Important – Read carefully: This Agreement (“Agreement”) is a legally binding agreement between you (both you, individually and your company entity) (hereafter, “you” or “Customer”) and StackIQ, Inc (“StackIQ”). By downloading, installing, copying or otherwise using the Software you agree to abide by all of the terms of this Agreement. This Agreement is displayed for you to read prior to using the Software. If you choose not to accept, or do not agree with all of the provisions of this Agreement, do not download, install or use the Software.
ARTICLE I: SOFTWARE, LICENSES AND RESTRICTIONS.
1.1. StackIQ Software
www.StackIQ.com: Copyright (c) 2010 StackIQ, Inc. All rights reserved.
1.1.1 The Software: The StackIQ Software is comprised of (i) software developed by StackIQ, Inc. (ii) Rocks software developed by the Rocks Cluster Group at the San Diego Supercomputer Center at the University of California, San Diego and its contributors (“Rocks”), and (iii) any accompanying written materials, in each case as delivered or made available to you by StackIQ or any authorized StackIQ reseller (each a “Reseller”).
1.1.3 Restrictions: Customer shall not, nor shall it permit any third party to: (i) assign, sublicense, sell, resell, transfer, distribute or otherwise commercially exploit or make available to any third party the Software in any way; (ii) use the Software as a service bureau, as a service provider or in an outsourcing environment; (iii) modify, copy or make derivative works of the Software without the written consent of StackIQ; or (iv) reverse engineer, unlock”, decompile, disassemble or otherwise translate any object code portions of the Software to a human-perceivable form. You agree that use of and access to the Software will be strictly limited to those of your employees and subcontractors necessary for performance under this Agreement and in accordance with the license capacity purchased. Such employees and subcontractors shall comply with the obligations concerning use and non-disclosure of the Software. You shall not remove, alter, cover, or obscure any confidentiality, trade secret, or copyright notices, trademarks, patent, or other identifying marks or designs from any component of the Software, and you shall reproduce and include in all copies of the Software the copyright notice(s) and proprietary legend(s) set forth herein.
1.1.4 3rd Party Software and Open Source Licenses
3rd party software and Open Source licenses agreement.
1.2 . Rocks
www.rocksclusters.org: Copyright (c) 2010 The Regents of the University of California. All rights reserved.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: 1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. 2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. 3. All advertising materials mentioning features or use of this software must display the following acknowledgement: ”This product includes software developed by the Rocks Cluster Group at the San Diego Supercomputer Center at the University of California, San Diego and its contributors.” 4. Neither the name or logo of this software nor the names of its authors may be used to endorse or promote products derived from this software without specific prior written permission. The name of the software includes the following terms, and any derivatives thereof: “Rocks”, “Rocks Clusters”, and “Avalanche Installer”. THIS SOFTWARE IS PROVIDED BY THE REGENTS AND CONTRIBUTORS. “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE REGENTS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
1.3 Agreement Term and Scope. The Agreement Term and Scope is a period of X years on Y nodes, commencing on the date you agree to the terms and conditions of this Agreement by clicking “Accept”, where X is the number of years listed on the purchase order confirmation and Y is the number of licenses purchased and paid for by you. A “node” is defined as a single physical computer running an operating system with locally addressable memory.
ARTICLE II: SUPPORT. During the Agreement Term, StackIQ shall use all reasonable diligence in correcting verifiable and reproducible Errors in the Software when reported to StackIQ (“Support”). In an effort to preserve the continuity of the Software, StackIQ will not be responsible for correcting Errors in any version of the Software other than the most recent Release of the Software. StackIQ will provide support services for Customers under active license of 50 or more nodes by telephone and/or computer telecommunications (“Email”) during Support Hours for the duration of the Agreement Term and subject to the Agreement Scope. For Customers with less than 50 nodes under active license by computer telecommunications (“Email”) only during Support Hours for the duration of the Agreement Term and subject to the Agreement Scope. StackIQ will provide response time during Support Hours by next business day. Resolution times vary depending on problem severity. Customer may upgrade to premium support (including 24 hour support services) upon payment of applicable premium support fees. Customer may request a quote from StackIQ or its Resellers for premium support services and fees. StackIQ provides support only for the number of nodes purchased by Customer and does not provide support on a stand alone basis for Rocks (not purchased as part of the Software). As a condition to its receipt of Support, Customer will provide a proficient Linux system administrator as the primary contact for troubleshooting the Software. Third Party Applications will be the responsibility of the third party or Customer. For purposes of this Agreement, the following terms shall have the following definitions:
2.1 “Error.” Any failure of the Software to conform in all material respects to the functional specifications for the Software published by StackIQ for that particular version of the Software. Any nonconformity resulting from Customer’s (a) modification of the Software or any portion thereof, (b) misuse or improper use of the Software or (c) combining or merging the Software with any other hardware or software shall not be considered an Error.
2.2 “Error Correction.” Either a software modification or addition that, when made or added to the Software, established material conformity of the Software to the functional specifications, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect on Customer of such nonconformity.
2.3 “Support Hours.” The hours between 6:00 a.m. and 6:00 p.m. (Pacific Time) on the days Monday through Friday, excluding StackIQ Inc. observed holidays.
2.4 “Releases.” New versions of the Software made generally available by StackIQ at www.StackIQ.com or through Resellers, and may include Error Corrections or enhancements.
2.5 “Third Party Application.” All software not developed by StackIQ or the Rocks Cluster Group at the University of California, San Diego. Third Party Applications include without limitation software developed by the Customer, software developed by any person or company other than the Rocks Cluster Group or StackIQ and any third party “cluster” software. None of the foregoing shall be deemed part of the Software and Customer’s use of the foregoing shall be subject to the separate third party license agreements or other terms that accompany such Third Party Applications.
ARTICLE III: FEES AND AUDIT RIGHTS. Customer’s use of the Software is conditioned upon Customer’s timely payment to StackIQ or its Reseller, as applicable, of all fees and charges set forth on the StackIQ or Reseller quote for the Software. To ensure compliance with the terms of this Agreement and the payment of fees due hereunder, StackIQ and its Resellers shall have the right to inspect and audit Customers’ facilities and records related to its purchase and use of the Software. At StackIQ’s request, Customer shall provide reasonable assistance in conducting such inspection and audit. Such audit shall be conducted during regular business hours in such a manner as not to interfere unreasonably with Customer’s normal business activities. If such audit should disclose any underpayment of fees or unauthorized use of the Software, Customer shall, in addition to any other remedies available to StackIQ under this Agreement, at law or in equity promptly pay StackIQ (or its Reseller as applicable) the underpaid amount and shall reimburse StackIQ for all reasonable expenses incurred by StackIQ and its Reseller’s associated with such audit. Promptly shall mean no later than thirty (30) days after the date of StackIQ’s invoice stating the amounts due and payable hereunder.
ARTICLE IV: GENERAL DISCLAIMER OF WARRANTIES. IN ADDITION TO THE DISCLAIMER SET FORTH IN SECTION 1.2 ABOVE THAT APPLIES TO THE “ROCKS” SOFTWARE, STACKIQ PROVIDES THE SOFTWARE AND ALL SERVICES HEREUNDER “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR COURSE OF DEALING ARE SPECIFICALLY DISCLAIMED.
ARTICLE V: LIMITATION OF LIABILITY. THE TOTAL AGGREGATE LIABILITY OF STACKIQ, ITS OFFICERS, EMPLOYEES, LICENSORS, AGENTS, DIRECTORS AND RESELLERS (“REPRESENTATIVES”) FOR ANY DAMAGES OR CLAIMS ARISING UNDER OR RESULTING FROM THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO STACKIQ OR THE RESELLER, AS APPLICABLE, FOR THE SOFTWARE RELEASE SUBJECT TO THE CLAIM DURING THE THEN-CURRENT TERM SET FORTH ON THE ORDER CONFIRMATION FOR THE SOFTWARE. IN NO EVENT SHALL STACKIQ OR ITS REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE ROCKS+ SOFTWARE OR ANY SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
ARTICLE VI: FACTORS BEYOND CONTROL OF EITHER PARTY (Force Majeure). Neither party shall be liable for any loss or damage due to failure or delay in rendering any service called for under this Agreement resulting from any cause beyond its reasonable control, including but not limited to acts of God, flood, hurricane, extreme weather, fire, or other natural calamity, acts of governmental agencies, or similar causes beyond either party’s reasonable control.
ARTICLE VII: CONFIDENTIALITY AND OWNERSHIP. Customer agrees that it will not disclose to any other person, firm, or corporation, or use except as permitted by this Agreement, the Rocks+ Software and any other confidential information received from StackIQ under this Agreement whether marked or unmarked. Customer agrees to employ reasonable security precautions to maintain such trade secrets and confidential information in strict confidence. Customer agrees to obtain executed confidentiality agreements with its employees and subcontractors having access to the Software and to diligently take steps to enforce such agreements in this respect. Customer acknowledges that StackIQ does not wish to receive any confidential information from Customer, and Customer agrees that it will not provide StackIQ with any information it does not wish released to third parties without its prior consent. Customer acknowledges and agrees that the Software is owned by StackIQ and its licensors and contains copyrighted material, trade secrets and other proprietary information of StackIQ and its licensors and is protected by copyright laws, international copyright treaties, and trade secret laws, as well as other intellectual property laws. EXCEPT AS PROVIDED HEREIN, NO OTHER RIGHTS, EXPRESS OR IMPLIED, BY ESTOPPEL OR OTHERWISE, TO ANY OTHER STACKIQ INTELLECTUAL PROPERTY RIGHTS IS GRANTED HEREIN, AND STACKIQ RESERVES ALL RIGHTS NOT SPECIFICALLY GRANTED UNDER THIS AGREEMENT. Any ideas, suggestions or feedback relating to the Software (“Feedback”) will be the property of StackIQ. Customer hereby irrevocably assigns and agrees to assign all of its right, title and interest in and to any Feedback to StackIQ. Customer agrees that a breach of the license or confidentiality provisions of this Agreement would cause irreparable injury to StackIQ and, as applicable, its third party suppliers and licensors, for which monetary damages would not be an adequate remedy, and therefore StackIQ, and as applicable, its third party suppliers and licensors shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law.
ARTICLE VIII: TERMINATION. Without prejudice to any other rights, if you fail to comply with the terms of the Agreement (including without limitation should you fail to pay or otherwise default on any payment obligation due or if any payment mechanism you have provided to StackIQ or a Reseller is invalid or charges are refused), this license shall immediately terminate, without the need for StackIQ to provide notice. Upon expiration or termination, you will immediately cease all use of the Software and destroy any and all copies of the Software, and any extracts thereof in your possession, custody or control.
ARTICLE IX: SURVIVAL. Rights and obligations under this Agreement which by their nature should survive, will remain in effect after termination or expiration of this Agreement.
ARTICL X: WAIVER. Failure of StackIQ to enforce any terms of this Agreement shall not be deemed or considered a waiver of future enforcement of that or any other term in this Agreement. You agree that no term of this Agreement may be considered waived and no breach excused by StackIQ unless made in writing by StackIQ. No consent, waiver, or excuse by StackIQ, express or implied, constitutes a subsequent consent, waiver or excuse.
ARTICLE XI: GOVERNING LAW; SEVERABILITY. The validity, performance and construction of this Agreement shall be governed by the laws of the State of California without reference to that state’s conflict-of-laws principles. If a court of competent jurisdiction finds any provision of the Agreement to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of the Agreement will continue in full force and effect. The parties agree that exclusive jurisdiction for any dispute arising out of or relating to this Agreement lies within courts located in the State of California.
ARTICLE XII: ALTERATION, AMENDMENTS, ASSIGNMENT. This Agreement constitutes the entire support Agreement between the parties and supersedes all previous communications, representation, understandings and agreements between the parties, whether written or oral, relating to the same subject matter. This Agreement shall be modified only by a written instrument signed by a duly authorized representative of StackIQ, or from time to time, StackIQ may modify or change the terms and conditions of this Agreement and supersede the terms of any prior version of this Agreement, in connection with any supplemental, different or new terms that might apply to any new Release of the Software made available by StackIQ, in StackIQ’s sole discretion. Your continued use of the Software after you download and accept the new, additional or changed terms applicable to such new Release will indicate your agreement to the change to this Agreement. You may not sell, assign, transfer, delegate, convey, pledge, encumber or otherwise dispose of, by operation of law or otherwise, the Software or this Agreement, or any rights or obligations hereunder. StackIQ may assign this Agreement, and any or all of its rights and duties under this Agreement, without prior notice to you or your consent. You hereby warrant and represent that you have obtained all authorization and other applicable consents required empowering you to enter into this Agreement.
ARTICLE XIII: NOTICES.
To Customer. Except as otherwise set forth herein, notices made by StackIQ to you under this Agreement that affect our customers generally (e.g., notices of updated support terms, etc.) will be posted on the StackIQ website. Notices made by StackIQ under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to us in your registration for the Software or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
To StackIQ: For notices made by you to us under this Agreement and for questions regarding this Agreement or the Software, you may contact StackIQ as follows:
420 Stevens Avenue, Suite 100
Solana Beach, CA 92075