END USER LICENSE AGREEMENT
This End User License Agreement ("Agreement" and “EULA”) is a binding agreement between the individual consumer or business entity that will use the Software (referred to herein as "End User", "you" and variations thereof) and MetalSoft Cloud, Inc. (referred to herein as "MetalSoft", “we” and variations thereof).
This Agreement governs your use of (a) MetalSoft's branded, proprietary and commercially available software provided to you pursuant to a purchase contract, agreement, quote, order form, invoice or online procurement process (each, an “Order”), (b) updates to such software, (c) the documentation to such software (“Documentation”), (d) any additional scripts or components such as command line interface (“CLI”) or other templates branded under the MetalSoft trademark, and (e) all copies of the foregoing ( collectively, the "Software"). The Software is licensed, not sold, to you.
This Agreement sets for the limited terms and conditions of your license to access and use the Software, subject to the terms of your Order, the terms and conditions of such Order being incorporated into, and shall be deemed a part of, this Agreement. In the event of a conflict in the provisions of the Order and this Agreement, the terms of this Agreement shall govern and control, except if and to the extent MetalSoft and you have signed an amendment to this End User License Agreement as part of the Order, in which event the terms of any such amendment shall control. In the event the Order shall be terminated, or any of your rights thereunder shall be suspended, then your limited rights under this Agreement shall be deemed immediately terminated, without notice.
BY REGISTERING YOUR DEVICE WITH METALSOFT FOR ACCESS TO, AND USE OF, THE SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU HAVE THE FULL POWER AND AUTHORITY TO ENTER INTO THIS BINDING AGREEMENT ON YOUR BEHALF INDIVIDUALLY AND ON BEHALF OF THE BUSINESS ENTITY THAT YOU REPRESENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT REGISTER YOUR DEVICE WITH METALSOFT.
If you purchase Software from an authorized (by MetalSoft) third party (“Reseller”) who sublicenses the Software to you under the terms of an agreement between you and such Reseller (a “Sublicense Agreement”), then the terms of your Sublicense Agreement with the Reseller shall govern your use of the Software and not this EULA. Resellers may only grant rights, and must pass through conditions, consistent with this EULA. Thus, even though your Sublicense Agreement is between you and the Reseller, by installing or using the Software, you acknowledge and agree that: (a) any license rights in the Sublicense Agreement that are greater than the license rights in this EULA shall not apply; (b) any license conditions in this EULA that are not contained in the Sublicense Agreement apply to you; (c) the limitations of liability set forth in this EULA will apply in favor of Licensor, its affiliates and suppliers despite the existence of a Sublicense Agreement; and (d) Licensor is a third-party beneficiary of the Sublicense Agreement and is entitled to exercise and enforce all of the Reseller’s rights and benefits under that Sublicense Agreement.
1. License Grant. Subject to the terms of this Agreement, and your compliance with the terms of this Agreement and the Order, MetalSoft grants you the following personal, limited, non-exclusive, non-transferable, non-sublicensable, revokable licenses:
(a) License and Use of Software for Installed Solutions. The license to install and use the Software for End User’s own business purposes, in accordance with this Agreement, the Order and the Documentation. You acknowledge that there are no implied licenses granted under this Agreement. MetalSoft reserves all rights that are not expressly granted in this Agreement.
(b) License and Use of MetalSoft API. Subject to, and conditioned on, your compliance with all terms and conditions set forth in this Agreement, we hereby grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the term of the Agreement to: (a) use the API solely for the purposes of internally developing your applications that will communicate and interoperate with the MetalSoft offerings; and (b) display certain MetalSoft Marks in compliance with usage guidelines that we may specify from time to time solely in connection with the use of the API and not in connection with the advertising, promotion, distribution, or sale of any other products or services. You may not use the API or any MetalSoft Mark for any other purpose without our prior written consent. You must obtain an API key from the Controller to use and access the API. You may not share your API key with any third party, must keep your API key and all log-in information secure, and must use the API key as your sole means of accessing the API either directly or through the various tools that use the API for authentication. This Agreement does not entitle you to any support for the API. You acknowledge that we may update or modify the API from time to time and at our sole discretion and may require you to obtain and use the most recent version of the API. Updates may adversely affect how your applications communicate with the Software. You are required to make any changes to the applications that are required for integration as a result of such update at your sole cost and expense.
(c) Hosted Controller Services. End User may elect to utilize the MetalSoft Software in a hosted controller form, which is offered as a service to End User subject to the terms of a separate agreement. MetalSoft will host the Controller on its systems in a manner that is accessible by you and allows you to control the Managed Devices without having to install and manage the Controller on your premises, subject to the terms and conditions of such separate agreement.
2. Ownership and License Restrictions. End User acknowledges and agrees that:
(a) The Software, API, any Services including the Hosted Controller Service and Documentation are licensed, not sold, to End User by MetalSoft and End User does not have under or in connection with this Agreement any ownership interest in the Software, API, or Services, or in any related Intellectual Property Rights;
(b) MetalSoft is the sole and exclusive owner of all right, title, and interest in and to the Software, API, Hosted Controller Services, Services and Documentation, including all Intellectual Property Rights relating thereto, subject only to the limited license granted to End User under this Agreement;
(c) If End User or any of End User’s employees, contractors, and agents sends or transmits any communications or materials to MetalSoft by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software, Services or API, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), all such Feedback will be treated as MetalSoft information, and shall be owned by MetalSoft;
(d) Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to End User or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software, Services or Documentation;
(e) Except as otherwise expressly permitted in this Agreement, you will not: (1) reproduce, modify, adapt or create derivative works of any part of the Software, Services or API; (2) rent, lease, lend, distribute, sell, sublicense, transfer, or provide access to the Software, Services or API to a third-party; (3) interfere with any license key mechanism in the Software or API or otherwise circumvent mechanisms in the Software or API intended to limit your use; (4) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs of the Software, Services or API; (5) use the Software, Services or APIs for benchmarking or competitive analysis or to build competitive products; (6) publicly disseminate information regarding the Software, the Services or the performance of the Software without prior approval from MetalSoft; or (7) encourage or assist any third-party to do any of the foregoing;
(f) You agree to refrain from using the Services in any manner that violates a law, statute, regulation of a body having administrative jurisdiction, or the rights of third parties;
(g) You shall use the Software only as described by MetalSoft’s Documentation;
(h) You shall be solely responsible for all Services' usage on its account;
(I) You may install one (1) instance of the Software on systems owned or operated by you or one of your authorized users, except as otherwise set forth in the Order or as may be authorized in writing by MetalSoft, in MetalSoft’s sole and absolute discretion.
3. Reservation of Rights.
(a) You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. MetalSoft and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
(b) MetalSoft shall have the right in its sole discretion to take actions necessary to ensure the security, integrity, and availability of the Services, the MetalSoft infrastructure platform and Software, and availability of resources.
(c) MetalSoft shall have the right to temporarily or permanently suspend the Software or Services, including, without limitation, in the event of your breach of the Order, including, for example, your failure to pay invoices in full when due, in cases of denial-of-service attacks, or if your use of the Software or the Services is not in accordance with this Agreement or the Order. For the avoidance of doubt, MetalSoft shall have the right to temporarily or permanently suspend or terminate your right to access and use the Software and the Services should MetalSoft determine, in its reasonable discretion, that your access and use of the Software is for, or done so in connection with, unlawful activities, or if MetalSoft is requested to do so by law enforcement or government authorities.
(d) MetalSoft shall have the right to limit your access to the Software and Services and/or to require financial or operational assurances if in MetalSoft's sole discretion your resource consumption rate or accumulated usage is excessive, or appears to be fraudulent, or the result of erroneous actions.
4. Discretionary Updates and Upgrades.
(a) MetalSoft may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that MetalSoft has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
(b) From time to time, MetalSoft may offer certain fee-based upgrades to the Software. MetalSoft is not responsible for performing any upgrades to the Software. With respect to the Hosted Controller Services, all upgrades shall be performed by MetalSoft at its sole discretion.
5. Third-Party Materials. The Software may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that MetalSoft is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. MetalSoft does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
6. Security Measures. The Software and Services may contain technological measures designed to prevent unauthorized or illegal use of the Software and Services. End User acknowledges and agrees that: (a) MetalSoft may use these and other lawful measures to verify End User's compliance with the terms of this Agreement and enforce MetalSoft's rights, including all Intellectual Property Rights, in and to the Software and Services; (b) MetalSoft may deny any individual access to and/or use of the Software or Services if MetalSoft, in its discretion, believes that person's use of the Software would violate any provision of this Agreement, regardless of whether End User designated that person as an authorized user; and (c) MetalSoft and its representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about End User's computers, systems and software, that MetalSoft may gather periodically to improve the performance of the Software or Services or to develop maintenance releases. MetalSoft may elect in its discretion to use commercially reasonable efforts to protect your data and infrastructure from security attacks, data leaks, or data loss but is under no circumstance liable for any data breach of any kind. However, you are solely responsible for the security of the network and that of your data by means of specific backup services, encryption, and other means.
7. Attribution. In any use of the Software, unless explicitly allowed by the Software, you must not remove, obscure, or alter in any way attribution to MetalSoft on all user interfaces to the Software which must be in the same format as delivered in the Software.
8. System Requirements. You are solely responsible for ensuring that your systems meet the hardware, software, and any other applicable system requirements for the Software as specified in the Documentation. MetalSoft will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by MetalSoft or for using MetalSoft with hardware or software not on MetalSoft’s most current Hardware Compatibility List.
9. Indemnification by You. You will defend, indemnify and hold harmless MetalSoft from and against any loss, cost, liability, or damage (including attorney's fees) arising from or relating to any claim brought against MetalSoft (a) arising from or related to your breach of this Agreement or any claims or disputes arising out of the use of the Software; (b) by a third-party relating to your use of the APIs; or (c) by a third-party relating to any non-MetalSoft content or data used by you in connection with the Software. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of MetalSoft at your expense.
10. Term and Termination.
(a) The term of this Agreement commences on the earlier of the date (i) set forth in the Order for the commencement of the term, (ii) when you register for access to, and use of, the Software, or (iii) of your actual access to, or use of, the Software, and will continue in effect until terminated by MetalSoft.
(b) MetalSoft may terminate this Agreement at any time without notice, including, without limitation, (i) in the event of your default under, or the termination of. the Order, or (ii) if MetalSoft ceases to support the Software, which MetalSoft may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(c) Upon termination:
(i) all rights granted to you under this Agreement will also terminate;
(ii) you must cease all use of the Software and delete all copies of the Software from your device and account;
(iii) you shall remove all data, configuration, and content from the MetalSoft infrastructure, and shall return all MetalSoft Intellectual Property and other information and materials to MetalSoft.
(d) Termination will not limit any of MetalSoft's rights or remedies at law or in equity.
11. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED TO END USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, METALSOFT, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, METALSOFT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL METALSOFT OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE ACCESS AND USE OF THE SOFTWARE IN THE MONTH PRECEDING THE CLAIM OR ACTION IN RESPECT OF ANY SUCH LIABILITY.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
13. Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
14. US Government Rights. The Software is a commercial product, consisting of commercial computer software and commercial computer software documentation, as such terms are defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
15. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
16. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Software shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the City of Austin, County of Travis. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
17. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
18. Entire Agreement. This Agreement, the Order, and our Privacy Policy constitute the entire agreement between you and MetalSoft with respect to the Software and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Software.
19. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
20. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following definitions:
(a) “Controller" – The part of the MetalSoft Software that allows the users of the Software to interact with the Software providing a user interface or an API (application programming interface) endpoint for 3rd party applications to communicate with it.
(b) "Datacenter Agents" and “Site Controller” – The part of the MetalSoft Software that controls the Managed Devices and resides in End User's datacenter.
(c) “Decommissioned State” – means Devices marked as “decommissioned” in the Software which signifies that the respective Device is no longer managed by the Software.
(d) "Device" - means any server, switch, storage appliance, firewall appliance or load-balancing appliance, or any hardware or hardware-software combination that is managed as a whole. Devices composed of more than one physical component such as a switch in stacked mode are considered a single device if Registered as a single device in the Software.
(e) "Device Entitlements" means the number of Devices that can be managed by the Software at any given time.
(f) "Device Registration" means a Device for which the Software is configured to manage regardless of the method of configuration. Some devices can be automatically configured upon power-up.
(g) "Intellectual Property" means all proprietary and intellectual property, including patents, trademarks, trade names, design rights, copyrights, software, API, database rights, trade secrets, and all similar tangible and intangible property.
(h) “Intellectual Property Rights” means all rights in and to proprietary and intellectual property, including patents, trademarks, trade names, design rights, copyrights, database rights, trade secrets, and all similar tangible and intangible property, and all rights of an equivalent nature anywhere in the world.
(i) "Managed Datacenter" means the Software concept that aggregates multiple Managed Devices.
(j) "Managed Devices" – Devices that are under the control of the Software.
(k) "Marks" means the trademarks, trade names, service marks, logos, and/or service names of a party together with the goodwill symbolized by any of the foregoing, all registrations, applications, renewals, and extensions of any of the foregoing, and all rights in and to any of the foregoing.
(l) "Schedule" refers to the mutually agreed upon appendices to this Agreement which contain the Software and Services order, prices and other business related terms.
(m) "Support" means the maintenance and support services set forth into this Agreement, the Order or any associated Schedules, if any;
(n) "Service Suspension" - a period during which MetalSoft Services shall be fully or partially unavailable.
(o) "Services" means all services including the professional services, managed services or Hosted Controller Services provided by MetalSoft and as described in the Order, or any Schedule hereto or thereto.