Infrascale, Inc. and its affiliates (collectively, “Company”), directly and indirectly through its resellers, distributes and licenses certain applications, utility programs, interfaces and other computer software (“Software”), which may from time to time be bundled with computer hardware leased, sold or otherwise provided along with the Software (“Hardware”). Company also provides cloud services and hosted services, consisting of, inter alia, electronic data transmission to and from data storage sites (“Service”). The Software, Hardware and Service shall collectively be referred to herein as the “Products”.
By downloading, installing or using the Software or Service or any portion thereof, the user of such Software or Service acknowledges and agrees to the terms and conditions of this Infrascale End User License Agreement (the “Agreement”) on its own behalf (in the case of an individual) or on behalf of a company or other legal entity (“Legal Entity”) for which such user represents and warrants that it has the legal authority to bind (“you” or “user”). If you do not agree to the terms and conditions set forth in this Agreement, do not download, install or use the Software or Service.
(a) Limited License. Subject to the terms of this Agreement, Company grants you a limited, personal, non-exclusive, non-sublicensable and non-transferable license to: (i) download, install and use the Software on one or more computers in the manner prescribed herein, provided that the Software is for your use for the sole purposes for which the Software is designed; and (ii) provided you possess a valid subscription to the Service, use the Service on one or more computers in the manner prescribed herein, provided that the Service is for your use for the sole purposes for which the Service is designed.
(b) Ownership. The Software and Service are licensed, not sold, to you by Company for use only under the terms of this Agreement. Company retains ownership of the Software and Service, and reserves all rights not expressly granted to you including without limitation any and all worldwide copyrights, patents, trade secrets, trademarks, mask works, proprietary and other intellectual property rights (collectively, “Intellectual Property Rights”) in or associated with the Software and Service.
(c) Copies; Use. You may not, under any circumstance, make copies of or attempt to duplicate, whether directly or indirectly, the Software or Service. In addition, you may not, directly or indirectly, do any of the following: (a) remove any copyright, trademark or other proprietary notices affixed to the Software or Service; (b) alter, change, repurpose or modify the Software or Service, other than as is provided for within the re-branding functionality; (c) reverse engineer, disassemble, decompile or attempt to derive source code from the Software or Service; (d) prepare derivative works, improvements or intellectual property based on the Software or Service; (e) use the Software or Service for any unlawful, immoral, unethical or unreasonable purpose or activity; or (f) cause or intend the Software or Service to be used in any way or manner that may violate the Intellectual Property Rights or other personal rights (including, but not limited to, privacy rights and ownership rights) of any other person or entity. At any time during the term of this Agreement or thereafter, Company shall have the right to audit your use of the Software and Service to confirm compliance with this Agreement. This section shall survive any termination or expiration of this Agreement.
In its sole and absolute discretion, Company may, from time to time, offer enhancements, updates, upgrades or other modifications to the Software and Service (collectively, “Updates”) to you, including, but not limited to, new versions of the Software or Service. Unless stated otherwise, you may accept or reject such Updates at your sole discretion and at your own exclusive risk. While Company may offer such Updates, unless expressly agreed otherwise in writing, Company is not required and is under no obligation to provide any maintenance or services to you, including without limitation any support or Updates. Unless explicitly stated otherwise in writing, the terms of this Agreement will govern any Updates provided by Company that replace, modify or supplement the Software and/or Service. Company may make Updates available by automatic download, whereby you agree to accept Updates upon your download of the Software.
Additional Representations, Warranties and Covenants
You hereby expressly represent, warrant, covenant and agree that: (a) you have full capacity, right and authority to enter into and perform this Agreement; (b) your use of the Products will not, directly or indirectly, infringe (in whole or in part) any Intellectual Property Rights, personal or privacy rights of any third party or Company; (c) your use of the Products will in all manners and respects comply with any and all applicable laws, rules and regulations; (d) your use of the Products will not in any manner, directly or indirectly, disparage, defame, discredit or harm Company or its reputation or goodwill; (e) your entry into this Agreement and/or use of the Products does not breach any of your obligations to any third party, breach any contract or agreement or violate any applicable rule, law or regulation; (f) your entry into this Agreement and use of the Products is for a bona fide purpose and you are not using the Products to distribute any services or software for an improper, illegal, immoral or unethical purpose.
User Legal Compliance
You agree to comply, at your sole and own expense, with any and all applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement. You will immediately report to us any and all suspected or actual violations of this Agreement of which you are or should be aware.
Company Disclaimer of Legal Compliance
Company does not provide any representations or warranties as to user’s compliance with applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement.
This Agreement shall remain effective and in full force and effect until expiration or earlier terminated by you or Company at any time upon notice to the other party. Upon expiration or termination, you agree to discontinue any and all use of the Software and Service and destroy, delete or uninstall any and all copies of the Software in your possession, whether on your computer or on any media or otherwise, and immediately cease using the Service. Following termination or expiration of the Agreement, Company may, in its sole and absolute discretion, choose to at any time erase, destroy and permanently delete any and all of your data, materials, content, information and files stored with, transmitted or backed up through Company. The following Sections shall survive any termination or expiration of this Agreement: Sections 1(c), 8, 9-11 and 13-15.
Other than the limited licenses expressly set forth in Section 1(a), nothing in this Agreement is intended to grant to you any rights including, without limitation, any Intellectual Property Rights of Company. All Intellectual Property Rights shall remain the sole and exclusive property of the Company and you shall gain no interest, right or title therein by entering into this Agreement or using the Software or Service. Further, nothing contained on or through the Software or Service, or in this Agreement, should be construed as granting (whether express, by implication, estoppel or otherwise) any license or right to you to use any Intellectual Property Rights or other proprietary information displayed in or through the Software or Service. The absence of a product or service name or logo anywhere in the text of the Software or Service does not constitute a waiver of any Intellectual Property Rights with respect to the name, logo, Software or Service.
Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS AND ALL INFORMATION, SERVICES, CONTENT AND MATERIALS THEREON AND THEREWITH ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, COMPANY MAKES NO WARRANTIES OF ANY KIND WHATSOEVER (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) TO YOU OR ANY OTHER THIRD PARTY. FURTHER, COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO ALL PRODUCTS OR OTHERWISE RELATED TO THIS AGREEMENT. MOREOVER, YOU AGREE THAT COMPANY WILL HAVE ABSOLUTELY NO LIABILITY WHATSOEVER WITH RESPECT TO ANY CLAIM RELATED TO, IN CONNECTION WITH OR ARISING FROM THE PRODUCTS (OR THEIR USE, SUITABILITY, EFFICACY OR PERFORMANCE), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTLY OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SPECIFICALLY, BUT WITHOUT LIMITATION, THE COMPANY DOES NOT WARRANT THAT: (a) THE INFORMATION, SERVICES, MATERIALS OR CONTENT ON THE SOFTWARE OR SERVICE IS CORRECT, ACCURATE OR RELIABLE; (b) THE FUNCTIONS CONTAINED IN THE SOFTWARE OR SERVICE OR THROUGH THE SOFTWARE OR SERVICE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (c) ANY DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE OR SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU HEREBY ACKNOWLEDGE THAT USE OF THE PRODUCTS IS AT YOUR SOLE AND ABSOLUTE RISK IN YOUR OWN DISCRETION. YOU AGREE THAT YOU WILL MAINTAIN A PRIMARY ELECTRONIC FILE OF YOUR COMPLETE DATA AND MATERIALS AND WILL NOT USE THE SOFTWARE OR SERVICE AS A SUBSTITUTE THEREFORE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS REPRESENTATIVES WILL UNDER ANY CIRCUMSTANCES CREATE A WARRANTY, UNLESS SPECIFICALLY SET FORTH IN AN EXPRESS WRITING SIGNED BY AN OFFICER OF THE COMPANY. SHOULD THE SOFTWARE OR SERVICE PROVE DEFECTIVE OR ERRONEOUS, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICE, REPAIR OR CORRECTION AND WE WILL HAVE ABSOLUTELY NO LIABILITY WITH RESPECT THERETO.
Limitation of Liability
Notwithstanding anything to the contrary contained herein, other than pursuant to a party’s indemnification obligations under Section 11 below, in no event shall either party: (i) be liable to the other party (regardless of the theory of liability) or any third party for any indirect, special, consequential, incidental or punitive damages (including without limitation for lost profits or revenues), even if such party was informed of the possibility of such damages, related to, in connection with or arising from this Agreement or the Products; or (ii) have total cumulative liability hereunder (regardless of the theory of liability) related to, in connection with or arising from this Agreement or the Products exceeding ten dollars ($10.00). Any claim by you arising out of or relating to this Agreement must be brought within one (1) year after the occurrence of the event giving rise to such claim. You expressly acknowledge and agree that the limitations of liability set forth in this Section 10 are an essential element of this Agreement, and in the absence of such limitations, the economic terms of this Agreement would have been substantially different than provided herein and/or the parties would not have entered into this Agreement.
Modifications of the Agreement
The Company may change any term of this Agreement on a prospective basis, and modify, add or discontinue any aspect, content or feature of the Software or Service, at its sole discretion. Your continued use of the Software or Service after any such modifications or changes are posted will constitute your complete and unequivocal acceptance of any such modifications or changes to the Agreement. You agree to periodically review this Agreement to ensure that you are in compliance with any ongoing changes or modifications that are made to the Agreement. To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to these Terms would render this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes, to the extent necessary to avoid these terms being deemed illusory or unenforceable.
Notwithstanding anything to the contrary contained in Section 15 below, you expressly agree that any use of the Products by you that violates or is inconsistent with the terms of this Agreement (in whole or in part) may: (i) cause Company irreparable damage, and (ii) equitable or injunctive relief (including, but not limited to, specific performance) may be necessary to protect our rights or interests. Accordingly, you agree that Company may in any such instance, in its sole and absolute discretion and judgment, obtain any suitable injunctive or other equitable relief from any court of competent jurisdiction (without posting any bond) and that you will not assert any objection thereof (including, but not limited to, a claim that such relief is inappropriate or that the harm alleged by Company is not irreparable).
If you are dissatisfied for any reason with the Software or Service or the terms and conditions of this Agreement, your sole and exclusive remedy (whether at law or equity) shall be to discontinue your use of the Software and Service and terminate this Agreement as described herein.
(a) Governing Law. This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of California, without regard to the conflicts of law provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to the Agreement.
(b) Disputes. By agreeing to these terms, you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. If Company’s efforts to informally resolve any complaints, disputes or disagreements fail, each party expressly agrees that any controversy, dispute or claim (“Litigation”) arising out of, relating to or in connection with, this Agreement or the Software or Service, or the alleged breach thereof, shall be settled by confidential binding arbitration in Los Angeles County, California, in accordance with the applicable rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) shall be binding on the parties and may be entered in any court having jurisdiction worldwide. Regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to the Software or Service or this Agreement must be filed or arbitrated by you within one (1) year after such claim or cause of action arose or be forever barred. In the event of any Litigation, both parties expressly and irrevocably consent to the exclusive venue and personal jurisdiction in Los Angeles County, California. In the event of any Litigation arising from, related to or in connection with this Agreement or the Software or Service, the prevailing party thereof shall be entitled to recover its reasonable expenses, including without limitation attorneys’ fees and the costs of litigation and arbitration. By downloading, installing and/or using the Software or Service, you agree to binding arbitration. Company will make every reasonable effort to informally resolve any complaints, disputes or disagreements that you may have with Company. The agreement to arbitrate in this Section 15(b) shall not prevent Company from seeking equitable relief or other redress in any court of competent jurisdiction as it relates to confidential information or as otherwise set forth in Section 13.
(c) Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, then: (i) such provision will be enforced to the maximum extent permissible under the circumstances so as to effectuate the original intent of the parties with respect to such provisions; and (ii) the remaining provisions of this Agreement will be unaffected thereby and will continue to remain in full force and effect.
(d) Force Majeure. Company will not be liable for any failure to perform acts due to causes beyond its control including, without limitation, electrical outage, internet service provider downtime, power failure, fire, flood, strike, civil disturbance, terrorism, war or Acts of God. If any such circumstances occur, Company shall use commercially reasonable efforts to attempt to provide reasonable notice to you of the same. The time for Company to perform hereunder will be extended for a period of time equal to the duration of the delay or default caused thereby.
(e) Notices. Unless otherwise stated herein, any notices to Company hereunder shall be in writing and be delivered by mail, facsimile or electronic mail to the persons and at the address as set forth below, and shall be deemed given upon (i) three (3) business days after mailing if by certified or registered first class postal mail, return receipt requested, or (ii) confirmation of transmission in the case of facsimile or electronic mail. Either party may change its address for receipt of notice to the other party by delivering written notice of such change pursuant to this Section 15(e).
Infrascale, Inc. 999 N. Sepulveda Blvd., Suite 100
El Segundo, CA 90245
United States of America
Attn: Legal Notices
(f) Assignment. Neither this Agreement, nor any rights or obligations hereunder, may be assigned or otherwise transferred by you without the prior written consent of Company; Company may assign this Agreement in whole or in part to an acquirer of all or substantially all of its business or assets that are the subject matter of this Agreement without written consent. Any attempted assignment by a party in violation of this Section 15(f) shall be null and void ab initio. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns.
(g) Assent. Your written or electronic signature is not necessary to manifest your assent or acceptance of this Agreement, and your use of the Software or Service as discussed herein shall in and of itself constitute such assent and acceptance, which acceptance shall constitute a valid and legally binding agreement.
(h) Construction. The article, section and paragraph headings used in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement. This Agreement shall be interpreted as having been drafted together by each of the parties and duly reviewed by each party with the assistance of its respective legal counsel.
(i) Relationship. Nothing in this Agreement will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties. Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party. Nothing contained in this Agreement should be construed to give either party the power to direct or control the day-to-day activities of the other party. The provisions of this Agreement are intended solely for the benefit of Company and you, and shall create no rights or obligations enforceable by any other party.
(j) Waiver. Failure by Company to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision. A waiver by Company of any right, remedy or provision hereof shall only be effective if it is in an express writing that is signed by a duly authorized officer of Company.
(k) Entire Agreement. This Agreement contains the entire understanding between Company and you with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements or understandings (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof.
(l) Export Restrictions. You agree to comply with applicable export and re-export laws, regulations and restrictions (including but not limited to end-user, end-use, and destination restrictions) issued by the United States, and any country where the Software or Service is to be delivered, installed or used in the performance of this Agreement. You shall disclose all pertinent information to Company required for Company to comply with any applicable export laws or regulations.
This Agreement was last revised on February 6, 2017.