ElastiFlowElastiFlow

Elastiflow Community EULA V1.1

READ CAREFULLY THE TERMS AND CONDITIONS OF THIS END-USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE YOU CLICK ON THE “ACCEPT” BUTTON. BY CLICKING ON THE “ACCEPT” BUTTON AND SELECTING AND UTILIZING THE LICENSED SOFTWARE, INCLUDING ANY UNDERLYING SERVICES, OR ANY TECHNOLOGY, IDEA, DATA AND DATABASES, ALGORITHM OR INFORMATION CONTAINED THEREIN OR PROVIDED THEREWITH (COLLECTIVELY, THE “SOFTWARE”). CLICKING “I AGREE” OR OTHERWISE DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AS THE PERSON LICENSING THE PRODUCTS, EITHER ON BEHALF OF YOURSELF OR ANY THIRD PARTY ENTITY (“YOU” OR "LICENSEE") AND ELASTIFLOW INC. (“ELASTIFLOW”), YOU (WHETHER AN INDIVIDUAL OR FORMAL LEGAL ENTITY) (HEREINAFTER REFERRED TO AS “USER”), AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH RESPECT TO YOUR USE OF THE PRODUCTS. BY INSTALLING AND/OR BY USING THE PRODUCTS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO ENTER INTO A BINDING AGREEMENT TO ADHERE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND THAT THE PRODUCTS WILL BE USED ONLY IN ACCORDANCE WITH THESE TERMS AND CONDITIONS AND WITH ALL APPLICABLE LAWS. IF AN INDIVIDUAL IS REGISTERING OR USING THE SOFTWARE ON BEHALF OF AN ENTITY OR ORGANIZATION, THAT INDIVIDUAL WARRANTS, REPRESENTS, AND COVENANTS TO ELASTIFLOW THAT SUCH INDIVIDUAL IS DULY AUTHORIZED TO AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF THE ORGANIZATION AND TO BIND THE ORGANIZATION TO THEM. WHERE APPLICABLE, THIS AGREEMENT APPLIES TO ALL SOFTWARE PROVIDED BY ELASTIFLOW, INCLUDING ANY EVALUATION LICENSE. IN THE EVENT USER HAS EXECUTED A SEPARATE LICENSE AGREEMENT WITH ELASTIFLOW, OR AN ELASTIFLOW AUTHORIZED RESELLER, SUCH LICENSE AGREEMENT SHALL INSTEAD GOVERN THE PARTIES’ RESPECTIVE RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SUBJECT MATTER SET FORTH HEREIN.

1. Grant of Rights

1.1 ElastiFlow hereby grants to User a non-exclusive, non-transferable license (without the right to grant sublicenses) to execute and use ONE INSTANCE of the object code version of the Software on ONE DEVICE (i.e., an x86-based server or client, a single virtual machine on a server or a virtual machine), solely for User’s own internal business operations, in accordance with the related documentation, and in accordance with the license term, scope and type of use as may be communicated by ElastiFlow. User may make a reasonable number of back-up or archival copies of the Software, provided that each such copy shall include ElastiFlow’s copyright and any other proprietary notices that appear on the original copies of the Software.

1.2 Restrictions. Except as otherwise expressly provided in this Agreement (or where such restrictions are prohibited by law), User shall have no right, and User specifically agrees not to: (i) transfer, assign or sublicense its license rights to any other person; (ii) make error corrections or otherwise modify or adapt the Software or create derivative works based upon the Software, or to permit third parties to do so; (iii) rent, lease, loan or use the Software as a service bureau, as an application service provider, to perform consulting or training services for a third party or in any commercial time share arrangement; (iv) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Software to human-readable form to gain access to trade secrets or confidential information in the Software; (v) use the Software in contravention to any applicable laws or government regulations; or (vi) remove any product identification, trademark, copyright or other notices contained in or on the Software.

1.3 Ownership. ElastiFlow and its suppliers reserve any and all rights, implied or otherwise, which are not expressly granted to User hereunder, and retain all rights, title and interest in and to the Software. User acknowledges and agrees that this Agreement in no way shall be construed to provide to User, or any third party, any express or implied license to use, copy or otherwise exploit the Software or any portion thereof, (including any intellectual property embodied therein) other than as specifically set forth in this Agreement. Without limiting the foregoing, User may not sublicense or otherwise distribute the Software or any portion thereof to any affiliate or any other third party, unless otherwise authorized by ElastiFlow in writing.

1.4 Audit Rights. ElastiFlow may, upon thirty (30) days advance notice and at its expense, conduct an annual audit, during User’s normal business hours, of User’s use of the Software to verify compliance with this Agreement.

1.5 Remote Diagnostics. User agrees that the Software may transmit to ElastiFlow technical and related information about User’s use of the Software which may include, without limitation, system performance, capacity usage, internet protocol address, operating system, application software, peripheral hardware, and other non-personally identifiable Software usage statistics to trouble shoot the Software, facilitate the provisioning of updates, support, invoicing or online services, and to enhance, improve, and develop current and future ElastiFlow products and services. Such transmission may be on a daily or other periodic basis, or upon a failure or crash of the Software.

1.6 Data Sharing. User understands and acknowledges that the Software allows for sharing of flow data collected through User’s use of the Software (the “Flow Data”), and, unless User opts out such Flow Data sharing, ElastiFlow may, in its discretion, and otherwise has the right to, provide such Flow Data to partners and service providers of ElastiFlow for such third party’s use as part of its offerings to its own Users. By using the Software, User affirmatively acknowledges that (a) unless User elects to opt out (through functionality provided by the Software), User is allowing such Flow Data to be provided to such third parties, (b) User has the right to provide Flow Data as set forth herein, and (c). such use of any Flow Data is perpetual.

2. Disclaimer

THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “WHERE IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT. ELASTIFLOW SHALL NOT HAVE ANY LIABILITY OR OBLIGATION FOR DAMAGES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL AND INCIDENTAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE, IN EXCESS OF $100, EVEN IF ELASTIFLOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF SOFTWARE REMAINS WITH User. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

3. Termination

3.1 By Either Party. Either party shall have the right to terminate this Agreement (and any license granted under an Order), without liability at any time upon notice.

3.2 Effect of Termination. Upon any termination of this Agreement, for any reason, all applicable licenses are also terminated, and User shall immediately cease use of the applicable Software and shall return to ElastiFlow such Software and all copies thereof. Termination of the term of this Agreement shall not limit either party from pursuing any remedies available to it, including injunctive relief.

3.3 Survival. The provisions of Sections 1.4, 2, 3.2, 4 and 5 shall survive termination of this Agreement.

4. Confidentiality.

Either party may, from time to time, deliver to the other certain non-public information including formulas, flow charts, diagnostic routines, business information, forecasts, financial plans and data, balance sheet information, User information, marketing plans, hardware, software and unannounced product information (collectively, “Confidential Information”). Such Confidential Information, if in writing, shall be marked prominently with the legend “confidential”, “proprietary”, or with a similar legend, or if disclosed orally shall be described as Confidential Information at the time of oral disclosure. However, regardless of any marking or subsequent summary, information disclosed shall be considered confidential if a reasonable person under the circumstances would understand such information to be of a confidential nature. Notwithstanding anything to the contrary herein, the Software, Documentation and non-public Product information shall be deemed Confidential Information. A party shall not use or disclose Confidential Information of the other, except as expressly authorized by this Agreement or in writing by the disclosing party, using the same degree of care which receiving party uses with respect to its own proprietary information, but in no event with less than with reasonable care. The foregoing obligations of confidentiality shall not apply to any information that the receiving party can show is or was (i) already known to the receiving party at the time of disclosure without obligation of confidentiality; (ii) independently developed by the receiving party without use of or access to the other party’s Confidential Information; (iii) approved for disclosure by the disclosing party beforehand and in writing; (iv) publicly known without breach of this Agreement; (v) lawfully received by receiving party from a third party without obligation of confidentiality; or (vi) required to be disclosed by applicable law or order of a court, tribunal or other governmental agency; provided, however, that the receiving party shall promptly notify the disclosing party in writing of such requirement, and shall cooperate with the disclosing party to minimize the scope of any such disclosure, and in the obtaining of a confidentiality, protective or similar order.

5. General Provisions.

(a) This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. The UN Convention on Contracts for the International Sale of Goods shall not apply. (b) This Agreement and all Orders agreed by the parties are the entire agreement of the parties, and supersedes all prior agreements and communications, written or oral, between the parties with respect to the subject matter of this Agreement. The terms and conditions of any purchase orders or invoices issued by a party shall not be binding even if accepted by the other party. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired. This Agreement may be modified only by a written agreement executed by authorized officers of each party. No delay or omission to exercise any right or remedy accruing to either party hereunder shall impair that right or remedy, or be construed to be a waiver of any breach or default. (c) This Agreement may be executed in two (2) or more counterparts, each of which shall be considered an original. (d) User may not assign this Agreement without the prior written consent of ElastiFlow and any such attempted assignment shall be void. ElastiFlow may assign this Agreement in the event of a merger, acquisition or sale of all or substantially all of ElastiFlow’s assets. Subject to the foregoing, this Agreement shall be binding upon and insure to the benefit of the parties hereto, their successors and permitted assigns. (e) ElastiFlow and User agree that nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. (f) Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, labor disputes, shortages of supplies, fire, war, and disruption related to terrorism, epidemics, or delays of common carriers. (g) User hereby acknowledges that the Software supplied by ElastiFlow hereunder may be subject to export controls under the laws and regulations of the United States, as well as any applicable laws and regulations of the territories outside of the United States. User shall comply with such laws and regulations and agrees not to export, re-export or transfer any Software without first obtaining all required governmental authorizations or licenses. User represents and warrants that it is not subject to any current boycott or sanctions by the United States government, which otherwise renders any license provided hereunder null and void. ElastiFlow and User each agree to provide the other such information and assistance as may reasonably be required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents. (h) Any notice under this Agreement must be in writing and is deemed given and effective 3 business days after mailing first class, postage prepaid, or when delivered by overnight express or other delivery service, to the party at the address listed above. (i) User agrees that ElastiFlow may list User’s name in any User lists and it will cooperate with ElastiFlow in the preparation of a press release to be issued by ElastiFlow immediately following the Effective Date announcing the signing of User as a User of ElastiFlow.