ETL Acceleration Engine™ END USER LICENSE AGREEMENT
END USER LICENSE AGREEMENT
IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN FLATIRONS SOLUTIONS, INC., WHO SHALL BE REFERRED TO IN THIS EULA AS “FLATIRONS SOLUTIONS” AND YOUR COMPANY, WHO SHALL BE REFERRED TO IN THIS EULA AS THE “CUSTOMER” AND ANY THIRD PARTY END-USER IDENTIFIED ON THE APPLICABLE ORDER OR INVOICE SUBMITTED TO FLATIRONS SOLUTIONS (“END USER”) REGARDING ETL ACCELERATION ENGINE (THE “SOFTWARE”). Each of Customer and End User may be referred to below as “You”.
BY INSTALLING AND USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOLLOWING TERMS AND AGREE TO BE BOUND BY THEM, AND, IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS EULA ON BEHALF OF AN ENTITY, YOU REPRESENT, WARRANT, AND COVENANT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS EULA ON BEHALF OF SUCH ENTITY, AND BIND SUCH ENTITY TO THE TERMS AND CONDITIONS HEREOF. IF YOU ARE A SERVICE PROVIDER CUSTOMER INSTALLING THE SOFTWARE ON BEHALF OF AN END USER, YOU AS CUSTOMER MUST ENSURE THAT THE END USER HAS A COPY OF AND IS OTHERWISE LEGALLY BOUND BY THIS EULA. ABSENT SUCH EXPRESS AGREEMENT BY THE END USER, CUSTOMER IS JOINTLY AND SEVERALLY LIABLE FOR ALL ACTS AND OMISSIONS OF ANY END USER.
THIS EULA PROVIDES A LIMITED LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. IF YOU DO NOT (OR YOUR COMPANY DOES NOT) AGREE TO BECOME BOUND BY THESE TERMS, THEN, FLATIRONS SOLUTIONS IS NOT WILLING TO LICENSE THE SOFTWARE TO YOU (OR YOUR COMPANY), IN WHICH CASE DO NOT INSTALL THE SOFTWARE (AND, IF FOR SOME REASON, THE SOFTWARE HAS BEEN PREVIOUSLY INSTALLED ON ANY CUSTOMER OR END USER COMPUTER, ALL COPIES OF THE SOFTWARE MUST BE IMMEDIATELY REMOVED FROM ANY AND ALL OF CUSTOMER’S AND END USER’S COMPUTERS).
1. LICENSE; DEMONSTRATION.
Subject to your payment in full of any license fees and your compliance with the terms of this Agreement, Flatirons Solutions grants (i) Customer the limited, non-exclusive, non-assignable right to install the Software and to install, access, run and display the Software on the number of devices or for the number of users as identified on the applicable order or invoice solely for your business purposes of serving the End User and (ii) End User a limited, non-exclusive, non-assignable right to access, run and display the Software solely for End User’s internally business purposes and solely on the number of devices or for the number of users licensed from Flatirons Solutions on the applicable order or invoice. If you are an End User, you are responsible for obtaining a copy of such order and invoice from Customer and ensuring such license counts submitted to Flatirons Solutions are accurate.
Unless already done so, Flatirons Solutions shall promptly deliver to you a copy of the Software. Such delivery may be made by Flatirons Solutions: (i) by providing a physical copy of the Software, (ii) electronically over the Internet or via remote telecommunications, or (iii) through such other method(s) agreed upon by the parties. The Software shall be deemed to be accepted by you upon delivery, whereupon the applicable warranty period shall commence. All Software provided hereunder is licensed and not sold to you, and any reference to the “sale” or “purchase” of Software means the sale or purchase of a license to such Software. Title and risk of loss to the physical media, if any, which has been sold to you and contains Software, shall transfer to you upon Flatirons Solutions’ delivery of such physical media to you.
2. OWNERSHIP; USE RESTRICTIONS.
A. All right, title, and interest in the Software, including without limitation its text, graphics, interfaces, other content, software, computer code, data, trademarks, logos, slogans, names of products and services, documentation, and other components, are exclusively the property of Flatirons Solutions and, as applicable, its affiliates and licensors. The Software is protected by United States and foreign copyright, trademark, and other intellectual property laws. Neither Customer nor End User may not provide access to the Software to anyone other than its respective employees, provided such employees may only use the Software as permitted by this Agreement. Notwithstanding the foregoing, Customer may make the Software available to the End User as part of providing services to the End User, provided such End User use is subject to this EULA.
B. Neither Customer nor End User may copy, reproduce, duplicate, sell, publish, post, or otherwise distribute the Software or any license numbers, except that Customer may (i) make one copy of the Software solely for End User’s backup or archival purposes, provided such copy preserves all copyright and other proprietary markings or notices on or contained within the Software, or (ii) transfer the Software to a single hard disk, provided End User keeps the original solely for backup or archival purposes.
C. Neither Customer nor End User may modify, decompile, disassemble, reverse engineer, otherwise attempt to derive or discover any source code of, translate, or create derivative works of the Software. Each of Customer and End User acknowledges that the Software may use or include third-party software that is subject to open source or other third-party license terms. A current list of all such licenses is set forth in the Open Source License Reference Guide, as it may be updated from time to time. Neither Customer nor End User may remove any copyright or other proprietary markings on any open source or other third-party license terms.
D. Neither Customer nor End User may use the Software for benchmarking, in any anticompetitive manner, or for any purpose that has the potential be contrary to Flatirons Solutions’ business or economic interests.
E. If applicable, only license numbers provided by Flatirons Solutions may be used to unlock, access, or use the Software. If Customer or End User uses license numbers obtained via other means, Flatirons Solutions may terminate this Agreement.
Flatirons Solutions has the right to, at any time, audit use of the Software to evaluate compliance with the terms of this Agreement. Each of Customer and End User shall provide access to its systems and facilities to Flatirons Solutions and its designees for the limited purpose of any such audit. If an audit reveals a material breach of this Agreement, Customer and/or End User, as applicable, shall reimburse Flatirons Solutions for its audit costs.
4. TERM; TERMINATION.
This Agreement is effective upon acceptance and continues in effect until terminated in accordance with this Section 4. The term of this EULA extends to Customer solely for the limited time necessary for Customer to perform services for the End User. The term of this EULA extends to the End User solely for one (1) year following delivery to Customer and will automatically renew for additional one (1) year terms unless Flatirons Solutions otherwise provides End User notice of an intent not to renew at least thirty (30) days prior written notice. Flatirons Solutions may terminate this EULA at any time by providing thirty (30) days prior written notice. Customer or End User may terminate this EULA at any time by removing all copies of the Software from the hard disk or other storage device on which it is installed. If either Customer or End User fails to comply with this Agreement, Flatirons Solutions may terminate all rights granted under this Agreement, including without limitation the license to the Software. Upon any termination, Customer and/or End User must, at their own expense, remove the Software from the hard disk or other storage device on which it is installed, destroy any download or copies of the Software in Customer’s or End User’s possession, custody, or control, and erase, degauss and otherwise permanently destroy any media on which the Software was downloaded or stored and all archival copies of the Software. The terms of this Agreement concerning ownership, liability or the lack thereof, the disclaimer of warranties, indemnification, and governing law survive termination of this Agreement.
“Confidential Information” means all information disclosed or made available under or in connection with this Agreement, including without limitation the Software, the Software’s help files, manuals, and other documentation, and information about the finances, operations, customers, or business of Flatirons Solutions . Each of Customer and End User (each a “Recipient”) shall protect the Confidential Information with at least the degree of care that it uses to protect its own confidential information of like nature, but in no case less than a reasonable degree of care. Except as expressly directed by Flatirons Solutions in writing, Recipient may not at any time during or after the term of this Agreement: (1) disclose any Confidential Information to any third party; (2) permit any third party to examine or make copies of any Confidential Information; or (3) use any Confidential Information for any reason other than as required to use the Software as permitted in this Agreement. If Recipient is required to disclose any Confidential Information pursuant to any statute, regulation, lawful order, subpoena or document discovery request, it must provide Flatirons Solutions with written notice of such required disclosure as soon as practicable in order to afford Flatirons Solutions the opportunity to seek a protective order or otherwise limit the disclosure request. Recipient shall reasonably cooperate with any such efforts.
6. DISCLAIMER OF WARRANTY.
(A) FLATIRONS SOLUTIONS WARRANTS, TO END USER ONLY, THAT THE SOFTWARE, WHEN DELIVERED AS AUTHORIZED HEREUNDER SHALL CONFORM IN ALL MATERIAL RESPECTS TO ITS APPLICABLE DOCUMENTATION. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, ALL SOFTWARE AND THE PERFORMANCE THEREOF ARE PROVIDED SOLELY ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, FLATIRONS SOLUTIONS FOR ITSELF, ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, LICENSORS OR SUPPLIERS DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FLATIRONS SOLUTIONS DOES NOT WARRANT THAT THE SOFTWARE AND ITS PERFORMANCE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
(B) ANY LIABILITY OF FLATIRONS SOLUTIONS AND ITS SUPPLIERS OR LICENSORS WITH RESPECT TO ANY SOFTWARE OR THE PERFORMANCE THEREOF UNDER ANY THEORY WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPAIR OR REPLACEMENT OR, IF SUCH REPAIR OR REPLACEMENT, IN FLATIRONS SOLUTIONS’ OPINION, IS IMPRACTICAL, TO A REFUND OF THE FEE PAID TO FLATIRONS SOLUTIONS FOR SUCH SOFTWARE. EACH OF CUSTOMER AND END USER ACKNOWLEDGES AND AGREES THAT ANY WARRANTY CLAIMS MUST BE BROUGHT TO FLATIRONS SOLUTIONS, AND NOT TO ANY OF ITS SUPPLIERS OR LICENSORS, UNLESS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT.
Each of Customer and End User shall indemnify, defend, and hold harmless Flatirons Solutions, Flatirons Solutions’ affiliates and their respective officers, directors, employees, stockholders, and agents from and against any claims, losses, damages, fines, and expenses (including attorneys’ fees) arising out of or in connection with use of the Software or violation of this Agreement.
8. LIMITATION OF LIABILITY.
REGARDLESS OF THE BASIS OF RECOVERY CLAIMED, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FLATIRONS SOLUTIONS’, AND ITS LICENSORS’ AGGREGATE LIABILITY, WITH RESPECT TO ANY AND ALL SUBJECT MATTERS OF THE AGREEMENT, ANY EXHIBIT, OR TERMS AND CONDITIONS RELATED THERETO WILL BE ONLY FOR THE AMOUNT OF ANY OTHER DIRECT DAMAGES OR LOSS UP TO THE AMOUNT OF: (I) FOR SOFTWARE, THE LICENSE FEES PAID TO FLATIRONS SOLUTIONS FOR THE SOFTWARE; AND (II) FOR SERVICES, THE AMOUNT OF FEES PAID TO FLATIRONS SOLUTIONS FOR SUCH SERVICES GIVING RISE TO SUCH LIABILITY. NEITHER FLATIRONS SOLUTIONS NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR LOSS OF OR DAMAGE TO, RECORDS OR DATA; COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; ANY MATTER BEYOND ITS REASONABLE CONTROL; OR ANY LOSS OF PROFITS, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF FLATIRONS SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND EACH OF CUSTOMER AND END USER ACKNOWLEDGES THAT FLATIRONS SOLUTIONS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ON THE TERMS HEREOF ABSENT SUCH LIMITATIONS OF LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
9. TECHNICAL SUPPORT.
Flatirons Solutions will not have any obligation to provide support or maintenance for the Software. Any support or maintenance may be requested directly from Flatirons Solutions and may be provided by Flatirons Solutions at Flatirons Solutions’ then standard hourly rates and subject to Flatirons Solutions’ written agreement with respect to such services.
10. COMPLIANCE WITH LAWS.
You shall comply with all local, state, and federal laws and regulations that apply to your use of the Software. The Software and related technology is subject to U.S. export control laws and may be subject to the export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain any licenses for export, re-export or import as may be required. You may not directly or indirectly export or transfer the Software to any country in which the transmission is prohibited by any applicable statute or regulation or to any individual on the United States Department of Treasury’s Office of Foreign Asset Control List of Specially Designated Nationals or any country subject to a United States trade embargo. Your failure to comply with this provision is a material breach of the terms of this Agreement.
11. USE OF MARKS.
Except as may be expressly provided in this Agreement, you shall not, without Flatirons’ prior written consent, use the names, logos, or trademarks of Flatirons or its affiliates.
12. CONTACT INFORMATION.
Please direct all questions, complaints, and claims concerning this Agreement or the Software to email@example.com.
13. GOVERNING LAW.
This Agreement is governed by the laws of the state of California without regard to the conflicts of laws provisions thereof. The United Nations Convention on Contracts for the International Sales of Goods does not apply to this Agreement. Any disputes arising under this Agreement are subject to the exclusive jurisdiction and venue of the state and federal courts of competent subject matter jurisdiction in Orange County, California. You consent to the exclusive jurisdiction of these courts and agree such courts have personal jurisdiction over you and waive any objection of improper forum or venue with respect to such courts. The prevailing party in any suit or other proceeding brought to enforce any provision of this Agreement shall be entitled to recover from the other party all costs and expenses of the proceeding and investigation, including without limitation court costs and reasonable attorneys’ fees.
To the extent that you have breached or indicated your intention to breach this Agreement in any manner that violates or may violate Flatirons’ intellectual property rights or that causes or may cause continuing or irreparable harm to Flatirons, Flatirons is entitled to immediate injunctive relief in a court of competent jurisdiction without posting a bond or proving damages.
This Agreement represents the entire agreement between the parties concerning the subject matter of this Agreement and supersedes all prior agreements, proposals, and other correspondence, oral or written, regarding the subject matter of this Agreement. If any provision of this Agreement is held invalid, void, or unenforceable, that provision will be considered severable from the remaining provisions and the remainder of the Agreement shall remain in full force and effect. Flatirons’ failure to enforce any right or provision in this Agreement will not constitute a waiver of such provision or any other provision in this Agreement. The headings in this Agreement are for convenience only and shall not be construed to affect the construction or interpretation of any terms of this Agreement.