end user license agreement for firmware, software and subscription services
Please read this document carefully before proceeding. By clicking on the “I Accept” or “Agree” button or accessing or using the Nebulon firmware, software and subscription services or one-hundred and twenty (120) from the date of delivery of the SPU (as defined below), the first to occur being the “Effective Date”, you are agreeing to the terms of this end user license agreement (“Agreement”).
This is a legal agreement between you (either an individual or a single legal entity) (“Customer”) and Nebulon, Inc., a Delaware corporation with offices at 3089 Skyway Ct, Fremont, CA 94539 (“Nebulon”). If you are entering into this Agreement on behalf of an entity (such as your employer), then you represent and warrant that you have the authority to bind that entity to this Agreement. As used herein, each of Nebulon and Customer may be referred to as a “Party” and collectively as the “Parties.” If you or your Company has previously accepted the most recent version of this Agreement, you are not required to re-accept or re-agree to this Agreement. If you are in doubt, click “I Accept” or “I Agree”. Nebulon may in the future amend or update this Agreement and we will try to inform you of any such amendment or update before it is implemented. In addition, any amendment or update to this Agreement shall be posted at nebulon.com/legal/eula and we encourage you to visit this site on a regular basis. By continuing to use the Licensed Software after we post an amendment or update, you are indicating your acceptance of the amendment or update.
This Agreement governs your use of Nebulon’s various firmware and software products, including any updates and upgrades Nebulon implements thereto (“Licensed Software”) and Nebulon’s cloud-based subscription service and any other infrastructure management service made available now or in the future (“Subscription Service”) (together the “Solution”). Initial Licensed Software is pre-installed on Customer’s services processing unit (“SPU”) and is subsequently made available by Nebulon through its Subscription Service.
1. LICENSE GRANT AND RESTRICTIONS
1.1 License Grant. Subject to the terms and conditions of this Agreement, Nebulon hereby grants to Customer a non-exclusive, non-sublicensable, non-assignable license to use the Solution, in object code form, as pre-installed on the SPU in the computer on which the SPU was originally installed or provided to Customer by subscription.
1.2 Additional Restrictions. Customer shall not, and shall not permit any third party, including any parent, subsidiary, affiliate, or agent of Customer, to: (a) assign, sell, lease, distribute, license, sublicense or otherwise transfer or attempt to transfer rights to the Solution; (b) extract, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or algorithms from the Solution, except to the extent expressly permitted by applicable law notwithstanding this restriction; (c) modify, translate, or create derivative works, adaptations or compilations of, or based on, any part of the Solution; (d) remove or otherwise interfere with any part of the Solution designed to monitor Customer’s compliance with this Agreement; (e) copy the Solution, in whole or in part, except as specifically authorized by this Agreement; (f) remove any proprietary notices or labels on or in any of the Solution; or (g) use the Solution for operations of any type on aircraft, ships, nuclear plants, life support machines, communications systems or any other equipment in which the malfunctioning of the Solution could lead to personal injury, death or environmental damage.
1.3 Reservation of Rights.Except for the limited rights granted in Section 1.1, Nebulon retains all right, title and interest in and to the Solution, and all intellectual property rights therein and thereto. Nothing in this Agreement shall constitute a transfer of any ownership rights by Nebulon to Customer in the Solution or otherwise. All rights in the Solution not expressly granted hereunder are reserved by Nebulon and its licensors. Notwithstanding the foregoing, if and to the extent that the Solution contains any open source software components, such components are licensed to Customer under the terms of the applicable open source license, and this Agreement is not intended to limit any rights granted to Customer under such open source license. Applicable copyright notices and open source or similar licensing terms can be found at nebulon.com/opensource/disclosure.
1.4 Use of Data. Nebulon shall obtain information concerning Customer’s use of the Solution, including system performance, capacity and memory usage, performance metrics, software and hardware configuration, error and information messages, resource identifiers, analytics and hardware faults (“Data”). Nebulon may use the Data to open Customer support tickets, optimize the Solution, to support, improve and promote Nebulon’s services and products to Customer, Customer or Nebulon’s service providers, and/or partners, and for other purposes. Nebulon may also use the Data in an aggregated and anonymized manner which will not identify the Customer. All such uses of Data by Nebulon shall be in compliance with applicable law.
1.6 Updates. During the term of this Agreement, Nebulon may update the Solution to reflect changes in, for instance, laws, regulations, technology, industry practices and patterns of use. Nebulon shall take all commercially reasonable efforts to ensure that any such updates will not materially reduce the level of performance, functionality, security or availability of the Solution.
2. DISCLAIMERS AND LIMITATIONS OF LIABILITY
2.1 Warranty. Nebulon warrants that the Solution will conform in all material respects with Nebulon’s published specifications for the term of the Subscription Services purchased by Customer. Provided the Licensed Software is still being supported by Nebulon, the Subscription Services shall include the provision of error corrections, improved usability, improved performance, and/or enhancements and updates of the Licensed Software. Customer’s sole and exclusive remedy and Nebulon’s sole and exclusive liability in the event of non-conformance shall be to use commercially reasonable efforts to correct or modify the Licensed Software and Subscription Services so as to conform in all material respects with their published specifications.
2.2 Disclaimer. NEBULON HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE LICENSED SOFTWARE, SUBSCRIPTION SERVICES OR ANY OTHER MATERIALS AND SERVICES FURNISHED OR PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. NEBULON DOES NOT WARRANT THAT EACH WILL BE ERROR-FREE OR SECURE, OR WILL WORK WITHOUT INTERRUPTIONS.
2.3 Limitation of Liability. IN NO EVENT WILL NEBULON BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER, OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE, OR USE OF THE LICENSED SOFTWARE, SUBSCRIPTION SERVICES OR ANY OTHER SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER CLAIM OR CAUSE OF ACTION, EVEN IF NEBULON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEBULON’S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE SUBSCRIPTION SERVICES DURING THE SIX (6) MONTHS PRECEDING THE EVENTS WHICH GAVE RISE TO THE DAMAGES.
3. TERM AND TERMINATION
3.1 Term. Unless terminated pursuant to Sections 3.3 or 3.4, this Agreement shall commence on the Effective Date and (i) with respect to the Licensed Software installed on a SPU, continue for the duration of Customer’s possession of such SPU in the computer on which the SPU was originally installed, and (ii) with respect to the Subscription Services, continue for the term of the Subscription Services purchased by Customer and any renewal thereof (“Subscription Term”). Subscription Services for the SPU in the computer on which the SPU was originally installed shall be made available by Customer’s server vendor, upon terms agreed with such vendor.
3.2 Post Expiry of the Subscription Term. Unless terminated pursuant to Sections 3.3 or 3.4, upon the expiry of the Subscription Term, Customer shall be granted a ninety (90) day grace period within which to renew the Subscription Services (“Grace Period”). Subject to Section 3.1, renewal shall be made by placing an order for the Subscription Services with the server vendor through whom Customer last purchased the Subscription Services. For the first forty-five (45) day period of the Grace Period, Customer will receive the same level of Subscription Services that Customer received during the Subscription Term. For the second forty-five (45) day period of the Grace Period, Customer may not receive updates, upgrade, patches or new functionality of the Subscription Services. If Customer decides to renew the Subscription Services, then the renewal will take effect from the date immediately following the expiry of the Subscription Term. If Customer decides not to renew the Subscription Services, then Customer shall cease using the Subscription Services and Nebulon shall cease providing the Subscription Services to Customer.
3.3 Termination by Customer Without Cause. This Agreement may be terminated by Customer at any time without cause, provided that no such termination will entitle Customer to a refund of any prepaid fees.
3.4 Termination by Nebulon for Cause. Nebulon may, by providing written notice to Customer, terminate this Agreement if Customer is in material breach of any term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Nebulon provides Customer with written notice of such breach.
3.5 Effect of Termination. Upon termination of this Agreement pursuant to Sections 3.3 or 3.4, the license granted to Customer in Section 1.1 will immediately cease and Customer will have no further rights to use the Solution.
3.6 Survival. If this Agreement is not renewed pursuant to Section 3.2, the following provisions will survive any termination of this Agreement: Sections 1.1 (as regards the Licensed Software only), 1.2, 1.4, 2.3, 4 and 5.
Nebulon shall defend and pay damages awarded for, or at its option settle, any third-party claim brought against Customer to the extent it alleges that any of the Solution delivered to or accessed by Customer and used as authorized in this Agreement infringes any intellectual property rights of any third party; provided that Customer provides Nebulon with (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) all information and assistance reasonably requested by Nebulon in connection with the defense or settlement of such claim. In the event any such claim is brought or threatened, Nebulon may, at its sole option and expense: (a) procure for Customer the right to continue use of the affected Solution; (b) modify or amend the affected Solution to make it/them non-infringing; (c) replace the affected Solution with a non-infringing Solution having substantially similar capabilities; or (d) if (a), (b) and (c) are not commercially feasible, terminate this Agreement immediately by notice to Customer and refund any pre-paid Subscription Services fees for the period from the date of termination to the expiry of the Subscription Term had this Agreement not been so terminated by Nebulon. Notwithstanding the foregoing, Nebulon will have no liability to Customer for any claim of infringement to the extent such claim arises out of or is based upon (i) any modification of the affected Solution, in whole or in part, not made or authorized in writing by Nebulon; (ii) Customer’s failure to use the Solution in accordance with this Agreement, or instructions provided by Nebulon, or otherwise using the affected Solution for purposes for which they were not designed or intended; (iii) Solution updates provided by Nebulon to comply with the designs, requirements or specifications requested by Customer; or (iv) use of any specified release of the affected Solution after Nebulon notifies Customer that continued use of such release may subject Customer to a claim of infringement, if Nebulon provides Customer with a replacement release. THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF NEBULON AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT BY THE SOLUTION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
5.1 Third-Party Firmware Updates. The Solution enables Nebulon to install certain firmware updates to the solid-state drives, SAS expanders and other devises on the computers in which an SPU is installed. By accepting this Agreement you are agreeing to Nebulon’s installing such updates, in binary form, in accordance with your software license agreement with the relevant third-party.
5.2 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part without the prior written consent of Nebulon, which shall not be unreasonably withheld. Nebulon may assign or transfer this Agreement, in whole or in part. A change of control of a Party shall not be considered an assignment. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.
5.3 Relationship of Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership or other form of joint enterprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party shall have the authority to contract for or bind the other in any manner whatsoever. This Agreement confers no rights upon either Party except those expressly granted herein.
5.4 Backup Copies. Nebulon is not responsible for the backup storage of Customer’s data. Accordingly, Customer shall be responsible for the backup of its data and Customer assumes responsibility for any loss or damage from its failure to so maintain backup copies.
5.5 Notices.Any notice to a Party required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the address of the Party concerned.
5.6 Export Control. Customer agrees to comply with all applicable export control laws and regulations. Customer shall not sell, export, reexport, transfer, divert or otherwise dispose of, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
5.7 Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed as, and will not be deemed to be, a waiver of such Party’s rights under this Agreement, and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action. No exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under this Agreement or any other right or remedy that such Party is entitled by law to enforce.
5.8 Severability. If any term, condition or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
5.9 Integration. This Agreement contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both Parties.
5.10 Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Any judicial action or proceeding arising hereunder or relating hereto shall be brought in, and the Parties hereby consent to the exclusive personal jurisdiction of, the state and federal courts located in Santa Clara County, California.