Cloudify Premium Software License Terms and Conditions

CLOUDIFY GENERAL TERMS AND CONDITIONS

Important – read carefully the following Terms and Conditions (the “terms”) before installing the Cloudify Premium Edition software, along with, if applicable, Updates (as defined in the SLA) (collectively, the “Software”) and related documentation available on the Cloudify website or otherwise provided by Cloudify Platform Ltd (“Cloudify“) with respect to the Software and Updates (the “Documentation”, and together with the Software, referred to collectively as the “Product”). By installing the 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 you are installing the Software, (“you”, or “Licensee”) and 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 Product to achieve your intended results and for the installation, use and results obtained from the Product.

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 cloudify.co/cloudify-premium-software-license-terms-and-conditions and your continued use of the Software thereafter means that you accept those changes.

1. Grant of License

Subject to Licensee’s payment of the applicable fees (as set forth in the relevant purchase order) and other terms and conditions of these Terms, Cloudify grants Licensee a non-exclusive, non-transferable, for the term set forth in the relevant purchase order, license to install, execute, display, host and otherwise use the Product for Licensee’s internal and customer-related business purposes. The license also includes the right of Licensee to make the number of copies of the Software reasonably required for authorized use under these Terms, provided that Licensee maintains all proprietary rights notices on all copies of the Software.

2. License Restrictions

Licensee will have no right and will not, nor will it authorize or assist others to: (a) copy the Documentation except as reasonably required in connection with authorized uses of the Software under these Terms; (b) use the Software in a standalone manner on a service bureau or time sharing basis, or distribute the Software for use in any manner except for use with Licensee’s products and services; (c) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Product or any of Licensee’s rights therein, except as expressly permitted under Section 1; (d) use Cloudify name, logo or trademarks without prior written consent from Cloudify; (e) publish the results of any comparisons or other benchmarking activities that Licensee will conduct with the Software, either alone or in connection with any other software or hardware without the prior written consent of Cloudify; or (f) publish reviews of the Software without the prior written consent of Cloudify.

3. Proprietary Rights

Licensee acknowledges and agrees that the Product contains proprietary and trade secret information of Cloudify or its licensors. Other than the limited license granted to Licensee herein, Cloudify and its suppliers, if any, retain all ownership and proprietary rights in and to the Product, including any and all copies made by Licensee and any and all Updates, if applicable.

4. 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. Licensee is 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

5. Pricing and Payment

Licensee shall pay the applicable fees specified in the relevant purchase order, at such times and for such periods as set forth therein. All amounts payable hereunder shall not be subject to any set-off or deduction. All fees are exclusive of any applicable taxes, duties and similar governmental charges, and, except with respect to income taxes of Cloudify, Licensee is responsible for payment of all such amounts, including sales tax, value added tax (VAT), withholding taxes, export, import and other duties imposed by any governmental agency in connection with this Agreement. Licensee agrees to hold harmless Cloudify from all claims and liability arising from Licensee’s failure to report or pay such taxes, duties or other governmental charges.

6. Support

The fee specified in the relevant purchase order include payment for support and maintenance, including Updates, as further described in Cloudify’s Cloudify Platinum Service Level Agreement.

7. Limited Warranties; Disclaimer of Warranties

  7.1 Cloudify represents and warrants that the Software will perform substantially in accordance with its Documentation for a period of 45 days from the date of delivery to Licensee (the “Warranty Period”). Licensee’s sole and exclusive remedy for breach of this warranty shall be to notify Cloudify within the Warranty Period detailing the nonconformance, and to provide Cloudify with a reasonable opportunity, not to exceed 120 days, to correct or replace the defective Software. If Cloudify fails to remedy such breach within such period, Licensee shall be entitled to terminate this Agreement and Licensee will revert to Cloudify its licenses and will cease all use of the Product and Cloudify shall pay the Licensee as liquidated damages an amount equal to Subscription Fees then having been paid to Cloudify under this Agreement for the then current annual period, which payment shall be Licensee’s sole and exclusive remedy and Cloudify’ sole and exclusive liability for breach of the warranty set forth in this Section 8.1. This limited warranty shall not apply to issues caused by use of the Product or open source software other than in accordance with these Terms and/or the Documentation, or to issues caused by modifications of the Product or open source software by Licensee or any third party unless such modifications are contemplated by these Terms and/or the Documentation or have otherwise been approved by Cloudify in writing. Licensee agrees to comply with Cloudify’ reasonable instructions with respect to the alleged defective Product, which may include return of the defective Product at Cloudify’ sole expense.

  7.2 Cloudify will not provide, for intended use with the Product, any software that is subject to the terms of an Excluded Open Source License unless Cloudify has specifically notified Licensee of such software and the applicable Excluded Open Source License in accordance with Section 4 before making such software available to Licensee in conjunction with the Product, and Licensee confirms in writing to Cloudify that it is willing to receive such software. As used herein, “Excluded Open Source License” means any license that requires, as a condition of use, modification or distribution of software that is subject to such license, that such software or other software incorporated into, derived from or distributed with such software: (i) be disclosed or distributed in source code form, (ii) be licensed for the purpose of making derivative works, or (iii) be redistributable at no charge. For clarity, any software that is subject to the terms of an Excluded Open Source License also qualifies as open source software for purposes of Section 4.

  7.3 Cloudify further warrants that: (a) it has the power and authority, and has taken all corporate action required, to enter into and fully perform these Terms, and its entry into and performance of these Terms do not and will not violate any agreement to which it is bound; (b) the Software does not and will not contain any time-out, license key or other restrictive mechanisms of any kind other than as are under the sole control of Licensee; (c) the Product does not include or contain, and will not at any time knowingly include or contain, any virus, “Trojan horse” or other harmful code of any kind or nature whatsoever; and (d) Cloudify will comply with all applicable laws, rules, regulations, and ordinances in its performance of these Terms.

  7.4 Licensee warrants that: (a) it has the power and authority, and has taken all corporate action required, to enter into and fully perform these Terms, and its entry into and performance of these Terms do not and will not violate any agreement to which it is bound; and (b) Licensee will comply with all applicable laws, rules, regulations, and ordinances in its performance of these Terms. 

  7.5 EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 8.1 – 8.3, THE PRODUCT IS PROVIDED BY Cloudify TO LICENSEE “AS IS” AND Cloudify AND ITS SUPPLIERS, IF ANY, MAKE NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE PRODUCT, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW. Cloudify DOES NOT WARRANT THAT THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.

  7.6 Licensee is solely responsible for proper configuration of all hardware and other equipment and all databases and other software used with the Product.

8. Intellectual Property Indemnity

  8.1 Subject to Section 9.2 below, Cloudify will defend, indemnify, and hold harmless Licensee from and against any claims or actions (“Claim”) brought or made by a third party against Licensee and from all damages, costs, claims and expenses (including reasonable attorneys’ fees and costs) arising in connection therewith, and will pay any settlements agreed to by Cloudify or judgments awarded against Licensee in favor of the third party resulting from such Claim, to the extent based upon any Claim that the Product infringes any valid patent, copyright or trade secret, or any Claim that, if true, would be in breach of any warranty in Sections 8.2 or 8.3. In order to invoke its right to defense and indemnity under this Section 9.1, Licensee will, as promptly as reasonably practicable, notify Cloudify in writing of any such Claim, but Licensee’s failure to notify, or delay in notifying, Cloudify of a Claim will not relieve Cloudify of its obligations under this Section 9.1 except to the extent (if any) the failure or delay prejudiced Cloudify with respect to its obligations hereunder. Cloudify will be entitled, using counsel mutually acceptable to Licensee and Cloudify, to answer and defend any Claim tendered by Licensee hereunder, and Licensee will grant Cloudify sole control of such defense, except as described in this Section 9.1, and will provide Cloudify information, assistance and authority, at Cloudify’ expense, to help Cloudify defend such Claim. Licensee will have the right, at its sole expense, to employ separate counsel. Cloudify may not settle any Claim on behalf of Licensee without first obtaining Licensee’s written permission, which permission will not be unreasonably withheld. In the event the parties agree to settle a Claim, Cloudify will not publicize the settlement without first obtaining Licensee’s written permission.

  8.2 Cloudify will have no obligation to Licensee to the extent that any Claim arises from: (a) any modification to the Product by anyone other than Cloudify, unless such modifications are specifically contemplated by the Documentation or have otherwise been expressly approved in writing by Cloudify; (b) modifications made by Cloudify in accordance with Licensee’s specific request; (c) use of the Software other than as specified in these Terms or in the applicable Documentation; or (d) use of the Software in combination with third-party software, hardware or data not specifically contemplated by the Documentation or expressly approved in writing by Cloudify, if the Claim would not have arisen but for such combination.

  8.3 If a Claim arises, or in Cloudify’ opinion is likely to arise, Cloudify may at its own expense obtain for Licensee the right to continue using the Product, modify the Product to make it non-infringing while maintaining its compliance with the Documentation, or substitute at no additional cost another product of substantially similar capability and functionality of the Product and that meets the Documentation. If none of these options are reasonably available to Cloudify, Licensee may terminate these Terms in which case Cloudify will, within 30 days, refund to Licensee all fees paid under these Terms for the then current annual period, less a reasonable charge for Licensee’s use of the Product prior to such termination. THIS SECTION 9 STATES THE ENTIRE OBLIGATION OF Cloudify AND THE EXCLUSIVE REMEDIES OF LICENSEE WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS.

9. Limitation of Liability

EXCEPT FOR LICENSEE’S BREACH OF SECTIONS 1 AND/OR 2, A PARTY’S BREACH OF SECTION 11, AND/OR WITH RESPECT TO OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL Cloudify OR LICENSEE BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR LICENSEE’S BREACH OF SECTIONS 1 AND/OR 2, A PARTY’S BREACH OF SECTION 11, AND/OR WITH RESPECT TO OBLIGATIONS UNDER SECTION 9, NEITHER Cloudify’ NOR LICENSEE’S ENTIRE LIABILITY UNDER THESE TERMS FOR ANY DAMAGES FROM ANY CAUSE WHATSOEVER IN CONNECTION WITH THESE TERMS, REGARDLESS OF FORM OR ACTION, WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE, SHALL IN ANY EVENT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS PAID BY LICENSEE PURSUANT TO THESE TERMS WITHIN A 12 MONTH PERIOD PRIOR TO BRINGING OF ANY PARTICULAR CLAIM.

10. Confidential Information

Each party agrees to keep confidential and to use only for purposes of performing or as otherwise permitted under these Terms, any proprietary or confidential information of the other party disclosed pursuant to these Terms which is marked as confidential or is identified at the time of disclosure as confidential or which would reasonably be considered confidential or proprietary in nature, including without limitation the Product, which shall be considered as Cloudify’ confidential information, subject to the exceptions described in this paragraph. The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure, is known by the receiving party at the time of disclosure as evidenced in writing, is rightfully obtained from a third party who has the right to disclose it, or which is required by law, government order or request to be disclosed (provided that the receiving party shall give written notice to the other party prior to such disclosure and an opportunity, at the objecting party’s expense, to take legal steps to resist or narrow such request). Upon any termination of these Terms, each party shall return to the other party all confidential information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in these Terms.

11. Term and Termination

  11.1 Term and TerminationThese Terms shall remain in effect for the period specified in the relevant purchase order (“Term”). Following the Term, the parties may negotiate in good faith the terms and conditions to extend this agreement upon mutual written consent. Either party may terminate these Terms by giving the other party written notice of such termination upon the other party’s breach of any material term (subject to the breaching party’s right to cure within 30 days after receipt of such notice, to the extent such breach is curable), the other party’s insolvency, making an assignment for the benefit of creditor, receivership, or the institution of any similar proceedings by or against the other party.

  11.2 Effect of Termination. Upon any termination or expiration of these Terms, the license granted to Licensee under these Terms will revert to Cloudify.

  11.3 Survival. This Section, together with Sections ‎3, ‎8, ‎9, ‎10, ‎11, 12.2, ‎13 and ‎15 shall survive any expiration or termination of these Terms.

12. Force Majeure

Neither party shall be liable to the other for any performance delay or failure to perform hereunder, due to any act, omission or condition beyond the reasonable control of the affected party (“Force Majeure Event”), provided the affected party gives prompt notice to the other and makes reasonable efforts to resume performance as soon as possible. The party not affected by such act, omission or condition may terminate this Agreement upon written notice if the other party remains unable to perform because of any circumstances described in this Section 13 for a period of more than 60 days. It is hereby clarified that neither an occurrence of a Force Majeure Event or the termination of the Agreement in connection therewith shall relieve either party from its obligation to pay the other any outstanding payments due under this Agreement.

13. Publicity

Licensee agrees that Cloudify may indicate that Licensee is a Product user, and use its name and/or trademarks in any advertising or promotional materials or activities, including on Cloudify’ website.

14. Miscellaneous

These Terms represent the complete agreement concerning the Product between Licensee and Cloudify and supersedes all prior agreements and representations between Licensee 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 both parties. Nothing contained herein is intended or is to be construed to create a partnership, joint venture or agency relationship. If any provision of these Terms shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect. These Terms are personal to Licensee 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. Licensee expressly agrees 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. 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 updated August 1, 2017