Cloudian Appliance Product unit, install the Non-Preloaded Licensed Software for such Cloudian Appliance Product, if any, on such unit, and use the Licensed Software on such unit solely for Permitted Purposes, subject to the applicable Licensed Storage Amount.
Notwithstanding the foregoing, this Section does not apply to any Third Party Software, all of which is provided to Licensee pursuant to separate licensing terms.
2.2 Documentation. Subject to the terms and conditions of this Agreement (including Section 3), Cloudian hereby grants to Licensee a non-exclusive, non-transferable (except as permitted in Section 12.3), non-sublicensable license to do the following during the license period (i.e., the Evaluation License Term or Production License Term) of each Software License: make and use a reasonable number of copies of the Documentation for the applicable Cloudian Product solely in connection with the permitted use thereof.
3. SOFTWARE Restrictions
3.1 Appliance-Specific Restrictions. The Licensed Software for each Cloudian Appliance Product unit is licensed for use solely on the hardware of such unit. Licensee will not, and will have no right to: (a) move such Licensed Software to, or otherwise install or use such Licensed Software on, any hardware other than the hardware of such unit; or (b) use such Licensed Software if the storage capacity of such unit is expanded beyond what was originally delivered to Licensee (including through the addition of storage devices to, or the upgrading of the storage devices of, such unit). Prior to selling, leasing or otherwise transferring any Cloudian Appliance Product unit to any third party, Licensee will permanently delete all Licensed Software installed on such unit.
3.2 Other Restrictions. Licensee will not, and will have no right to, do any of the following: (a) install, use or copy any Licensed Software or Documentation except as permitted in Section 2; (b) without limitation of the foregoing, use any Licensed Software or Documentation in connection with the development, marketing, distribution or exploitation of any products or services that are competitive with any Licensed Software or Cloudian Product, or use any Licensed Software or Cloudian Product under an Evaluation License in a production capacity; (c) distribute, disclose or otherwise provide any Licensed Software or Documentation to any third party; (d) grant to any third party any license, sublicense or other rights in or to, or otherwise permit any third party (other than Licensee’s contractors acting on behalf of Licensee during any Production License Term) to use, any Licensed Software or Documentation (for avoidance of doubt, this subsection (d) does not prohibit or limit use by third parties of any storage service operated by Licensee using the Licensed Software during any Production License Period); (e) create derivative works of, translate, adapt or otherwise modify any Licensed Software or Documentation; (f) decompile, disassemble or reverse engineer any Licensed Software, or otherwise attempt to derive or extract any source code, ideas, algorithms, procedures, workflows or hierarchies from any Licensed Software; (g) disclose the results of any performance tests, or any benchmark tests or other comparative analyses, of any Licensed Software or Cloudian Products; (h) disclose the specifications of, or Cloudian’s roadmap for, any Licensed Software or Cloudian Product to any third party; or (i) authorize, instruct or assist any third party to perform any of the foregoing activities. Licensee will comply with all applicable laws (including consumer, privacy and telecommunications laws) in connection with all activities involving any Licensed Software or Cloudian Product.
3.3 Injunctive Relief. Licensee acknowledges and agrees that any breach of Sections 3.1 or 3.2 by Licensee will cause irreparable injury to Cloudian and that, in addition to any other remedies that may be available to Cloudian, Cloudian will be entitled to obtain injunctive relief against such breach or threatened breach or the continuation of such breach, without any requirement to prove actual damages or post a bond or other security.
3.4 Enforcement Mechanisms. Licensee acknowledges and agrees that (a) Licensed Software will only operate on servers on which valid license keys are installed and (b) Licensed Software may contain certain other mechanisms to enforce the Licensed Storage Amount limitation and the other limitations set forth in this Agreement. Cloudian will have no liability of any kind in connection with any inability of Licensee to use the Licensed Software or the Cloudian Product in excess of such limitations due to such mechanisms or any other causes.
3.5 Export restrictions. Licensee acknowledges that Licensed Software and Cloudian Products are subject to U.S. and foreign customs and export control laws and regulations (collectively, “Export Laws”). Licensee will comply with Export Laws, and Licensee will be solely responsible for obtaining any necessary licenses or other authorizations relating to the export of Licensed Software or Cloudian Products. Without limitation of the foregoing, Licensee will not import, export, re-export, sell or otherwise transfer any Licensed Software or Cloudian Product (a) to restricted end-users or to restricted countries (as defined by the Export Laws), or (b) for the design, development, production or use of nuclear weapons, materials or facilities, chemical or biological weapons, or missile technology, or for any other purposes prohibited by Export Laws.
3.6 Records; Audit. Licensee will keep and maintain complete and accurate books and records relating to this Agreement, and Cloudian will have the right, from time to time and with reasonable advance notice to Licensee, to conduct an audit of Licensee’s books and records and Licensee’s use of Licensed Software to verify Licensee’s compliance with the terms and conditions of this Agreement. No such audit will unreasonably interfere with Licensee’s business activities. If any such audit reveals any material breach of this Agreement, Licensee will promptly pay to Cloudian all costs and expenses of such audit. Without prejudice to any other rights of Cloudian, Licensee will promptly pay Cloudian the amount of any underpayment by Licensee, and correct any other noncompliance, revealed by any such audit.
3.7 Software Data Usage Files. The Licensed Software may generate electronic files containing information regarding its usage (“Audit Files”). Upon any request by Cloudian, Licensee will promptly generate and send to Cloudian Audit Files any other reports or logs that can be generated by the Licensed Software (such reports and logs, collectively with Audit Files, “Software Usage Data Files”), or, at Cloudian’s option, permit and enable Cloudian to remotely generate Software Usage Data Files and retrieve them over the Internet.
4. EVALUATION HARDWARE RESTRICTIONS
- Licensee will not (a) remove any hardware from, add any hardware to, or modify any hardware of, any Cloudian Appliance Product unit that is provided to Licensee for evaluation purposes, except that Licensee may remove hardware components from such unit on a temporary basis solely for failure testing purposes, or (b) distribute, disclose or otherwise provide any portion of such Cloudian Appliance Product unit to any third party. Cloudian will retain title to and ownership of any Cloudian Appliance Product unit that is provided to Licensee for evaluation purposes unless and until Licensee purchases such unit from Cloudian.
5.1 Support Agreement. With respect to any technical support services for Cloudian Products purchased by Licensee, Licensee agrees that if such technical support is to be provided to Licensee directly by Cloudian, it will be governed by Cloudian’s technical support terms located at cloudian.com/disclosures/technical-support-terms, and if it is to be provided to Licensee by a Cloudian reseller or distributor, it will be governed by terms agreed to between Licensee and such reseller or distributor. Cloudian will have no obligation under this Agreement to provide any technical support or maintenance for, or any bug fixes, updates or upgrades to, any Cloudian Product or Licensed Software.
5.2 Support Diagnostics. Cloudian may collect product usage data, log files, trace files, and other usage and diagnostic data (collectively, “Diagnostic Data”) from each Cloudian Product, which collection may be achieved using “call home” functionality of such Cloudian Product or through manual collection from such Cloudian Product (Licensee may choose the collection method). Cloudian and its business partners may use Diagnostic Data to provide, support and enhance Cloudian’s products and services. Cloudian may also use Diagnostic Data to determine usage trends for Cloudian Products and Licensed Software, and Cloudian may publicly disclose such trends as long as Licensee is not identified by name as a source of Diagnostic Data.
5.3 Remote support capabilities. Licensee will give Cloudian reasonable notice before removing or disabling any remote support capabilities of any Cloudian Product during any technical support term.
6. PROMOTIONAL Consideration
6.1 Cloudian will have the right to use Licensee’s name and logo to identify Licensee as a user of Cloudian Products on Cloudian’s websites and promotional materials until Licensee expressly objects in writing.
7. Proprietary Rights
7.1 Ownership. Licensee acknowledges and agrees that, as between Cloudian and Licensee, Cloudian and/or its licensors own and will retain all right, title and interest (including all intellectual property rights) in and to all Licensed Software and Documentation. If Licensee provides Cloudian with any feedback (including any ideas or suggestions for new features or other improvements) regarding any Cloudian Product, Cloudian will be free to implement and otherwise use such feedback for any purpose, without restriction and without compensation or attribution to Licensee.
7.2 No implied rights. Except as expressly set forth in this Agreement, Cloudian grants no licenses or other rights in or to any Licensed Software or Documentation (whether by implication, estoppel, or otherwise) to Licensee or any third parties. All rights not expressly granted to Licensee are retained by Cloudian and its licensors.
7.3 Proprietary rights markings. Licensee will ensure that all copies of Licensed Software and Documentation will contain all copyright, trademark, patent, confidentiality and other notices in the same manner as such notices appear on or in such Licensed Software and Documentation as originally provided to Licensee. Licensee will not remove, alter, cover or obfuscate any such notices placed on or in any Cloudian Product, Licensed Software or Documentation.
8. Warranty and Disclaimers
8.1 Limited warranties
(a) With respect to each Production License, Cloudian warrants to Licensee that, for a period of thirty (30) days commencing on the first day of the applicable Production License Term (“Software Warranty Period”), the Licensed Software covered by such Production License, in the form delivered to Licensee by Cloudian or Seller (if Seller is not Cloudian), will perform substantially in accordance with the functional specifications for such Licensed Software set forth in the applicable Documentation when installed and used in compliance with such Documentation and this Agreement. For the purposes of this Agreement, a Cloudian Software Product will be deemed to be delivered to Licensee when it is made available for download by Licensee. For avoidance of doubt, the foregoing warranty does not apply to any Licensed Software while it is being used under an Evaluation License or during any other period in which it is not covered by a Production License.
(b) With respect to each Cloudian Appliance Product unit purchased by Licensee from Cloudian or Seller (if Seller is not Cloudian), Cloudian warrants to Licensee that, for a period of thirty (30) days commencing on the date of sale of such unit (“Hardware Warranty Period”), the hardware of such Cloudian Appliance Product unit, in the form delivered to Licensee by Cloudian or Seller (if Seller is not Cloudian), will be free of material defects in materials and workmanship under normal use. For avoidance of doubt, the foregoing warranty does not apply to any Cloudian Appliance Product unit that is provided by to Licensee for evaluation purposes unless and until such unit is purchased by Licensee.
(a) If, during the Software Warranty Period applicable to any Production License, Licensee provides Cloudian written notice of any breach of the warranty set forth in Section 8.1(a) above with respect to the Licensed Software covered by such Production License, which notice describes such breach in detail, Cloudian will (at Cloudian’s election) either (i) correct such Licensed Software so that it complies with such warranty or (ii) replace such Licensed Software with software that complies with such warrant.
(b) If, during the Hardware Warranty Period applicable to any Cloudian Appliance Product unit, Licensee provides Cloudian written notice of any breach of the warranty set forth in Section 8.1(b) above with respect to such unit, which notice describes such breach in detail, Cloudian will (at Cloudian’s election) either (i) repair the defective hardware (using new or previously used parts that are equivalent to new in performance and reliability) so that it complies with such warranty or (ii) replace the defective hardware (in part or whole) with other hardware that complies with such warranty (such replacement hardware may contain, or consist of, new or previously used parts that are equivalent to new in performance and reliability). In connection with subsections (i) and (ii) above, Cloudian may request that Licensee replace certain user-installable parts. Repaired or replacement hardware will be warranted for the remainder of the original Hardware Warranty Period.
(c) Notwithstanding anything to the contrary, Cloudian will not accept the return of any hardware from Licensee unless Licensee obtains a Return Material Authorization number from Cloudian and such number is included with the return. For any such return, Licensee will prepay the shipping charges and insure the shipment (or accept the risk if the returned items are lost or damaged in shipment). All hardware returned by Licensee to Cloudian will become the property of Cloudian. Licensee will return to Cloudian all defective hardware for which Cloudian provides a replacement to Licensee, and if Licensee does not do so, Licensee will pay Cloudian’s then-current spare parts price for such hardware to Cloudian.
(d) This Section 8.2 sets forth Licensee’s sole remedy and Cloudian’s sole liability for any breach of the warranties set forth in Section 8.1.
8.3 Warranty exclusions. Cloudian will have no liability and no obligations in connection with any breach of any warranty set forth in Section 8.1 if (a) the affected Licensed Software or Cloudian Appliance Product unit is used or installed in a manner that is not consistent with the Documentation or not permitted under this Agreement, (b) such Licensed Software or Cloudian Appliance Product unit is subject to any abuse, misuse, neglect, accident or casualty loss, or to any modification, alteration or repair not performed by Cloudian or its authorized representative, or (c) the original identification marks have been removed from such Licensed Software or Cloudian Appliance Product unit. In addition, Cloudian will have no liability and no obligations in connection with any problems with any Licensed Software or Cloudian Appliance Product unit arising from (i) any third party items or services with which it is used or (ii) any other causes beyond Cloudian’s control.
8.4 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 8.1, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLOUDIAN DOES NOT MAKE, AND CLOUDIAN HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES (WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) WITH RESPECT TO ANY CLOUDIAN PRODUCT, LICENSED SOFTWARE, DOCUMENTATION OR THIRD PARTY SOFTWARE, OR ANY OTHER PRODUCTS, SERVICES OR MATERIALS PROVIDED BY OR FOR CLOUDIAN HEREUNDER, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ACCURACY OR NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Without limitation of the foregoing, Cloudian does not represent or warrant that any Cloudian Product, Licensed Software, Documentation or Third Party Software, or any services provided by Cloudian, will meet the requirements of Licensee (even if such requirements are known to Cloudian) or will operate without interruption or be error free, or that any defects in any Cloudian Product or Licensed Software can be corrected. For purposes of clarification, Cloudian makes no representations or warranties to any of customers of Licensee or other third parties.
9. Limitations of Liability
- IN NO EVENT WILL CLOUDIAN BE LIABLE UNDER ANY LEGAL THEORY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, DATA OR BUSINESS, IN CONNECTION WITH THIS AGREEMENT, EVEN IF CLOUDIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLOUDIAN’S AGGREGATE LIABILITY TO LICENSEE ARISING OUT OF OR IN CONNECTION WITH CLOUDIAN PRODUCTS, LICENSED SOFTWARE, DOCUMENTATION, THIRD PARTY SOFTWARE AND ALL OTHER ASPECTS OF THIS AGREEMENT WILL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE GREATER OF (A) THE AGGREGATE OF THE AMOUNTS PAID BY LICENSEE TO CLOUDIAN FOR THE LICENSED SOFTWARE AND CLOUDIAN HARDWARE PRODUCT UNITS GIVING RISE TO SUCH LIABILITY OR (B) FIVE HUNDRED U.S. DOLLARS (US$500). CLOUDIAN will have no liability with respect to claims relating to or arising from the use of third party software OR HARDWARE or any other non-CLOUDIAN products and services, even if CLOUDIAN has recommended, referred or introduced LICENSEE to such products and services. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. CLOUDIAN WILL HAVE NO LIABILITY IN CONNECTION WITH THIS AGREEMENT TO ANY CUSTOMERS OF LICENSEE OR OTHER THIRD PARTIES. As part of its obligation to mitigate damages, Licensee will take reasonable data back-up measures from time to time as requested by Cloudian or specified in any Documentation, manuals, release notes or support notes.
Unless otherwise required by applicable law, the limitation period for any claim for damages under this Agreement will be the shorter of (a) eighteen (18) months after the applicable cause of action accrues and (b) the limitation period under applicable statutory law.
10.1 Cloudian Obligations. Subject to the limitations and conditions set forth in Sections 10.2 and 10.3, and provided that Licensee is not in breach of this Agreement, Cloudian will (i) defend, or at its option settle, any claim brought by a third party in a lawsuit or similar legal proceeding against Licensee alleging that Licensee’s use of the Licensed Software (in the form delivered by Cloudian to Licensee) under a Production License as permitted under this Agreement infringes such third party’s copyright or misappropriates such third party’s trade secret (“Claim Against Licensee”), and (ii) pay all damages and costs finally awarded by a court of competent jurisdiction against Licensee in such lawsuit or legal proceeding for such Claim Against Licensee, or the amount of any settlement payment for such Claim Against Licensee agreed to by Cloudian.
10.2 Indemnification Conditions. The obligations of Cloudian under Section 10.1 will be contingent upon Cloudian receiving (a) prompt written notice of the Claim Against Licensee that is the subject of such obligations, (b) sole control and authority over the defense and settlement of such claim, and (c) all information in Licensee’s possession regarding such claim and proper and full assistance and cooperation from Licensee in connection with the settlement and defense of such claim.
10.3 Exclusions. Notwithstanding the foregoing, Cloudian will have no liability and no obligations under Section 10.1 to the extent a Claim Against Licensee arises from or relates to: (i) the use of any release of any Licensed Software other than the then-current, unaltered release if the alleged infringement would have been avoided by the use of a subsequent release that was made available to Licensee; (ii) any modification to any Licensed Software not made by Cloudian or its authorized representative; (iii) the combination, operation or use of any Licensed Software with software, hardware or data not provided by Cloudian; (iv) the use of any Licensed Software other than in the manner specified in the Documentation; (v) the use, reproduction, distribution or other exploitation of any Licensed Software in a manner not authorized by this Agreement; or (vi) the use of any Licensed Software under an Evaluation License. In addition, Cloudian will have no obligations under Section 10.1 in connection with a Claim Against Licensee if, prior to such Claim Against Licensee being brought, Cloudian did not receive full payment of all amounts payable by Licensee for the Licensed Software that is the subject of such Claim Against Licensee.
10.4 Remedial Options. Licensee will promptly install each mandatory update to any Licensed Software issued by Cloudian that is designed to avoid or reduce the likelihood of infringement or misappropriation by such Licensed Software. If Licensee’s use of any Licensed Software is enjoined by a court of competent jurisdiction, either party may terminate any or all Licenses of such Licensed Software upon written notice to the other party.
10.5 Entire Liability. Notwithstanding anything to the contrary, this Section 10 states the entire liability and obligations of Cloudian, and the sole and exclusive remedy of Licensee, in connection with any infringement or misappropriation of intellectual property rights (and any claims of such infringement or misappropriation) arising out of or related to Cloudian Products and Licensed Software.
11. License Termination
11.1 Termination for Cause
(a)Either party may terminate any Evaluation License during the applicable Evaluation License Term (i) at any time upon five (5) days’ written notice to the other party, or (ii) immediately upon written notice to the other party if the other party commits a material breach of this Agreement in connection with any Licensed Software covered by such Evaluation License or the corresponding Cloudian Product.
(b) Either party may terminate any Production License during the applicable Production License Term immediately upon written notice to the other party if the other party commits any material breach of this Agreement in connection with any Licensed Software covered by such Production License or the corresponding Cloudian Product and fails to remedy such breach within thirty (30) days after receipt of written notice specifying the occurrence or existence of such breach. In addition, (i) upon any sale, lease or other transfer of a Cloudian Appliance Product unit by Licensee to a third party, the then-current Software License for the Licensed Software corresponding to such Cloudian Appliance Product unit, and all of Cloudian’s obligations and liabilities under Sections 5, 8 and 10, will immediately terminate with respect to such Licensed Software, and (ii) if any Production License is terminated by Cloudian under this paragraph due to a breach of Section 3 by Licensee, Cloudian may terminate all other Software Licenses granted to Licensee.
11.2 Effect of Termination. Upon any expiration or termination of any Software License, Licensee will promptly (a) remove, delete and purge all copies of the Licensed Software covered by such Software License from all computer systems and storage media in or under the possession or control of Licensee (including any such copies installed on the hardware of Cloudian Appliance Product units that are not returned to Cloudian, but excluding any such copies installed on the hardware of Cloudian Appliance Product units that are returned by Licensee to Cloudian), (b) delete all copies of the Documentation used in connection with such Licensed Software, (c) provide Cloudian with a written certification, signed by an officer of Licensee, that Licensee has complied with the foregoing, and (d) promptly generate and send to Cloudian (by e-mail) Audit Files and any other Software Usage Data Files for such Licensed Software requested by Cloudian covering any periods for which Cloudian did not previously receive an Audit File and any other periods requested by Cloudian. In addition, upon any expiration or termination of any licenses of Licensed Software and Documentation granted in Section 2, all rights and obligations of the parties under Sections 5, 8 and 10 will terminate with respect to such Licensed Software and Documentation.
11.3 Return of Appliance. Within ten (10) days of the expiration or termination of any Evaluation License applicable to a Cloudian Appliance Product unit (“Appliance Return Period”), Licensee will, at its own expense, return such unit to Cloudian (to an address specified by Cloudian) undamaged and in good working order (excluding ordinary wear and tear), and free and clear of all liens and other encumbrances. If such unit is returned with any hardware damage (excluding ordinary wear and tear), Licensee will promptly pay for the repair of such damage at Cloudian’s then-current list prices. If Licensee does not return such unit within the Appliance Return Period, Licensee will be deemed to have purchased such unit at Cloudian’s then-current list price, and Licensee will pay such list price to Cloudian promptly upon receipt of Cloudian’s invoice therefor. This paragraph will not apply if such unit is purchased by Licensee prior to the end of such Evaluation License Term or Appliance Return Period.
11.4 No Liability. If a party terminates any Software License in accordance with any of the provisions of this Agreement, such party will not be liable to the other party because of such termination: (a) for compensation for the other party’s loss of prospective profits or anticipated sales; (b) on account of any expenditures, investments or commitments made by the other party; or (c) for any other damages, losses or expenses incurred by the other party based upon or arising out of such termination.
12. General Provisions
12.1 Force Majeure. Neither party will be responsible or have any liability for any delay or failure to perform any of its obligations under this Agreement (excluding payment obligations) to the extent such failure is due to unforeseen circumstances or to causes beyond such party’s reasonable control, including acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, acts of terrorism, war, and acts of civil and military authorities.
12.2 Severability. If any provision of this Agreement is declared or found by a court or arbitral panel of competent jurisdiction to be invalid, illegal or otherwise unenforceable, (a) the parties will negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement, and (b) the remainder of this Agreement will remain in full force and effect.
12.3 Assignment. Neither party may assign, delegate or otherwise transfer this Agreement or any of its rights or obligations under this Agreement, whether voluntarily, by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may, with written notice to the other party (but without any requirement to obtain the other party’s consent), assign this Agreement, together with all of its rights and obligations hereunder, to a third party that acquires (whether by asset purchase, merger or other transaction or series of transactions) all or substantially all of its business to which this Agreement relates; provided that if Licensee assigns this Agreement pursuant to this sentence, all Evaluation Licenses then in effect will immediately terminate. Any attempted assignment, delegation or other transfer prohibited by the foregoing will be null and void. Subject to the foregoing, this Agreement will inure to the benefit of and bind each party’s successors and assigns.
12.4 Governing Law. This Agreement is to be construed in accordance with and governed by the laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. This Agreement will not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
12.5 Dispute Resolution. Any dispute relating to this Agreement (other than claims for injunctions and other equitable relief) will be settled exclusively by arbitration in San Mateo, California in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by such arbitration will be final and binding upon the parties and may be entered in any court having jurisdiction. The arbitrator(s) will not have the power to add to, subtract from or otherwise modify any provision of this Agreement, to grant any extension or renewal of this Agreement, or to award damages or other remedies expressly prohibited by the Agreement. Notwithstanding the foregoing, each party will have the right to seek injunctive or other equitable relief at any time from any court of competent jurisdiction.
12.6 No Waiver. No waiver of any provision of this Agreement will be effective unless it is specified in a writing signed by an authorized representative of each party. No course of dealing, course of performance or failure of either party to enforce any provision of this Agreement in a strict or timely manner will be construed as a waiver of such provision or any other provision. No waiver or breach of any provision of this Agreement will be construed to be a waiver of any subsequent breach of the same or any other provision.
12.7 Relationship of the Parties. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association between the parties, and the parties will at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party will have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
12.8 Notices. Unless otherwise set forth in this Agreement, any notice required or permitted hereunder will be deemed to be a valid notice for the purposes of this Agreement only if it (a) is in writing, (b) makes reference to this Agreement, and (c) is delivered in person, by reputable courier, or mailed by certified or registered mail, postage prepaid, return receipt requested, in each case to the address of the intended recipient specified on the first page of this Agreement (or to such other address as may be designated by the intended recipient to the other party in accordance with this Section 12.8). Each such notice will be deemed given when received by the intended recipient.
12.9 Interpretation. The captions and headings used in this Agreement are inserted for convenience only, do not form a part of this Agreement and will not be used in any way to construe or interpret this Agreement. This Agreement will be deemed to have been drafted by all parties; no provision will be construed against either party by reason of the fact that it was drafted by such party. The words “include” and “including” will not be construed as terms of limitation and will therefore mean “including but not limited to” and “including without limitation.”
12.10 Entire Agreement; Amendment. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and merge and supersede any and all prior and contemporaneous agreements, understandings and communications between the parties, whether oral or written, with respect to such subject matter. This Agreement cannot be modified or amended except in a writing signed by both parties. No terms or conditions that are contained in any purchase order or other document submitted by Licensee will in any way modify or add to the terms of this Agreement, and any such terms or conditions that are in any way inconsistent with or additional to the terms of this Agreement are hereby rejected by Cloudian and will have no force or effect.