PLEASE READ THIS AGREEMENT.
BY CLICKING ON THE “I ACCEPT” (OR SIMILAR CONSENT) BUTTON OR DOWNLOADING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT CLICK TO ACCEPT OR OTHERWISE DOWNLOAD, INSTALL OR USE THE SOFTWARE. YOU WILL NOT BE GIVEN ACCESS TO THE SOFTWARE UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT.
IF YOU WISH TO USE the Software AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN LICENSE OR SUBSCRIPTION AGREEMENT WITH NORTHERN.TECH, INC. FOR USE OF THE CFENGINE SOFTWARE, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.
This Northern.tech, Inc. End User License Agreement (“Agreement”) is entered into by and between Northern.tech, Inc.. (“NT”) having its principal place of business at 470 Ramona Street, Palo Alto, CA 94301 and the customer (individual or entity) that has procured the licensed Software (as defined below) for use as an end user (“you” or “Customer”) and is effective as of the date you click the “I Accept” (or similar consent) button or download, install or use all or any portion of the Software (the “Effective Date”). This Agreement covers any Software and Documentation (as defined below). The Agreement consists of the terms and conditions set forth below.
This Agreement permits Customer directly, and/or through its procurement agent (“Procurement Agent”), to download and install up to 25 Agents of CFEngine 3 Enterprise software (“Software”) for no charge (for free) and sets forth the basic terms and conditions under which those products and services will be delivered to Customer. This Agreement shall govern Customer’s use of the products and the Effective Date.
1. License Subscriptions.
1.1 Grant of License.
Subject to all of the terms and conditions of this Agreement, NT grants to Customer a non-transferable, non-sublicensable, non-exclusive license during the applicable Subscription Term (as defined below) to use the object code form of the Software products in accordance with (a) the technical specification documentation generally made available by NT to its customers with regard to the Software (“Documentation”), (b) this Agreement and (c) any volume, user, field of use, configuration or other restrictions set forth in this Agreement. “Customer” shall be defined as Free Software user for purposes of this agreement. For purposes of this agreement “Software” shall not include Support and or Maintenance of the same Software product provided to Customer under this Agreement.
Pursuant to the terms and conditions of this agreement, with respect to CFEngine 3 Enterprise software, Customer may download and install, without charge, 25 Agents on its computers. If Customer would like to add additional agents, the Customer must purchase additional agents under the terms of NT’s Master Software License Agreement (“MSLA”). The MSLA can be reviewed here: http://northern.tech/legal/cfengine-msla. “Agent” means each agent of the Software installed on a physical or virtual computer (server or client) of Customer.
1.3 License Restrictions.
Customer shall not (and shall not allow any third party to):
(a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to NT);
(b) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes;
(c) remove any product identification, proprietary, copyright or other notices contained in the Software;
(d) modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by NT; or
(e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, NT and its suppliers have and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. Customer acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.
3. Payment and Delivery.
For purposes of this agreement, there is no payment required for downloading and installing the 25 free agents. However, if Customer wishes to download and install more than 25 agents, then the customer must purchase additional agents from NT.
4. Term of Agreement.
This Agreement is effective as of the Effective Date, as defined above. “Subscription Term” is herein defined as the term that free software is in use by the customer and not terminated pursuant to section 4.. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
Upon any expiration or termination of this Agreement, Customer shall cease any and all use of any Software and destroy all copies thereof and so certify to NT in writing.
Sections 1.3 (License Restrictions), 2 (Ownership), 3 (Payment and Delivery), 4 (Term of Agreement), 5 (Limited Warranty and Disclaimer), 7. (Limitation of Remedies and Damages), 8. (Confidential Information), 10. (General).
5. Limited Warranty and Disclaimer.
THIS SECTION 5 CONTAINS A LIMITED WARRANTY AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5 THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS”. NEITHER NT NOR ANY OF ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
6. Support & Maintenance.
NT will not provide any support and maintenance services for Customer’s use of the 25 free agents. Customer must negotiate support and maintenance in a separate agreement with NT.
7. Limitation of Remedies and Damages.
7.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NT’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO NT UNDER THIS AGREEMENT.
7.3 THIS SECTION 8 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “GRANT OF LICENSE,” “LICENSE RESTRICTIONS” OR “CONFIDENTIAL INFORMATION”.
7.4 The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
8. Confidential Information.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by NT (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of NT without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. Without limiting the foregoing, Customer shall ensure that its Procurement Agent is subject to written confidentiality terms that are no less protective of NT than the terms of this Agreement. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For clarity, the above confidentiality restrictions do not apply to Customer’s use of Work Product.
9. Customer Acknowledgement.
Customer agrees that NT may publicly disclose Customer as a customer of NT.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement (or any part thereof) without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
10.3 Governing Law.
Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the California state and United States federal courts located in Santa Clara County California, and both parties hereby submit to the personal jurisdiction of such courts.
10.4 Attorneys’ Fees and Costs.
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
10.5 Notices and Reports.
Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service.
10.6 Amendments. Waivers.
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
10.7 Entire Agreement.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that NT offers subscription-based products and that, in order to provide improved customer experience, NT may make changes to Software products (including the CFEngine Software) or Documentation. In such event, NT will update the Documentation accordingly.
10.8 Audit Rights.
Upon NT’s written request, Customer shall certify in a signed writing that Customer’s use of the Software is in full compliance with the terms of this Agreement (including any copy and user limitations). With prior reasonable notice of at least 10 days, NT may audit the copies of the Software in use by Customer provided such audit is during regular business hours; Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use is not in accordance with the licensed scope of use.
10.9 Independent Contractors.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
10.10 Force Majeure.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
10.11 Government End-Users.
The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
10.12 Export Compliance.
Customer acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
10.13 Third-Party Code.
The Software may contain or be provided with components subject to the terms and conditions of third party “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or NT shall provide a list of the Open Source Software for a particular version of the Software to Customer upon Customer’s written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering. Customer agrees that they have read and understood the Third Party Open Source Software disclosures in the “Terms and Conditions” segment of CFEngine’s website, located at: https://northern.tech/legal/cfengine-terms.
10.14 Community Edition.
The Software includes certain code that is the same as code in the CFEngine Community Edition Software (“CCES”), which NT also licenses separately under the GNU General Public License (“GPL”). Notwithstanding Section 10.13 (Third-Party-Code), for purposes of this Agreement, any such code in the Software is licensed under the terms and conditions contained herein, not the GPL.