ZEROSTACK END USER LICENSE AGREEMENT

PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE USING SOFTWARE FROM ZEROSTACK. BY USING ZEROSTACK SOFTWARE, YOU SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF THIS END USER LICENSE AGREEMENT AND ACKNOWLEDGE YOU HAVE READ AND UNDERSTAND THE TERMS. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS END USER LICENSE AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE THE ZEROSTACK SOFTWARE.  

This end user license agreement (“EULA”) governs the use of any of the versions of ZeroStack Z-COS (ZeroStack Cloud Operating System), the Z-Brain ZeroStack Software-as-a-Service software, certain other ZeroStack software applications that include or refer to this license, and any related updates, source code, appearance, structure and organization (the “Programs”), regardless of the delivery mechanism.

You represent and warrant that you are authorized to enter into this Agreement on behalf of yourself and/or the entity that you purport to represent, and you agree your registration data is current, complete, and accurate. If you’re agreeing to the terms of this EULA on behalf of an organization, your organization’s agreement to use the Software and Services applies to each user of yours (each, a User) authorized to use our Software and Services, and the terms of this EULA apply to each such User. Any references to You also refer to each User.

  1. License Grant.
    ZeroStack grants to You a non-exclusive, non-transferable license to use the Programs and related documentation during the period of the license and within the applicable territories, solely for Your internal business operations. Unless otherwise indicated in the Quotation and Purchase Order (“Order”), licenses granted to You will be perpetual, will be for use of object code only, and will commence on either delivery of the hyperconverged infrastructure or the date the on-premises cloud has been set up for You.You agree that you will not (a) reproduce, modify, distribute, transfer, disclose, or make available to any third party any portion of the Programs (or any related user manuals, documentation, screenshots or prints) in any form; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Programs; or (c) publish any performance or benchmark tests or analyses relating to the Programs or the use thereof. To the extent any component of the Programs may be offered under an open source license, we’ll make that license available to you and the provisions of that license may expressly override some of these Terms. Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Programs, attempt to do so, or assist anyone in doing so.
  1. Intellectual Property Rights.
    ZeroStack retains ownership of all right, title, and interest (including copyright) in and to the Programs, associated documentation, all copies of the Programs, and all intellectual property rights therein or thereto. Title to the Programs and any component, or to any copy, modification, or merged portion shall remain with ZeroStack and other licensors, subject to the applicable license. Nothing in this Agreement constitutes a transfer or conveyance of any right, title, or interest in the Programs or associated documentation, or a sale of the Programs, associated documentation, or copies of the Programs. ZeroStack may, collect and use data related to use of the Programs. ZeroStack may disclose such data to others in an aggregated form that does not personally identify you or your organization. The “ZeroStack” trademark and the “ZeroStack” logo are registered trademarks of ZeroStack in the U.S. and other countries. This EULA does not permit you to distribute the Programs or their components using ZeroStack’s trademarks, regardless of whether the copy has been modified. You may make a commercial redistribution of the Programs only if (a) permitted under a separate written agreement with ZeroStack authorizing such commercial redistribution, or (b) you remove and replace all occurrences of ZeroStack trademarks. Modifications to the software may corrupt the Programs. In the event that you provide Company with feedback regarding the use, operation or functionality of the Software (“Feedback”), including but not limited to information about operating results, known or suspected bugs, errors or compatibility problems, or desired features, you hereby assign to ZeroStack all rights in the Feedback and agree that ZeroStack shall have the right to use the Feedback and related information in any manner it deems appropriate.
  1. Limited Warranty.
    Except as specifically stated in this Section 3, a separate agreement with ZeroStack, or a license for a particular component, to the maximum extent permitted under applicable law, the Programs and the components are provided and licensed “as is” without warranty of any kind, expressed or implied, including the implied warranties of merchantability, non-infringement or fitness for a particular purpose. ZeroStack warrants that the media on which the Programs and the components are provided will be free from defects in materials and manufacture under normal use for a period of 30 days from the date of delivery to you. Neither ZeroStack nor its affiliates warrants that the functions contained in the Programs will meet your requirements or that the operation of the Programs will be entirely error free, appear or perform precisely as described in the accompanying documentation, or comply with regulatory requirements. This warranty extends only to the party that purchases subscription services for the Programs from ZeroStack and/or its affiliates or a ZeroStack authorized distributor.
  1. Limitation of Remedies and Liability.
    To the maximum extent permitted by applicable law, your exclusive remedy under this EULA is to return any defective media within 30 days of delivery along with a copy of your payment receipt and ZeroStack, at its option, will replace it or refund the money you paid for the media. To the maximum extent permitted under applicable law, under no circumstances will ZeroStack, its affiliates, any ZeroStack authorized distributor, or the licensor of any component provided to you under this EULA be liable to you for any incidental or consequential damages, including lost profits or lost savings arising out of the use or inability to use the Programs or any component, even if ZeroStack, its affiliates, an authorized distributor and/or licensor has been advised of the possibility of such damages. In no event shall ZeroStack’s or its affiliates’ liability, an authorized distributor’s liability or the liability of the licensor of a component provided to you under this EULA exceed the amount that you paid to ZeroStack for the media under this EULA.
  1. Export Control.
    As required by the laws of the United States and other countries, you represent and warrant that you: (a) understand that the Programs and their components may be subject to export controls under the U.S. Commerce Department’s Export Administration Regulations (“EAR”); (b) are not located in a prohibited destination country under the EAR or U.S. sanctions regulations (currently Cuba, Iran, Iraq, North Korea, Sudan and Syria, subject to change as posted by the United States government); (c) will not export, re-export, or transfer the Programs to any prohibited destination or persons or entities on the U.S. Bureau of Industry and Security Denied Parties List or Entity List, or the U.S. Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, or any similar lists maintained by other countries, without the necessary export license(s) or authorization(s); (d) will not use or transfer the Programs for use in connection with any nuclear, chemical or biological weapons, missile technology, or military end-uses where prohibited by an applicable arms embargo, unless authorized by the relevant government agency by regulation or specific license; (e) understand and agree that if you are in the United States and export or transfers the Programs to eligible end users, you will, to the extent required by EAR Section 740.17(e), submit semi-annual reports to the Commerce Department’s Bureau of Industry and Security, which include the name and address (including country) of each transferee; and (f) understand that countries including the United States may restrict the import, use, or export of encryption products (which may include the Programs and the components) and agree that you shall be solely responsible for compliance with any such import, use, or export restrictions.
  1. Third Party Programs.
    Any licensor or supplier of ZeroStack whose products or technology are embedded in (or services are accessed by) the Programs shall be a third party beneficiary with respect to this Agreement, and such licensor or vendor shall have the right to enforce this Agreement in its own name as if it were ZeroStack. In addition, ZeroStack may distribute third party software programs with the Programs that are not part of the Programs. These third party programs are not required to run the Programs, are provided as a convenience to you, and are subject to their own license terms. The license terms either accompany the third party software programs or can be viewed at http://www.zerostack.com/licenses/eula. If you do not agree to abide by the applicable license terms for the third party software programs, then you may not install them. If you wish to install the third party software programs on more than one system or transfer the third party software programs to another party, then you must contact the licensor of the applicable third party software programs.
  1. Open Source Software
    Not with standing anything herein to the contrary, Open Source Software is licensed to You under such OSS’s own applicable license terms, which has been made available at http://www.apache.org/licenses/LICENSE-2.0. These OSS license terms are consistent with the license granted in Section 2 (License Grant), and may contain additional rights benefiting You. The OSS license terms shall take precedence over this EULA to the extent that this EULA imposes greater restrictions on You than the applicable OSS license terms.
  2. Security of Content.
    ZeroStack will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.  ZeroStack will not access or use Your Content except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body. We will not (a) disclose Your Content to any government or third party; except in each case as necessary to comply with the law or a binding order of a governmental body.You are solely responsible for the development, content, operation, maintenance, and use of Your Content. For example, you are solely responsible for:
    (a) the technical operation of Your Content, including ensuring that calls you make to any Service are compatible with then-current APIs for that Service;
    (b) compliance of Your Content with these terms and the law;
    (c) any claims relating to Your Content; and
    (d) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.You are responsible for properly configuring and using the Programs and taking your own steps to maintain appropriate security, protection and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving Your Content. AWS log-in credentials and private keys generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Programs. You are responsible for Your Users’ use of Your Content and the Programs. You will ensure that all Users comply with your obligations under this Agreement and that the terms of your agreement with each User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such User’s access to Your Content and the Programs.
  1. Indemnification.
    You will defend, indemnify, and hold harmless ZeroStack, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any Users’ use of the Programs (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any User; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between you and any User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates. We will promptly notify you of any claim subject to Section 9, but our failure to promptly notify you will only affect your obligations under Section 9 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
  2. Termination.
    You may terminate this Agreement for any reason by: (i) providing us notice and (ii) closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you 30 days advance notice. Either party may terminate this Agreement for cause upon 15 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period. We may also terminate this Agreement immediately upon notice to you (a) if our relationship with a third party partner who provides software or other technology we use to provide the Service Offerings expires, terminates or requires us to change the way we provide the software or other technology as part of the Services, (b) if we believe providing the Services could create a substantial economic or technical burden or material security risk for us, (c) in order to comply with the law or requests of governmental entities, or (d) if we determine use of the Service Offerings by you or any End Users or our provision of any of the Services to you or any Users has become impractical or unfeasible for any legal or regulatory reason.
    Upon any termination of this Agreement:
    (i) all your rights under this Agreement immediately terminate;
    (ii) you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination;
    (iii) you will immediately return or, if instructed by us, destroy all of our confidential information in your possession.Unless we terminate your use of the Service Offerings immediately as set forth above, during the 30 days following termination:
    (i) we will not erase any of Your Content as a result of the termination;
    (ii) you may retrieve Your Content from the Services only if you have paid any charges for any post-termination use of the Service Offerings and all other amounts due; and
    (iii) we will provide you with the same post-termination data retrieval assistance that we generally make available to all customers.Any additional post-termination assistance from us is subject to mutual agreement by you and us.
  3. General.
    If any provision of this EULA is held to be unenforceable, the enforceability of the remaining provisions shall not be affected. Any claim, controversy or dispute arising under or relating to this EULA shall be governed by the laws of the State of California and of the United States, without regard to any conflict of laws provisions. The rights and obligations of the parties to this EULA shall not be governed by the United Nations Convention on the International Sale of Goods. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

Copyright © 2018 ZeroStack, Inc. All rights reserved. “ZeroStack” and the ZeroStack logo are registered trademarks of ZeroStack, Inc. “OpenStack” is a registered trademark of the OpenStack Foundation. All other trademarks are the property of their respective owners.