End User License and Services Agreement
This End User License Agreement (the “Agreement“) by and between the individual installing and/or using the Software (as such term is defined below) and any legal entity on whose behalf such individual is acting (collectively, “You” or “you“) and CTERA Networks Ltd. (“CTERA“), governs Your use of the object code format of (i) any software or firmware program embedded or included in any hardware product supplied by CTERA or its Authorized Partners (as defined below), and (ii) any software program supplied by CTERA or its Authorized Partners; and (iii) all accompanying manuals and other documentation, and all enhancements, upgrades, and extensions thereto that may be provided by CTERA or its Authorized Partner to You from time to time, unless otherwise indicated by CTERA (the “Software“).
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, YOU INDICATE YOUR ACKNOWLEDGMENT THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY AND COMPLY WITH ITS TERMS. YOUR WRITTEN APPROVAL IS NOT REQUIRED FOR THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE SOFTWARE LICENSE TERMS. IF YOU DO NOT AGREE TO THESE SOFTWARE LICENSE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE AND PROMPTLY RETURN THE SOFTWARE, INCLUDING ALL PACKAGING, MEDIA, DOCUMENTATION, AND PROOF OF PAYMENT, TO THE PARTY FROM WHOM IT WAS OBTAINED FOR A REFUND OF THE AMOUNT PAID, PROVIDED THAT THE RETURN IS MADE WITHIN TEN (10) DAYS OF THE DATE OF PURCHASE.
1. License to Use Software
1.1 Subject to proper payment to CTERA or its authorized reseller, distributor, cloud service provider or any other business partner (the “Authorized Partner“) and Your compliance with the terms and conditions of this Agreement, CTERA hereby grants You a non-exclusive, non-sublicensable, non-transferable license to install and use the Software, solely for Your internal business needs, in accordance with the terms set forth in this Agreement and subject to any further restrictions in CTERA documentation, and solely on the CTERA appliance on which CTERA installed the Software, or, for stand-alone Software, solely on a single computer running a validly licensed copy of the operating system for which the Software was designed. Notwithstanding anything to the contrary herein, in the event that You have purchased CTERA’s portal software, You may use such software for the purpose of providing services to Your customers, pursuant to the provisions herein. You agree that, except for the limited, specific license rights granted in this section 1, You receive no license rights to the Software.
1.2 Unless otherwise authorized in writing by CTERA and to the extent otherwise provided in the applicable license for Free Programs (as defined below), You undertake not to (and not to allow third parties to) (1) sublicense, lease, rent, loan, 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 You for the benefit of Your 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, and (7) make unauthorized copies of the Software (except as necessary for backup purposes). If, notwithstanding the prohibition set forth in subsection (2) above, applicable law permits Reverse Engineering, You will, before commencing or permitting any Reverse Engineering (A) inform CTERA of the planned Reverse Engineering, (B) conduct or allow such Reverse Engineering only to achieve interoperability between the Software and other computer programs, (C) request from CTERA the information necessary to achieve such interoperability, (D) provide CTERA ample opportunity to supply the information necessary to achieve interoperability.
1.3 CTERA has no obligation to provide support, maintenance, upgrades, modifications, or new releases of the Software under this Agreement. To the extent that You have not purchased maintenance and support services under a separate agreement, You may contact CTERA or its Authorized Partners to determine the availability of such support, maintenance, distribution or upgrade of the Software, and the fees, terms and conditions applicable thereto.
2. Intellectual Property
2.1 You acknowledge that CTERA or other third parties own all right, title and interest, including all intellectual property rights, in and to the 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, You are not authorized to use CTERA’s trademarks, service marks, or trade dress, and You agree not to display or use them in any manner.
2.2 If You have comments on the Software or ideas on how to improve it, please contact us. By doing so, You also grant CTERA a perpetual, royalty-free, irrevocable, transferable license, with right of sublicense, to use and incorporate Your ideas or comments into the Software (or third party software, content, or services), and to otherwise exploit Your ideas and comments, in each case without payment of any compensation.
3. GPL License
The Software makes use of free and open source programs (the “Free Programs“), licensed under the following license agreements: The GNU General Public License (GPL), version 2 or later: www.gnu.org/licenses/gpl.html, the GNU Lesser General Public License (LGPL), version 2.1 or later: www.gnu.org/licenses/lgpl.html, Apache License, Version 2.0 or later: www.apache.org/licenses/LICENSE-2.0. It is Your responsibility to review and adhere to all licenses to Free Programs.
Notwithstanding anything to the contrary in this Agreement, You may redistribute the Free Programs and/or modify them under the terms of the corresponding license agreement. The Free Programs are distributed in the hope that they will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. To obtain the source code for the Free Programs subject to the terms of the corresponding license agreement, please send a request by mail to: Open Source Requests, CTERA Networks Ltd, Efal 25, Petach Tikva, Israel.
4. Third Party Software
Software licensed to CTERA by third parties for direct or indirect distribution to end users (“Third Party Software“) may be embedded in the Software and sublicensed directly to You. Third Party Software is provided to You subject to separate licenses directly between You and the third party licensor, available from CTERA at Your request. You will have no recourse against CTERA unless CTERA is the stated licensor and then only to the extent provided in such license. You will be responsible to do whatever is necessary or required by the third party licensor for the licenses and related terms to take effect (e.g. online registration). You are also accepting the terms and conditions of the licenses applicable to any Third Party Software (including any open source software) included with the Software.
5. Acceptable Use and Conduct
You 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. You shall be responsible for Your conduct while using the Software.
6. Term and Termination
6.1 CTERA Agreement shall commence on the earlier of the date You start using the Software, or the date you actively acknowledge your consent to the terms herein, and unless earlier terminated pursuant to the terms herein, this Agreement shall terminate on the date agreed upon between CTERA or its Authorized Partner and You in a separate quote or other document.
6.2 CTERA shall have the right to terminate this Agreement at any time due to Your breach of this Agreement by providing You with a written notice. Upon CTERA’s termination of this Agreement, You shall not be entitled to any compensation, reimbursement or damages of any kind. In addition, unless agreed otherwise between CTERA or its Authorized Partner and You in a separate quote or other document, CTERA shall have the right to terminate this Agreement at any time and for any reason, and in such event, CTERA shall provide you with a refund of a pro-rata portion of any amount pre-paid by You for the Software, if any, assuming for this purpose that the life expectancy of the Software is three (3) years.
6.3 You shall have the right to terminate this Agreement at any time due to CTERA’s breach of this Agreement by providing CTERA with a written notice.
6.4 You agree that, upon termination or expiration of this Agreement for any reason, You will cease using the Software and either destroy all copies of the Software and CTERA documentation or return them to CTERA. The provisions of this Agreement, other than the license granted in section 1 (“License to User Software”), shall survive termination.
7. Disclaimer of Warranties
THE SOFTWARE IS PROVIDED “AS IS”. CTERA AND CTERA’S LICENSORS AND AUTHORIZED PARTNERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOFTWARE. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, CTERA AND 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 YOU STORE BY USING THE SOFTWARE WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM CTERA OR FROM ANY THIRD PARTY OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT YOU USE THE SOFTWARE, AND ALL THIRD PARTY SOFTWARE OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SOFTWARE AND SUCH THIRD PARTY SOFTWARE AND SERVICES. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU 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
NEITHER CTERA NOR ANY OF ITS LICENSORS AND AUTHORIZED PARTNERS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF CTERA ITS LICENSORS OR AUTHORIZED PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SOFTWARE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE AND WITHOUT DEROGATING FROM THE ABOVE, TO THE EXTENT THAT THE AFOREMENTIONED LIMITATION OF LIABILITY SHALL NOT BE ENFORCEABLE, CTERA’S AGGREGATE LIABILITY UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT BETWEEN CTERA AND YOU SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO CTERA FOR THE SOFTWARE WHICH IS THE SUBJECT MATTER OF THE CLAIM. THE SOFTWARE IS 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 YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THIS SECTION CONSTITUTES A CONTRACT FOR THE BENEFIT OF EACH OF CTERA’S LICENSORS AND AUTHORIZED PARTNERS.
9. Indemnification by You
9.1 You 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) Your use of the Software in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions and/or applicable law, (ii) Your violation of any term or condition of this Agreement or any applicable additional policies, or (iii) Your or Your employees’ or personnel’s negligence or willful misconduct.
9.2 CTERA shall promptly notify You of any claim subject to indemnification; provided that CTERA’s failure to do so shall not affect Your obligations hereunder, except to the extent that CTERA’s failure to promptly notify You materially delays or prejudices Your ability to defend the claim. At CTERA’s option, You will have the right to defend against any such claim with counsel of Your own choosing (subject to CTERA’s written consent) and to settle such claim as You deem appropriate, provided that You 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
Notwithstanding CTERA’s disclaimer of any warranty of non-infringement as set forth in Section 7 above, in special circumstances, in CTERA’s sole discretion, CTERA may choose to indemnify You in accordance with the provisions of this Section 10.
10.1 Indemnification. CTERA may defend or settle, at its option and expense, any action brought by a third party against You, only to the extent such action arises from any third party claim brought against You alleging that the Software infringes any patent, copyright, trademark, trade secret, or other intellectual property right of any third party (the “IP Claim“), and may pay all costs, liabilities, damages and legal fees finally awarded against You in, or paid in settlement of, such action.
10.2 Remedy by CTERA. In the event that any 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 You 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 Product, or (iv) terminate this Agreement and provide you with a refund in accordance with Section 6.2 above.
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 Your 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) where You continue an activity 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 Your exclusive remedy for any proceedings or claims that the Software infringes or misappropriates a third party’s intellectual property, in respect of which CTERA chooses to provide indemnification.
10.5 Requirements for Indemnity. You agrees to provide CTERA with (i) prompt written notice of the IP Claim giving rise to CTERA’s indemnity option hereunder, (ii) sole control over the defense or settlement of such claim or action, if CTERA so requests (provided that CTERA shall not, without Your prior written consent, settle any such claim or action if such settlement contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on Your part), and (iii) reasonable information and assistance in the defense and/or settlement any such claim or action at CTERA’s option and expense.
11. Miscellaneous Provisions
11.1 The Software may be subject to export control laws of the State of Israel and/or may be subject to additional export control laws applicable to You or in Your jurisdiction. You shall not ship, transfer, or export the Software into any country, or make available or use the Software in any manner, prohibited by law. You warrant and agree that You are 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 and provisions that would require the application of the laws of any other jurisdiction. 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 This Agreement constitutes the entire agreement between CTERA and You 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.
11.6 You may not assign or transfer any of Your rights or obligations under this Agreement to a third party without the prior written consent of CTERA. CTERA may freely assign this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void.