END-USER LICENSE AGREEMENT
COPYRIGHT AND END USER LICENSE INFORMATION
Software License Terms
This end user license agreement (“EULA”) is between the end-user (“You”), and Viking Enterprise Solutions, a division of Sanmina Corporation, (“VES”), these Software License Terms (“Software License Terms”) apply to the VES products purchased by You (“Software”). You must read these Software License Terms under which VES will license Software to You. Capitalized terms will have the meanings indicated in Section 18 below.
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE SOFTWARE, OR BY CHOOSING THE “I ACCEPT” OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THIS AGREEMENT OR EULA MAY BE DISPLAYED, YOU AGREE TO THE SOFTWARE LICENSE TERMS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE SOFTWARE LICENSE TERMS. IF YOU DO NOT AGREE TO THESE SOFTWARE LICENSE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK AN ACCEPT BUTTON OR USE THE SOFTWARE AND PROMPTLY RETURN THE SOFTWARE TO THE PARTY FROM WHOM IT WAS OBTAINED FOR A REFUND OF THE AMOUNT PAID. STANDALONE SOFTWARE LICENSE TERMS.
License Grant Except as otherwise expressly provided, VES grants You a personal, non-transferable, non-exclusive license: to Use the Operating Software solely on the VES Equipment with which it is shipped, to enable the Equipment to function; and to Use the Programs solely for Your internal business needs subject to the restrictions specified on any Equipment used in connection with the Programs. For capacity-based Programs, You will Use the Programs up to the specified capacity purchased, on the relevant equipment, network, device or CPU allowed If You wish to exceed capacity, You must pay VES any additional license fees first. You obtain no title or ownership in any Software nor do You obtain any right to sublicense the Software. The Software may be used only as provided in either machine-readable object code form or machine- compressed form, and the related documentation may be used only in printed or electronic form.
Third Party Software. Third Party Software may be embedded in VES’ Software and is sublicensed directly to You. Other Third-Party Software is provided to You subject to Third Party end user license agreements or (“3rd Party EULA”), available from VES at Your request. You will have no recourse against VES unless VES is the stated licensor and then only to the extent provided in such license. You will be responsible to do whatever is necessary or required by the third-party licensor for the licenses and related terms to take effect (e.g. online registration).
Unless stated otherwise in these Software License Terms or in the third-party license or provided under a maintenance contract, VES will not provide support for Third Party Software and will not provide You with any IP indemnity for the Third-Party Software. Some Software licensed to You includes Open-Source Software, and You can access a complete list of these licenses for the Open-Source Software provided with VES or VES’ proprietary Software from the Open-Source License Website. The Open-Source License Website does not include Third Party Related OSS. You must refer back to the applicable 3rd Party EULA for those terms. It is Your responsibility to review and adhere to all licenses for Open-Source Software. By accepting the Software License Terms You are also accepting the terms and conditions of the licenses applicable to any Third-Party Software (including any Open-Source Software) included with the Software.
If the Software licensed by VES includes certain software licensed under the GNU General Public License or other similar Open Source Software with a license that requires the licensor to make the source code publicly available (“GPL Software”) and the applicable source code was not included in the Software, then You may obtain a copy of the applicable source code for the GPL Software by either (a) requesting the open source code be mailed to You by VES or (b) downloading the open source code by following the links on the Open Source License Website.
Use Restrictions. Except to the extent these restrictions are prohibited by applicable law or prohibited by the terms of any open source license, You must not, and must not allow any other person to: (a) use the Software to conduct comparative or competitive analyses, including benchmarking; (b) reverse engineer, decompile, reverse compile, reduce in human readable form or otherwise access the source code of the Software (c) sublicense, rent, lease, modify, enhance, supplement, create derivative works from the Software; (d) copy the Software other than as expressly allowed; (e) remove or otherwise tamper with any proprietary notices contained on or in the Software; or (f) use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without our express written authorization.
Authorized Copies VES will provide You with one copy of the media and documentation for the Software. For Software licensed under an enterprise license, VES grants to You right to make copies of the Software solely for Your own internal use, within the scope of the enterprise license. You may also make one copy of back-up or archival copies of Software solely for Your own internal use. You must reproduce on all copies made, all proprietary and copyright notices contained on or in the Software. Software Transfers Except to the extent otherwise provided in any applicable open source license, You must not transfer the Software to any other person or entity, without VES’ prior written consent. You may, however transfer the Operating Software to a third party (“transferee”) solely with the related VES Equipment, but You must ensure that the transferee agrees to the terms of these Software License Terms and other relevant license terms. The Operating Software is provided to the transferee on an “as is” basis, with no extension of any existing warranty or support arrangements. When the transfer is complete, You must remove and destroy all copies of the Operating Software in Your possession or under Your control. You must also permanently remove all Software from any media upon which it is stored prior to disposing of the media. Location of Software If the Equipment upon which You are authorized to Use the Software becomes temporarily inoperable, You may load and Use the Software on another of Your computer systems located at the same premises, until the original Equipment becomes operable. Otherwise, You must always get VES’ prior written consent before changing the Equipment on which the Software is to be Used, or its location.
Verification Rights VES or its independent auditor may, upon reasonable notice to You, examine and audit Your records and systems to ensure compliance with applicable software licenses. The audit will be performed during normal business hours in a manner which does not unduly interfere with Your business operations. If the audit shows that You are using more copies of the Software than permitted under Your applicable licenses, VES will charge You additional usage fees. Limited Warranty Subject to this Section 8, VES warrants to You that, during the Warranty Period, the Software will function in accordance with the Published Specifications. To make a valid warranty claim, You must submit a claim to VES under the procedures set out at the warranty webpage:
EXCEPT AS SPECIFIED IN THESE SOFTWARE LICENSE TERMS, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW. VES DOES NOT WARRANT THAT ANY SOFTWARE OR THIRD PARTY SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE.
Ownership and Licenses VES and its licensors own all copyright, trade marks, designs, patents, circuit layout rights, know-how, trade secrets, trade, business or company names, domain names and related registration rights and all other intellectual property rights in the Software, including any modifications (“VES IP”). VES IP is protected by U.S. and other copyright laws and the laws protecting trade secret, other intellectual property rights and confidential information. You only get license rights in Software, expressly stated in these Software License Terms. Except as otherwise expressly provided by any open source license, You must not do anything to jeopardize VES’ or our licensors’ rights in the VES IP including to (i) copy, modify, merge, or transmit VES IP; (ii) register or attempt to register any competing intellectual property rights to the VES IP; (iii) delete or tamper with any proprietary notices on or in the VES IP, (iv) take or use any action that diminishes the value of any trademarks included in the VES IP, or (v) use the Software in violation of applicable law. These restrictions are in addition to those stated in Article 3. Intellectual Property Claims Subject to Section 9 and the exceptions in this Section, if a third party makes a claim against You that the Software infringes that party’s patent rights or copyright (“IP Claim”), VES will provide the following recourse (which, to the extent permitted by applicable law, comprises Your sole and exclusive remedy against us for IP Claims):
VES will defend or settle the IP Claim at our option and cost, and pay to You the amount of damages, losses and costs finally awarded (or settled with our written consent), provided that You promptly notify VES of the IP Claim (ii) allow VES to solely manage the defense and settlement of the IP Claim; (iii) co- operate with and assist VES as we require (VES will pay Your costs of doing so); and (iv) are not in breach of these Software License Terms or EULA or any other agreement that You have with VES or any of its affiliates. VES will, at its option and cost, do any of the following in relation to Software which is or VES considers is likely to be the subject of an IP Claim: (i) secure the rights for You to continue to use the Software without infringement or (ii) modify the Software so that it is not infringing or replace it with something that has similar functionality to the Software. If neither option is reasonably possible, VES will provide You with a refund, provided that You promptly return the Software to VES.
The above remedies will not apply to (x) any Third Party Software (including without limitation any Open Source Software) or (y) otherwise to any Software that You have, or any person on Your behalf has: (i) modified or combined with any third party product not resold and authorized or approved by VES, (ii) used outside the stated standard operating environment for the Software or for an unauthorized purpose or (iii) failed to use a more recent version of the Software that was available to You and would have avoided the infringement or where the IP Claim arises due to any material or item that You own or have sourced from a third party Yourself.
Liability Limitations. We each acknowledge the full extent of our own liability to the other arising from death or personal injury resulting from our negligent acts or omissions; claims for non- payment; the non-excludable statutory rights of consumers (for example, under laws providing for strict product liability), the breach of any obligation of confidence, and our breaches of these Software License Terms. Except for the immediately preceding sentence, our indemnity obligations as described in Section 10 and to the extent not prohibited by applicable law:
VES’ and Your maximum aggregate liability for all claims relating to all Software licensed to You under these Software License Terms, whether for breach of contract, breach of warranty or in tort, including negligence, will be limited to the amount paid for the particular Software which is the subject matter of the claim, up to a maximum of one hundred thousand US dollars (U.S. $100,000); and neither You nor VES will be liable for any indirect, punitive, special, incidental or consequential damages in connection with or arising out of the Software License Terms (including, without limitation, loss of business, revenue, profits, goodwill, use, data, or other economic advantage), however they arise, whether in breach of contract, breach of warranty or in tort, including negligence, and even if that party has previously been advised of the possibility of such damages.
Confidential Information. Each of us must keep each other’s Confidential Information confidential, using the same degree of care used to protect our own Confidential Information. We won’t disclose Your Confidential Information to anyone else, unless You allow us to, and You must do the same with our Confidential Information. We can, however, disclose it to our employees and contractors who need to know the information in order to perform obligations under these Software License Terms.
Export Compliance. You acknowledge that in various countries, laws and regulations regulate the export of computer products and technology which may prohibit use, sale or re-export of such products or technology if You know or have reason to know that such products and technology are for use in connection with the design, development, production, stock piling or use of nuclear, chemical or biological weapons or missiles and in some countries (e.g. China) for certain conventional military end-uses. If You sell or transfer to another person or entity title in or right to use any Software, you will ensure that all applicable export restrictions of the nature described in this section are observed.
Termination of License Your license in the Software will terminate: (i) when that Software is replaced with any upgrade, revision or replacement Software; or (ii) if You are in breach of any of these Software License Terms or any license for Third Party Software.
Dispute Resolution. Both of us will use reasonable efforts to get an appropriate person from our respective management teams to meet and attempt to resolve any dispute regarding these Software License Terms in good faith. If they are unable to resolve the dispute within 30 days, either of us may resort to alternate dispute resolution such as arbitration or otherwise seek recourse from the courts. Either party may seek injunctive or other urgent equitable relief at any time.
Governing Law. These Software License Terms will be governed by California law, with venue and exclusive jurisdiction in the appropriate courts in Santa Clara County, California. The United Nations Convention on Contracts for the International sale of goods and its implementing legislation will not apply to these Software License Terms.
Miscellaneous. Neither of us will be responsible for any failure to meet any of our obligations (except payment obligations) due to matters beyond our reasonable control provided reasonable efforts have been made to perform them. You must not assign, or otherwise transfer any of Your rights under these Software License Terms without VES’ prior written agreement. Notices made under these Software License Terms must be in writing to a senior executive. Notices will be deemed given: where they are hand delivered, when a duly authorized employee or representative of the recipient gives written acknowledgement of receipt; for email communication, at the time the communication enters into the information system of the recipient; for posting, three days after dispatch and for fax, on receipted transmission of the fax. Rights and obligations under these Software License Terms, which by their nature should survive the termination or expiry, will remain in effect after termination. If either of us fails to promptly exercise any contractual right, this does not of itself mean that the right has been waived. For a waiver of a right to be valid, it must be written and it will not give rise to an ongoing waiver or any expectation that the right will not be enforced, unless it is expressly stated to do so. These Software License Terms may not be modified except in writing signed by an authorized representative of each party. This EULA and these Software License Terms are the entire agreement relating to its subject matter. All oral or written communications, understandings, proposals, representations and warranties are by agreement, excluded and are of no force or effect (to the extent permitted at law).
Confidential Information: information that, at the time of disclosure, is clearly marked as confidential or in the circumstances would be considered to be confidential.
Equipment: hardware and spare parts manufactured by VES or VES has authorized You to use with the Software.
Open-Source License Website: the licenses applicable to Open-Source software is further described below or may be obtained in the Cloud Native Obsidian Software User Guide.
Open-Source Software: Third Party Software, which may be available without charge for use, modification or distribution and generally licensed under the GNU GPL, Lesser General Public License, Apache or other open-source software license.
Published Specifications: the published Software specifications existing at the time You ordered Software from VES.
Software: the object code format of (i) programming firmware embedded in the Equipment to enable it to perform its basic functions (“Operating Software”) and (ii) software programs supplied by us (“Programs”) and (iii) any updates, related documentation and specifications. Software may include Third Party Software and/or Open-Source Software.
3rd Party EULAs: separate licenses directly between You and the third-party licensor, which terms may be shrink-wrapped or click- through and related documentation, which may be provided to You in connection with delivery of the Software.
Third Party Related OSS: any Open-Source Software licensed to, provided with or otherwise contained in, the Third-Party Software.
Third Party Software: any software licensed to You by any party other than VES. for direct or indirect distribution to end users. For clarification purposes, if any Third-Party Software not sublicensed through these terms contains Open-Source Software, You must refer back to that applicable license for those terms.
Use: to use Software in live production for processing data.
Warranty Period: means the ninety-day period following delivery of the Software.
You or Your: end user of the Software.
The following are links to the open-source used in Cloud Native Obsidian. This contains the licenses and notices for open-source software used in this product. With respect to the free/open-source software listed in this document, if you have any questions or wish to receive a copy of the source code to which you are entitled under the applicable free/open-source license(s) (such as the GNU Lesser/General Public License), please contact us at: email@example.com.
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