End User License Agreement for CLOUDBASIC Software Distributed via AWS Marketplace
Last revised on 09/01/2019
THIS CLOUDBASIC END USER LICENSE AGREEMENT (“AGREEMENT”) IS BY AND BETWEEN SYSTEMARTS, INC. DBA CLOUDBASIC, INC. (“CLOUDBASIC”) AND THE INDIVIDUAL OR LEGAL ENTITY WHO HAS EXECUTED AN ORDER FORM (OR OTHER ORDERING OR PURCHASING DOCUMENT) REFERENCING THIS AGREEMENT OR IS USING THE APPLICABLE LICENSED SOFTWARE (AS DEFINED BELOW) MADE AVAILABLE BY CLOUDBASIC (“YOU”) AND GOVERNS ALL USE BY YOU OF SUCH CLOUDBASIC LICENSED SOFTWARE.
BY EXECUTING AN ORDER FORM, CLICKING ACCEPT OR AGREE TO THIS END USER LICENSE AGREEMENT, OR BY DOWNLOADING, DEPLOYING OR USING THE CLOUDBASIC LICENSED SOFTWARE, YOU EXPRESSLY ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “YOU” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT EXECUTE THE ORDER FORM, AND MAY NOT IMPLEMENT OR USE THE LICENSED SOFTWARE OR THE SUPPORT SERVICES (AS DEFINED BELOW).
1. Definitions. The following capitalized terms shall have the meanings set forth below:
1.1 “CLOUDBASIC Authorized Business Partner” means a third party authorized by CLOUDBASIC to market or sell subscriptions to Licensed Software.
1.3 “Instance” means a single deployment of Licensed Software, installed on a Server.
1.4 “Key” means the license key or similar control mechanism to help ensure compliance with the use and time limitations with respect to the Licensed Software.
1.5 “Licensed Software” means the CLOUDBASIC software identified on an Order Form and licensed to you pursuant to the terms of this Agreement (excluding any Open Source Software included therein).
1.6 “Open Source Software” means any software that is distributed or otherwise made available as “free software”, “open source software” or under a similar licensing or distribution model.
1.7 “Order Form” means an ordering document, online or otherwise, between you and CLOUDBASIC, or between you and a CLOUDBASIC Authorized Business Partner, pursuant to which you are purchasing a subscription to the Licensed Software.
1.8 “Server” means a physical or virtual computer or server meeting the requirements established by CLOUDBASIC from time to time for use of the applicable Licensed Software.
1.9 “Subscription Fee” means the fee for use of the Licensed Software for the Subscription Term. The amount of the Subscription Fee is based on the Subscription Type.
1.10 “Subscription Type” means the type of subscription to the Licensed Software for which you have subscribed as set forth on the applicable Order Form, including without limitation the limitations applicable to such subscription type, such as number of replications and level of Support Services included with such subscription type.
1.11 “Support Services” means training and support and maintenance services provided by CLOUDBASIC for the Licensed Software. The level of Support Services provided is based on the Subscription Type.
2. Limited License: Subject to the terms and conditions set forth herein (including without limitation payment of the applicable Subscription Fees), CLOUDBASIC hereby grants to you, and you accept, a nonexclusive, non-transferable, non-sublicensable, revocable, fee bearing, limited license to download or deploy (as applicable) and make use of the Licensed Software during the applicable Subscription Term (including downloading or launching the Licensed Software ) for the number of Instances owned or leased, and controlled by, you.
3. Title and Ownership: All Intellectual Property Rights (defined below) evidenced by or embodied in and/or attached/connected/related to the Licensed Software, including without limitation any improvements, modifications or enhancements thereto, are and shall be owned exclusively by CLOUDBASIC (or its licensors). This Agreement does not convey to you an interest in or to the Licensed Software, but only a limited right of use revocable in accordance with the terms of this Agreement. The rights granted by this Agreement are limited to those expressly stated herein, and no additional rights or licenses are being granted by implication or otherwise. “Intellectual Property Rights” means worldwide (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyright applications, copyright restrictions, mask work rights, mask work applications and mask work registrations; (c) rights relating to the protection of trade secrets and confidential information; (d) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (e) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
4. Open Source Software: Any open source software, if applicable to the respective CLOUDBASIC product, distributed to you as part of the Licensed Software is made available under the applicable open source license, which can be found in the About section of the management console for each product version. The list of open source software may change with each incremental release of CLOUDBASIC products. You may obtain the complete list, along with source code or modifications that we are required to make available under these licenses (the “Source Files”), prior to a specific CLOUDBASIC product version activation, by sending a written request, with your name and address, to: OSS_changes@cloudbasic.net. All written requests must clearly specify: Open Source List and Files Request, Attention: Legal Department, Product Name, Product Version. The offer to obtain a copy of the Source Files is valid for three years from the date you last received open source software as part of the Licensed Software.
5. Your Equipment and Your Content: You acknowledge that CLOUDBASIC does not provide, and you are responsible for procuring, operating and maintaining the Servers and any other systems, networks, hosting, hardware, software and other products and services (collectively, “Your Equipment”) required to operate the Licensed Software, and that you may be unable to access or utilize some or all aspects of the Licensed Software unless Your Equipment is procured, operated and maintained by you. You further acknowledge that CLOUDBASIC has no responsibility for the information, data, materials and other content of any kind uploaded, transferred, stored or otherwise processed using the Licensed Software (collectively “Your Content”) or the uploading, transferring, storage or other processing of the Licensed Software by you or on your behalf using the Licensed Software. CLOUDBASIC provides Licensed Software as a mere tool for the upload, transfer, storage and processing of Your Content by you or on your behalf using Your Equipment and according to choices and credentials provided and activated by you at your volition. The availability and security of your Equipment and the availability, security and integrity of Your Content, and/or any act or omission with regards to Your Content which will be carried out in any of the destinations to which you transfer or copy Your Content by using the Licensed Software are under your sole responsibility or that of the third party providers of Your Equipment, all in accordance with your agreements with the relevant third party provider. You use the Licensed Software at your own risk. CLOUDBASIC will not be held responsible for Your Equipment or Your Content, including without limitation your use thereof and Your Content and Your Equipment’s integrity, availability and/or security.
6. Protection of Your Subscription and Your Account: When registering for the use of our Licensed Software on cloudbasic.net, aws.amazon.com, or any other distribution channel, you are required to provide certain personal information and may further be required to provide certain access credentials (such as user name and password, and any log-in or account information you have with your third-party cloud storage providers) (“Registration Data”). You agree to provide true, accurate, complete and current information and maintain and promptly update the Registration Data to keep it true, accurate, current and complete. For your protection, you agree not to share your Key or any access credentials (including your user name and password) for any account maintained by you with CLOUDBASIC with any third party for any purpose. You acknowledge and agree that you are responsible for all use of your Key or any account maintained by you with CLOUDBASIC or access credentials for such account. You are solely responsible for any information you provide in connection with your purchase of a subscription to the Licensed Software and your use thereof. You agree to immediately notify CLOUDBASIC of any unauthorized use of the Licensed Software or any account maintained by you with CLOUDBASIC. CLOUDBASIC cannot and will not be liable for any loss or damage arising from any unauthorized use of the Licensed Software or any account maintained by you with CLOUDBASIC. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate any account maintained by you with CLOUDBASIC and terminate your subscription to the Licensed Software (or any portion thereof).
7. Limitations on Use: You will not, and will not encourage any third party to, destroy, disable or circumvent, or attempt to destroy, disable or circumvent in any way the Key provided to you or any of restrictions or limitations on use, time or otherwise set by the Key, your Subscription Type or the features and functionality of the Licensed Software. Customer acknowledges and agrees that any attempt to exceed the use of the Licensed Software beyond the restrictions or limits set by the Key, your Subscription Type or the features or functionality of the Licensed Software will automatically and immediately terminate your subscription. You will not, and will not encourage any third party to: (a) modify, adapt, alter, translate, or create derivative works of the Licensed Software; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Licensed Software, in whole or in part, except to the extent that such activities may not be prohibited under applicable law; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the Licensed Software to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of CLOUDBASIC or its suppliers contained on or within any copies of the Licensed Software; (e) use the Licensed Software for the purpose of creating a product or service competitive with the Licensed Software; (f) use the Licensed Software with any unsupported systems, networks, hosting, hardware, software and other products and services (as described in the applicable documentation provided or made available to you by CLOUDBASIC); (g) use the Licensed Software for any time-sharing, outsourcing, service bureau, hosting, application service provider or like purposes; (h) disclose the results of any benchmark tests on the Licensed Software without CLOUDBASIC’s prior written consent; or (i) use the Licensed Software other than as described in the documentation provided or made available to you by CLOUDBASIC, or for any unlawful purpose.
9. Disclaimers: THE LICENSED SOFTWARE IS PROVIDED TO YOU STRICTLY ON AN AS IS BASIS, WITH ALL FAULTS AND AS AVAILABLE, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND/OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CLOUDBASIC AND ITS AFFILIAED PARTIES (AS DEFINED BELOW). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
10. Exclusion of Damages and Liability Cap: TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, CLOUDBASIC AND ITS AFFILIATES AND CLOUDBASIC AUTHORIZED BUSINESS PARTNERS AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTORS AND SUPPLIERS (COLLECTIVELY AFFILIATED PARTIES) ARE NOT AND WILL NOT BE LIABLE UNDER ANY LEGAL THEORY, WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES.
WITHOUT DEROGATING FROM THE EXCLUSIONS IN SECTION 9, THE TOTAL AND AGGREGATE LIABILITY OF CLOUDBASIC AND ITS AFFILIATED PARTIES TO YOU OR ANY THIRD PARTY SHALL BE LIMITED TO THE AMOUNT OF SUBSCRIPTION FEES PAID BY YOU FOR YOUR SUBSCRIPTION TO THE LICENSED SOFTWARE DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
THE FOREGOING EXCLUSIONS AND LIMITATIONS ON THE LIABILITY OF CLOUDBASIC AND ITS AFFILIATED PARTIES SHALL APPLY WHETHER OR NOT CLOUDBASIC OR ANY AFFILIATED PARTY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL EXCLUDE OR LIMIT THE LIABILITY OF CLOUDBASIC OR ITS AFFILIATED PARTIES FOR LOSSES TO THE EXTENT SUCH LOSSESS MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
11. Indemnification: You agree to indemnify, defend and hold harmless CLOUDBASIC, its officers, directors, employees, stockholders, affiliates, agents and suppliers, from and against any and all claims, liabilities, damages, losses or expenses, including but not limited to attorney’s fees and costs, arising out of or in any way connected with your use of the Licensed Software, Your Equipment, Your Content, or your breach of this Agreement.
12. Subscription Term, and Termination: The term of this Agreement begins on the date indicated on the Order Form and will remain in effect for the hourly, monthly or annual duration set forth in the Order Form (the “Initial Subscription Term”). If you subscribe to a monthly or annual subscription (as set forth in the Order Form), upon expiration of Initial Subscription Term and any subsequent Subscription Term your subscription shall automatically renew for the same duration as your initial Subscription Term. If you subscribe to an hourly Subscription Term (as set forth in the Order Form) Subscription Term shall continue until terminated by you. CLOUDBASIC shall provide written notice by electronic mail at least fifteen (15) days prior to the date this Agreement is to be automatically renewed, notifying you that this Agreement will automatically renew and you will be automatically charged using your payment method on file unless you cancel at least seven (7) days prior to such automatic renewal. We may terminate your subscription to and use of any portion or all of the Licensed Software immediately without prior notice to you if we determine your use of the Licensed Software (a) poses a security risk to us, our affiliates or to any third party(b) may subject us, our affiliates, or any third party to liability or (c) otherwise adversely impact us, our affiliates or any third party. We may further terminate your subscription to and use of any portion or all of the Licensed Software and this Agreement immediately upon notice to you if we determine that: (a) you are in breach of this Agreement, including if you are delinquent on your payment obligations, for more than 15 days; or (b) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. You may terminate this Agreement for cause upon written notice if we fail to cure any material breach of this Agreement within thirty (30) days after receiving written notice of such breach from you. If you subscribe to an hourly subscription through a CLOUDBASIC Authorized Business Partner, your subscription expires at the conclusion of your session. Other than as may be provided elsewhere in this Agreement, termination shall be your sole and exclusive remedy in case of a material breach of this Agreement by CLOUDBASIC. If your subscription to use the Licensed Software expires, is terminated, is not renewed, or is otherwise discontinued for any reason, your will immediately discontinue all use of the applicable Licensed Software and will return to CLOUDBASIC any materials (including any copies of Licensed Software) provided by CLOUDBASIC to you. The last three sentences of this Section and the following Sections shall survive expiration or termination: 1, 3, 7-11 and 13-17.
13. Payment of Subscription Fees, Refunds, Cancellations: The Subscription Fees for the Licensed Software are as set forth in the Order Form or published by use and must be paid by you using one of the payment methods we support. CLOUDBASIC reserves the right to change the Subscription Fees or applicable charges and to institute new charges at any time, upon thirty (30) days prior notice to you (which may be sent by email to the address you have most recently provided us). Subscription Fees are quoted and payable in US dollars. For Amazon Web Services and any other CLOUDBASIC Authorized Business Partners, Subscription Fees as determined by CLOUDBASIC are processed by the applicable CLOUDBASIC Authorized Business Partner on CLOUDBASIC’s behalf and subject to terms and conditions set by the CLOUDBASIC Authorized Business Partner. Hourly subscriptions are offered only through CLOUDBASIC Authorized Business Partners. For CLOUDBASIC monthly or annual pre-paid subscriptions, and for annual subscriptions paid on a monthly basis, credit and debit card payments are collected on the first of each month or year, as applicable. Fixed monthly billing applies even if the service is not utilized for a short or a prolonged period of time. Please refer to the product pricing and payment terms on cloudbasic.net and aws.amazon.com. If you have any questions and/or comments regarding the payment terms of service please contact us at email@example.com. If payment is not received according to the terms, Your Account may become inaccessible. Users retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information. Refunds: All Subscription Fees are non-refundable. When users cancel their account they will not be issued refunds for their most recent or any previous billing. Other requests for refunds may be processed at the sole discretion of CLOUDBASIC.
14. Support Services. In consideration of the rights granted by you to CLOUDBASIC in Section 15 below, you are entitled to receive the complimentary Support Services by an assigned enterprise support representative, applicable to your Subscription Type, as set forth at: https://www.cloudbasic.net/supportplans/ . Support Services are provided solely via email, phone or via sharing of product administrative screens. You are also entitled to receive training by a qualified trainer.
15. Customer List. By activating a trial or a paid subscription to the Licensed Software, directly through CLOUDBASIC or through a CLOUDBASIC Authorized Business Partner, you grant to CLOUDBASIC the right to list your business as a customer on its web sites by using your business name and logo. Such right survives expiration or termination of your subscription; provided that you may terminate the right granted to CLOUDBASIC pursuant to the preceding sentence by notifying CLOUDBASIC in writing by email to firstname.lastname@example.org.
16. Export Control Restrictions. The Licensed Software may not be used or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Lebanon, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By using the Licensed Software, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. Visit https://cloudbasic.net/legal/exporting for additional information.