1.1. “Core(s)” means a physical core that is a processing unit within a processor. When running on a virtual machine, Core means avirtual core.
1.2. “Sales Order” means a Clustrix quote signed by You.
1.3. “Evaluation Period” means the period commencing on the Effective Date (as defined in Section 12.1) and ending on the date that is no more than forty-five (45) days thereafter or as extended by Clustrix in writing.
1.4. “License Period” means the term designated in this Sales Order for any Product being ordered under this Sales Order.
1.5. “Product” means the Software and all associated documentation (if any) (“Documentation”)
1.6. “Software” means Clustrix’s proprietary software application provided hereunder.
2. License Grant. Subject to the terms and conditions of this Agreement, Clustrix grants You a non-exclusive, non-transferable, limited license (without the right to sublicense), to the Product that You have licensed to (i) install the Software on your internal or your third party service providers’ Core(s) on the condition that only You have access to the Software on such third party service providers’ Core(s); (ii) use the Product for internal evaluation purposes as necessary to determine the feasibility of using the Software; (iii) use the Product for internal business use only after the Evaluation Period has ended and You have entered into a valid Sales Order for a specific License Period; (iv) use all associated Documentation in connection with such authorized use of the Software; and (v) make one copy of the Documentation solely for archival and backup purposes. The Software may be accessed and downloaded only from Clustrix’s website using a license key which Clustrix will deliver to You.
3. Open Source Software. The Software may contain open source software components (“Open Source Components”). Such Open Source Components are not licensed under this Agreement, but are instead licensed under the terms of the applicable open source license. Your use of each Open Source Component is subject to the terms of each applicable license which are available to You on request from Clustrix and, notwithstanding any provision herein to the contrary, You are solely responsible for its compliance with such licenses.
4. Restrictions. You shall absolutely not, and shall absolutely not permit any third party to: (i) reverse engineer, reverse assemble, or otherwise attempt to discover the Source Code of all or any portion of the Software; (ii) reproduce, modify, translate or create derivative works of all or any portion of the Product, or the Source Code; (iii) assist any third party to gain access, license, sublicense, resell distribute, assign, transfer or use the Product; (iv) remove or destroy any proprietary notices contained on or in the Product, the Source Code, or any copies thereof; or (v) publish or disclose the results of any benchmarking of the Products, or use such results for Your own competing software development activities. You acknowledge and agree that the Software includes functionality that reports the number of Cores on which the Software is being used and permits Clustrix the ability to monitor certain usage of the Software which is fundamental to the business of Clustrix (“Critical Control Software”).
5. Limited Warranty and Disclaimer of Warranty.
5.1. Evaluation Period. During the Evaluation Period, Your right to use the Product is time limited and You agree that the Products are meant for evaluation purposes only. During the Evaluation Period, the Product should not be used in a commercial operating environment or with important data. Before using the Product, You should back up all of Your data and regularly back up data while using the Product. YOU AGREE THAT CLUSTRIX AND ITS LICENSORS PROVIDE THE PRODUCT ON AN “AS IS” AND “WHERE-AS” BASIS DURING THE EVALUATION PERIOD.
5.2. License Period. Solely for the License Period, Clustrix represents and warrants to You only that the Software when used for its intended purpose and in accordance with the Documentation, will materially conform to Clustrix’s published specifications for a period of ninety (90) calendar days from the Effective Date. Your sole and exclusive remedy, and Clustrix’s sole and exclusive liability for any breach of this warranty will be, at Clustrix’s sole discretion, to either fix the Product to remedy the defect or refund the applicable Software license fees paid by You for the Software in the applicable annual period, in each case on condition that You promptly notify Clustrix in writing of any alleged breach of this warranty within such ninety (90) calendar day period. This warranty is null and void to the extent the Product is used for an unintended purpose, is used other than in accordance with its published documentation or specifications, or is otherwise used in breach of this Agreement. You should back up all of Your data and regularly back up data while using the Product.
5.3. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, NEITHER CLUSTRIX NOR ITS LICENSORS MAKE ANY WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE PRODUCT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND CLUSTRIX AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Intellectual Property Rights and Feedback. All rights, title and interest in and to the Products, the Software, the Source Code, and any improvements, updates, upgrades, modifications, changes, or additions related thereto, shall at all times remain the property of Clustrix or its licensors. Nothing herein shall give or be deemed to give You any right, title or interest in or to the same except for the license to use as expressly provided in this Agreement. Clustrix reserves all rights not expressly granted herein. Any materials, information, ideas, concepts, feedback and know-how provided by You to Clustrix concerning the Product and any information reported automatically through the Product to Clustrix (“Feedback”) will be the property of Clustrix. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to Clustrix and agree to assist Clustrix, at Clustrix’s expense, in perfecting and enforcing such rights.
7. Technical Support. You are entitled to receive technical support in accordance with and subject to the terms and conditions set forth in the Clustrix Support Policy that can be found at https://support.clustrix.com/(“Technical Support Terms”). Clustrix may add to, change or remove any part, term or condition of the Technical Support Terms at any time without prior notice to You; provided however, that any such changes which occur during the then-current Ini t i a l o r Renewal Term which materially diminish the benefit of the technical support, will not take effect for You until the start of the next Renewal Term.
8. Fees & Payment Terms.
8.1. Fees. The license fees payable by You for the Initial Term will be as set forth in the applicable Sales Order. All terms herein, including without limitation, the pricing terms, are confidential, and You agree not to disclose them to any third party. You will be required to pay overage fees equal to 120% of the then current list price for usage in excess of the number of Cores specified on the applicable Sales Order. Such overage fees will be billed at the end of each month, quarter, or year at the discretion of Clustrix. All fees are payable in the currency of the United States of America.
8.2. Payment Terms. All fees are due as per the payment terms specified on the Sales Order and shall be deemed non-refundable upon payment. You are responsible for paying a monthly finance charge on late payments at the rate of 1.5% per month or the highest amount permitted by law, whichever is lower, until paid in full. You will reimburse any costs or expenses (including, but not limited to, reasonable attorney fees) incurred by Clustrix to collect any amount that is not paid when due. Amounts due from You under this agreement may not be withheld or offset by You against amounts due to You for any reason. All fees specifically exclude (and You are responsible for) any and all applicable sales, use and other taxes, other than taxes based on Clustrix’s income.
8.3. Changes to Fees. Clustrix may increase its annual subscription fees to take effect for the upcoming renewal period, upon notice given at least ninety (90) days prior to the start of the upcoming next renewal period, which notice may be provided by e-mail to Your email address.
8.4. Audit. During the term of this Agreement and for one (1) year thereafter, Clustrix or its designated agent may inspect Your facilities and records to verify Your compliance with the terms of this Agreement. Any such inspection will take place only during Your normal business hours and upon not less than ten (10) business days’ prior written notice from Clustrix. You shall reasonably cooperate with such audit and shall make such personnel, facilities and records available as Clustrix may reasonably request. Clustrix will give You written notice of any non-compliance, including any use of the Software or services beyond that authorized under this Agreement and without limiting Clustrix’s remedies arising from such unauthorized use, You shall promptly: (i) cease such unauthorized use and (ii) pay Clustrix any additional fees due to the extent Your use of the Software has exceeded the scope purchased by You. If any underpayment exceeds 5% then You will also pay the costs reasonably incurred by Clustrix in connection with the inspection.
9. Limitation of Liability; Allocation of Risk.
9.1. Limitation of Liability. NEITHER CLUSTRIX NOR ITS LICENSORS SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT OR DATA OR ANY ACTUAL OR ANTICIPATED DAMAGES, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF CLUSTRIX OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE EVALUATION PERIOD, IN NO EVENT SHALL CLUSTRIX’S DIRECT DAMAGES EXCEED ONE HUNDRED DOLLARS (US $100.00). FOR THE LICENSE PERIOD, IN NO EVENT SHALL CLUSTRIX’S DIRECT DAMAGES EXCEED THE FEES PAID AND PAYABLE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLUSTRIX PARTIES’ LIABILITY. ADDITIONALLY, IN NO EVENT SHALL CLUSTRIX’S LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND.
9.2. Allocation of Risk. You and Clustrix agree that the foregoing Section 9.1 on limitation of liability and the Section 5.3 above on warranty disclaimer fairly allocate the risks in the Agreement between the parties. You and Clustrix further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations specified in this Section 9 shall apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder. Indemnification. Solely with respect to any use of the Product during the License Period, Clustrix shall indemnify, defend and hold You and Your officers, directors, employees, shareholders, contractors and agents harmless from any claim, loss, damage, cost, expense or liability for direct infringement of any United States patent or copyright by the Software, provided that the Software has not been modified or combined with any materials not provided by Clustrix, and provided that You (a) promptly give written notice of the claim to Clustrix; (b) give Clustrix sole control of the defense and settlement of the claim (provided that Clustrix may not settle or defend any claim without first obtaining Your prior written consent if the settlement includes any admission of liability by You); and (c) provide to Clustrix, at Clustrix’s cost, all reasonable assistance. Should the use of the Software be enjoined, Clustrix shall, or in the event that the Clustrix desires to minimize its liabilities hereunder, Clustrix may do one of the following, at its sole option and expense, to: (i) obtain through negotiation the right of You to continue using the infringing Software; (ii) rework the Software so as to make it non-infringing while preserving its original functionality; (iii) replace the Software with functionally equivalent software; or (iv) refund to You unused prepaid fees paid for the infringing Software hereunder. THIS SECTION STATES THE ENTIRE LIABILITY OF CLUSTRIX WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE PROVIDED UNDER THIS AGREEMENT.
10.1. Definition of Confidential Information. “Confidential Information” of a party shall mean (i) any technical and non-technical information related to such party’s business and current, future and proposed products and Software, including for example and without limitation, information concerning research, development, design details and specifications, financial information, procurement requirements, engineering and manufacturing information, customer lists, business forecasts, sales information, marketing plans and business plans, logs and other debugging artifacts, benchmark or comparison tests, bug tracking and quality measurements, information exchanged in the course of providing or receiving support, and encrypted or obfuscated information, whether or not decrypted; and (ii) any information that may be made known to the receiving party and which the disclosing party has received from others that the disclosing party is obligated to treat as confidential or proprietary, in each case, which information shall be marked as confidential. The Products are the Confidential Information of Clustrix and You agree that You will not disclose any information about the Products to any third party without Clustrix’s express prior written consent.
10.2. Nondisclosure of Confidential Information and Confidentiality Obligations. Neither party will use, disseminate or in any way disclose any Confidential Information of the other party to any person, firm or business. Each party shall treat all Confidential Information with the same degree of care as such party accords to its own Confidential Information but not less than reasonable care. Each party shall disclose Confidential Information only to its employees or representatives who have a need to know such information. Each party certifies that each such employee or representative will have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to such party under this Agreement. Each party shall immediately give notice to the other party of any unauthorized use or disclosure of the other party’s Confidential Information. Each party shall assist the other party in remedying any such unauthorized use or disclosure of the other party’s Confidential Information.
10.3. Exceptions. Confidential Information shall not include any information that (i) was in the public domain at or subsequent to the time such information was communicated to the receiving party by the disclosing party through no fault of the receiving party; (ii) was rightfully in the receiving party’s possession free of any obligation of confidence at or subsequent to the time such information was communicated to the receiving party by the disclosing party; or (iii) is or was developed by the receiving party’s employees, contractors or agents independently of and without reference to any Confidential Information of the disclosing party. A disclosure of any Confidential Information by the receiving party (a) in response to a valid order by a court or other governmental body or (b) as otherwise required by law shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that the receiving party shall provide prompt prior written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent such disclosure.
10.4. Ownership of Materials. All Confidential Information shall be the property of the disclosing party and no other rights to Confidential Information is granted or implied hereby. Within five (5) days after any request by the disclosing party, the receiving party shall destroy or deliver to the disclosing party, at the disclosing party’s option, all Confidential Information of the disclosing party in the possession of the receiving party. The receiving party will provide the disclosing party, upon request, a written certification of such party’s compliance with the obligations under this Section.
11. Term and Termination.
11.1. Term. The initial term of this Agreement (the “Initial Term”) is for the period listed and commencing on the dates specified on the applicable Sales Order (the “Effective Date”). Upon the expiration of the Evaluation Period, if any, this Agreement terminates and You must cease use of the Product unless You and Clustrix have entered into a Sales Order for Your use of the Product for the License Period specified on the Sales Order. Upon completion of the Evaluation Period, Clustrix may provide You with a new license key or may require You to re-download the Software, as Clustrix determines in its sole discretion.
11.2. Termination. This Agreement will terminate immediately upon written notice from Clustrix if You fail to comply with any provision of this Agreement. Except for Section 2 (License Grant), Sections 5.1 and 5.2 (Limited Warranty and License Period), and Section 7 (Technical Support), all Sections of this Agreement shall survive termination for a period of three (3) years from the date hereof with the exception that Section 10 (Confidential Information) shall survive indefinitely. On termination of this Agreement, You must cease using the Software and Clustrix may destroy all of Your data that You have submitted through the Software. If You have exceeded Your authorized license usage (including, without limitation, by installation of the Software on more Cores than You are authorized), the license key for the Software may disable the Software automatically or render the Software read-only.
12. Government End Users. The Product provided under this Agreement is commercial computer software programs developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to You), the Product licensed in this Agreement is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to You), any use, modification reproduction, release, performance, display, or disclosure of such commercial Product or commercial Product documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
13. No Export. You agree and certify that neither the Product nor any other technical data received from Clustrix, nor the direct product thereof, will be exported outside the United States or re-exported except as authorized and as permitted by the laws and regulations of the United States and/or the laws and regulations of the jurisdiction, (if other than the United States) in which You rightfully obtained the Product.
14. General Provisions. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. This Agreement shall be governed by the laws of the State of California, U.S.A. without regard to conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of this Agreement shall not be affected thereby. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement may not be assigned, sublicensed or otherwise transferred by either party without the other party’s prior written consent except that either party may assign this Agreement without the other party’s consent to any entity that acquires all or substantially all of such party’s business or assets, whether by merger, sale of assets, or otherwise, provided that such entity assumes and agrees in writing to be bound by all of such party’s obligations under this Agreement. In the event any judicial proceeding, lawsuit or claim is brought by one party against the other party in connection with this Agreement, the prevailing party shall be entitled to recover its reasonable fees and costs, including but not limited to attorneys’ fees, expert witness fees, consultant fees, and related costs and expenses. This Agreement constitutes the parties’ entire understanding regarding the Product, and supersedes any and all other prior or contemporaneous agreements, whether written or oral.