End User License Agreement for CloudOptimizer
CLOUDOPTIMIZER END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE CLOUDOPTIMIZER SOFTWARE (THE "SOFTWARE") OFFERED BY CLOUDOPT, INC. ("CLOUDOPT"). BY USING THE SOFTWARE IN ANY MANNER AND BY CLICKING "I ACCEPT" or "PLACE YOUR ORDER" OR "SUBMIT" OR ANY OTHER WORDING THAT INDICATES ACCEPTANCE OR AGREEMENT TO THESE TERMS, YOU (THE "LICENSEE") AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER
TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU HAVE NO RIGHT TO USE THE SOFTWARE. USE OF THE SOFTWARE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS.
1. LICENSE GRANT. Subject to Licensee's compliance with all of the terms and conditions of this
Agreement, payment of all fees, and any applicable user/use limitations, CloudOpt grants to Licensee
a limited, personal, non-sublicensable, nontransferable, nonexclusive license to download, install and
use (in object code only) the Software solely for Licensee's internal business purposes during the term
of this Agreement. CloudOpt shall at all times retain all title to and ownership of the Software and all
copies thereof. Licensee agrees to use the Software only as set forth in this Agreement and only in the
ordinary course of business.
2. LICENSE RESTRICTIONS. Licensee shall not (and shall not allow any third party to) (a)
reproduce or modify the Software, (b) provide, rent, sell, lease, disclose, use for time sharing or
service bureau purposes, or otherwise transfer or distribute the Software or any part thereof or use it
for the benefit of a third party, (c) reverse assemble, reverse compile or reverse engineer the Software,
or otherwise attempt to discover any Software source code or underlying proprietary information of
CloudOpt (except to the limited extent that applicable law prohibits reverse engineering restrictions),
(d) without the express prior written consent of CloudOpt, disclose to any third party the results of
any benchmarking or comparative study or analysis involving the Software, or (e) possess or use the
Software, or allow the transfer, transmission, export, or re-export of the Software or a portion thereof
in violation of any export control laws or regulations administered by the U.S. Commerce
Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government
agency. Notwithstanding the foregoing, Licensee may make one (1) copy of the Software for backup
purposes only. Licensee shall maintain the copyright notice and any other notices that appear on the
Software on any copies (including backup copies) and any media.
CloudOpt reserves the right, in its sole discretion, to modify this Agreement at any time by
posting a notice on its website, and/or by notifying Licensee via email or postal mail. Licensee
shall be responsible for reviewing and becoming familiar with any such modifications.
Licensee's use of the Software following such notification constitutes Licensee's acceptance of
the terms and conditions of this Agreement as modified.
LICENSEE ACKNOWLEDGES THAT THE SOFTWARE MAY INCLUDE FEATURES TO
PREVENT USE AFTER TERMINATION OR EXPIRY OF THE APPLICABLE LICENSE
LICENSEE ALSO ACKNOWLEDGES AND AGREES THAT ANY
SUBSEQUENT LICENSE PERIODS FOLLOWING THE INITIAL LICENSE PERIOD
SHALL BE SUBJECT TO THE TERMS OF THIS AGREEMENT.
3. SUPPORT. Many questions can be answered by accessing CloudOpt's online knowledge base at
kb.cloudopt.com. Additionally, CloudOpt offers technical support via email at
firstname.lastname@example.org. CloudOpt will use commercially reasonable efforts to respond to Licensee's
requests for support within two business days, but does not make any representations or warranties
that it will respond to a request for support within a certain amount of time, or that it will be able to
remedy any problem the Licensee is experiencing.
4. MAINTENANCE. During the Licensee's then-current License Period (as that term is defined
below), and subject to payment of all applicable license fees, CloudOpt may provide Licensee,
without additional charge, with error corrections, feature enhancements and workarounds ("Updates")
that CloudOpt in its discretion makes generally available. CloudOpt reserves the right to offer major
product enhancements as an upgrade and/or separate product, subject to the payment by Licensee of
additional license fees. For the avoidance of doubt, unless otherwise specified by CloudOpt in
writing, any Updates made available by CloudOpt pursuant to this Agreement shall be deemed
"Software" and shall be subject to the terms of this Agreement.
5. END OF SUPPORT AND MAINTENANCE NOTICE. CloudOpt may, in its sole discretion,
decide to end the support and maintenance for a retired version of the Software. CloudOpt will
provide Licensee with twelve (12) months' notice prior to ending such support and maintenance, and
will direct the Licensee to applicable upgrades and/or alternative versions.
6. FEES AND PAYMENT. "License Period" shall mean the applicable period specified by Licensee at
the time of signing up for a subscription to the Software, together with each renewal period signed up
for by the Licensee, as applicable. In the case of subscriptions purchased directly from CloudOpt,
fees are payable by Licensee within thirty (30) days of the date of the invoice sent by CloudOpt to
Licensee. In the case of subscriptions obtained through one of CloudOpt's partners (including
without limitation RightScale, Inc. and Amazon.com, Inc.), license fees are payable by Licensee
directly to such partner according to such partner's payment terms. All fees payable hereunder are
non-refundable, and all payments shall be made in United States dollars within the United States. In
addition, Licensee will be responsible for withholding, filing and reporting all taxes, duties and other
governmental assessments associated with Licensee's subscription to and use of the Software.
CLOUDOPT RESERVES THE RIGHT TO IMMEDIATELY SUSPEND THE LICENSEE'S
USE OF THE SOFTWARE FOR NON-PAYMENT OF APPLICABLE LICENSE FEES.
7. RIGHTSCALE LICENSE. This Section applies only to Licensees who obtain the Software
bundled with software and services provided by RightScale, Inc. (the "RightScale Products"). By
using the Software bundled with RightScale Products, and by agreeing to the terms and conditions of
this Agreement, Licensee grants RightScale, Inc. a limited, royalty-free, non-exclusive license to use,
copy, publish, embed and distribute ServerTemplates and RightScripts that have been modified
and/or created by Licensee. For further details and the definitions of RightScale's ServerTemplates
and RightScripts, please see www.rightscale.com/products.
8. FEEDBACK. Licensee may, at its discretion, provide feedback to CloudOpt with respect to the
Software ("Feedback"). Feedback may include, without limitation, errors or difficulties discovered in
the Software and the characteristic conditions and symptoms of the errors and difficulties. Unless
specifically agreed in writing, Feedback provided by the Licensee shall not create any confidentiality
obligation for CloudOpt, and CloudOpt shall be free to use, disclose, reproduce, license or otherwise
distribute, and exploit such Feedback as it sees fit.
9. WARRANTY DISCLAIMER; WARNING. The Software is provided "AS IS" and may not be
functional on any machine or in any environment. CLOUDOPT FOR ITSELF AND ITS
LICENSORS DISCLAIMS ALL WARRANTIES RELATING TO THE SOFTWARE AND ANY
SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION
SUPPORT AND/OR MAINTENANCE SERVICES), EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY
RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT
THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED
WARRANTIES, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO ALL
10. WARNING: THE SOFTWARE CONTAINS A ROUTINE THAT MAY CAUSE THE
SOFTWARE TO CEASE PROPER FUNCTIONING ON A SPECIFIED DATE. THIS MAY
OCCUR BEFORE OR AFTER TERMINATION OF THE LICENSE, SO LICENSEE MUST BE
PREPARED FOR SUCH EVENT AT ALL TIMES. PROVIDED THAT LICENSEE HAS A VALID
SUBSCRIPTION, CLOUDOPT WILL USE COMMERCIALLY REASONABLE EFFORTS TO
PROVIDE REPLACEMENT SOFTWARE FOR THE DURATION OF THE APPLICABLE
11. INDEMNIFICATION. CloudOpt shall hold Licensee harmless from liability to third parties
resulting from infringement by the Software of any United States patent issued sixty (60) days or
more before the initial date of that Licensee's License Period, provided CloudOpt is promptly notified
of any and all threats, claims and proceedings related thereto and given reasonable assistance and the
opportunity to assume sole control over the defense and settlement; CloudOpt will not be responsible
for any settlement it does not approve. The foregoing obligations do not apply with respect to the
Software or portions or components thereof (a) not created by CloudOpt, (b) made in whole or in part
in accordance with Licensee specifications, (c) that are modified after delivery by CloudOpt, (d) that
are combined with other products, processes or materials where the alleged infringement relates to
such combination, (e) where Licensee continues the allegedly infringing activity after being notified
thereof or after being informed of modifications that would have avoided the alleged infringement, or
(f) where Licensee's use of the Software is not strictly in accordance with this Agreement. Licensee
will indemnify CloudOpt from all damages, costs, settlements, attorneys' fees and expenses related to
(x) any claim of infringement or misappropriation excluded from CloudOpt's indemnity obligation in
this Section or (y) any other claim in connection with the Software or the use or distribution thereof.
12. LIMITATION OF REMEDIES AND DAMAGES. ANY LIABILITY OF CLOUDOPT AND ITS
LICENSORS WITH RESPECT TO THE SOFTWARE OR THE PERFORMANCE THEREOF AND
ANY SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING WITHOUT
LIMITATION SUPPORT AND/OR MAINTENANCE SERVICES) UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, AND THE LICENSEE'S SOLE AND
EXCLUSIVE REMEDY, WILL BE LIMITED TO PRODUCT REPLACEMENT OR, IF
REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN CLOUDOPT'S OPINION,
IMPRACTICAL, TO REFUND OF AN APPROPRIATE PORTION THE REMAINING
UNAMORTIZED LICENSE FEE PAID BY LICENSEE. CLOUDOPT SHALL NOT BE
RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER
THEORY (A) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID
TO CLOUDOPT HEREUNDER BY THE LICENSEE WITH RESPECT TO THE SOFTWARE
DURING THE SIX MONTH PERIOD PRIOR TO THE CAUSE OF ACTION, (B) FOR LOSS OR
INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS,
SERVICES OR TECHNOLOGY, OR (C) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF REVENUES
AND LOSS OF PROFITS. CLOUDOPT SHALL NOT BE RESPONSIBLE FOR ANY MATTER
BEYOND ITS REASONABLE CONTROL. THE FOREGOING LIMITATIONS SHALL APPLY
EVEN IF CLOUDOPT SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE
LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO ALL LICENSEES.
13. HIGH RISK ACTIVITIES. The Software is not designed, manufactured, or intended for use in
hazardous environments requiring fail-safe performance where the failure of the Software could lead
directly to death, personal injury, or significant physical or environmental damage ("High Risk
Activities"). Use of the Software in High Risk Activities is not authorized.
14. GOVERNMENT USE. If Licensee is part of an agency, department, or other entity of the United
States Government ("Government"), the use, duplication, reproduction, release, modification,
disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition
Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation
Supplement as applied to military agencies. The Software is a "commercial item," "commercial
computer software" and "commercial computer software documentation." In accordance with such
provisions, any use of the Software by the Government shall be governed solely by the terms of this
15. MISCELLANEOUS. This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof, and any and all written or oral agreements previously existing
between the parties are expressly cancelled. This Agreement shall become effective only upon
Licensee's clicking the "I Accept," "Place your order" or "Submit" button (as applicable), and it shall
be governed by and construed in accordance with the laws of the State of California without regard to
the conflicts of laws provisions therein. The sole and exclusive jurisdiction and venue for actions
arising under this Agreement shall be the State and Federal courts in Santa Clara County, California.
Licensee hereby agrees to service of process in accordance with the rules of such courts. In any
action to enforce this Agreement the prevailing party will be entitled to costs and attorneys' fees. In
the event that any of the provisions of this Agreement shall be held by a court or other tribunal of
competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and
enforceable. Although fully assignable and transferable by CloudOpt, neither the rights nor the
obligations arising under this Agreement are assignable or transferable by Licensee, and any such
attempted assignment or transfer shall be void and without effect.
16. TERMINATION. This Agreement may be terminated by CloudOpt immediately upon notice of any
breach by Licensee of the provisions of this Agreement, or for Licensee's failure to pay the applicable
license fees. This Agreement will also terminate automatically upon the expiration of any applicable
License Period or such other license period as have been expressly agreed to by CloudOpt. Upon
termination, the license granted hereunder will terminate and Licensee shall immediately destroy any
and all documents, notes and other materials regarding the Software (including any physical copies
made thereof), and all other proprietary information and all copies and extracts of the foregoing, and
an officer of Licensee shall certify the same to CloudOpt; otherwise, the other terms of this
Agreement will remain in effect.
17. BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY
DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE
MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE
BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE
CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN
THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
18 October 2011