END USER LICENSE AGREEMENT (“Agreement”)
Last Updated: March 2018
PLEASE READ THE FOLLOWING CAREFULLY BEFORE INSTALLING AND/OR USING THE SOFTWARE.
By clicking the “accept” or “ok” button, or installing and/or using the Software (as defined below), you (“Licensee” or “you”) expressly acknowledge and agree that you are entering into a legal agreement with WekaIO Inc. (“Licensor”) and have understood and agree to comply with, and be legally bound by, the terms and conditions of this End User License Agreement (“Agreement”). You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by this Agreement please do not download, install or use the Software.
By installing, downloading and/or using the Software, you affirm that you are over 13 years of age. If you are between the age of 13 and 18 years then, prior to installing, downloading and/or using the Software, you must first review this Agreement with your parent or guardian, to make sure that you and your parent or guardian understand its terms and conditions and agree to them.
- Definitions.For purposes of this Agreement and any exhibits attached hereto, the following
capitalized terms shall have the following meaning:
- “Commercial Terms” means the commercial terms agreed in writing between Licensee and Licensor and/or Licensor’s distributor, in connection with the Software, and are made part of this Agreement.
- “Documentation” means the user’s guides and technical manuals delivered by Licensor to Licensee, or made available online at Licensor’s website: https://docs.weka.io.
- “Intellectual Property Rights” means all intangible legal rights, titles and interests evidenced by or embodied in all: (i) inventions (regardless of patentability and whether or not reduced to practice), improvements thereto, patents, patent applications, patent disclosures, together with all reissuances, continuations, continuations in part, revisions, extensions and reexaminations thereof; (ii) trademarks, service marks, trade dress, logos, trade names, corporate names, together with translations, adaptations, derivations and combinations thereof, including goodwill associated therewith, and applications, registrations, and renewals in connection therewith; (iii) any work of authorship, regardless of copyrightable, copyrightable works, copyrights (including droit morale), and applications, registrations and renewals in connection therewith; (iv) mask works and applications, registrations and renewals in connection therewith; (v) trade secrets and Confidential Information (as defined below); and (vi) other proprietary rights and any other similar rights, in each case on a worldwide basis, and copies and tangible embodiments thereof, in whatever form or medium.
- “Software” means the object code version of Licensor’s proprietary software as further detailed in Exhibit A, related Documentation, and all other written and or electronic materials relating thereto, if provided by Licensor to Licensee, whether directly or through a distributor, in connection therewith.
- License Grant. Subject to the terms and conditions of this Agreement and upon receipt of payment in full by Licensor, Licensor grants to Licensee and Licensee accepts from Licensor a non-exclusive, non-transferable, non-sublicensable, license to use the Software for internal use purposes only in accordance with the license terms as set forth herein and in the Commercial Terms (“License”).
- Free Trial Period. Licensor may offer a free, no-obligations trial period of the Software (“Trial Period”). The Trial Period, if any, shall commence on the date that Licensee commences access or use of, as applicable, the Software and will conclude at the end of the Trial Period, as provided in the Commercial Terms, or sooner if: (i) Licensee begins paying the applicable fees for the Software; or (ii) Licensee’s use of the Software is terminated in accordance with this Agreement. Licensee acknowledges and agrees that this Agreement is applicable and binding during the Trial Period and that Licensor: (a) does not make any commitments in connection with the Software during the Trial Period; and (b) may send, subject to Licensee opting out, communications and other notices about the Software to Licensee’s email address. Licensor reserves the right to modify, cancel and/or limit this Trial Period offer at any time, at Licensor’s sole discretion. Licensee further acknowledges and agrees that during the Trial Period, the Software is provided “AS IS”, and Licensor disclaims any and all warranties, whether express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose and any warranty of non-infringement of third parties’ rights, including intellectual property rights.
- Reservation of Rights; Use Restrictions. Other than the rights explicitly granted in this Agreement, Licensee shall have no other rights, express or implied, in the Software. Without limiting the generality of the foregoing, Licensee agrees and undertakes not to: (i) sell, lease, sublicense or distribute the Software, or any part thereof, or otherwise transfer the Software or allow any third party to use the Software in any manner; (ii) reverse engineer, decompile, disassemble or otherwise reduce to human-perceivable form the Software’s source code; (iii) modify, revise, enhance or alter the Software; (iv) copy or allow copies of the Software to be made; (v) use any backup or archival copies of the Software, or any part thereof, or allow any third party to use such copies, for any purpose other than to replace an original copy in the event of the destruction of the Software components, if the Software becomes defective; (vi) use the Software other than with cloud computing instance Licensee has a right to use (“Virtual Machines”), provided that only the Licensee makes use of such Virtual Machines, or for any use other than internal use; (vii) represent that it possesses any proprietary interest in the Software; (viii) compare any part of the Software or Licensor’s Confidential Information with a proposed or existing competitive product in order to develop, market or sell any competitive or derivative product; (ix) use the Software or Licensor’s Confidential Information to demonstrate or verify that any proposed or existing competitive product operates similarly, is compatible with, or is the same as any part of the Software; and (x) reveal to any third party any benchmark results comparing the Software or any part thereof and a competing or potentially competing product.
- Cloud Service Provider
- Without derogating the use restrictions set forth in Section 4 above or any of the terms and conditions of this Agreement, Licensee, and anyone authorized to use the Software on Licensee’s behalf, shall comply with the terms and conditions of the cloud provider that is responsible for providing and/or making available the Virtual Machines (the “Cloud Service Terms” and the “Cloud Provider”, respectively), as such the Cloud Service Terms may be modified. If Licensee violates the Cloud Service Terms, Licensor may suspend, terminate or otherwise restrict Licensee’s access to and use of the Software. Licensee shall be responsible and shall defend, indemnify and hold Licensor and its affiliates harmless from and against any claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to Licensee’s breach of the Cloud Service Terms. If Licensor, its affiliates or suppliers are obligated to respond to a third party subpoena or other compulsory legal order or process connected to Licensee’s activities, Licensee will reimburse Licensor, its affiliates or suppliers for reasonable costs incurred, including attorneys’ fees, responding to the third party subpoena or legal order.
- Without derogating from any other provisions herein, Licensor shall have no responsibility or liability for: (i) any such events where the Cloud Provider or its services and/or applications, including without limitation, the Virtual Machines, become inaccessible or unavailable as a result of power failures, internet outages or any other failures beyond Licensor’s control; (ii) service level or security issues with the Cloud Provider or its services and/or application, including without limitation, the Virtual Machine.
- Monitoring. Clusters are monitored by Licensor by default. Monitoring includes uploading of events and Software usage statistics (types and number of cores, NICs, drives, operating system and similar hardware-related information). Licensee may opt out from monitoring, in which case Licensee hereby understands that it has to conduct such monitoring independently.
- Data Analysis. Licensor may keep customer-related data (names, email addresses, account numbers, payment information, hardware and networking information, etc.) for the sole purpose of providing service and improving its Software. Data can be stored on servers, databases or other storage facilities of third party vendors, such as cloud providers. Licensor will not use or share raw information with any vendor, other than for the sole purpose of providing service and analysis of the raw data itself. Licensor may use aggregation of data for product improvements or for marketing purposes, e.g. for deciding to remove support for obsolete operating systems not being used by a certain percentage of all active customers.
- Third Party Software. Licensee acknowledges and agrees that any third party software that may be provided with the Software is provided under the terms of the license attached/linked thereto or, if no such license is attached, such third party software is provided “AS IS”. Licensor is not liable for any losses or damages which may occur resulting from the use of any third party software.
- Open Source Licenses. The Software includes certain open source code software and materials as available at the management GUI, as may be updated by Licensor from time to time (“Open Source Software”) that are subject to their respective open source licenses (“Open Source Licenses”). Such Open Source Licenses contain list of conditions with respect to warranty, copyright policy and other provisions. By executing this Agreement, Licensee undertakes to strictly comply with the terms and condition of the Open Source Licenses, as may be amended from time to time. In order to comply with the Open Source Licenses, Licensee shall read the respective licenses or notices which are available within the Software’s notice file, as may be amended from time to time by Licensor, at its sole discretion. In the event of any inconsistencies or conflicting provisions between the provisions of the Open Source Licenses and the provisions of this Agreement, the provisions of the Open Source Licenses shall prevail. Without derogating from the generality of the foregoing, it is clarified that any Open Source Software is provided on an “AS IS” basis, without warranty of any kind, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and that in no event shall Licensor or the author(s) of the Open Source Software be liable for any direct, indirect, incidental, special, exemplary, or consequential damages, however caused and on any theory of liability, arising in any way out of the use of the Open Source Software. For clarity, the defense and indemnification obligations of Licensor set forth in Section 15 hereunder and the representations and warranties set forth in Section 13 hereunder shall not apply to any Open Source Software.
- Title and Ownership. LICENSOR DOES NOT SELL OR TRANSFER TITLE IN THE SOFTWARE, OR ANY PART THEREOF, TO LICENSEE. The Software, and/or any copies thereof, including without limitation any derivative works made (regardless of whether such derivative works were made and/or developed pursuant to the request and/or specifications of Licensee, and irrespective of any support and/or assistance Licensor may, will or had received from Licensee, or any third party on its behalf, with respect thereto), as well as any updates thereto, if provided to Licensee pursuant to this Agreement, shall remain Licensor’s sole and exclusive property. All Intellectual Property Rights evidenced by or embodied in and/or attached/connected/related to the Software, or part thereof, are and shall be owned solely and exclusively by Licensor. Nothing in this Agreement shall constitute a waiver of Licensor’s Intellectual Property Rights under any law, or be in any way construed or interpreted as such. It is further agreed that to the extent Licensee provides Licensor suggestions, comments or feedback (whether orally or in writing) with respect to the Software (the “Feedback”), Licensee acknowledges that any and all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to Licensor and that such shall be considered Licensor’s Confidential Information. It is further understood that use of Feedback, if any, may be made by Licensor at its sole discretion, and that Licensor in no way shall be obliged to make use of any kind of the Feedback or part thereof.
- Support and Maintenance. Pursuant to receipt in full of the Maintenance Fee (as defined below), Licensor shall provide Licensee, during the applicable maintenance period specified in the Commercial Terms (“Maintenance Period”), with support and maintenance services, in accordance with Licensor’s policy, as may be amended by Licensor from time to time, and available upon Licensee’s request (“Support and Maintenance Services”). It is hereby understood that Licensor’s providence of the above Support and Maintenance Services is contingent upon Licensee’s proper use of the Software for which it was intended, and shall not apply to damage caused by abuse, misuse, alteration, neglect, or unauthorized repair or installation, or by the use or attempted use of the Software other than that supplied and supported by Licensor, or in the event that the Software is altered, modified or adjusted in any manner by any third party other than Licensor.
- Fees and Payment
- Fees. Licensee shall pay the license fees and the maintenance fees as set forth in the Commercial Terms (“License Fees” and “Maintenance Fees” respectively). For clarity, Licensee’s payment obligations hereunder shall not derogate from the payment owed, if any, by Licensee to the Cloud Provider, in connection with Licensee’s use of the Virtual Machines, or with the Cloud Provider’s other services and applications offered to Licensee.
- Payment Terms. Without derogating from any other remedy available to Licensor, any payment or part of a payment that is not paid by Licensee to Licensor when due shall bear interest at the rate of 1.5% per month or any part thereof (but in no event more than the maximum rate allowed by applicable law), and shall constitute sufficient cause for Licensor to immediately suspend its performance hereunder and terminate this Agreement and the License. All payments shall be made in U.S. Dollars by wire transfer to an account designated by Licensor.
- Taxes. Licensee is solely responsible for payment of any taxes (including, without limitation, sales or use taxes, Value Added Taxes, employee-related taxes, intangible taxes, and property taxes, and only excluding taxes related to Licensor’s income) resulting from the acceptance of the License, from the access to and use of the Software or the receipt of the Support and Maintenance Services. To the extent that Licensor shall be required to pay any such taxes then such taxes shall be billed to and paid by Licensee. If any taxes are required to be withheld, Licensee shall pay an amount to Licensor such that the net amount payable to Licensor after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. Licensee agrees to indemnify and hold harmless Licensor from all claims and liabilities arising from Licensee’s failure to report or pay any such taxes.
- Warranties. Licensor warrants that, to the best of its knowledge, it has the right to grant Licensee the License. Licensor represents and warrants that the Software will perform substantially in accordance with the Documentation and Exhibit A, for a period of 90 days from the date of installation (“Warranty Period”). Licensor does not warrant, however, that Licensee’s use of the Software will be uninterrupted or that the operation of the Software will be error-free. Licensor’s sole liability for any breach of this warranty shall be, at Licensor’s sole discretion: (i) to replace or repair the Software or the applicable portion thereof; or (ii) to refund the price paid for the Software. The foregoing warranties are contingent upon Licensee’s proper use of the Software, and shall not apply to: (a) damage caused by abuse, misuse, alteration, neglect or unauthorized repair or installation, or by the use or attempted use of the Software other than that supplied and supported by Licensor or in breach of the License and/or the Commercial Terms; (b) any use by Licensee of any version for which Licensor advised in writing (including via notification emails) that it should be upgraded due to a critical issue; or (c) any damage or interruptions caused by or resulting from other applications or software products stored on Licensee’s Virtual Machines, or by use of the Software together with the Cloud Provider’s associated services or software products. The foregoing constitutes Licensee’s sole and exclusive remedy for breach by Licensor of any warranties made under this Agreement.
- Disclaimer of Warranty. THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, MAINTENANCE SERVICES OR ANY OTHER ITEMS PROVIDED HEREUNDER. LICENSOR PROVIDES NO WARRANTY AND MAKES NO REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE PERFORMANCE OF THE VIRTUAL MACHINES, OR WITH RESPECT TO ANY AND ALL SERVICES, SOFTWARE OR PRODUCTS PROVIDED BY OR ON BEHALF OF THE CLOUD PROVIDER IN CONNECTION WITH THIS VIRTUAL MACHINES, INCLUDING WITHOUT LIMITATION THAT ANY CONTENT STORED ON SUCH VIRTUAL MACHINES WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR THAT THE VIRTUAL MACHINES WILL MEET LICENSEE’S LEGAL OR OTHER REQUIREMENTS.
- Subject to the limitation of liability under Section 16 below, Licensor shall defend or settle at its expense any action, claim or proceeding, brought against Licensee to the extent based upon a third party claim that the Software licensed by Licensee infringes any third party’s patent or copyrights registered in the US or the EU. Licensor agrees to pay Licensee reasonable attorneys’ fees and expenses, incurred in investigation or defense of such claims, and all damages and liabilities finally awarded against Licensee or paid in a settlement and arising out of such third party claims. Licensor’s indemnity obligation shall not extend to claims based on: (i) an unauthorized modification or use of the Software made by any third party other than Licensor, where the Software, without such modification or unauthorized use, would not be infringing; (ii) the combination of non-infringing items with any items not supplied by Licensor; (iii) the use by Licensee of any version for which Licensor advised in writing (including via notification emails) that it should be upgraded due to a critical issue; or (iv) the Cloud Provider’s acts, omissions, negligence or intentional acts of any kind in connection with Licensee’s use of the Software. As a condition to the defense set forth above, Licensee shall (I) give Licensor prompt notice of any such claim made against it, (II) grant Licensor sole control of the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, and (III) provide such information and assistance in the defense of such claims as reasonably requested by Licensor. If the Software or part thereof becomes, or in Licensor’s opinion may become, subject to any claim of infringement of any duly issued patent or copyright or asserted trade secret right and its use is thereby enjoined, Licensor’s sole liability shall be, at Licensor’s option, to either: (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software, so that it is non-infringing; or (c) if neither of the foregoing alternatives is reasonably practical, Licensor shall refund a portion of the License Fees paid to Licensor for such Software based on a pro rata straight line 36 month depreciation basis, upon the return or destruction (and certification of destruction) of the Software, provided that if the License is granted for a limited designated term, the above pro rata straight line depreciation basis shall be the said designated term.
- Licensee shall defend or settle at its expense any action, claim or proceeding, brought against Licensor to the extent based upon a third party claim based on: (i) an infringement allegation arising from Sections 15.1(i) through 15.1(iii) above; or (ii) a breach of Section 19 herein; or (iii) the negligence or willful misconduct of Licensee in connection with this Agreement.
- Limitation of Liability. EXCEPT FOR DAMAGES RESULTING FROM A BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL LICENSOR BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED THE AMOUNT PAID BY LICENSEE TO LICENSOR HEREUNDER DURING THE 12 MONTHS PRECEDING THE EVENT. WITHOUT DEROGATING FROM THE FOREGOING, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DAMAGES CAUSED DUE TO OR RESULTING FROM THE OPERATION OF THE VIRTUAL MACHINES OR ANY SERVICES OR APPLICATION OF CLOUD PROVIDER.
Confidential Information. Each party (“Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (“Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial (including the Commercial Terms), employee, planning, and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party.
- Protection of Confidential Information. During the term of this Agreement and for 5 years thereafter, the Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. During the term of this Agreement and for 5 years thereafter, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
- Exceptions. The Receiving Party’s obligations under this Section, with respect to any Confidential Information of the Disclosing Party, shall not apply to and/or shall terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body; provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- Term and Termination
- Term. This Agreement shall commence on the Effective Date, and shall continue during the term set forth in the Commercial Terms.
- Termination for Breach. Either party may terminate this Agreement at any time by giving written notice to the other party if the other party is in breach or default of any material provision of this Agreement (including non-payment), and the breaching party fails to cure the breach or default, within 30 days after being given written notice, specifying details of the breach or default and requiring the same to be remedied. Should Licensee terminate this Agreement due to Licensor’s breach, Licensee is entitled to a refund of all prepaid fees paid as of the date of the breach.
- Termination in the Event of Default. Either party may terminate this Agreement immediately, in the event the other party: (i) is judged bankrupt or insolvent; (ii) makes a general assignment for the benefit of its creditors; (iii) a trustee or receiver is appointed for such party or for any of its property; or (iv) any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
- Consequences. Upon expiration or termination of this Agreement, Licensee will: (i) immediately cease use of the Software; (ii) return the Software and all copies thereof, as well as the Documentation to Licensor; (iii) erase or otherwise destroy all copies of the Software in its possession, which are stored in Licensee’s Virtual Machines, backed up on Licensee’s servers or elsewhere, stored in email accounts or otherwise stored electronically, in hardcopy or other physical or non-physical form; (iv) return to Licensor any and all Confidential Information then in its possession; and (v) certify in writing to Licensor that all copies and partial copies of the Software and related Documentation have been either returned to Licensor or otherwise erased or destroyed and deleted from any computer libraries, Virtual Machines or storage devices and are no longer in use by Licensee.
- Survival. The provisions of Sections 1, 4, 8, 9, 10, 13, 14, 15, 16, 17, 18.4, 18.5 and 20 shall survive the termination, expiration or other ending of this Agreement.
- Export Compliance. Licensee shall not transfer, export or re-export any Software or part thereof, except in full compliance with export controls administered by the U.S. and Israel, and any other applicable import and use restrictions. Licensee is solely responsible for determining compliance and obtaining all required approvals to facilitate the export of any Software, including outside of the U.S. and Israel.
- General Terms
- Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without giving effect to the principles of conflict of laws. Both parties hereby consent to the exclusive jurisdiction of, and venue in, the state courts in Santa Clara County in the State of California (or in the event of exclusive federal jurisdiction, the courts of the Northern District of California) in connection with any dispute related to this Agreement.
- Independent Contractor. Licensor undertakes the furnishing of the License and performance of its obligations under this Agreement as an independent contractor. There shall be no employer- employee relationship between Licensor’s employees and Licensee, and Licensee’s employees and Licensor.
- Waiver. No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such party.
- Notices. Legal notices given by the parties to one another in connection with this Agreement shall be provided by writing, prepaid mail, receipted courier service, or hand delivery to the party to be notified, at the address stated at the outset of this Agreement.
- No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the parties. In no event will any third party have any rights in relation to this Agreement or any right to enforce the terms hereof.
- Force Majeure. Licensor is excused for any delays, losses or damages due to causes beyond its control, including without limitation, fire, explosion, power irregularities or surges, acts of God, earthquakes, rains, floods, lightning, labor unrest, strikes, strife or any other cause that was not reasonably foreseeable on the date of signing of this Agreement.
- Subcontracting and Assignment. Licensee shall not assign and/or subcontract any of its rights and obligations under this Agreement, except with Licensor’s prior written consent. Licensor may assign any of its rights and/or obligations hereunder at Licensor’s sole discretion.
- Severability. If any provision under this Agreement is determined by a court to be unenforceable, that provision will be deemed to be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be modified, the provision will be severed and deleted, and the remainder of the Agreement will continue in effect.
- Entire Agreement. The parties have read this Agreement, and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications between them, oral or written, relating to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party.
- Contradiction. In case of any inconsistency or contradictions between the provisions of this Agreement and the provisions of the Commercial Terms, the provisions of the Commercial Terms shall prevail.
A distributed scalable file system