Cloudify EULA for Premium Edition
IMPORTANT – READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS (THESE “TERMS”) BEFORE INSTALLING THE CLOUDIFY SOFTWARE – PREMIUM EDITION INCLUDING ANY AND ALL ARTIFACTS AND/OR FEATURES MADE AVAILABLE BY CLOUDIFY (INCLUDING VIA ITS WEBSITE) AS PART OF THE CLOUDIFY PREMIUM(“SOFTWARE”). BY INSTALLING THE CLOUDIFY SOFTWARE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE OR INSTALL THE SOFTWARE. DO NOT INSTALL OR USE THE SOFTWARE UNTIL YOU HAVE CAREFULLY READ, UNDERSTOOD, AND AGREED TO THESE TERMS. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
THESE TERMS CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU, OR THE COMPANY ON WHOSE BEHALF YOUR ARE INSTALLING THE SOFTWARE, (“YOU”) AND CLOUDIFY PLATFORM LTD., ACTING ON BEHALF OF ITSELF AND ITS AFFILIATES (“CLOUDIFY”), WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION RELATING TO THE SUBJECT MATTER OF THESE TERMS.
YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE.
Cloudify reserves the right, at its discretion, to change these Terms at any time. Such change will be effective 10 days following posting of the revised Terms on https://cloudify.co/license, and your continued use of the Software thereafter means that you accept those changes.
- GRANT OF LICENSE. Subject to the terms and conditions of these Terms (including payment of the applicable Fees, as set forth below), Cloudify grants you a limited, personal, nonexclusive, nontransferable, non-sub-licensable license to use, only in binary executable form and script code form, the Software, for your internal business purposes.
- LICENSE RESTRICTIONS. The Software should be installed in accordance with the instructions of Cloudify. You may not, nor permit anyone else to, directly or indirectly: (i) distribute, rent, lease, market, sublicense, resell or otherwise transfer the Software, (ii) copy or modify the Software either alone or in conjunction with any other product or program, (iii) decompile, disassemble or reverse engineer all or any portion of the Software, except and only to the extent, that such activity is expressly permitted by applicable law notwithstanding this limitation, (iv) integrate, bundle and/or combine the Software with your or any other parties’ product and/or software except for your internal usage,(v) remove any identification, including copyright, trademark, patent or other notices, contained in or on the Software; (vi) use the Cloudify name, logo or trademarks without prior written consent from Cloudify; (vii) publish the results of any comparisons or other benchmarking activities that you will conduct with the Software, either alone or in connection with any other software or hardware without the prior written consent of Cloudify, or (viii) publish reviews of the Software without the prior written consent of Cloudify. You agree that Cloudify may audit your use of the Software for compliance with these Terms at any time, upon reasonable notice.
- DOWNLOADING AND USE RESTRICTIONS. Cloudify will not charge you a Fee for the use of the Software 60 days following your initial download of the Software. You shall only be permitted to download the Software once and any additional downloads shall be considered a breach of these Terms. For the avoidance of doubt, any additional download, following your initial download, and use of the Software for an additional 60 day period without being charged a Fee, whether directly or indirectly, using this license or an additional license, shall be considered a breach of these Terms.
- PAYMENT. You shall order the Software by submitting a purchase order to Cloudify (“PO”). In consideration for your use of the Software, you shall pay Cloudify the applicable subscription fee (“Fee”), as set forth in the PO. Payment terms and method are set forth in the PO. Please note that the Fees are net to Cloudify and you are responsible for paying all taxes associated with your use of the Software; if Cloudify has the legal obligation to pay or collect taxes for which you are responsible under this Section, the appropriate amount shall be invoiced to and paid by you.
- OWNERSHIP; COPYRIGHT PROTECTION. The Software is licensed, not sold. As between the parties, all title, ownership rights, and intellectual property rights (including all copyrights, patents, trade secret rights and trademarks) in and to the Software, including all documentation, shall remain in Cloudify, its affiliates, or their respective suppliers and licensors. Your possession, installation, or use of the Software does not transfer to you any title to the intellectual property in the Software, and you will not acquire any rights to the Software except as expressly set forth in these Terms. These Terms do not give you any rights not expressly granted herein. You may not copy the Software manual(s), on-line documentation, or any written materials accompanying the Software. Any right not explicitly granted to you is reserved to Cloudify or its licensors. If you contact Cloudify with feedback data (e.g., questions, comments, suggestions or the like) regarding the Software (collectively, “Information”), such Information shall be deemed to be non-confidential, and Cloudify shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate into the Software any such Information.
- UPDATES; SUPPORT. These Terms apply to downloading, installing and using the Software. Cloudify may from time to time revise or update its Software. Such updates and revisions will be supplied according to Cloudify’s prevailing policies, which may include automatic updating without any additional notice to you. In addition to the above-mentioned updates, subject to your payment of the applicable Fees, support and maintenance services are provided according to Cloudify’s then current Service Level Agreement (SLA).
- OPEN SOURCE SOFTWARE. The Software includes open source software programs that are made available by Cloudify and other third parties under their respective open source licenses (“Open Source Licenses”). Certain Open Source Licenses and/or certain relevant provisions of such Open Source Licenses are listed in the Software notice.txt file. You are obligated to comply with the applicable Open Source Licenses related to such open source software programs. Open source software programs are governed solely by such Open Source Licenses, including without limitation warranty and indemnification, which will prevail over these Terms.
- AUDIT RIGHTS. During the term of these Terms and for a period of 3 years thereafter, you will keep accurate records of its activities related to these Terms and your use of the Software. Cloudify will have the right, during normal business hours and upon at least 30 days’ prior notice, to audit your records in order to verify that you are and have been in compliance with the terms and conditions of these Terms. The audit will be conducted at Cloudify’s expense, unless the audit reveals that you have underpaid the amounts owed to Cloudify by 10% or more, or that you have breached the terms and conditions of the license granted hereunder, in which case you will reimburse Cloudify for all costs and expenses incurred by Cloudify in connection with such audit.
- TERM AND TERMINATION. These Terms shall continue until terminated as set forth in this section. You may terminate these Terms at any time by removing the Software from your system and destroying all copies of the Software and documentation relating to the Software. Unauthorized copying of the Software or otherwise failing to comply with these Terms will result in automatic immediate termination of these Terms and will make available to Cloudify legal remedies. Cloudify reserves the right to terminate these Terms and the license granted hereunder at any time and without notice. Upon termination of these Terms, the license granted herein will terminate and you: (i) will cease any and all rights to use the Software, and (ii) will remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession or under your control. Upon Cloudify request you shall within 3 days certify destruction of, all full or partial copies of the Software, documentation and related materials provided by Cloudify.The provisions in the paragraphs above labeled LICENSE RESTRICTIONS, OWNERSHIP; COPYRIGHT PROTECTION, OPEN SOURCE SOFTWARE, TERM AND TERMINATION, INDEMNITY, LIMITATION OF LIABILITY AND WARRANTY, and MISCELLANEOUS will survive any termination of these Terms.
- INDEMNITY. You agree that Cloudify shall have no liability whatsoever for any use made of the Software by you or any third party. You hereby agree to defend, indemnify and hold harmless Cloudify and its affiliates and their respective officers, directors, agents and employees from any and all claims, damages, liabilities, costs, and expenses (including attorney’s fees) arising from claims related to your use of the Software as well as from your failure to comply with these Terms.
- LIMITATION OF LIABILITY AND WARRANTY. TO THE FULLEST EXTENT PROVIDED BY LAW, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. CLOUDIFY, ITS AFFILIATES, SUBSIDIARIES AND ITS THIRD PARTY LICENSORS DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE. CLOUDIFY DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE ERROR-FREE, THAT THE SOFTWARE IS FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS OR THAT CLOUDIFY WILL CORRECT ANY ERRORS IN THE SOFTWARE. CLOUDIFY DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR USING THE SOFTWARE. CLOUDIFY, ITS AFFILIATES, SUBSIDIARIES AND ITS THIRD PARTY LICENSORS, IF ANY, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO THE SOFTWARE.IN NO EVENT SHALL CLOUDIFY, ITS AFFILIATES, SUBSIDIARIES OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF CLOUDIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE TO THE ALLOCATION OF LIABILITY RISK WHICH IS SET FORTH IN THIS SECTION.
- GOVERNMENT USE. If you are part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item”, “commercial computer software” and “commercial computer software documentation”. In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of these Terms.
- EXPORT CONTROLS. You acknowledge that the Software may be subject to international rules that govern the export of software. You agree to comply with all applicable international and national laws that apply to the Software as well as end-user, end-use and destination restrictions issued by national governments.
- PUBLICITY. You agree that Cloudify and/or Cloudify may indicate that you are a Software user, and use your company’s name and/or trademarks in any advertising or promotional materials or activities, including on its website.
- MISCELLANEOUS. These Terms represent the complete agreement concerning the Software between you and Cloudify and supersedes all prior agreements and representations between you and Cloudify. If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. Any waiver of any provision of these Terms will be effective only if in writing and signed by Cloudify. These Terms are personal to you and may not be assigned or transferred for any reason whatsoever without the consent of Cloudify and any action or conduct in violation of the foregoing shall be void and without effect. Cloudify expressly reserves the right to assign these Terms and to delegate any of its obligations hereunder. These Terms are governed by and construed under the laws of the State of New York, excluding its conflicts of law rules. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to these Terms shall be applicable courts located in New York County, NY, and you further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. You hereby agree to service of process in accordance with the rules of such courts. In any action or proceeding to enforce rights under these Terms, the prevailing party shall be entitled to recover costs and attorneys’ fees.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE AGREE BUTTON AND/OR CONTINUING TO INSTALL OR USE THE SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY THESE TERMS.
Last Revised: April, 2020