SOFTWARE END-USER LICENSE AGREEMENT
IMPORTANT: THIS AGREEMENT (or “EULA”) IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE (“YOU” OR “CUSTOMER”) AND ARRIKTO INC.
BY INSTALLING AND USING THE SOFTWARE, CUSTOMER ACCEPTS THE SOFTWARE AND AGREES TO THE TERMS OF THIS AGREEMENT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. BY INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, THEN DO NOT INSTALL AND/OR USE THE SOFTWARE.
THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY ARRIKTO INC. HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.
(a) “Arrikto” means Arrikto Inc., a Delaware corporation, its subsidiaries, branches and its licensors, if any.
(b) “Open Source Software” or “OSS” means software components that are licensed under a license approved by the Open Source Initiative or similar open source or freeware license and which are included in, embedded, utilized by, provided or distributed with the Software.
(c) “Node” means a single physical or virtual computing machine recognizable by the Software as a unique device. Nodes must be owned or leased by Licensee or an entity controlled by, controlling or under common control with Licensee.
(d) “Software” means only the Arrikto software program(s) and third party software programs, in each case, supplied by Arrikto herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation. Any updates to such Software which you are entitled to receive and that has been provided to you by Arrikto shall also mean Software for purposes of this Agreement.
2. License Grants
The licenses granted in this Section 2 are subject to the terms and conditions set forth in this EULA:
(a) Subject to Section 2(b), you may install and use the Software on a single Node. Except as otherwise specifically provided in Section 2(b), a license for the Software may not be shared, installed or used concurrently on different Nodes. Subject to the terms and conditions set forth in this EULA, you shall not have more than one installation of the Software on any single Node.
(b) You may make one copy of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software. You may not sell or transfer any copy of the Software made for backup purposes.
(c) You agree that Arrikto may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Arrikto for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
(d) Unless otherwise set forth in the documentation relating to such code and/or the Software or in a separate agreement between you and Arrikto, you may not modify the source code form of those portions of such software programs that are identified as sample code, sample application code, or components (each, “Sample Application Code”).
(e) Your license rights under this EULA are non-exclusive.
(f) Product Activation. There may be technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that Arrikto may use those measures and you agree to follow any requirements regarding such technological measures. You may also need to reactivate the Software if you modify your computer hardware, alter the Software, or install the Software on another Node. Product activation is based on the exchange of information between a Node and Arrikto. None of this information contains personally identifiable information nor can they be used to identify any personal information about you or any characteristics of your computer configuration.
3. License Restrictions
There are restrictions applicable to the use of the Software. This is an EULA that is personal to you and you may not and will not permit any third party to:
(a) make copies of the Software, distribute, rent, loan, lease, sell, resell, sublicense, or otherwise transfer the Software, your rights with respect to the Software or any part of this EULA, to any other person or legal entity;
(b) remove, alter, or obscure any copyright, trademark, confidentiality or other proprietary notices, labels, or marks from or on the Software or modify, translate, adapt, arrange, or create derivative works based on the Software;
(c) alter, merge, modify, adapt, translate decompile, disassemble or otherwise reverse engineer the Software, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Software;
(d) use the Software in excess of, or in any manner inconsistent with, your rights with respect to the Software or in violation of any law or regulation;
(e) utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by Arrikto in connection with the Software or access the Software with any code, serial number, or other copy-or access protection device not supplied by Arrikto directly or indirectly;
(f) Other than as set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one Node to another or over a network.
(g) You may permanently transfer all of your rights under this EULA only as part of a sale or transfer, provided you retain no copies, you transfer all of the Software (including all component parts, the media and printed materials, any upgrades, all platforms, this EULA, the serial numbers, and, if applicable, all other software products provided together with the Software), and the recipient agrees to the terms of this EULA. You may not otherwise sell or transfer the Software.
(h) Unless otherwise provided herein, you may not modify the Software or create derivative works based upon the Software.
(i) You further consent to our use of anonymized data regarding performance and scale of infrastructure derived from your use of the Software for statistical purposes. Arrikto does not use in any way personal identifiable information (as described in Section 2(f)) or the content stored on your Node.
(j) You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder.
(k) You may receive the Software in more than one medium but you shall only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the Node on which the Software is to be installed.
(l) You may receive the Software in more than one platform but you shall only install or use one platform.
(m) You shall not use the Software to develop any product having the same primary function as the Software.
(n) In the event that you fail to comply with this EULA, Arrikto may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).
(o) You may receive the Software in more than one language but you shall only install or use one language version.
If this copy of the Software is an upgrade from an earlier version of the Software, you must possess a valid full license to a copy of an earlier version of the Software used to upgrade to this upgrade copy in order to install and/or use this upgrade copy. You may continue to use each earlier version copy of the Software to which this upgrade copy relates on your Node after you receive this upgrade copy, provided that, (i) the upgrade copy and the earlier version copy are installed and/or used on the same Node only and the earlier version copy is not installed and/or used on any other Node; (ii) you comply with the terms and conditions of the earlier version’s end user license agreement with respect to the installation and/or use of such earlier version copy; (iii) the earlier version copy or any copies thereof on any Node are not transferred to another Node; (iv) the earlier version copy or any copies thereof are not transferred to any other party unless you also transfer this upgrade copy and any copies thereof to such other party in accordance with Section 3; and (v) you acknowledge and agree that any obligation Arrikto may have to support and/or offer support for the earlier version of the Software may be ended upon availability of the upgrade.
You agree to indemnify, hold harmless and defend Arrikto, its subsidiaries, branches and affiliates and their respective officers, employees and agents, from and against any loss, damage, claims or lawsuits, including attorney’s fees, made by any third party due to or arising out of your acts or omissions, including claims arising out of your use of the Software and/or violation of this EULA.
The foregoing license gives you limited license to use the Software. Arrikto and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any application you may develop), and all copies thereof. All rights not specifically granted in this EULA, including federal and international copyrights, are reserved by Arrikto and its suppliers.
7. LIMITED WARRANTY AND DISCLAIMER
(a) Arrikto warrants that, for a period of ninety (90) days from the date of delivery (as evidenced by a copy of your receipt): (i) when used with a recommended hardware configuration, the Software will perform in substantial conformance with the documentation supplied with the Software; and (ii) the physical media on which the Software is furnished will be free from defects in materials and workmanship under normal use.
(b) EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE, ARRIKTO AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. ARRIKTO DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. ARRIKTO SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
(c) DATA LOSS, DATA CORRUPTION & HARDWARE MALFUNCTION DISCLAIMER
Arrikto’s employees and/or appointed contractors are trained and committed to exercise all possible efforts to safeguard your hardware, your Node and loaded software and data by observing standard protection procedures and utmost precaution in the performance of their work. Nonetheless, handling of hardware components and/or installation, upgrade and reconfiguration of operating systems and software applications can be uncertain.
IN NO EVENT WILL ARRIKTO, ITS EMPLOYEES AND/OR APPOINTED CONTRACTORS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH, OR ARISING FROM THE WORKS PERFORMED ON YOUR HARDWARE, NODE, OPERATING SYSTEMS AND SOFTWARE APPLICATIONS, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, CORRUPTION OF DATA AND HARDWARE AND NODE MALFUNCTION. YOU ARE FULLY RESPONSIBLE FOR PERFORMING ANY REQUIRED BACKUP, DATA PROTECTION, HARDWARE AND NODE MAINTENANCE BEFORE THE COMMENCEMENT OF ANY WORK BY ARRIKTO, ITS EMPLOYEES AND/OR APPOINTED CONTRACTORS.
YOUR OBLIGATIONS IN RESPECT OF PRESERVATION OF DATA AND MAINTENANCE:
During the Term of the EULA, you shall: 1) from a point in time prior to the point of failure, (i) make full and/or incremental backups of data which allow recovery in an application consistent form, and (ii) store such back-ups at an off-site location sufficiently distant to avoid being impacted by the event(s) (e.g. including but not limited to flood, fire, power loss, denial of access or air crash) and affect the availability of data at the impacted site; 2) have adequate processes and procedures in place to restore data back to a point in time and prior to point of failure, and in the event of real or perceived data loss and corruption, provide the skills/backup and outage windows to restore the data in question; 3) use anti-virus software, regularly install updates across all data which is accessible across the network, and protect all storage arrays against power surges and unplanned power outages with uninterruptible power supplies; 4) ensure that all operating system, firmware, system utility (e.g. but not limited to, volume management, cluster management and backup) and patch levels are kept to Arrikto’s recommended versions and that any proposed changes thereto shall be communicated to Arrikto in a timely fashion; and 5) ensure that all maintenance procedures of your hardware and node are updated and applied in a proper manner.
(d) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.
(e) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ARRIKTO, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
(f) (USA only) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
8. Exclusive Remedy
Your exclusive remedy under the preceding is to return the Software to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to Arrikto no more than ninety (90) days following delivery to you, Arrikto will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Software, at its option. In the event that Arrikto chooses to refund to you your purchase price for the Software, you have the obligation to delete from your Node all parts of the Software and its configuration data. Arrikto shall have no responsibility if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
9. LIMITATION OF LIABILITY
(a) NEITHER ARRIKTO NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF DATA, CORRUPTION OF DATA, HARDWARE MALFUNCTION, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ARRIKTO OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) ARRIKTO’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $200 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.
(c) (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
(d) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.
10. Basis of Bargain
The Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of the agreement between Arrikto and you. Arrikto would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of Arrikto’s licensors.
11. (Outside of the USA ) Consumer End Users Only
The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business.
The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
12. Third Party Software / OSS
The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are made a part of and incorporated by reference into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein.
Notwithstanding anything herein to the contrary, Open Source Software is licensed to you under such OSS’s own applicable license terms, which can be found in the /usr/share/doc/rok/OSS.txt file included in the Software. You are responsible for complying with any third party terms and conditions applicable to such Open Source Software. These OSS license terms may contain additional rights benefiting you. The OSS license terms shall take precedence over this EULA to the extent that this EULA imposes greater restrictions on you than the applicable OSS license terms, solely with respect to such OSS.
This EULA shall be governed by the laws of the State of Delaware.
This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of Arrikto to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.
No Arrikto dealer, agent or employee is authorized to make any amendment to this EULA unless such amendment is in writing and signed by a duly authorized representative of Arrikto.
If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.
All questions concerning this EULA shall be mailed to: Arrikto Inc., 60 E 3rd Ave, Ste 262, San Mateo, CA 94401. Attention: Legal Counsel.
Arrikto and other trademarks contained in the Software are trademarks or registered trademarks of Arrikto Inc. in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use Arrikto’s or its licensors’ names or any of their respective trademarks.