End User License Agreement for Faspex On-Demand Starter Edition - 20 Mbps
END-USER LICENSE AGREEMENT FOR ASPERA SOFTWARE
This End-User License Agreement (the "Agreement") is a legal contract between you ("User") and Aspera, Inc. ("Aspera"), the owner of certain software programs that have been provided to User either by Aspera or on behalf of Aspera by a third party to which Aspera has granted the right to license or to sublicense the Software Programs (a "Licensee").
BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE PROGRAMS, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMER, LIMITATION OF LIABILITY, AND TERMINATION PROVISIONS BELOW.
1. The "Software Programs" mean: (a) the computer software programs and related documentation owned or licensed by Aspera that are being installed by User; (b) Aspera software programs embedded in third party software programs that User is installing; and (c) all maintenance releases, updates, upgrades, or features to the Software Programs, if any, provided by Aspera directly or indirectly through a Licensee to User.
2. User may install and use the Software Programs pursuant to the terms of this Agreement. Use of the Software Programs is non-exclusive and limited to User's internal use thereof, which use may not exceed the term or the scope of the license purchased (e.g., but not by way of limitation, the permitted number of copies, seats, servers, active user accounts, or transfer bandwidth capacity purchased) and as authorized by Aspera in writing. If User has any questions regarding the term or scope of the licensed purchased, User is to contact Aspera Sales at: firstname.lastname@example.org.
3. Most Software Programs are activated by delivery of a license key or entitlement system, which license keys or entitlement systems may be designed to allow use of the Software Programs in compliance with the scope of the License granted and termination of the license for non-compliance with the applicable License. Further, Software Programs may contain a metering or instrumentation capable of verifying license entitlement and transmitting reports or statistics on the Software Program usage to Aspera or a third party engaged by Aspera to collect any such reports or statistics.
4. User shall not upload, install, or copy the Software Programs for use in an Internet hosted service established to provide Infrastructure-as-a-Service ("IaaS"), Platform-as-a-Service ("PaaS"), and Software-as-a-Service ("SaaS") for use by end users over the Internet (for the purpose of this Agreement, a "Cloud Environment") without specific license from Aspera. In the event Aspera grants User permission, in writing, to upload, install, or copy the Software Programs for use in a Cloud Environment, User must present the terms of this Agreement to any user who accesses the Software Programs from the Cloud Environment. Any such user is the "User" of the Software Programs and as such hereby agrees to be bound by the terms of this Agreement.
5. User shall not: (a) sublicense, lease, rent, or transfer the Software Programs, in whole or in part, to a third party in any way; or (b) use the Software Programs for third-party training, commercial time-sharing, rental, or service bureau use.
6. User shall not: (a) make or distribute copies of the Software Programs (provided that User may make one copy for backup purposes only); (b) alter, merge, modify, or adapt the Software Programs or make derivative works thereof; or (c) reverse engineer, disassemble, decompile, or otherwise derive the source code of the Software Programs. Where applicable law would permit User to decompile, disassemble, or otherwise reverse engineer the Software Programs by any means whatsoever to achieve interoperability, User hereby agrees that should User exercise such legal permission, any such information obtained by User shall be treated for all purposes hereunder as the confidential and proprietary information of Aspera.
7. User may not transfer any rights under this Agreement without the prior written consent of Aspera, with the exception that User may, at no additional cost, transfer the Software Programs to any hardware platform or operating system supported by Aspera. Once a Software Program which is permitted to be installed at a third party location is so installed, such Software Program may not be uninstalled and reinstalled in a second location.
8. User shall not use or combine any open source software with the Software Programs in any manner that would subject any Software Programs or confidential or proprietary information of Aspera or its suppliers to the provisions of GPL, LGPL or similar open source terms and conditions.
9. User may only use a "not for resale" version of the Software Programs to review and evaluate the Software Programs.
10. User shall pay, taxes of any and all kind, including but not limited to, sales, use, excise, value added tax, or import or export (or similar tax or duties), levied upon delivery of the Software Programs. If applicable law requires User to withhold any income taxes levied on payments to be made pursuant to this Agreement ("Withholding Tax") User shall increase such payment to Aspera so that, after deduction for Withholding Tax, Aspera receives payments as if no Withholding Tax had been deducted.
11. User warrants it will not export, directly or indirectly, any information acquired under this Agreement or any Software Programs utilizing any such information to any country prohibited by the laws of the United States, or for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval. Further, User agrees that the costs of such compliance, including but not by way of limitation, bonds, duties, or taxes shall be User's obligation.
12. If User is a sublicensee (i.e., receiving the Software Programs from a Licensee), (a) the use of the Software Programs by such User are subject to all the limitations set forth in the license agreement between Aspera and such Licensee and may be no greater in scope than the rights Aspera has granted to Licensee; and (b) User shall be bound by the scope of the license (e.g., but not by way of limitation, the permitted number of copies, seats, servers, active user accounts, or transfer bandwidth capacity purchased) purchased under the license agreement between the Licensee and Aspera.
13. If User is licensing Software Programs as a business and not as a consumer, this license shall take effect between Aspera and User as a business entity and User shall take all appropriate steps to ensure that the Software Programs are operated by User's employees, agents, or contractors in accordance with the terms of this Agreement.
14. The license set forth in this Agreement grants the User a limited license to use the Software Programs. Subject to Paragraph 19 below, Aspera retains all right, title and interest, including all copyright and intellectual property rights, in and to, the Software Programs and all copies thereof. All rights not expressly granted in this Agreement are reserved by Aspera. Unless applicable law gives you more rights despite this limitation, you may use the software only as expressly permitted in this Agreement.
15. User hereby grants Aspera a non-exclusive, perpetual, non-terminable, worldwide, royalty free right and license to use, reproduce, modify, create derivative works of, display, import, disclose, distribute, sublicense, rent, lease, lend copies of, and otherwise exploit any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by User directly or indirectly to Aspera or created for User by Aspera or its Licensee that relate to Aspera's software or technology.
16. ASPERA PROVIDES THE SOFTWARE PROGRAMS "AS IS" AND DOES NOT WARRANT THAT THE SOFTWARE PROGRAMS FURNISHED TO USER WILL MEET USER'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE. WITHOUT LIMITING THE FOREGOING, ASPERA DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NON INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON USER UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE PROGRAMS ARE NOT DESIGNED, INTENDED, OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS AND ASPERA SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
17. IF AND ONLY IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE PROGRAMS, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ASPERA, ITS RESELLERS, ITS LICENSEES; ITS AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE EXCLUSION AND DISCLAIMER OF WARRANTIES ABOVE MAY NOT APPLY TO USER.
18. IN NO EVENT SHALL ASPERA BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY DAMAGES ARISING FROM USER'S OR ANY THIRD PARTY'S USE OF, OR INABILITY TO USE, THE SOFTWARE PROGRAMS (WHETHER SUCH DAMAGES ARE DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL, AND ARISING FROM ANY CAUSE WHATSOEVER, WHETHER IN CONTRACT OR TORT, INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUE, OR DATA) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL ASPERA BE LIABLE FOR LOSS OF USER'S DATA, CONTENT, OR OTHER INFORMATION IN CONNECTION WITH THE USE OF THE SOFTWARE PROGRAMS.
19. ASPERA'S TOTAL LIABILITY TO USER FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE LESSER OF $500 OR THE AMOUNT PAID BY USER FOR THE SOFTWARE PROGRAM THAT CAUSED SUCH DAMAGE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL AND CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO USER. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT.
20. The Software Programs may include, but not by way of limitation, certain modified open source components from the OpenSSH distribution (http://www.openssh.org) and open source components developed by the OpenSSL Project (http://www.openssl.org). The OpenSSH distribution links to cygwin libraries, source code for which is available at http://www.cygwin.com. Any such components are delivered with the following notices as specified by the third party providing such components: This product includes software developed by the OpenSSL Project for use in the OpenSSL Toolkit (http://www.openssl.org). Copyright (c) 1998-2003 The OpenSSL Project. All rights reserved. The product includes cryptographic software written by Eric Young (email@example.com). Copyright (c) 1995-1998 Eric Young. All rights reserved, Copyright (c) 1998 CORE SDI S.A., Buenos Aires, Argentina. Copyright (c) Markus Friedl, Theo de Raadt, Niels Provos Dug Song, Aaron Campbell, Damien Miller, Kevin Steves, Daniel Kouril, Per Allansson. All rights reserved. Ssh keygen was contributed by David Mazieres under a BSD-style license, Copyright 1995, 1996 by David Mazieres. ALL SUCH THIRD PARTY SOFTWARE IS PROVIDED "AS IS" BY SUCH THIRD PARTY AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED BY SUCH THIRD PARTY. IN NO EVENT SHALL SUCH THIRD PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR MISUSE OF SUCH THIRD PARTY SOFTWARE.
21. This Agreement provides no other rights to User not expressly set forth herein (including any rights to maintenance and support, training, or other development services relating to the Software Programs). Any rights of User to any such services shall be solely as provided in a service, support and maintenance, or other agreement between User and Aspera (or between Licensee and Aspera if User is a sublicense) and subject to the conditions therein. In no event shall User have any rights to enforce against Aspera any provisions of any license agreement or other agreement to which it is not a party.
22. User agrees that Aspera may audit User's use of the Software Programs for compliance with the terms of this Agreement at any time, upon reasonable notice. In the event that such audit reveals any use of the Software Programs by User other than in full compliance with the terms of this Agreement, User shall: (a) reimburse Aspera for all reasonable expenses related to such audit in addition to any other liabilities to which User may be subject as a result of such non-compliance; and (b) pay Aspera for all additional license required to bring User's past use of the Software Programs into compliance with the terms of this Agreement plus interest thereon calculated at 1.5% per month (but in no event more than the maximum amount allowed by law) from the date User should have purchased the additional licensees to avoid non-compliance with the terms of the Agreement. User acknowledges that Aspera shall have the right to enforce the provisions of this Agreement directly against User, and Aspera's remedies for any breaches may include, without limitation, damages, or injunctive or other equitable remedies.
23. Aspera may terminate the rights granted hereunder if User breaches this Agreement. In such event, User must destroy all copies of the Software Programs.
24. If the Software Program license purchased by User is a subscription plan or for a fixed term, User must destroy all copies of the Software Programs upon expiration of the subscription plan or fixed term.
25. If User is a sublicensee, the rights granted hereunder shall automatically terminate upon the termination or expiration of the license agreement between Aspera and the Licensee; and User must destroy all copies of the Software Programs.
26. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof. No Aspera reseller, Licensee, agent, or employee is authorized to make any amendment to this Agreement unless such amendment is in writing and signed by a duly authorized officer of Aspera.
27. This Agreement shall be governed by the laws of the State of California without giving effect to choice of law principles. User hereby consents to the exclusive jurisdiction and venue of the state or federal courts in California to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
28. Aspera and the other trademarks contained in the Software Programs are trademarks of Aspera in the United States and/or other countries. Third party trademarks, trade names, product names, and logos are the trademarks of their respective owners. User may not remove or alter any trademark, trade names, product names, logo, copyright, or other proprietary notices, legends, symbols or labels in the Software Programs. This Agreement does not authorize User to use Aspera's or its licensor's names or any of their respective trademarks.
29. If any part of this Agreement is found to be void and unenforceable it will not affect the validity of the remainder of the Agreement, which shall remain valid and enforceable according to its terms.
30. If the Software Programs are being licensed by the U.S. Government directly or indirectly through a civilian agency or third party, any Software Programs and related documentation are "Commercial Items" as that term is defined at 48 C.F.R. section 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. section 12.212 (and all corresponding agency specific Federal Acquisition Regulation supplements). Consistent with the foregoing, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to the U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.