This End User Software License Agreement (this “Agreement” or “EULA”) is an agreement between you and Centerity Systems, Inc. (“Centerity”) that is subject to and made a part of the Order Form (as defined below) that either specifically references this Agreement or to which this Agreement is attached, and governs the use of our software products (as further described below, (“Products”) that are delivered to you by Centerity or by a Centerity reseller.
Unless otherwise agreed to in writing, by installing or commencing use of the Products, you signify your agreement with all the terms and conditions of this Agreement and you indicate your intent that the Agreement be legally binding and enforceable against you.
- “Product” means an object code of the Centerity’s software, as well as the enhancements and accompanying User Documentation (supplied in machine- readable format), and as further specified and described in the Order Form.
- “Order Form” means one or more ordering documents, which shall contain, among other items, the: (a) the effective date of the License; (b) Product Description; (c) License Fee; (d) License Term; (e) the Licensed Capacity that is specified in terms of monitored metrics, devices, end-points, run-times for example or any other measure specified (f) any special conditions, to the extent approved by the Centerity in writing. The Order Form proves your payment commitment and authorization to use the Product.
- “License Term” means the period of time during which a particular license for the Product is valid, as indicated in the Order Form. If no such period of time is indicated in the relevant Order Form, the License Term for that particular license will be considered to be one (1) year from the date the Products are made available or accessible to you. Unless otherwise stated in the applicable Order Form, each License Term shall commence upon the date the Products are made available to you via Centerity’s website or otherwise..
- “Licensed Capacity” means the maximum amount of a specific measure that governs your use of the Product licensed as established in the Order Form.
- ”User Documentation” is the standard user documentation furnished to you by Centerity along with the Product.
- “You”, “you”, “Your” and “your” refer either to an individual person or to a single legal entity who signed the Order Form and accepts and agrees to be bound by the terms of this Agreement.
- “Affiliate” is an entity that controls, is controlled by or shares common control with Centerity or You, where such control arises from either (a) a direct or indirect ownership interest of more than 50%, or (b) the power to direct or cause the direction of the management and policies, including through the direct or indirect ownership of more than 50% of the shares.
- Licenses are granted and Support is obtained, solely by execution of Order Forms. Order Form may be executed under this Agreement between: (a) Centerity or an Affiliate of Centerity or through a Centerity distribution partner; and (b) You or Your Affiliate. You shall be responsible for Your Affiliates compliance with the terms of this Agreement. This Agreement contemplates the current and/or future execution by the parties of one or more Order Form(s), which shall be attached hereto and incorporated herein by reference.
- Each Order Form shall be considered a separate license conferring upon You permission to use the Product as specified therein. Centerity shall be under no obligation to issue or accept any Order Form under this Agreement. No Product shall be furnished to You solely by virtue of this Agreement but shall require the issuance of an Order Form.
3. LICENSE TERMS
- Subject to your payment of the applicable license fees, and the terms and conditions of this Agreement, Centerity hereby grants you a personal, nonexclusive, nontransferable and non-sublicensable license, during the License Term specified on the Order Form, to: (a) use the Product in support of your internal business activities and within the scope of license and License Capacity specified on the applicable Order Form; (b) make and install one (1) backup copy of the Product to support such use so long as the original and copy are not in use at the same time and (c) use the User Documentation only in conjunction with your installation and permitted use of the Product. You will reproduce all copyright notices and all other legends of ownership on each copy, or partial copy, of the Product and User Documentation. Centerity reserves all license rights not expressly granted under this Agreement. This Agreement does not convey to you an interest in or to the Product, but only a limited right of use revocable in accordance with the terms of this Agreement.
- Trial License. This paragraph applies if you obtain the license for the Product on a trial evaluation basis, as may be specified on your Order Form, or if Centerity has provided you access to the Product for trial and evaluation prior to purchase of a license. Unless specified in the Order Form, the Trial License is limited to the first
thirty (30) days after You install the Product. If you decide to use the Software after the 30-day trial period, you must purchase a license. Trial License is provided “as is” and Centerity does not provide any warranties, maintenance or technical support for such Product and You assume all risk of your use of the Product. By using a Trial License, You waive all express and implied warranties and conditions. Either Party upon notice to the other may cancel the trial period with immediate effect. Upon termination or expiration of the trial period, You shall either execute an Order Form covering the Product or cease using the Product.
- Subscription License. In the event you obtain the license for the Product on a subscription basis for a limited term (as specified on your Order Form), the license rights granted to You in this Agreement are for a limited time (which time is indicated on your Order Form), and your license to use the Product expires on the date the subscription term expires as set forth in the applicable Order Form, unless the License Term has been renewed and by mutual written agreement or by a new Order Form.
You agree not to: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile, or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation; (d) provide a third party with the results of any functional evaluation or performance tests, without Centerity’s prior written approval; (e) distribute, rent, lease, sublicense, or provide the Product to any third Party; (f) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliated third parties or allow the Products to be used by an outsourcing or service bureau provider on Your behalf; or (f) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. LICENSE KEY AND TIME CLOCK
Centerity employs a license key (“License Key”) to enable activation and use of the Product. The Products are accepted on the date Centerity delivers the License Key to You. Centerity administers the generation and distribution of License Keys. The Product may contain embedded time clocks or similar security devices that may disable your ability to use the Product after the expiration of the License Term (e.g., expiration of the trial license period if you obtain the license for the Product on a trial evaluation basis) or beyond the License Capacity. In the event of termination of this Agreement prior to expiration of the applicable License Term, Centerity reserves the right to electronically disable your ability to use the Product after notifying you of Centerity intention to do so.
6. CHARGES, PAYMENT AND TAXES.
- If You purchased the Product directly from Centerity, You will pay each License fee and/or Support fee upon receipt of invoice. You will pay, or reimburse, Centerity or when required by law the appropriate governmental agency for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on Centerity’s net income) imposed in connection with the License and/or the Support fees which are exclusive of these taxes.
- Delivery of the Product is made electronically. Upon request from Centerity, You shall provide Centerity with documentation supporting that the designated Product was received electronically. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
- You understand that the subscription fee payable for the Product license is based on the scope and level of use acquired that is specified in the Order Form. If You wish to increase the scope or level of use, you must purchase additional license rights and pay any applicable charges.
Any and all payments made to Centerity pursuant to this Agreement are non-refundable. Unless otherwise specified in the Order Form, payment is made within thirty (30) days of the date of Centerity’s invoice.
7. THIRD PARTY SOFTWARE
The Product and future updates and upgrades to the Product may contain or be accompanied by certain third party software including open source software that (i) is provided to you under terms and conditions that are different from this Agreement (“Third Party License Agreement”) and/or (ii) requires Centerity to provide you with certain notices and/or information (“Third Party Notices”). Unless otherwise stated, such third party and open source software is identified in Centerity’s User Documentation including copies of the Third Party License Agreement and the Third Party Notices, and the use of such third party software is subject to such Third Party License Agreement and not this Agreement.
8. PROPRIETARY RIGHTS AND CONFIDENTIALITY
- Centerity, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. All modifications to the Product, whether made by Centerity or You, or for You by any party, shall be the sole property of Centerity. The Product and all third party software provided with
the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. Centerity reserves any rights not expressly granted to You in this Agreement. No title to any copy of the Product, nor title to any intellectual property rights therein, is transferred to You by this Agreement. The Product is licensed, not sold. You will ensure that anyone who uses the Product (accessed either locally or remotely) does so only for your authorized use and complies with the terms of this Agreement.
- Neither You nor Your employees or agents shall cause or allow the Product or any information or data identified as Centerity confidential, trade secret, or proprietary information to be disclosed to third parties, duplicated, or used except as expressly permitted in this Agreement. You shall take all reasonable steps, both during and after the term of this Agreement, to ensure that no unauthorized parties or persons will have access to the Product and that no unauthorized copy, distribution or disclosure, whether in whole or in part, is made in any form.
9. PRODUCT WARRANTY.
- During your License Term if under a subscription license (the “Software Warranty Period”), Centerity warrants that the Software, when used as permitted under this Agreement and in accordance with the instructions in the User Documentation, will operate substantially as described in the User Documentation and, that the media (for example, CD-ROM) on which the Product is delivered will be free from material defects in materials and workmanship. If the License Term is specified as being perpetual, the Software Warranty Period shall commence on at the start of the License Term and terminate ninety (90) days later.
- Centerity will, at its own expense and as its sole obligation and your exclusive remedy for any breach of this warranty, (i) in case of a media defect, replace the defective media, and (ii) in case of a Product error, use commercially reasonable efforts to correct any material reproducible error in the Product reported to the party from whom you acquired it (i.e., Centerity or its Reseller) by You, in writing during the Software Warranty Period or, if Centerity determines that it is unable to correct such error, You may contact the party from whom you acquired the Product for instructions on how to obtain the refund. Any such error correction provided to you will not extend the original Software Warranty Period.
- This warranty will not apply to any problems caused by hardware, computers, or software other than the Product, errors not attributable to the Products, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the Software Warranty
Period or not in compliance with the notice and access requirements set forth below. No warranty of any kind under a Trial License.
- You rights and Centerity’s obligations in this Section are conditioned upon You providing Centerity during the Software Warranty Period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the Centerity that includes notice of the claim and a complete description of the alleged defects sufficient to permit their reproduction in Centerity’s development or support environment.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND CENTERITY, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CENTERITY DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
THE ABOVE WARRANTY OBLIGATIONS DO NOT APPLY TO THIRD PARTY SOFTWARE. NO SUCH THIRD PARTY ASSUMES ANY LIABILITY WITH RESPECT TO THE PRODUCT OR UNDERTAKES TO PROVIDE ANY SUPPORT OR INFORMATION REGARDING THOSE ELEMENTS OF THE PRODUCT.
10. PRODUCT SUPPORT.
- You may acquire Centerity support services (“Support”) on an Order Form for the total Licensed Capacity of a Product. The fees paid under Subscription Licenses include the Support fee. Perpetual License requires separate payment and purchase of annual Support.
- Once Support is acquired for a Product, You are automatically enrolled in Support on an annual basis for all Licensed Capacity of that Product, unless either party terminates Support on all Licensed Capacity of a Product upon at least 30 days written notice prior to the next Support anniversary date. The annual fee for Support will be agreed upon at the time of each Order Form. A further description of Support is located at Centerity Support Policy, and is incorporated herein by this reference. Centerity may change its Support terms to be effective upon Your support anniversary date. Centerity reserves the right to discontinue Support for a Product where Centerity generally discontinues such services to all licensees of that Product. If You terminate Support and then re-enrolls in Support, Centerity may charge You a reinstatement fee.
11. INFRINGEMENT CLAIMS.
- If a third party asserts a claim against You asserting that Your use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then Centerity will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify You for any damages finally awarded against You based on infringement by the Product.
- Centerity’s obligations under this Section will not apply if: (a) Centerity does not receive prompt, detailed written notice of the Infringement Claim You, (b) Centerity is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) Centerity does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by Centerity in the User Documentation,
(ii) Your failure to use any updates to such Product within a reasonable time after such updates are made available by Centerity, or (iii) You failure to use the Product as permitted by the Order Form and in accordance with the User Documentation. Centerity will not bind You to a monetary obligation in a settlement or compromise, or make an admission on Your behalf, without obtaining Your prior consent.
- If Centerity determines in Centerity’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins You from using a Product as a result of an Infringement Claim and Centerity is unable to have such injunction stayed or overturned, or if Centerity settles an Infringement Claim on terms that would require You to stop using the Product, then Centerity will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in Centerity’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Your License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order Form under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release You from Your obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. THIS SECTION CONTAINS YOUR EXCLUSIVE REMEDIES AND CENTERITY’S SOLE LIABILITY FOR INFRINGEMENT CLAIMS.
12. NATURE AND LIMITATION OF LIABILITY
- IN NO EVENT SHALL CENTERITY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES CAUSED BY YOUR FAILURE TO PERFORM YOUR RESPONSIBILITIES UNDER THIS AGREEMENT NOR SHALL CENTERITY BE LIABLE TO YOU OR ANY THIRD PARTY
FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES FROM ANY CAUSE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE DESIGN, MANUFACTURE, SALE, SUPPORT OR USE OF THE PRODUCT (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, REGARDLESS OF THE FORM OF ACTION, EVEN IF CENTERITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CENTERITY’S LIABILITY FOR ACTUAL DIRECT DAMAGES RESULTING FROM THE USE OF A PRODUCT EXCEED THE LICENSE FEE ACTUALLY PAID TO CENTERITY FOR THE PRODUCT, IN THE 12 MONTHS PERIOD PRECEDING ANY CLAIM. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR BODILY INJURY (INCLUDING DEATH) TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU ACKNOWLEDGE THAT THIS PARAGRAPH IS AN ESSENTIAL PART OF THIS AGREEMENT, ABSENT WHICH THE ECONOMIC TERMS AND OTHER PROVISIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
- Except for actions related to the protection of the proprietary rights of Centerity and its suppliers, neither you nor Centerity will bring a legal action under this Agreement more than two years after the cause of action arose unless otherwise provided by applicable law without the possibility of contractual waiver or limitation. Neither you nor Centerity is responsible for failure to fulfill any obligations due to causes beyond its reasonable control.
- Upon thirty days (30) advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Order Forms placed prior to its effective date and such Order Forms will remain in full force and effect under the terms of this Agreement. Centerity may: (i) terminate an Order Form and the Licenses to the Products on that Order Form if You fail to pay any applicable fees due under that Order Form within 30 days after receipt of written notice from Centerity of non- payment; (ii) terminate any or all Ordre Forms, Licenses to the Products and/or this Agreement, without notice or cure period, if You violate the intellectual property rights of Centerity, its Affiliates or licensors, or use the Products outside of the scope of the applicable Licenses; or (iii) terminate all Licenses and this Agreement in whole or in part if You commit any other material breach of this Agreement and fail to correct the breach within 30 days after Centerity notifies You in writing of the breach.
- Upon the termination of this Agreement and/or any license hereunder, You shall return to Centerity the terminated Product and all related documentation diskettes. You shall promptly certify in writing to Centerity that all copies of the Product have been removed from each server upon which the Product was installed, and that any copies not returned have been destroyed.
14. ASSIGNMENTS AND TRANSFERS
Your right to use the Product may not be assigned, sublicensed, or otherwise transferred, voluntarily or otherwise, without prior written approval of Centerity. Centerity may assign this Agreement, or a license hereunder, Affiliate of Centerity, or any other company within Centerity’s group of companies or to another entity in connection with the sale or transfer of all or substantially all of assets and/or the business related to this Agreement.
15. HIGH RISK ACTIVITIES
The Product is not fault-tolerant and is not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems or any other application in which the failure of the Product could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). CENTERITY AND ITS SUPPLIERS AND SOFTWARE DEVELOPERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
16. DATA PROTECTION
- You acknowledge that Centerity neither requires or needs You to (i) send Centerity any personal data collected by You (“Customer Collected Data”) or (ii) give Centerity access to any Customer Collected Data. Consequently, You remain responsible for either filtering, making anonymous, encrypting such Customer Collected Data or for having proper procedures in place to prevent Customer Collected Data from being sent to or accessed by Centerity.
their collective business activities, including communicating with You (for example, for processing orders, for promotions, and for market research).
- You hereby agree that Centerity and its Affiliates refer to Your corporate name as a customer of Centerity, both internally and in externally published media.
Notices to either party shall be in writing and in English to the address indicated in the Order Form (or as later amended) and deemed effective when received, or forty-eight (48) hours following the date of the postmark, if sent by prepaid certified mail, return receipt requested, or the next business day, if sent by facsimile or email, using a method that provides for positive confirmation of delivery.
In the event that any provision of this Agreement shall be found invalid, ineffective, or unenforceable, under present or future laws, the remainder of the provisions in no way shall be affected, impaired or invalidated and shall remain in force and effect to the fullest extent permitted in law.
19. EXPORT REQUIREMENTS
You represent and warrant that: a) You will comply with the United States Export Administration Regulations and all other foreign export regulations; b) no individual accessing or using the Product is a citizen of or from an embargoed or terrorist-supporting country, or on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; c) You are not prohibited from receiving the Product under such regulations; d) You will not acquire the Product for a person who is restricted under such regulations; e) You will not use the Product in contradiction to such regulations; and f) You will not use the Product for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. Any failure to comply with these regulations will result forfeiture of Your rights to the Product. You agree to the foregoing and warrant that You are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
- With respect to Products installed outside of Israel, the Agreement, its interpretation, performance or any breach thereof, will be construed in accordance with, and all questions with respect thereto will be determined by, the laws of the Commonwealth of Massachusetts, excluding choice of law rules, and the competent courts of the Commonwealth of Massachusetts, shall have exclusive jurisdiction concerning any dispute arising as a result of or in connection with this Agreement.
- With respect to Products installed inside of Israel, the Agreement, its interpretation, performance or any breach thereof, will be construed in accordance with, and all questions with respect thereto will be determined by, the laws of the state of Israel, excluding choice of law rules, and the competent courts of Israel shall have exclusive jurisdiction concerning any dispute arising as a result of or in connection with this Agreement.