|EULA (August 2012)|
BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.
"Community Edition" means a limited functionality perpetual version of the Product, if any, designated as such and which is made available without charge by Company.
"Enterprise Edition" means a full functionality perpetual version of the Product designated as such and which is made available by Company for the applicable fees.
"Company" means Nexenta Systems, Inc. and its affiliated companies.
"Desktop Virtual Machine" means a Virtual Machine with an operating system that is supported as set forth in the current Documentation (e.g., Windows XP, Vista, and 7).
"EULA" means this Nexenta End User License Agreement and any applicable Quote, if any. In the event of a conflict between the terms of this agreement and an applicable Quote, the latter shall control and govern.
"License Key" means a document (in physical or electronic format) provided by Company or its authorized distributors that identifies: (i) the Product, including edition, licensed to You; (ii) the machine signature of the computer on which use of the Product is enabled; (iii) the codes that initialize use of such computer; and, (iv) the License Term, if applicable.
"License Term" means the period during which the Product may be used by You, commencing on the date of issuance of Your License Key and continuing (a) in the case of the Enterprise Edition and the Community Edition licenses, in perpetuity, and (b) in the case of the Trial Edition licenses, for the period specified by Company when you register the Product or acquire Your License Key (but in no event more than sixty (60) days).
"Product" means the applicable Nexenta software product that You are licensing and including all associated applications, plug-ins and adapters that are provided and enabled, and any bug fixes, patches and maintenance releases provided by Company. The Product specifically excludes (a) any features that are not enabled by the License Key corresponding to the edition You have licensed, (b) any Third Party Software, and (c) any other current or future Editions or any separately priced Company products containing substantially new functionality and features that may be developed or offered from time to time.
“Quote” shall mean a quote issued by Company and accepted by You by execution or by issuance of a purchase order referencing such quote.
"RAW Storage Space" means the total amount of disk storage that is managed by the Product, but excluding disk storage occupied by the Product’s operating system (known as “syspool”).
"Site" means Nexenta Systems, Inc. website: http://www.nexenta.com
"Third Party Software" means any separate third party software which may be distributed or bundled with the Product.
"Trial Edition" means a full functionality time-limited version of the Product designated as such and which is made available without charge by Company.
"Virtual Machine" means a software implementation of a computing environment in which an operating system (OS) guest can be installed and run.
"You" means the natural person or the entity that is agreeing to be bound by this EULA, their employees and third party contractors that provide services to You. The individual entering into this EULA on behalf of You hereby represents that such individual is Your employee or agent and has authority to enter into this EULA on behalf of You.
2. TERMS AND CONDITIONS
2.1. The Product is licensed, not sold. Company grants You a non-exclusive, non-sublicensable, non-transferable, perpetual (except as to Trial Edition licenses), world-wide license for a user to use the Product (in object code format) during the License Term, subject to the terms and conditions of this EULA and in accordance with the generally available specifications and documentation provided with the Product (collectively, the "Documentation"), as follows:
The Product may not otherwise be shared or used concurrently on different computers.
2.2 If You have acquired a Community Edition license, the total amount of RAW Storage Space is limited as specified on the Site and is subject to change without notice. The Community Edition may ONLY be used for educational, academic and other non-commercial purposes expressly excluding any commercial usage. The Trial Edition licenses may ONLY be used for the sole purposes of evaluating the suitability of the Product for licensing of the Enterprise Edition for a fee. If You have obtained the Product under discounted educational pricing, You are only permitted to use the Product for educational and academic purposes only and expressly excluding any commercial purposes.
2.3. The Product must be activated with a License Key that can be obtained by registering the Product with the Company. License Keys for the Community Edition can be obtained by registering the Product at http://www.nexenta.com/register-eval. License Keys for the Trial Edition can be obtained by registering the Product at the Free Trial Registration page on the Site.
2.4 You may purchase the Product license either through Company or through its authorized third party vendors ("Third Party Vendors"). If You purchase the Product license from any Third Party Vendor, then the applicable terms and conditions of this EULA, along with the terms and conditions provided by such Third Party Vendor, will govern such purchase. To the extent that such Third Party Vendor terms conflict with the terms of this EULA, as between You and Company, this EULA will control.
2.5. You agree that You will NOT without the express written authorization of Company (a) copy, sell, sublicense, or otherwise transfer the Product to any third party; (b) remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on or in the Product; (c) except to the extent expressly permitted by applicable law, and to the extent that the Company is not permitted by that applicable law to exclude or limit the following rights, You will not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Product, in whole or in part; or (d) modify or create derivative works of the Product.
2.6. Company may update, modify or discontinue offering the Product, discontinue offering support and maintenance for the Product or revise the Documentation at any time without prior notice to You. If Company delivers a revision of the Product, You agree and acknowledge that Company shall have no responsibility for testing that the Product is compatible with previously delivered versions of the Product, other than to one (1) prior minor version, if any (designated as e.g., version 2.0 to 2.1). All prices mentioned on the Company Site are subject to change without notice.
2.7. Product Descriptions; Pricing; Errors. Company attempts to be as accurate as possible and eliminate errors in the Product and Documentation. However, Company does not warrant that the Product and the Documentation is accurate, complete, reliable, stable, defect free, current, or error-free. In the event of an error, Company reserves the right to correct such error at any time.
2.8. Third Party Software. The Third Party Software is separately licensed and governed exclusively by the applicable license agreement included with such software packages (“Third Party Terms”). You agree to comply with the Third Party Terms. COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES EXPRESS OR IMPLIED FROM ANY THIRD PARTIES REGARDING ANY THIRD PARTY SOFTWARE, AND THE USE OF ANY OR ALL THIRD PARTY SOFTWARE IN CONNECTION WITH THE PRODUCT, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NO THIRD PARTY LICENSORS OF THIRD PARTY SOFTWARE SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AND WHETHER MADE UNDER CONTRACT, TORT OR OTHER LEGAL THEORY, ARISING IN ANY WAY OUT OF THE USE OR DISTRIBUTION OF ANY THIRD PARTY SOFTWARE OR THE EXERCISE OF ANY RIGHTS GRANTED UNDER EITHER OR BOTH THIS AGREEMENT AND THE LEGAL TERMS APPLICABLE TO ANY THIRD PARTY SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3.1. In consideration for the license granted by Company under this EULA, You shall pay Company the fees as set forth in the applicable Quote or otherwise quoted to You in writing. All amounts due by You to Company and not paid within thirty (30) days of the due date shall bear interest at the lower of the rate of one and one-half percent (1½ %) per month or the highest rate allowed by law, from the date due until the date payment is received by Company.
3.2. Taxes. You shall, in addition to the other amounts payable under this EULA, pay all sales, use, excise, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this EULA (excepting Company’s corporate franchise and net income taxes).
3.3. You agree to implement reasonable controls to ensure compliance with the intended use of the Product authorized by this EULA. Company reserves the right to have a compliance audit performed, no more often than once every 12 months, of Your deployment and use of the Product at any time during Your normal business hours at Your principal place of business, upon no less than five (5) business days written notice and at Company’s expense, by inspecting records, information and systems that are directly relevant to such compliance. The audit and any results thereof or information learned shall be maintained as confidential information.
4. MAINTENANCE AND SUPPORT
4.1. Except as to any Trial Edition and Community Edition licenses (for which no support or maintenance is provided), You shall be entitled to receive the support and maintenance for the use of the Product and the Third Party Software during the “Support Period” as set forth on the Site or for which You have paid a separate additional fee. “Support Period” shall mean the period(s) set forth in the Quote or, if Your license was acquired via the Site or by placement of an accepted purchase order, the period otherwise specified by Company in writing, and any mutually agreed renewals or extensions thereof, in each case for which You have paid all applicable fees.
4.2. You acknowledge that Company has no obligation to (i) continue offering support or maintenance after expiration of the Support Period, (ii) provide updates for other than the current release of the Product, and (iii) issue updates, upgrades or bug fixes at any time or on any regular schedule and Company shall develop and issue updates, upgrades or bug fixes in its sole and absolute discretion.
4.3. No Support of Modifications. Any modifications of the Product and any Third Party Software will not be supported by the Company unless indicated otherwise by expressed written authorization. Company will not be liable for any modifications to the Product, or any Third Party Software included with the Product, or any errors or damages resulting from such modifications. COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE USE OF THE THIRD PARTY SOFTWARE.
4.4. UNIX shell. You agree that You will not use UNIX shell which constitutes part of the Third Party Software to administer or reconfigure the Product unless pre-approved by the Company. Any administration or reconfiguration of the Product shall be in accordance with the Documentation. Using UNIX shell without authorization of the Company will not be supported, and the Company will not be liable for any errors or damages resulting from such usage.
5. OWNERSHIP; CONFIDENTIALITY
5.1. Company and its licensors retains all right, title, and interest in and to the Product, Documentation and License Keys and in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights. Except for the limited license expressly granted herein, this EULA does not grant You any rights to intellectual property rights in or to the Product. Any suggested modifications or improvements to the Product submitted to Company by You become Company’s exclusive property to exploit or to not exploit as the Company solely deems appropriate without necessity for remuneration or attribution to You.
5.2. You acknowledge that the Product, License Keys, and any benchmarking data and related information mentioned in Section 5.3 contains trade secrets and confidential material and you agree to maintain all such information in confidence and apply security measures no less stringent than the measures which you apply to protect your own like information, but not less than a reasonable degree of care, to prevent their unauthorized disclosure and use. Subject to any restrictions imposed by applicable law, the period of confidentiality shall be indefinite. You agree that you shall not use any such information other than in normal use of the Product under the licenses granted in this Agreement.
5.3. This Agreement does not prevent you from using the Product for internal benchmarking purposes. However, you shall treat any and all benchmarking data relating to the Product, and any other results of your use or testing of the Product which are indicative of its performance, efficacy, reliability or quality, as confidential information and you shall not disclose such information to any third party without the express written permission of Company.
6. LIMITED WARRANTY
6.1. Except as to any Trial Edition and Community Edition licenses, Company warrants to You that, for a period of thirty (30) days after Your initial installation of the Product, the unmodified portions of the Product shall conform substantially to the then current Documentation. AS TO ANY DEFECTS DISCOVERED AFTER THE THIRTY-DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Any updates to the Product, including without limitation, those provided after the expiration of such 30-day period are not covered by any warranty or condition, express, implied or statutory. To the extent that the Product is derived from third-party software or licensed from third parties, no such third party warrants the Product, assumes any liability regarding use of the Product or undertakes to furnish You any support or information relating to the Product. You shall be solely responsible for the choice of proper hardware and all hardware maintenance, including periodic inspections, adjustments and repair.
6.2. Exclusive Remedy for Breach. If the Product fails to conform to the warranty in Section 6.1, You must notify Company within a reasonable time and in no event more than fifteen (15) days after the discovery of the nonconformity. Company will investigate and, in the event of a breach of warranty, will provide within a reasonable time and at Company sole option one of the following: (a) use commercially reasonable efforts to correct any reproducible error in the Product constituting a breach of the warranty at no additional charge, (b) replacement of any nonconforming Product with conforming Product; or (c) refund of the unamortized portion of the applicable fees paid to the Company by You (as amortized over the three year period following Your installation of the Product) in exchange for return of the Product. THE REMEDY SELECTED BY COMPANY IN ACCORDANCE WITH THIS PARAGRAPH SHALL BE YOUR EXCLUSIVE AND SOLE REMEDY FOR ANY BREACH OF WARRANTY.
6.3. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, COMPANY DOES NOT WARRANT THAT YOUR USE OF THE PRODUCT WILL BE FREE OF DEFECT, STABLE, ERROR-FREE OR UNINTERRUPTED AND THE PRODUCT IS PROVIDED TO YOU ON AN "AS IS" OR "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY AND WHETHER ARISING OUT OF A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. COMPANY EXPRESSLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
7.1. IP Infringement Indemnification. Expressly subject to Section 9.1, and except as to any Trial Edition and Community Edition licenses, Company agrees to defend You and Your directors, shareholders, officers and employees, in any claim, action or suit brought or threatened and based on an allegation that the Product infringes a US, Canadian or European Union copyright, trade secret or validly issued patent right of a third party (that is not affiliated with You), including reasonable attorneys’ fees. Company will also pay all damages awarded therein against You or settlement agreed upon with Company. You shall promptly notify Company of such action and give Company authority, information, and assistance (at Company’s expense) for the defense of such suit or proceeding. Company shall have no liability or obligation hereunder for any infringement based on or resulting from (a) the combination or use of the Product with other programs, components or products to the extent arising from the combination or use, if the infringement would not have occurred but for the combination; (b) any modification of the Product by anyone other than Company or a party acting on its behalf, (c) the use of other than the most recent version of the Product if the infringement or claim would have been avoided by use of the most recent version; or (d) use of the Product in any way not contemplated under this EULA. YOUR SOLE AND EXCLUSIVE REMEDIES AND COMPANY’S SOLE AND EXCLUSIVE LIABILITIES FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS ARE SET FORTH IN THIS SECTION 7.1.
8.1. Termination. Company may terminate this EULA immediately and without notice if You fail to comply with any term of this EULA. You may terminate this EULA immediately and by destroying the Product together with all copies, modifications, and merged portions thereof in any form. Either party shall have the right to terminate this EULA as to any Trial Edition licenses for any reason at any time. Either party shall have the right to terminate this EULA in the event the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
8.2. Effect of Termination. In the event of termination, You must destroy all copies of the Product. The parties’ rights and obligations which, by their nature, would continue beyond the termination of this EULA, including but not limited to those rights and obligations of the parties set forth in Sections 1 (Definitions), 2.5, 2.6, 2.7, 2.8, 3 (Fees), 4.2, 5 (Ownership; Confidentiality), 6.3, 8 (Termination), 9 (Limitations of Liability) and 10 (General) will survive such termination, cancellation or expiration.
9. LIMITATIONS OF LIABILITY
9.1. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL COMPANY, ITS LICENSORS OR RESELLERS, OR THE THIRD PARTY VENDORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST REVENUE, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS EULA OR THE USE OR INABILITY TO USE THE PRODUCT OR ANY DOCUMENTATION SUPPLIED THEREWITH, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS EULA OR THE PRODUCT EXCEED THE GREATER OF THE FEES ACTUALLY RECEIVED BY COMPANY FROM YOU FOR THE PRODUCT AT ISSUE OR TEN DOLLARS ($10). THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS SECTION 9.1 DOES NOT LIMIT ANY LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR FOR FRAUDULENT MISREPRESENTATION.
9.2. Disclaimer of Tort Liability. The foregoing warranties and remedies are EXCLUSIVE, and You waive and release all other warranties, obligations, and liabilities of Us and all other remedies, claims, and rights that You may have relating in any way to the Product covered by this EULA, whether arising from contract, warranty, strict liability or tort or from Company's negligence, tort, or other fault, including claims for loss of or damage to the Product.
10.1. Entire Agreement. This EULA constitutes the entire and only agreement between the parties for Product and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties.
10.2. Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
10.3. Severability. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
10.4. United States Government End Users. For any Product licensed directly or indirectly on behalf of a unit or agency of the United States Government, this paragraph applies. Company's proprietary software embodied in the Product: (a) was developed at private expense and is in all respects Company's proprietary information; (b) was not developed with government funds; (c) is Company's trade secret for all purposes of the Freedom of Information Act; (d) is a commercial item and thus, pursuant to Section 12.212 of the Federal Acquisition Regulations (FAR) and DFAR Supplement Section 227.7202, Government's use, duplication or disclosure of such software is subject to the restrictions set forth by the Company.
10.5. Attorneys Fees. In the event of any arbitration or legal proceeding arising out of or relating to this EULA, the arbitrator or court in such proceeding shall have discretion to award the prevailing party’s reasonable and actually incurred attorneys’ fees and costs in such action or proceeding, including the costs of enforcement of any judgment.
10.6. Publicity. You grant Company the right to use Your name and logo and to otherwise refer to You as a customer in promotional material (including, but not limited to, on the Site and in case studies, advertising, press and similar public disclosures in any medium or format) relating to the Company and Product. You, in Your sole discretion, can revoke this right by submitting a written request via email to email@example.com, requesting to be excluded from certain or all such promotional materials (which shall be effective within 30 days) and Company shall make no further reference to You.
10.7. Export Restrictions. You may not export or re-export the Product except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable.
10.8. Disputes. This EULA shall be governed, construed and enforced in accordance with the laws of the United States of America and of the State of California. All disputes arising out of or relating to this EULA will be exclusively resolved in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "AAA Rules") under confidential binding arbitration held in Santa Clara County, California. To the fullest extent permitted by applicable law, no arbitration under this EULA will be joined to an arbitration involving any other party subject to this EULA, whether through class arbitration proceedings or otherwise. Any litigation relating to this EULA shall be subject to the jurisdiction of the Federal Courts of the Northern District of California and the state courts of the State of California, with venue lying in Santa Clara County, California. The cost and expense of arbitration will initially be shared equally by the parties to the arbitration, subject to an award to the prevailing party pursuant to Section 10.5. The decision or award of the arbitrator will be final and binding upon the parties, and to the same extent and to the same degree as if the matter had been adjudicated by a court of competent jurisdiction and will be enforceable under the Federal Arbitration Act.
10.9. Assignment. You shall not assign or otherwise transfer the Product or this EULA, or any rights or duties hereunder, to anyone, including any parent, subsidiaries, affiliated entities or third parties, without Company’s prior written consent, which consent shall not be unreasonably withheld. For the purposes of this Section, if You are not a publicly traded company, a change in the persons or entities that control fifty percent (50%) or more of Your equity securities or voting interest shall be considered an assignment. Company shall have the right to assign this EULA or delegate its duties hereunder.
10.10. Force Majeure. Except for the parties’ obligations to make payments hereunder, neither party shall be responsible for delay or failure in performance caused by any government act, law, regulation, order or decree, by communication line or power failures beyond its control, or by fire, flood or other natural disasters or by other causes beyond its reasonable control, nor shall any such delay or failure be considered to be a breach of this EULA.
If You have any questions about this EULA or Product, or if You want to contact Company for any reason, please email firstname.lastname@example.org.
Nexenta EULA Version 2.1; Last updated: August 28, 2012
Nexenta End User License Agreement ©2012 Nexenta Systems, Inc. All rights reserved. Nexenta is a registered trademark of Nexenta Systems, Inc. in the US and other countries.