Software License Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE.
BY USING THE SOFTWARE OR CLICKING AGREE CUSTOMER IS AGREEING TO BE BOUND BY THE AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S OR THAT THIRD PARTY’S BEHALF.
This agreement is between Cloud Daddy Inc. , a Delaware corporation ( CLOUD DADDY ) and you, the customer entering into this agreement ( Customer). The Cloud Daddy, modifications, enhancements, documentation and license keys provided to Customer (Software) are licensed and are not sold.
Scope. This agreement describes the licensing of the Software and support provided to Customer under an order.
TRIAL AND NFR. If Customer has acquired a trial or not-for-resale license, Customer is only granted a 14 day non-exclusive trial license, or time limited not for resale license, to operate the software for evaluation purposes and not for commercial purposes. This Software is provided AS IS and with all faults.
NO CHARGE LICENSE (Feature Limited). If Customer has acquired a feature limited no charge license, Customer is only granted a revocable non-exclusive license to operate the Software on 1 computer, until such license is cancelled by CLOUD DADDY at any time. The Software is provided AS IS, with no warranty during this time period. Customer may not acquire or use more than 1 ‘No Charge License’ to the Software, unless it obtains CLOUD DADDY’s prior written consent. This Software is provided AS IS and with all faults.
BETA LICENSE. If Customer has acquired a beta version of the Software, Customer is only granted a revocable term based non-exclusive license to operate the Software on 1 computer for beta testing purposes and not for any commercial or production purposes, until such license is cancelled by CLOUD DADDY at any time as part of its Beta Program or earlier upon the general availability of the Software . CLOUD DADDY does not guaranty that a generally available version will be released or that all features will become generally available. You must obtain prior consent in writing from CLOUD DADDY before providing or sharing any information publically regarding use of the beta Software. This Software is provided AS IS and with all faults.
FEE License. Subject to the other terms of this agreement, CLOUD DADDY grants Customer, under an order, a term based non-exclusive, non-transferable license up to the license capacity purchased to:
Use and reproduce the Software only in Customer’s internal business operations, and
Make one copy of the Software for archival and backup purposes.
Restrictions. Customer may not:
Transfer, assign, sublicense, rent, create derivative works of the Software, or use it in any type of service provider environment;
Reverse engineer, decompile, disassemble, or translate the Software; or
Evaluate the Software for the purpose of competing with CLOUD DADDY or operate the Software other than in accordance with its technical documentation.
PAYMENT. Customer will pay all fees within 30 days of an invoice, plus applicable sales, use and other similar taxes.
PROPRIETARY RIGHTS. The Software, workflow processes, user interface, designs, and other technologies provided by CLOUD DADDY as part of the Software are the proprietary property of CLOUD DADDY and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with CLOUD DADDY and its licensors. The Software is protected by applicable copyright and other intellectual property laws. Customer may not remove any product identification, copyright, trademark or other notice from the Software. CLOUD DADDY reserves all rights not expressly granted.
WARRANTY. For new license purchases, CLOUD DADDY warrants that the Software will perform in substantial accordance with its accompanying product documentation for a period of 30 days from the date of the order. This warranty will not apply to any problems caused by software not licensed to Customer by CLOUD DADDY , use other than in accordance with the technical documentation, or misuse of the Software. The warranty only covers problems reported to CLOUD DADDY during the warranty period or 7 days after. Customer will cooperate with CLOUD DADDY in resolving any warranty claim. CLOUD DADDY will use commercially reasonable efforts to remedy covered warranty claims within a reasonable period of time or replace the Software, or if CLOUD DADDY cannot do so it will refund to Customer the license fee paid. This remedy is CUSTOMER’S exclusive remedy, and CLOUD DADDY ’s sole liability for these warranty claims.CLOUD DADDY disclaims all other express and implied warranties, including without limitation the implied warranty of merchantability and fitness for a particular purpose. customer understands that the Software may not be error free, and use may be interrupted.
Termination . This agreement expires at the end of the license period specified above or in the applicable order. Either party may terminate this agreement upon a material breach of the other party after a 30 day notice/cure period, if the breach is not cured during such time period. CLOUD DADDY may temporarily suspend or terminate the license, or both, to Software if Customer’s payment on any invoice is more than 15 days past due. Upon termination of this agreement or a license, Customer must discontinue using the Software, de-install and destroy or return the Software and all copies, within 5 days. Upon CLOUD DADDY 's request, Customer will provide written certification of such compliance.
Annual SUPPORT . CLOUD DADDY ’s annual technical support and maintenance services ( Support ) is included with new license purchases. Support is provided under the Support policies then in effect. CLOUD DADDY may change its Support terms, but Support will not materially degrade during any Support term. More details on Support are located at www.clouddaddy.com/requestsupport.html
LIMIT ON LIABILITY.
EXCLUSION OF INDIRECT DAMAGES. CLOUD DADDY is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss.
total limit on Liability . CLOUD DADDY’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer for the license to the Software.
CONSUMER LAW NOTICE.
DEFENSE OF THIRD PARTY CLAIMS. CLOUD DADDY will defend or settle any third party claim against Customer to the extent that such claim alleges that the Software violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies CLOUD DADDY of the claim in writing, cooperates with CLOUD DADDY in the defense, and allows CLOUD DADDY to solely control the defense or settlement of the claim. Costs.CLOUD DADDY will pay infringement claim defense costs it incurs in defending Customer, and CLOUD DADDY negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then CLOUD DADDY may modify the Software, procure the necessary rights, or replace it with the functional equivalent. If CLOUD DADDY determines that none of these are reasonably available, then CLOUD DADDY may terminate the Software and refund (as applicable) any prepaid and unused fees service fees and the license fee for perpetual licenses (amortized over a 5-year period from the date of the order). Exclusions.CLOUD DADDY has no obligation for any claim arising from: CLOUD DADDY’s compliance with Customer’s specifications; a combination of the Software with other technology or aspects where the infringement would not occur but for the combination; or technology or aspects not provided by CLOUD DADDY. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND CLOUD DADDY’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
GOVERNING LAW AND EXCLUSIVE FORUM. This agreement is governed by the laws of the State of Delaware (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for State of Delaware, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in litigation is entitled to recover its attorneys’ fees and costs from the other party.
OTHER TERMS.
RemoteCommunication. The Software may remotely communicate with CLOUD DADDY servers for purposes of license compliance, and may transmit generic computer information to CLOUD DADDY, such as host and VM OS type and versions, CPU and core counts, and feature usage.
Entire Agreement. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding.
Non-Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger, or sale of all or substantially all of the business or assets, of a party.
Independent Contractors. The parties are independent contractors with respect to each other.
Enforceability. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
Order of Precedence . If there is an inconsistency between an order and this agreement, the order prevails.
Survival of Terms . Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
Compliance Audit. No more than once in any 12-month period and upon at least 30 days advance notice, CLOUD DADDY (or its representative) may audit Customer’s usage of the Software at any Customer facility. Customer will cooperate with such audit. Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Software in excess of the license.
Modification Only in Writing . No modification or waiver of any term of this agreement is effective unless signed by both parties.
Export Compliance. Customer must comply with all applicable export control laws of the United States, foreign jurisdictions and other applicable laws and regulations.
US GOVERNMENT RESTRICTED RIGHTS. If Customer is a United States government agency or acquired the license to the Software hereunder pursuant to a government contract or with government funds, then as defined in FAR §2.101, DFAR §252.227-7014(a)(1) and DFAR §252.227-7014(a)(5) or otherwise, all Software provided in connection with this agreement are “commercial items,” “commercial computer software” or “commercial computer software documentation.” Consistent with DFAR §227.7202 and FAR §12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution by or for the United States government is governed solely by the terms of this agreement and is prohibited except to the extent permitted by the terms of this agreement.
No PO Terms. CLOUD DADDY rejects additional or conflicting terms of a Customer’s form-purchasing document.
Customer Trademark Usage Grant: Customer hereby grants Cloud Daddy Inc. ("CD") a nonexclusive, nontransferable limited license to display customer’s name, logo and statement of reference in CD’s marketing materials or on CLOUD DADDY's website solely for the purposes of marketing CD’s products and services.
Warranty Disclaimer
EXCEPT FOR ANY EXPRESS LIMITED WARRANTY OFFERED BY OEM FOR WHICH END USER’S REMEDY IS LIMITED TO REPAIR, REPLACEMENT OR REFUND BY OEM, THE SOFTWARE IS PROVIDED “AS IS” AND NO WARRANTIES ARE MADE TO ANY PERSON OR ENTITY WITH RESPECT TO THE SOFTWARE OR ANY SERVICES AND OEM DISCLAIMS ON ITS OWN BEHALF AND THAT OF ITS LICENSORS, ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Damages and Remedies
IN NO EVENT SHALL OEM OR ITS LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SOFTWARE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL LIABILITY OWING TO END USER, INCLUDING BUT NOT LIMITED TO DAMAGES OR LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE FEES PAID BY END USER WITH RESPECT TO THE SOFTWARE. NEITHER OEM NOR ITS LICENSORS SHALL BE LIABLE FOR LOSS OR INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, FAILURE OF SECURITY MECHANISMS, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, REGARDLESS OF LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION ARE ESSENTIAL AND THAT END USER WOULD NOT BE PERMITTED TO USE THE SOFTWARE ABSENT THE TERMS OF THIS SECTION. THIS SECTION SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS EULA SHALL BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
THIS SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THIS SOFTWARE IS NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.
Export Compliance
End User acknowledges that the Software may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. End User 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: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) 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 (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. End User 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.
Government 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 EULA 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.
Termination and Survival
Upon any termination of this EULA, End User shall immediately cease use of the Software and remove all Software from its systems. The terms set forth in the sections entitled Restrictions, Ownership, Confidentiality, Warranty Disclaimer, Limitation of Damages and Remedies shall survive any termination of this EULA.
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Should you have any questions concerning this Software License Agreement (SLA), or if you desire to contact Cloud Daddy, Inc. for any reason, please contact us directly in the United States of America, write: Cloud Daddy Inc., 174 Nassau Street, Suite 230, Princeton, NJ 08542 USA or email: info@Clouddaddy.com