End User License and Services Agreement
This End User License Agreement (the “Agreement“) is entered into by and between CTERA Networks Ltd. (“CTERA“) and the legal entity installing and using the Software (defined below) (“Customer“). “Software” means: (i) any software or firmware owned or licensed by CTERA and provided to Customer by CTERA or its Authorized Partner (defined below) including updates and upgrades, but excluding Third Party Software (defined below); and (ii) all accompanying user manuals, help guide and other documentation.
PLEASE NOTE: BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE SOFTWARE, OR BY CHOOSING THE “I ACCEPT” OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THIS AGREEMENT MAY BE DISPLAYED, CUSTOMER AGREES TO THIS AGREEMENT. THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS FULL AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, IT MUST NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE AND MUST PROMPTLY RETURN THE SOFTWARE AND PROOF OF PAYMENT TO THE PARTY FROM WHOM IT WAS OBTAINED, PROVIDED THAT THE RETURN IS MADE WITHIN TEN (10) DAYS OF THE DATE OF PURCHASE.
1. License to Use Software
1.1 Subject to timely payment to CTERA or its authorized reseller, distributor, cloud service provider or any other business partner (the “Authorized Partner“) of all payments payable in respect of the Software, and Customer’s compliance with the terms and conditions of this Agreement, CTERA hereby grants Customer, during the fixed license term or subscription period for which the license has been purchased, a non-exclusive, non-sublicensable, non-transferable license to install and use the object code version of the Software at the specified level of use purchased by Customer, solely for Customer’s internal business operations, in accordance with the terms set forth in this Agreement and subject to any further restrictions in CTERA documentation, and for Software embedded or included in hardware, only on such hardware with which it was provided. Notwithstanding the above, to the extent specifically agreed between CTERA and Customer in writing, Customer may use CTERA’s portal software for the purpose of providing services to Customer’s customers, pursuant to the provisions herein. Customer agrees that, except for the limited, specific license rights granted in this section 1, Customer receives no license or other rights to the Software.
1.2 Unless otherwise authorized in writing by CTERA and to the extent otherwise provided in the applicable license for FOSS (as defined below), Customer undertakes not to (and not to allow third parties to) (1) sublicense, lease, rent, loan, resell or otherwise transfer the Software to any third party, (2) decompile, disassemble, decrypt, extract or otherwise reverse engineer or attempt to reconstruct or discover any source code of, or any underlying ideas in, the Software (“Reverse Engineering“), (3) modify, enhance, supplement, adapt, or prepare derivative works from the Software, (4) allow others to use the Software and use the Software for the benefit of third parties (provided that CTERA’s portal software may be used by Customer for the benefit of Customer’s customers), (5) develop any other product containing any of the concepts and ideas contained in the Software, (6) remove, obscure, or alter CTERA’s or any third party’s trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software, (7) publish any results of benchmark tests run on the Software, or (8) make unauthorized copies of the Software, except for a reasonable number of copies of the Software solely for regulatory or backup purposes. To the extent required by applicable law, at Customer’s written request, CTERA will provide Customer with such interface information needed to achieve interoperability between the Software and another independently created program, on payment of CTERA’s applicable fee, if any.
1.3 CTERA may perform certain analysis relating to Customer’s use of the Software and related hardware, using CTERA’s analytics tool, CTERA Insight (the “Analysis Service“). Customer acknowledges and agrees that in order to enable the provision of the Analysis Service by CTERA, the Software will transmit to CTERA technical and statistical logs relating to performance and usage of the Software.
1.4 Maintenance and Support. This Agreement does not include the provision of maintenance and support services, updates, or upgrades, except if such are purchased by Customer. If Customer purchases maintenance and support services in respect of the Software, either as part of a subscription to the Software or separately, then CTERA shall provide such services in accordance with CTERA’s Support Policy available at CTERA Support Policy and incorporated herein, as amended or updated from time to time (“Support Policy“), and according to the specific period and level of service purchased by Customer (“Support Services“). Customer hereby agrees to the terms and conditions of the Support Policy.
1.5 Except as expressly provided in this Agreement, all payments relating to the Software, Hardware, Analysis Service and Support Services are non-cancelable and non-refundable.
2. Intellectual Property
2.1 Customer acknowledges that CTERA or its third party licensors own all right, title and interest, including all intellectual property rights, in and to the Software and Third Party Software, portions thereof, or software or content provided through or in conjunction with the Software. Except for the license granted in accordance with Section 1 of this Agreement, all rights in and to the Software are reserved, no licenses, implied or otherwise, are granted by CTERA. Customer is not authorized to use CTERA’s trademarks, service marks, or trade dress, and Customer agrees not to display or use them in any manner.
2.2 Customer hereby agrees that any feedback or ideas that Customer provides CTERA regarding the Software including any suggested improvements thereto (“Feedback”) will be solely and exclusively CTERA’s property and CTERA may use and exploit such Feedback without any obligations or restrictions. To the extent that Customer owns any rights in the Feedback, Customer agrees to assign and here¬by does assign to CTERA all right, title and interest in and to the Feedback.
3. Open Source
CTERA uses certain free and open-source programs (collectively, the “FOSS”) with or within the Software. A list of the FOSS, together with their respective licensing terms and notices, is available on CTERA’s website at https://bit.ly/2XrWx0k, as may be updated from time to time. To the extent the provisions of any FOSS license grant Customer additional rights, those provisions will expressly override the terms of this Agreement with respect to the applicable FOSS component. The authors, licensors, and distributors of the FOSS have disclaimed all warranties relating to any liability arising from the use and distribution of the FOSS. Certain FOSS licenses require that source code corresponding to the distributed FOSS binaries be made available under the terms of the same FOSS license upon request. To obtain such source code, please send a request by mail to: Open Source Requests, CTERA Networks Ltd, 25 Efal St, Petach Tikva, Israel.
4. Third Party Software
“Third Party Software” means software owned or licensed by a third party (the “Third Party Licensor”), that is provided to Customer together with the Software but is governed by a separate end user license agreement between Customer and the Third Party Licensor of such software, a copy of which accompanies the Third Party Software and may be provided to Customer upon request (the “Third Party License Agreement“). Each Third Party Software is governed solely by the terms of the applicable Third Party License Agreement, and Customer will be responsible to do whatever is necessary or required by the Third Party Licensor for the license to the Third Party Software and related terms to take effect (e.g. online registration or “clickthrough” acceptance of the Third Party License Agreement). BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE THIRD PARTY SOFTWARE CUSTOMER IS ACCEPTING THE TERMS AND CONDITIONS OF THE THIRD PARTY LICENSE AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THE THIRD PARTY LICENSE AGREEMENT, IT MUST NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE THIRD PARTY SOFTWARE AND MUST PROMPTLY RETURN THE THIRD PARTY SOFTWARE TO THE PARTY FROM WHOM IT WAS OBTAINED. CTERA is not party to the Third Party License Agreement. Customer acknowledge and agree that Customer will have no recourse against CTERA, and that CTERA has no liability, with respect to any Third Party Software and that Customer must look solely to the applicable Third Party Licensor of the Third Party Software for any warranty, indemnity or liability relating to such Third Party Software.
If CTERA provides Customer with Support Services in respect of any Third Party Software, then the terms and conditions of the applicable Third Party License Agreement shall apply with respect to such Support Services, and CTERA will be deemed a third-party beneficiary to such provisions and will be entitled to the rights and benefits thereunder.
5. Acceptable Use and Conduct
Customer shall use the Software in compliance with all applicable laws, ordinances, rules and regulations, shall not violate or attempt to violate CTERA’s system or network security, and shall not misuse the Software in any way. Customer shall be responsible for Customer’s use of the Software.
6. Term and Termination
6.1 This Agreement shall commence on the earlier of the date Customer starts using the Software, or the date Customer actively acknowledges Customer’s consent to the terms herein. Unless earlier terminated pursuant to the terms herein, this Agreement shall terminate upon the expiration of the license term or subscription period for which a license has been purchased by Customer.
6.2 CTERA shall have the right to terminate this Agreement at any time due to Customer’s breach of this Agreement by providing Customer with a written notice and in such event Customer shall not be entitled to any refund, compensation, reimbursement or damages of any kind. In addition, unless otherwise agreed between the parties in writing, CTERA shall have the right to terminate this Agreement at any time and for any reason, in which case CTERA shall provide a pro rata refund of the fees paid to CTERA for the Software which (a) relates to the period after the date of termination in the case of subscription or fixed term Software, and (b) is depreciated on a straight line three (3) year basis commencing on the date of purchase in the case of perpetual term Software.
6.3 Customer shall have the right to terminate this Agreement at any time if CTERA breaches a material term of this Agreement and such breach is not cured within thirty (30) days after receipt by CTERA of written notice thereof from Customer.
6.4 Customer agrees that, upon termination or expiration of this Agreement for any reason, Customer will uninstall and cease using the Software and either destroy all copies of the Software and CTERA documentation or return them to CTERA. All provisions of this Agreement, other than the license granted in section 1 (“License to Use Software”), shall survive any termination or expiration of this Agreement.
7. Disclaimer of Warranties
7.1 With respect to any CTERA hardware that is provided to Customer by CTERA or its Authorized Partner (“Hardware“), CTERA hereby provides Customer with the Limited Hardware Warranty specified in Exhibit A.
7.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, ANALYSIS SERVICE AND SUPPORT SERVICES ARE PROVIDED “AS IS”. CTERA AND CTERA’S LICENSORS AND AUTHORIZED PARTNERS DO NOT MAKE AND HEREBY EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOFTWARE, THE HARDWARE (EXCEPT FOR THE LIMITED HARDWARE WARRANTY SPECIFIED IN EXHIBIT A), THE ANALYSIS SERVICE AND THE SUPPORT SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CTERA, ITS LICENSORS AND AUTHORIZED PARTNERS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CTERA AND ITS LICENSORS AND AUTHORIZED PARTNERS DO NOT WARRANT THAT THE SOFTWARE WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA CUSTOMER STORES BY USING THE SOFTWARE WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM CTERA OR FROM ANY THIRD PARTY OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER USES THE SOFTWARE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SOFTWARE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION. THIS SECTION CONSTITUTES A CONTRACT FOR THE BENEFIT OF EACH OF CTERA’S LICENSORS AND AUTHORIZED PARTNERS.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CTERA NOR ANY OF ITS LICENSORS AND AUTHORIZED PARTNERS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR OTHER REPRESENTATIVES OR AGENTS, SHALL BE LIABLE TO CUSTOMER FOR: (i) ANY LOSS OF PROFITS, REVENUE, ANTICIPATED REVENUE, ANTICIPATED SAVINGS, USE, OR GOODWILL, (ii) LOSS OR CORRUPTION OF DATA, (iii) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE, (iv) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES; OR (v) UNAUTHORIZED ACCESS TO CUSTOMER’S CONTENT; IN CONNECTION WITH THE SOFTWARE, HARDWARE, ANALYSIS SERVICE, SUPPORT SERVICES AND THIS AGREEMENT, OR ANY ACT OR OMISSION ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES WAS DISCLOSED TO IT OR COULD HAVE BEEN REASONABLY FORESEEN. WITHOUT DEROGATING FROM THE ABOVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE AGGREGATE LIABILITY OF CTERA AND ITS AUTHORIZED PARTNER AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES OR AGENTS, ARISING FROM OR RELATING TO THE SOFTWARE, HARDWARE, ANALYSIS SERVICE, SUPPORT SERVICES, THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE OR STRICT LIABILITY, SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES ONLY WHICH SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO CTERA FOR THE APPLICABLE SOFTWARE, ANALYSIS SERVICE, SUPPORT SERVICES, OR HARDWARE DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO THE LIABILITY. THE SOFTWARE AND HARDWARE ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY INHERENTLY DANGEROUS APPLICATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS. THIS SECTION CONSTITUTES A CONTRACT FOR THE BENEFIT OF EACH OF CTERA’S AUTHORIZED PARTNERS.
9. Indemnification by Customer
9.1 Customer shall indemnify, defend and hold CTERA, its affiliates and licensors, each of its and their business partners and each of its and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorney fees), arising out of or in connection with any claim arising out of (i) Customer’s use of the Software in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, (ii) Customer’s violation of any term or condition of this Agreement or any applicable additional policies, (iii) Customer’s violation of any applicable law in connection with this Agreement, or (iv) Customer’s or Customer’s employees’ or personnel’s negligence or willful misconduct.
9.2 CTERA shall promptly notify Customer of any claim subject to indemnification; provided that CTERA’s failure to do so shall not affect Customer’s obligations hereunder, except to the extent that CTERA’s failure to promptly notify Customer materially delays or prejudices Customer’s ability to defend the claim. At CTERA’s option, Customer will have the right to defend against any such claim with counsel of Customer’s own choosing (subject to CTERA’s written consent) and to settle such claim as Customer deems appropriate, provided that Customer shall not enter into any settlement without CTERA’s prior written consent and provided that CTERA may, at any time, elect to take over control of the defense and settlement of the claim.
10. Indemnification by CTERA
10.1 Indemnification. In certain circumstances and at CTERA’s sole discretion and expense, CTERA may elect to defend and indemnify Customer from and against an action brought by a third party against Customer alleging that the Software infringes or misappropriates such third party’s patent, copyright, trademark, trade secret, or other intellectual property right of such third party (the “IP Claim“). Customer shall: (i) promptly notify CTERA in writing of any IP Claim or allegation, (ii) supply all information requested by CTERA for, and reasonably cooperate in, the investigation or defense of an IP Claim, and (iii) upon CTERA’s request, grant CTERA sole control over the defense and settlement, including mitigation efforts, of an IP Claim. If CTERA does not elect to defend and indemnify an IP Claim, Customer will not admit liability or settle the IP Claim without CTERA’s written approval.
10.2 Remedy by CTERA. In the event that the Software or portion thereof is held, or in CTERA’s reasonable opinion may be held, to constitute an infringement, CTERA, at its option and expense, may either (i) obtain for Customer the right to continue to use such Software as contemplated herein, (ii) modify such Software so that it becomes non-infringing, but without materially altering its functionality, (iii) replace such Software with a functionally equivalent non infringing Software, or (iv) terminate this Agreement and provide a pro rata refund of the fees paid to CTERA for such Software which (a) relates to the period after the date of termination in the case of subscription or fixed term Software, and (b) is depreciated on a straight line three (3) year basis commencing on the date of purchase in the case of perpetual term Software.
10.3 Exceptions. The foregoing does not apply to claims to the extent arising from: (i) the combination of a Software with other products not supplied by or on behalf of CTERA where such claim would not have arisen from the use of the Software standing alone, (ii) compliance by CTERA with Customer’s specifications, (iii) any modification of the Software not made by or on behalf of CTERA, where such claim would not have arisen but for such modification, or (iv) continuation of an activity by Customer where such claim would not have arisen but for such activity after having received, and had a commercially reasonable time to install, modifications from CTERA that would have completely avoided the activity.
10.4 Entire Liability. This section 10 states the entire liability of CTERA and Customer’s exclusive remedy for any proceedings or claims that the Software infringes or misappropriates a third party’s intellectual property right.
11. Miscellaneous Provisions
11.1 The Software may be subject to export control laws and regulations of the State of Israel and/or additional jurisdictions. Customer shall not ship, transfer, or export the Software into any country, or make available or use the Software in any manner, prohibited by such laws and regulations or any other applicable law. Customer warrants and agrees that Customer is not: (i) located in, under the control of, or a national or resident of Cuba, Iran, North Korea, Syria or Sudan, or (ii) on the U.S Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
11.2 This Agreement will be governed by and construed in accordance with the laws of the State of Israel, without giving effect to any conflict of laws provisions. The parties hereby expressly reject any application to this Agreement of (a) the United Nations Convention on Contracts for the International Sale of Goods; and (b) the 1974 Convention on the Limitation Period in the International Sale of Goods, as amended by that certain Protocol, done at Vienna on April 11, 1980.
11.3 All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the competent courts of Tel Aviv, Israel, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing will prohibit CTERA from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or enforce its intellectual property rights.
11.4 The failure of CTERA to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.
11.5 Notwithstanding anything to the contrary in this Agreement, neither party will bring a legal action, regardless of form, for any claim arising out of or related to this Agreement more than two (2) years after the cause of action arose. Upon the expiration of such time limit, any such claim and all respective rights related to the claim shall lapse.
11.6 This Agreement including its exhibits constitutes the entire agreement between CTERA and Customer with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this Agreement will be effective only if in writing and signed by CTERA.
11.7 Customer may not assign or transfer any of Customer’s rights or obligations under this Agreement to a third party without the prior written consent of CTERA. Any attempted assignment or transfer in violation of the foregoing will be void. CTERA may freely assign this Agreement.
CTERA Networks LTD.
LIMITED HARDWARE WARRANTY
Limited Hardware Warranty. CTERA warrants that any Hardware shall, for a period of one year from Customer’s receipt of the Hardware from CTERA, be free from material defects in materials and workmanship and will function, under normal use and circumstances, materially in accordance with the published specifications of such Hardware. Customer’s sole and exclusive remedy, and CTERA’s sole and exclusive liability, for defective Hardware components shall be that CTERA, at its sole option, subject to the terms and conditions of this warranty, and solely upon confirmation of a defect or failure of a Hardware component to perform as warranted, shall either repair or replace the nonconforming Hardware component. All replacement parts furnished to Customer under this warranty shall be new or refurbished and equivalent to new, and shall be warranted as new for the remainder of the original warranty period. All defective parts, which have been replaced, shall become the property of CTERA. All defective parts that have been repaired shall remain Customer’s property.
Procedures. A nonconforming Hardware component may only be returned to CTERA with a returned material authorization number issued by an authorized CTERA service representative. Transportation costs, if any, incurred in connection with the return of a nonconforming Hardware component to CTERA shall be borne by Customer. Any transportation costs incurred in connection with the redelivery of a repaired or replacement item to Customer by CTERA shall be borne by CTERA.
Exclusions. The foregoing warranties and remedies shall be void as to any Hardware damaged or rendered unserviceable by one or more of the following: (1) improper or inadequate maintenance by anyone other than CTERA or CTERA’s authorized agents, (2) software or interfacing supplied by anyone other than CTERA, (3) modifications, alterations or additions to the Hardware by personnel not certified by CTERA or CTERA’s authorized agents to perform such acts, or other unauthorized repair, installation or opening or other causes beyond CTERA’s control, (4) unreasonable refusal to agree with engineering change notice programs, (5) negligence by any person other than CTERA or CTERA’s authorized agents, (6) misuse, abuse, accident, electrical irregularity, theft, vandalism, fire, water or other peril, (7) damage caused by containment and/or operation outside the environmental specifications for the Hardware, (8) alteration or connection of the Hardware to other systems, equipment or devices (other than those specifically approved by CTERA) without the prior approval of CTERA, or (9) any use that is inconsistent with the user manual supplied with the Hardware.