THIS END USER LICENSE AGREEMENT (“EULA”) IS A BINDING CONTRACT BETWEEN YOU (“YOU”, “YOUR”) AND BRICATA, INC. (“WE,” “US,” “OUR,” OR “BRICATA”). THIS EULA GOVERNS YOUR ACCESS TO AND USE OF ANY SOFTWARE (TOGETHER WITH ANY SDKs, LIBRARIES, UTILITIES, TOOLS, UPGRADES, UPDATES, PATCHES, MODULES, ENHANCEMENTS, AND ADDITIONAL VERSIONS OF THE SOFTWARE THAT REPLACE OR SUPPLEMENT THE ORIGINAL SOFTWARE, AND ANY ACCOMPANYING MANUALS, CONFIGURATION, OR OPERATIONAL INSTRUCTIONS AND DOCUMENTATION (AS DEFINED BELOW)(THE “SOFTWARE”) PROVIDED TO YOU BY US. IF YOU DOWNLOAD, INSTALL, OR USE THE SOFTWARE, YOU ACCEPT AND AGREE TO BE BOUND BY THIS EULA. IF YOU ARE AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SOFTWARE. IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, THEN YOU ARE NOT PERMITTED TO INSTALL, ACCESS, DOWNLOAD, OR OTHERWISE USE THE SOFTWARE.
Capitalized terms used, but not defined, herein shall have the meanings set forth in our Terms of Service (“Terms of Service”).
1. LICENSE. Subject to your compliance with this EULA, we hereby grant you a personal, limited, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free, worldwide license to download, install, access and use the Software (in object code form only) for your internal business purposes, in the specific configuration and for the time period (which may be perpetual) (“Subscription Period”) set forth in the order form issued to you by us or our authorized agent (“Order Form”), solely on either (a) computer hardware servers sold to you by us, (b) third-party branded-hardware that has been procured and provided to you by or through us (as set forth in the Documentation), or (c) computer hardware servers owned or provided by you. You may allow your contractors (each, a “Permitted Third Party”) to use the Software solely for the purpose of providing services to you, provided that such use is in compliance with this EULA. You agree that you are liable for any breach of this EULA by any Permitted Third Party.
2. RESPONSIBILITY FOR USE OF THE PRODUCTS.
- 2.1 Compliance. You are responsible for complying with (a) all instructions and requirements in any Software specification sheets, user guides, security best practices, and other documentation that we provide or make available to you in connection with the Software (the “Documentation”) and (b) all applicable local, state, national, and international laws and regulations (as each of these may be amended) (“Applicable Law”) with respect to your use of the Software. You are liable for all actions and failures to take required actions with respect to the Documentation or under Applicable by a Permitted Third-Party or any other person for whom you authorized or permitted access to or use of the Software, whether such access or use is permitted by or in violation of this EULA.
- 2.2 Licensed Metric Units. You agree that your access and use of the Software is only up to the maximum rate of total bits of throughput for the Software measured on per second basis that have been purchased by you (the “Licensed Metric Units”). If you exceed the number of purchased License Metric Units in any calendar quarter, you (within ten days after the last day of the calendar quarter in which your use first exceeded that limit) will (a) notify us in writing of the excess use and (b) order and purchase sufficient License Metric Units to meet the usage exhibited during such calendar quarter. We reserve the right to, at our expense and upon reasonable notice to you, inspect and copy any records to verify your compliance with this Section. If an inspection discloses that you exceeded your purchased License Metric Units but failed purchase additional Licensed Metric Units, then on notice to you of the inspection results you shall immediately: (x) purchase and pay for sufficient additional License Metric Units to meet such excess use, (y) pay to us a late payment fee of one percent (1%) on the additional License Metric Units’ purchase price (compounded monthly for each calendar month beginning on the month your use first exceeded your purchased License Metric Units through the end of audited period), and (z) pay the reasonable costs incurred by Bricata in conducting the audit.
- 2.3 Restrictions. Except as permitted by this EULA, you will not, nor will you encourage, assist, or authorize any other person to: (a) incorporate any portion of the Software into your own programs or compile any portion of the Software in combination with your own programs, (b) distribute (for a fee or otherwise), transfer, or disclose the Software, or make the functionality of the Software available to any other person through any means, (c) modify, translate, or create derivative works based on the Software, (d) disassemble, decompile, reverse compile, reverse engineer, or otherwise attempt to derive the source code of the Software, except to the extent such activities are expressly permitted by Applicable Law, notwithstanding this prohibition, (e) disclose, publish, or otherwise make publicly available any benchmark, performance, or comparison tests that you run on the Software, (f) duplicate the Software except for making a reasonable number of archival or backup copies, provided that you reproduce on or in such copies the proprietary notices or markings that appear on the original copy of the Software (if any), (g) delete or alter any proprietary rights notice or marking in relation to the Software, or (h) use the Software to process, transmit or otherwise make available any content that infringes or misappropriates the intellectual property or proprietary rights of any third party, or without an appropriate license, permission or certification (including as may be required by Applicable Law).
3. OWNERSHIP. You acknowledge and agree that the Software is provided under license or similar right to access and use, and is not sold, to you. The structure, organization, and code of the Software are our valuable trade secrets and constitutes our confidential information. You acknowledge and agree that title to the Software and all copies thereof, including all industrial and intellectual property rights (including the exclusive rights of economic exploitation), copyright, trade secrets, and patent rights, are owned by us, our affiliates, and our licensors. The Software is protected by Applicable Law, including without limitation copyright laws and international treaty provisions. You do not acquire any ownership, proprietary, or other right or interest in the Software other than as expressly stated in this EULA.
4. SUGGESTIONS. If you elect to provide any Suggestions to us, we will be entitled to use the Suggestions without restriction. For purposes of this EULA, “Suggestions” includes all suggested improvements to the Software that you provide to us.
5. THIRD-PARTY SOFTWARE. The Software may include software developed, owned, or provided by third parties or their licensors (including open source software) (the “Third-Party Software”). Use of Third Party Software is governed by separate licenses, as indicated in the license, notice, readme, or other files or notices that we distribute with an Appliance or the applicable component of the Software. Your license rights with respect to Third-Party Software are defined by the applicable Third-Party Software license, and nothing in this EULA will restrict, limit, or otherwise affect any rights or obligations you may have, or conditions to which you may be subject under such Third-Party Software licenses. You agree to be bound by and subject to the terms and conditions of each applicable Third-Party Software license. If you do not agree to be bound by and subject to the terms and conditions of each applicable Third-Party Software license, you must terminate this EULA by uninstalling and destroying all copies of the Software that are in your possession or control. If our rights from a licensor of Third-Party Software are limited, suspended, or terminated for any reason, your rights will also be so limited, suspended, or terminated.
6. TERM; TERMINATION; EFFECT OF TERMINATION. This EULA and the licenses or rights granted hereunder begin on the start of the Subscription Period (which shall automatically renew for a like term unless either party provides written notice of its intent not to renew on no less than sixty (60) days prior to the end of then-current term) and continue until the earlier of: (a) the expiration of the Subscription Period, (b) we terminate this EULA (i) for your (1) failure to make timely payment for the Software or (2) your breach of Section 1, Section 2.3, Section 3, Section 6, or Section 7 of this EULA or (3) your breach of Sections 2, 3, 4.3, 5, 6, or 8 of the Terms of Service, (ii) for your material breach of this EULA (except for the provision contained in subsection (b)(i)(2)) and such breach is incapable of cure or remains uncured within ten (10) days of our written notice to you of such material breach, or (iii) effective as of the date you file, or have filed against you, a petition for voluntary or involuntary bankruptcy or insolvency or seek to make a general assignment for the benefit of your creditors, or (c) for our material breach of this EULA and such breach is incapable of cure or remains uncured within ten (10) days of your written notice to us of such material breach. Upon expiration or termination, you shall cease all use of the Software and destroy all copies of the same along with any Documentation under your control. No expiration or termination shall affect your payment obligations to us that became due prior to expiration or termination. Sections 2, 3, 4, 5, 6, 7.2, 8, 9, and 10 survive the expiration or termination of this EULA.
7. WARRANTY; DISCLAIMERS.
- 7.1 Warranty. For a period of ninety (90) days following the start of the Subscription Period, we warrant, solely with respect to Software for which you pay and we receive a fee, that the Software, when installed and operated pursuant to our instructions in the Documentation, will perform in material accordance with such Documentation. This limited warranty is not transferable and does not cover damages, defects, malfunctions or failures caused by: (a) any unauthorized modification by you or those acting under your direction or control of (1) the Software or (2) any hardware or software that interfaces with the Software, (b) installation, configuration, or use of the Software contrary to, or in conjunction with hardware or software not specified in, the Documentation, or (c) your misuse or abuse of the Software, including subjecting the same or any hardware or software that interfaces with the Software to abnormal physical, electrical, or environmental stress. Your sole and exclusive remedy for any breach of this warranty is to return any allegedly defective Software to us and we will, at our option and in our discretion, either: (x) repair or replace the Software, provided that you provide us with all information we reasonably request to resolve the reported failure, including sufficient information to enable us to recreate such failure or (y) refund the pro rata fees paid for the Software, subject to your ceasing all use of and, if requested, the return (including all copies) of the Software to us. If we repair or replace the Software, the warranty will continue to run from the start of the Subscription Period (and not from your receipt of the repaired or replacement Software). You will pay the shipping costs for return of the Software (if any) to us and we will pay the shipping costs (if any) for shipment of repaired or replacement Software back to you.
- 7.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE SOFTWARE IS DELIVERED TO YOU “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. NOTWITHSTANDING THE FOREGOING, THE THIRD-PARTY SOFTWARE IS PROVIDED TO YOU “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND OUR AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS (EACH A “RELEASED PARTY” AND TOGETHER THE “RELEASED PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE, OR WORK, WITH ANY OTHER SOFTWARE, APPLICATION, SYSTEM, HARDWARE, OR SERVICE, OR OPERATE WITHOUT INTERRUPTION OR MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, AND IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.
8. LIABILITY DISCLAIMERS; DAMAGES CAP.
- 8.1 Limitation of Liability. NO RELEASED PARTY WILL BE LIABLE TO YOU UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY FOR (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, (B) THE VALUE OF YOUR CONTENT, (C) LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, OR GOODWILL, OR (D) UNAVAILABILITY OF THE SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF, OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES.
- 8.2 Damages Cap. OUR AND OUR AFFILIATES’ AGGREGATE LIABILITY UNDER THIS EULA WILL NOT EXCEED THE LESSER OF $10,000 OR THE AMOUNT RECEIVED BY US FOR THE APPLICABLE SOFTWARE LICENSE DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CLAIM AROSE.
9. AMENDMENT. We may amend this EULA at any time in our sole discretion by posting the revised terms at www.bricata.com. Your continued use of the Software after the effective date of the amended EULA evidences your agreement to be bound by it. If you do not agree to a change, you must stop using the Software and terminate this EULA.
LAST MODIFIED: October 12, 2020