CLOUDBYTE END USER SOFTWARE LICENSE AGREEMENT
IMPORTANT NOTICE: YOU SHOULD READ THE FOLLOWING TERMS CAREFULLY BEFORE YOU DOWNLOAD, INSTALL OR USE ANY SOFTWARE AND DOCUMENTATION FROM CLOUDBYTE, INC.
CloudByte is willing to license the Software and Documentation to you only upon the condition that you accept all the terms contained in this Agreement. By clicking on the “I accept” button below or by downloading, installing or using the Software or Documentation, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity.
1. License. Conditioned upon your compliance with the terms and restrictions set forth in this License Agreement (“Agreement”), CloudByte Inc. (“CloudByte”), grants you a non-exclusive, non-transferable license to use the software program(s) made available for download by CloudByte (the “Software”), solely in machine-readable form , and any documentation delivered with the Software (the “Documentation”). The Software is considered to be in use when it resides in memory or is otherwise stored on a machine. You agree to ensure that anyone who uses the Software or Documentation does so only for your authorized use and complies with the terms of this Agreement.
2. Ownership and Intellectual Property Rights. CloudByte retains full ownership rights in the Software and Documentation and all rights not expressly granted to you in this Agreement. The Software and Documentation are protected by copyright and other intellectual property rights. You may not copy or otherwise use the Software or Documentation, in whole or part, except as expressly permitted in this Agreement. You must reproduce and maintain all copyright and other intellectual property notices that are contained in the Software or Documentation on any copy that you make or use of the Software and/or Documentation, respectively.
3. Restrictions. The Software and Documentation may be copied solely for the purposes of installation and back-up. You will not sublicense, assign or transfer the Software, Documentation or any rights thereto, either in whole or in part, to any third party. You will not use the Software or Documentation for any purpose other than internal business purposes and you will not permit the publication or distribution of results of any benchmark tests run on the Software without the express written permission of CloudByte. You will not modify the Software or Documentation in any manner. You agree that the source code applicable to the Software is confidential and proprietary to CloudByte and/or its licensors. Accordingly, you will not decompile, disassemble, reverse engineer or otherwise manipulate the Software so as to derive such source code.
4. Term. Unless terminated or extended by CloudByte in writing as provided in this Agreement, the term of the license provided in this Agreement becomes effective on your installation or use of the Software. You may terminate this license at any time by destroying all copies of the Software and Documentation or by returning all such copies to CloudByte. This Agreement and the associated license for the Software and Documentation will terminate automatically and without provision of notice by CloudByte if:
a) you fail to comply with any of the terms of this Agreement, including any attempt to transfer any copy of the Software or Documentation to another party or any attempt to modify the Software; or
b) you cease doing business, dissolve, make an assignment for the benefit of creditors of all or substantially all of your assets or voluntarily or involuntarily enter bankruptcy.
Upon termination or expiration of this Agreement or the licenses granted herein for any reason, you agree that you will cease all use of and will destroy all copies of the Software and Documentation in your possession or control, or return all such copies to CloudByte.
5. Limitation of Liability. CloudByte’s entire liability and your sole remedy for any failure of the Software to function in accordance with its Documentation shall be limited, at the election of CloudByte, to
a) replacement of the media containing the Software,
b) use of CloudByte’s reasonable efforts to correct, at no charge, Software errors of which CloudByte is the cause, or
c) accept return of the Software and associated documentation and refund your license fee paid for the Software (if any), less a reasonable fee for use up to the time of return.
CloudByte shall have no liability if failure of the Software is the result in whole or in part of abuse, misapplication, unauthorized modification or accident.
THE LICENSED SOFTWARE IS PROVIDED WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS OBTAINED AND PERFORMANCE OF THE LICENSED SOFTWARE IS ASSUMED BY YOU, AND CLOUDBYTE ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OR APPLICATION OF OR ERRORS OR OMISSIONS IN THE LICENSED SOFTWARE. EXCEPT AS MAY BE REQUIRED BY LAW, IN NO EVENT SHALL CLOUDBYTE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OFTHE USE OR INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF CLOUDBYTE HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. CLOUDBYTE SHALL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION; LOST PROFITS OR REVENUE; LOSS OF USE OF THE LICENSED SOFTWARE; LOSS OF DATA OR EQUIPMENT; THE COST OF SUBSTITUTE PROCUREMENT; CLAIMS BY THIRD PARTIES OR OTHER SIMILAR COSTS EXCEPT AS REQUIRED BY LAW. CLOUDBYTE’S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE AMOUNTS PAID TO COMPANY BY YOU FOR THE SOFTWARE OR, IN THE EVENT THAT COMPANY HAS MADE THE SOFTWARE AVAILABLE TO YOU WITHOUT CHARGE, COMPANY’S TOTAL LIABILITY WILL BE LIMITED TO $500.
The remedies set forth herein are exclusive and in lieu of all others, oral or written, expressed or implied. No CloudByte agent or employee or third party is authorized to make any modification or addition to this warranty.
6. Infringement Indemnification. CloudByte agrees to defend at its own expense any action brought against you to the extent that it is based on a claim that any Software infringes any United States or Berne Convention member country patent, copyright, or trade mark, and will pay any costs and damages finally awarded against you in any such actions which are attributable to any such claim. CloudByte’s obligation under the preceding sentence is subject to the conditions that:
a) you promptly notify CloudByte in writing of any such claim;
b) CloudByte has sole control of such defense and all negotiations for any settlement or compromise; and
c) should any Software become, or in CloudByte’s opinion be likely to become, the subject of any such claim, you permit CloudByte, at CloudByte’s option and expense, to procure for you the right to continue using such Software, to replace or modify it so that it becomes non-infringing, or to grant you a credit for such Software as depreciated on a three-year, straight-line basis, and accept its return.
CloudByte has no liability under this section with respect to any claim which is based upon or results from:
a) the combination of any Software with any equipment, device, firmware or software not furnished or approved by CloudByte; or
b) any modification of any Software by a party other than CloudByte,
c) the failure of others to install or have installed changes, revisions or updates as instructed by CloudByte if such would have made the Software non-infringing, or (iv) CloudByte’s compliance with your specifications, designs or instructions.
THIS PARAGRAPH STATES YOUR SOLE REMEDY AND CLOUDBYTE’S ENTIRE LIABILITY FOR ANY CLAIM RELATING TO INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.
7. U.S. Government Restricted Rights. The Software is licensed subject to RESTRICTED RIGHTS. Use, duplication, or disclosure by the US. Government or any person or entity acting on its behalf is subject to restrictions as set forth in subdivision (c)(1) (ii) the Rights in Technical Data and Computer Software Clause at DFARS (§252.227-7013 and §252.211-7015) for DoD contracts, in paragraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights clause in the FAR (§52. 227-19) for civilian agencies or in other comparable agency clauses.
8. Export and Re-export. You agree not to export, directly or indirectly, the Software or related technical data or information without first obtaining any required export licenses or other governmental approvals. Without limiting the foregoing, you, on behalf of yourself and your subsidiaries and affiliates, agree that you will not, without first obtaining all export licenses and approvals required by the U.S. Government:
a) export, re-export, transfer, or divert any such Software or technical data, or any direct product thereof, to any country to which such exports or re-exports are restricted or embargoed under United States export control laws and regulations, or to any national or resident of such restricted or embargoed countries; or
b) provide the Software or related technical data or information to any military end user or for any military end use, including the design, development, or production of any chemical, nuclear, or biological weapons.
9. Open Source Software Notice. The CloudByte Software is distributed with certain independent software that is licensed under the Free Software Foundation’s General Public License (“GPL”), Lesser General Public License (“LGPL”), Apache Software License Version 2.0 (“Apache License”), Common Development and Distribution License (“CDDL”), and other open source licenses (“Open Source Software”). The Open Source Software is identified on CloudByte’s website at www.CloudByte.com. Copies of the GPL, LGPL, Apache License, and CDDL licenses are available at www.opensource.org. For a period of three years from the date of your purchase of the Software, CloudByte will at your request provide to you a copy of the source code for the code licensed under the GPL, LGPL, and CDDL licenses including any modifications made by CloudByte. CloudByte may charge reasonable shipping and handling charges for such distribution. To the extent that any of the terms and conditions of the license agreement governing your use of the CloudByte Software conflict with any of the open source licenses governing the Open Source Software, the conflicting terms and conditions shall not apply to the corresponding Open Source Software.
10. Open Source Software Restrictions. Certain “Open Source” software – software available without charge for use, modification or distribution – is licensed under terms that require the user to make the user’s modifications to the open source software or any software that the user ‘combines’ with the open source software freely available in source code form. If you use open source software in conjunction with the CloudByte Software, you must ensure that your use does not:
a) create, or purport to create, obligations with respect to the CloudByte Software; or
b) grant, or purport to grant, to any third party any rights to or immunities under our intellectual property or proprietary rights in the CloudByte Software.
For example, you may not develop a software product using any CloudByte Software and any open source software where such use results in any file(s) that contain code from both the CloudByte Software and the open source software(including without limitation libraries) if the open source software is licensed under a license that requires any “modifications” be made freely available. You also may not combine the CloudByte Software with programs licensed under the GNU General Public License (“GPL”) in any manner that could cause, or could be interpreted or asserted to cause, the CloudByte Software or any modifications thereto to become subject to the terms of the GPL.
11. General. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the provisions of this Agreement shall remain in full force and effect. This Agreement will be governed by the laws of the state of California, USA. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded from this Agreement. CloudByte retains all rights not expressly granted. Nothing in this Agreement constitutes a waiver of CloudByte’s rights under U.S. copyright laws or any other federal, state, local, or foreign law or grants you any rights in source code. You are responsible for installation, management and operation of the Software.
Should you have any questions concerning this Agreement, contact CloudByte, Inc., 20863 Stevens Creek Blvd, Suite 530 Cupertino, CA 95014 USA. firstname.lastname@example.org
IF YOU AGREE TO THE FOREGOING TERMS AND CONDITIONS AND DESIRE TO DOWNLOAD OR COMPLETE INSTALLATION OF THE SOFTWARE, PLEASE CLICK THE “I AGREE” BUTTON BELOW. OTHERWISE, PLEASE CLICK THE “I DO NOT AGREE” BUTTON AND THE INSTALLATION PROCESS WILL STOP.