GLASNOSTIC END USER LICENSE AGREEMENT
PLEASE READ CAREFULLY BEFORE YOU ACCESS, INSTALL OR USE OUR SOFTWARE
YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT WHEN YOU ACCESS, INSTALL OR OTHERWISE USE THE SOFTWARE DESCRIBED BELOW. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS, INSTALL OR USE THE SOFTWARE.
This End User License Agreement (“Agreement”) is a legal agreement entered into by and between you (“you” or “your”) and Glasnostic, Inc. (“Glasnostic” “we” or “us”) and governs and applies to your access to and use of the software product(s) made available or licensed by Glasnostic, Inc., whether through a cloud service provider or otherwise (the “Software”). References in this Agreement to “you” and “your” shall mean the individual accepting or agreeing to this Agreement, or accessing or using the Software, as well as the company, institution or other entity (“Licensee Entity”) that you represent or that is employing, contracting or retaining you in relation to the Software, or on whose behalf you and/or other fellow employees or contractors of the Licensee Entity are using the Software hereunder. You represent, warrant and agree that you are authorized to enter into this Agreement on behalf of the Licensee Entity and to bind the Licensee Entity to the terms and conditions herein.
License to Software.
Agreement. Subject to your compliance with the terms and conditions of this Agreement, we grant to you a limited, non-exclusive, non-transferable, non-sublicensable license to install, use, access, and run the Software in object code form for your internal business purposes during the Term.
Documentation. You may use any user manuals, technical manuals, and any other similar materials provided or published by us, in printed or electronic form, that describe the installation, operation, use or technical specifications of the Software (“Documentation”) solely in support of the licensed use of the Software in accordance with this Agreement.
Reservation of Rights. Other than as specifically described herein, we retain all right, title and interest in and to our Software and Documentation and any other intellectual property of Glasnostic. Except as expressly stated herein, no rights or licenses are granted or provided by Glasnostic, by implication, estoppel or otherwise.
Compliance with Documentation and Laws. Your use of the Software must comply with this Agreement, applicable laws and regulations, applicable Documentation, and the information page or listing on the cloud service (such as the AWS Marketplace) where the Software was ordered, licensed or accessed, if applicable, and/or Glasnostic’s purchase order, quote, Licensing file or website order or download page for the Software (collectively, as applicable, the “Sales Documentation”), including, but not limited to, any restrictions or parameters regarding the use, users, characteristics or other features of the Software specified therein. We reserve the right to monitor or audit your use of the Software (or authorize third party auditors to conduct such monitoring or audit on our behalf) and to disable any application or functionality that has not been properly used or licensed, in addition to any other rights and remedies available to us.
Use and Other Restrictions. Except as otherwise expressly permitted in this Agreement, you will not yourself, or through any parent, subsidiary, affiliate, agent or other third party:
copy (except, as and if applicable, to make one archival copy for backup and disaster recover purposes), modify or create derivative works of the Software or Documentation;
sell, sub-license, rent, lease, provide service bureau or similar services with or using, grant usage rights to, distribute, publish, disclose or transfer the Software or any associated Documentation;
disassemble, reverse compile, decode, or reverse engineer the Software or encourage or permit others to do so except as required by law for interoperability purposes, and then only after you have provided us prior written notice thereof and given us an opportunity to provide information or software necessary to resolve such interoperability issues;
defeat, circumvent or disable any reporting mechanism, copy protection mechanism or mechanism in the Software used to limit license duration or access to non-licensed functionality or capacity, or remove any proprietary notices from or in the Software.
Violation of any of the restrictions contained in this Section 2(b) is a material breach of this Agreement.
Software Hosted by a Cloud Service Provider.
If you access, install or use the Software on or through a cloud service provider such as, for example, Amazon Web Services (“AWS”) or the AWS Marketplace, or in a public cloud environment (any such cloud service provider or public cloud referred to herein as a “Cloud Provider”), you may only use the Software in object code form in such Cloud Provider’s environment. You may not copy any portion of the Software out of the Cloud Provider environment. Each instance of the Software running in the Cloud Provider’s environment may require its own license key. If you are using a metered or utility offering (e.g., hourly) from the Cloud Provider, each instance is licensed and paid for separately within the Cloud Provider’s infrastructure.
Software Information. You consent and agree to the collection and use of certain information about the Software you have licensed and its use, which may include service names (what a particular endpoint in the network resolves to) and metrics about which service interacts with which other service, how much and when, as well as other information regarding usage, disk configuration, memory amount, as well as periodic updates for software, databases, etc. You further consent and agree that the Software may collect, use, transmit to us, process and maintain information related to the Software and its use for purposes of providing the Software and any features therein and for purposes of monitoring compliance with this Agreement. Information collected by the Software and transmitted to us may also include technical or diagnostic information related to your use that may be used by us to support, improve and enhance our products and services. If applicable and available as a feature for the Software, you may be able to opt out of the collection and use of such information by configuring the Software to disable these features.
No Warranty, Support and Disclaimer.
No Warranty. The Software is provided “As Is” without warranty of any kind. All use of the Software by you is solely at your own risk.
No Update Obligations. Glasnostic may, but has no obligation to, provide updates, modifications, patches, fixes and upgrades to the Software, all of which shall be deemed to be part of and included within the Software for purposes of this Agreement.
Support. Subject to the terms and conditions of this Agreement, during the Term of the Agreement, Glasnostic shall use commercially reasonable efforts to provide you with email and/or messaging support for the Software through designated contact individuals during our regular business hours in accordance with Glasnostic’s standard support policies and procedures and/or as set forth in the Sales Documentation. Glasnostic shall use commercially reasonable efforts to respond to problems and errors reported by you through such channels in a manner commensurate with the severity of such problems or errors and otherwise in accordance with Glasnostic’s standard support policies and procedures.
Disclaimer. GLASNOSTIC AND ITS LICENSORS DISCLAIM ANY AND ALL, WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, ARISING UNDER OR WITH RESPECT TO THE SOFTWARE, DOCUMENTATION OR OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, WARRANTY OF NON-INFRINGEMENT OR TITLE AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT DO WE WARRANT THAT THE SOFTWARE IS ERROR FREE OR THAT THE SOFTWARE WILL SATISFY YOUR OWN SPECIFIC REQUIREMENTS. WE MAKE NO WARRANTY CONCERNING THE COMPLETENESS OR ACCURACY OF THE DATA OR INFORMATION OBTAINED OR DERIVED THROUGH THE USE OF THE SOFTWARE AND ALL SUCH DATA AND INFORMATION IS PROVIDED “AS IS”. WE HAVE NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATIONS OR WARRANTIES OTHER THAN AS PROVIDED IN SECTION 3(a) ABOVE OR TO OTHERWISE MODIFY THE TERMS OF THIS AGREEMENT.
Fees and Payments.
You shall pay Glasnostic the fees and other charges (“Fees”) as set forth in the Sales Documentation. If you order, access or use the Software through a Cloud Provider (including without limitation AWS Marketplace), you shall pay applicable Fees to and through such Cloud Provider in accordance with its terms and arrangements (including without limitation any currency requirements and due dates set by such Cloud Provider). If you order the Software directly from Glasnostic (or under other arrangements where Fees are payable directly to Glasnostic), you shall make all payments hereunder in US dollars on or before the due date established by Glasnostic, if applicable and/or as set forth in the applicable Sales Documentation, or if no such due date is provided for, within thirty (30) days of Glasnostic’s invoice for such Fees. In the event you fail to pay any Fees to the applicable Cloud Provider when due such Cloud Provider may suspend or terminate your access to and use of the Software, and/or charge interest and/or collection fees, all in accordance with the applicable policies and rules of such Cloud Provider, If you fail to make any payment of Fees to Glasnostic when due, without limiting Glasnostic’s other rights and remedies: (i) Glasnostic may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) you shall reimburse Glasnostic for all costs incurred by Glasnostic in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 45 days or more, Glasnostic may suspend your access to and use of the Software until such amounts are paid in full and/or terminate this Agreement. Except as expressly provided for in this Agreement, all Fees are non-refundable, non-creditable and non-cancelable.
Except to the extent otherwise specified in the Sales Documentation, Glasnostic may increase or change Fees for the Software on at least 30 days’ advance notice. Such changed Fees shall automatically go into effect at the end of such 30 day period unless you terminate your Software license prior to such time by written notice to Glasnostic.
All Fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, or your receipt or use of the Software hereunder, other than any taxes imposed on Glasnostic’s net income.
Infringement Defense. Subject to Section 5(c) below, we will, at our expense, defend any suit brought against you by an unaffiliated third party based upon a claim that the Software (as and in the form provided by us) infringes a valid trademark or copyright or misappropriates a third-party trade secret of a third party. We will pay costs and damages (including reasonable attorneys’ fees) finally awarded against you, or agreed in settlement by us, directly attributable to any such claim and will bear all reasonable costs of the investigation and defense of the claim, but only on condition that: (a) you notify us in writing of such claim promptly upon first becoming aware of such claim, (2) we have sole control of the defense and settlement negotiations with respect to such claim, (3) you provide us all information and communications received by you concerning such claim, and (4) you provide reasonable assistance to us when requested with respect to such claim. You will have the right to participate in the defense with counsel of your own choosing at your expense; provided that such representation does not interfere with our right to control the defense.
Exclusive Liability. In the event of any claim that the Software infringes or misappropriates any third party intellectual property rights, we will have the right, at our option and expense, to (1) obtain for you rights to use the Software, (2) replace or modify the Software so that it becomes non-infringing, or (3) terminate your license to the Software and accept return of the Software, upon which the Term and this Agreement will terminate, in exchange for a credit not to exceed a pro rata portion of the purchase price paid by you for such Software over the one year period preceding the date such claim arose. The foregoing and the indemnity in Section 5(a), states our exclusive liability to you, and your sole and exclusive rights and remedies concerning infringement or misappropriation hereunder.
Restrictions. We will have no liability for any claim of infringement based on (1) use of a superseded release of the Software where the subsequent release is equally available to you at no cost and is non-infringing; (2) use of the Software in combination with equipment or software not supplied by us (including Open Source Components) where the Software would not itself be infringing; (3) use of the Software in an application or environment not described in the Documentation; (4) the Cloud Provider’s environment or your, or any third party, software, hardware, systems, networks, data or technology; (5) Software that has been altered or modified in any way by anyone other than us or our authorized agents; (6) your continued use of the Software after we notify you to discontinue use due to such a claim; or (7) any other use of the Software in violation of the terms of this Agreement.
DISCLAIMER; LIMITATION OF LIABILITY AND REMEDY. WE AND OUR LICENSORS WILL NOT HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, LOSS OF REPUTATION, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF BUSINESS, LOST PROFITS, OR OTHER SIMILAR FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, OUR LICENSORS WILL NOT HAVE ANY LIABILITY FOR ANY DIRECT DAMAGES OF ANY KIND UNDER THIS AGREEMENT. SUBJECT TO THE FOREGOING, THE COLLECTIVE LIABILITY OF US AND OUR LICENSORS UNDER OR IN CONNECTION WITH THE SOFTWARE OR THIS AGREEMENT WILL BE LIMITED TO, AND SHALL NOT EXCEED, THE GREATER OF (A) $100, AND (B) THE AMOUNT PAID FOR THE SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS CONTAINED IN THIS SECTION WILL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER ANY TERM OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN THOSE JURISDICTIONS, SUCH INAPPLICABILITY WILL NOT AFFECT THE REMAINDER OF THE PROVISIONS IN THIS SECTION.
Term and Termination. The Software is licensed to you on a subscription basis in accordance with the terms of this Section 7. Unless otherwise set forth in an agreement between us and you, the Software is licensed to you for the term set forth in the applicable Sales Documentation, or if not otherwise specified, for successive monthly periods continuing on a month-to-month basis until either party provides written notice of nonrenewal at least 30 days prior to the end of the then-current monthly period, or unless earlier terminated in accordance with this Agreement (as applicable, the “Term”). For the avoidance of doubt, and notwithstanding anything herein to the contrary, if you have signed up for, ordered or paid for an annual subscription plan for the Software (whether with us or a Cloud Provider), the Term shall last for the annual period covered by such, plus any renewals thereof, unless earlier terminated as otherwise provided for in this Agreement. We may terminate this Agreement at any time if you fail to comply with any of the terms and conditions set forth herein. Upon termination or expiration of the Agreement, the licenses granted herein will terminate and you will stop using or accessing the Software (and stop all instances of the Software running in a Cloud Provider environment that you have used or accessed) and will promptly destroy any copies of the Software and Documentation in your possession or control.
Governing Law and Dispute Resolution.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S., without regard to its conflict of law or choice of law rules or principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, in whatever form adopted, will not apply to this Agreement, is expressly and entirely excluded, and the parties specifically opt out of the application of such laws.
Except for Excluded Claims (defined below), all disputes arising out of or in connection with this Agreement, including any question regarding its formation, existence, validity or termination, shall be finally an exclusively settled under the Commercial Arbitration Rules of the American Arbitration Association by one arbitrator appointed in accordance with such rules. Any dispute concerning the scope or applicability of this agreement to arbitrate shall be finally settled by the arbitrator(s). The seat, or legal place, of arbitration shall be in San Francisco, California. The language of the arbitration shall be English. The arbitration award shall be final and binding on the parties, and the parties undertake to carry out any award without delay. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of its reasonable costs and fees. Nothing herein shall limit or restrict either party from seeking or obtaining interim injunctive or similar relief in a court of competent jurisdiction pending the outcome of the arbitration.
“Excluded Claims” means any dispute, claim or action concerning the validity, enforceability, infringement, misappropriation or violation of our intellectual property rights or those of our licensors and all such Excluded Claims shall be brought in any court of competent jurisdiction.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST GLASNOSTIC ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR GROUP LITIGATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE, LAW, YOU UNDERSTAND AND AGREE THAT YOU ARE (A) WAIVING THE RIGHT TO A TRIAL BY JURY; (B) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION; AND (C) WAIVING THE RIGHT TO CLAIM OR RECOVER PUNITIVE DAMAGES.
Notice. All notices, consents, demands, waivers, and similar formal communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses (i) set forth in the Sales Documentation or Glasnostic’s website at glasnostic.com, and (ii) provided by you upon registration or sign up or order of the Software (or with the Cloud Provider if applicable) with respect to you (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email, or certified or registered mail (confirm receipt requested, postage pre-paid).
Agreement Changes and Amendment. Glasnostic reserves the right at any time to modify or amend this Agreement in its sole discretion, without liability to you. This Agreement, as modified or amended, will be effective upon use of the Software for all existing users immediately after any amended or modified terms are posted on Glasnostic’s website at glasnostic.com or in the location where the Software and associated Sales Documentation were posted, displayed or offered for license. You agree to be bound by this Agreement, as modified and amended. If you do not agree to any modification or amendment to this Agreement, you must stop using the Software and terminate your license immediately. It is incumbent upon you to check for any amendments or modifications to this Agreement from time to time so that you will be apprised of any changes.
Miscellaneous. If either party is unable to perform any of its obligations under this Agreement, other than payment obligations, due to any cause beyond the reasonable control of such party, the affected party’s performance shall be extended for the period of its inability to perform due to such occurrence. This Agreement and the rights and obligations herein may not be assigned or transferred, in whole or in part, by you without the prior written consent of Glasnostic. Glasnostic shall be free to assign this Agreement without consent to any affiliate or successor in interest in connection with the merger, acquisition, reorganization or sale of Glasnostic or substantially all of its assets to which this Agreement relates. Any assignment in violation of this provision is void and without effect. In the case of any permitted assignment or transfer under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. No provision of, right or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing duly executed by both parties. No waiver by any party of any breach or default of any provision of this Agreement by the other party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver.
Headings and captions used in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable. This Agreement together with the applicable Sales Documentation and all other documents that are incorporated by reference herein, constitute the entire agreement between the parties relating to the subject matter hereof and supersede all proposals, understandings, arrangements, agreements, or discussions, whether written or oral, relating to the subject matter of this Agreement and all past dealing or industry custom.