STARK & WAYNE, LLC END USER LICENSE AGREEMENT
This End User License Agreement (“EULA”) is an agreement to license Stark & Wayne software products (“Software”) between Licensee and Stark & Wayne, LLC (“Company”). This EULA shall govern Licensee’s initial purchase on the Effective Date as well as any future purchases made by Licensee which reference this EULA. This EULA covers all major and minor releases of Software. Company provides the Software listed on an Order Form on a subscription basis (each, a “Subscription”). By downloading, installing or using Software, Licensee is agreeing to these terms.
- EVALUATION LICENSE.
If Licensee is licensing Software as Evaluation Software, then such use is solely for use in a non-production environment for the Evaluation Period. Notwithstanding any other provision in this EULA, Evaluation Software are provided “AS-IS” without indemnification, support, or warranty of any kind, expressed or implied. All such licenses expire at the the end of the Evaluation Period. Evaluation Terms, including but not limited to length of Evaluation Period, will be set on an Order Form.
- LICENSE GRANT
2.1 License Grant. Subject to all of the terms and conditions of this EULA, during the Subscription Term, Company grants to Licensee a non-transferable, non-sub-licensable, non-exclusive, limited license to install the Software specified in an Order Form and for Licensee’s employees to use the Software for Licensee’s own internal business operations, but only in accordance with
i. The Documentation ii. This EULA iii. The Subscription Term iv. All restrictions set forth in the applicable Order Form
2.2 License Restrictions. Customer shall not, on its own or through any parent, subsidiary, Affiliate, agent or other third party:
a) Sell, lease, license, sublicense or otherwise transfer the Software to a third party; b) Allow access or permit use of the Software by any users other than authorized users, or any use which violates the technical restrictions of the Software, the terms of this EULA, and any additional licensing terms provided by Company via documentation, notification, and/or policy change posted at http://www.dingotiles.com/dingo-kafka/eula.html.
2.3 Subscription Term and Renewal. The length of the Subscription Term shall be designated in the Order Form. At least 60 days before expiration of the Subscription Term, Company will notify Licensee for renewal of Subscription. Company does not guarantee the same Subscription Terms for renewed Subscription. If Licensee intends not to renew, Licensee agrees to cease using Software at the expiration of the Subscription Period and will certify cessation of use to Pivotal.
2.4. Open Source Software (OSS). The Software contains OSS, which is licensed to Licensee under the applicable OSS license terms (a) located in the open_source_licenses.txt file included in or along with Software, Evaluation Software, or the corresponding source files available at http://www.dingotiles.com/dingo-kafka/eula.html. Licensee is responsible for complying with all applicable OSS terms and conditions, which shall take precedence over this EULA, solely with respect to such OSS.
PAYMENT TERMS. Fees and payment terms are as set forth in the applicable Order Form.
WARRANTY/DISCLAIMER. COMPANY AND ITS PARTNERS, SUPPLIERS, OR DISTRIBUTORS DOES NOT WARRANT THAT THE SOFTWARE AND SUPPORT PROVIDED TO CUSTOMER UNDER THIS EULA WILL OPERATE UNINTERRUPTED, THAT THEY WILL BE FREE FROM DEFECTS, OR THAT THE SOFTWARE IS DESIGNED TO MEET CUSTOMER’S BUSINESS REQUIREMENTS. NEITHER COMPANY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE IS NOT INTENDED FOR USE IN CONNECTION WITH ANY HIGH RISK OR STRICT LIABILITY ACTIVITY (INCLUDING, WITHOUT LIMITATION, AIR OR SPACE TRAVEL, POWER PLANT OPERATION, OR LIFE SUPPORT OR EMERGENCY MEDICAL OPERATIONS) AND THAT COMPANY AND ITS SUPPLIERS MAKE NO WARRANTY AND SHALL HAVE NO LIABILITY IN CONNECTION WITH ANY USE OF THE SOFTWARE OR CLOUD SERVICES IN SUCH SITUATIONS.
LIMITATION OF REMEDIES. NEITHER COMPANY NOR ITS PARTNERS, SUPPLIERS, OR DISTRIBUTORS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
LIMITATION OF LIABILITY. COMPANY, OR ITS PARTNERS’, SUPPLIERS’, AND DISTRIBUTORS’, TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY COMPANY OR ITS SUPPLIERS IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY LICENSEE TO COMPANY OR ITS SUPPLIERS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE TO THE CLAUSE OF ACTION ARISES. The provisions of this Section allocate risks under this EULA between Licensee and Company and its Suppliers. Company’s and its Suppliers’ fees for the Subscriptions reflect this allocation of risks and limitation of liability. LICENSEE MAY NOT BRING A CLAIM UNDER THIS EULA MORE THAN 18 MONTHS AFTER THE END OF THE SUBSCRIPTION PERIOD.
TERMINATION. Company may terminate this EULA effective immediately upon written notice to Licensee if: (a) Licensee fails to pay any portion of fees due under Order Form and/or Payment within 10 days after receiving notice that payment is past due; (b) Licensee suffers an insolvency or analogous event; © Licensee commits a material breach of this EULA that is incapable of being cured; or (d) Licensee breaches any other provision of this EULA and does not cure the breach within 30 days after receiving written notice of breach. If the EULA expires or terminates, Licensee must remove and destroy all copies of Software, including all backup copies, from the server, virtual machine, and all computers and terminals on which Software (including copies) is installed or used and certify destruction thereof. Company may also terminate this EULA for convenience by giving 3 month’s written notice to Licensee. All provisions of this EULA will survive any termination or expiration if by its nature and context it is intended to survive.
AMENDMENTS; WAIVERS. No supplement, modification, or amendment of the terms of this EULA shall be binding, unless executed in writing by a duly authorized representative of each party to this EULA. No waiver will be implied from conduct or failure to enforce or exercise rights under this EULA, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other form employed or provided by Licensee will supersede the terms and conditions of this EULA, and any such document relating to this EULA shall be for administrative purposes only and shall have no legal effect.
FORCE MAJEURE. Neither party shall be liable to the other for any delay or failure to perform any obligation under this EULA (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval of a license by a government agency.
ASSIGNMENT. Neither party may assign this EULA or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that the transfer of this EULA or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. This EULA shall inure to the benefit of and be binding upon the parties hereto, and their successors and permitted assigns.
GOVERNING LAW AND JURISDICTION. This EULA is governed by the laws of the state of Delaware.
SURVIVAL. Sections 2 (License Grant), 4 (Warranty Disclaimer), 5 (Limitation of Remedies and Damages), and 6 (Limitation of Liability) shall survive any termination or expiration of this EULA.