vSMP Foundation End User License Agreement
BY INSTALLING THE PRODUCT IDENTIFIED HEREIN AND/OR ITS RELATED MATERIALS, YOU ARE ACCEPTING THE FOLLOWING LICENSE AGREEMENT. THIS LICENSE AGREEMENT (THE “AGREEMENT“) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY, ALSO REFERRED TO AS “LICENSEE” OR “YOU“) AND SCALEMP INC. (“SCALEMP“) FOR THE LICENSING OF SCALEMP’S PROPRIETARY VSMP FOUNDATION SOFTWARE (THE “SOFTWARE“).
WHEREAS ScaleMP provides the Software to create large computer systems according to predetermined specifications provided by ScaleMP; and
WHEREAS, Licensee wishes to use the Software, enhancements, translations, derivatives, updates, bug fixes or improvements and related user documentation related thereto and made available by ScaleMP (collectively, the “Licensed Work“) as more specifically set out herein;
NOW THEREFORE, by installing the Software or otherwise using the Licensed Work and by activating the Software through a serial number or other activation method provided for by ScaleMP (the “Software License Key“) you agree to be bound by the terms of this Agreement as follows:
- Scope of Rights. The Software is licensed, not sold. Subject to the terms of this Agreement, ScaleMP hereby grants you a limited, non-exclusive, non-transferable license, without rights to sublicense, to use the Software for the purpose as set forth in the applicable documentation for the Software and to the extent permitted by your payment of applicable license fees, if any, under a ScaleMP approved licensing model and/or your Software License Key subject to the software product specific terms specified in this Agreement, the technical restrictions of the Software and/or any additional licensing terms specified by ScaleMP. Depending upon the model utilized to compute the applicable license fees paid by you to use the Software (whether per Processor, per Memory, per Virtual Machine, per user, or any other ScaleMP approved licensing model), an applicable Software License Key may limit your usage of the Software accordingly. Any use or modification of the Licensed Work not authorized by this Agreement shall automatically terminate your right and license hereunder.
- Title to Licensed Work. Title to the Licensed Work, including all copies and derivative works thereof, as well as title to all intellectual property rights subsisting therein and related thereto, shall vest exclusively in and remain exclusively with ScaleMP. Except for the limited rights granted hereunder, all right, title and interest in and to the Licensed Work shall remain exclusively with ScaleMP.
- Confidentiality and Restrictions. The Licensed Work contains substantial trade secrets of ScaleMP and Licensee agrees that it shall employ reasonable security precautions to maintain the confidentiality of such trade secrets. As to any source code or system information furnished to Licensee, Licensee shall at all times prevent disclosure or dissemination of trade secrets embodied therein to any person, firm, organization, or employee, except as necessary to exercise the rights granted to Licensee hereunder. Licensee shall not, directly or indirectly, “unlock,” decompile, modify or reverse-assemble the binary or object code portions or versions of the Licensed Work, as the terms are generally used in the trade. In addition, Licensee shall not, directly or indirectly, copy, market, distribute, sublicense, lease, encumber or otherwise transfer or attempt to transfer the Licensed Work or any portion thereof, or permit any third party to use or have access to the Licensed Work whether by timesharing, networking or any other means without ScaleMP’s prior written consent. Furthermore, Licensee shall not offer third parties any services, whether for a fee or for no cost, that are based on or related to Licensee’s use of the Licensed Work, unless express prior written consent was provided to Licensee by ScaleMP. Licensee may use the Software to conduct internal performance testing and benchmarking studies, the results of which Licensee (and not unauthorized third parties) may share with third parties, publish, or publicly disseminate; provided that ScaleMP has reviewed and approved of the methodology, assumptions and other parameters of the study. Please contact ScaleMP at to request such review. Licensee shall also ensure that the Licensed Work is used at all times in such a manner so that the software components thereof do not become subject to an open source license. This section shall survive any termination or expiration of this Agreement.
- Warranty. ScaleMP warrants to Licensee that, subject to Licensee’s payment of all consideration due hereunder, for a period that is 25% of the Maintenance Period as defined below and no longer than ninety (90) days following the enablement of the Software, and unless as otherwise stipulated by law, the Software shall operate materially in accordance with the product documentation provided by ScaleMP. ScaleMP’s sole obligation and Licensee’s exclusive remedy for any failure of the Software to perform as warranted, is the correction or replacement, at ScaleMP’s option, of the Software. Without limiting any provisions limiting liability under this Agreement, this warranty shall not apply in the event that the Software has been subject to any of the following events (the “Warranty Exclusion Events”): (a) used other than in accordance with this Agreement, the product documentation or other written operating instructions or has been subject to negligence or accident by anyone other than ScaleMP; or; (b) modified, repaired, serviced, maintained or altered by anyone other than ScaleMP without ScaleMP’s prior written approval in each instance; or (c) combined with or installed on/with operating systems, hardware or other equipment which do not match ScaleMP pre-determined and published specifications; or (d) installed not in accordance with the hardware/software configuration provided by ScaleMP or with the written installation instructions provided by ScaleMP, other than by ScaleMP; or (e) the Software have been damaged by causes beyond the control of ScaleMP. The above notwithstanding, where ScaleMP provides services towards resolving the Warranty Exclusion Events, Licensee shall reimburse ScaleMP for any commercially reasonable costs, expenses and fees incurred in connection with services provided, such costs, expenses and fees not to exceed the original consideration provided by Licensee for the Software.
- Maintenance. Subject to maintenance and/or subscription contracts for predetermined periods (the “Maintenance Period”), and on condition that no Warranty Events occur during this period, ScaleMP will provide the Licensee with the following services (the “Maintenance Services“): (a) a web-based Help Desk facility; and (b) updates, error corrections and releases to the Licensed Work generally issued by ScaleMP to its customers. In order to be continuously eligible for Maintenance Services, Licensee may subscribe to receive from ScaleMP Maintenance Services at then-standard ScaleMP terms and conditions. Licensee is expected to renew Maintenance Services prior to expiration of the Maintenance Period. For renewal of Maintenance Services after the lapse a Maintenance Period the Licensee will pay: (i) the fee for the new Maintenance Period; (ii) the applicable fees for Maintenance Services for all time lapsed from expiration of last Maintenance Period rounded up to the nearest multiple of a 3-month period; and (iii) a 20% reinstatement fee on the sum of the fees in (i) and (ii) above.
- Limitations on Liability. IN NO EVENT SHALL SCALEMP BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS OR REVENUES OF ANY KIND, OR FOR LOST DATA OR DOWNTIME, EACH ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF SCALEMP TO LICENSEE FOR ALL CLAIMS RELATING TO THE LICENSED WORK OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID FOR THE LICENSE UNDER THIS AGREEMENT.
- Term and Termination. This Agreement shall last as long as the Licensee uses the Licensed Work in compliance with this Agreement. ScaleMP may terminate this Agreement if the Licensee fails to comply with any of the terms and conditions herein. Upon the expiration or termination of this Agreement, Licensee shall immediately discontinue use of the Licensed Work, and shall return same to ScaleMP. Alternatively, upon written approval from ScaleMP, Licensee can destroy the Licensed Work and certify in writing to ScaleMP that Licensee has complied with the foregoing. From time to time, ScaleMP may change the terms of this EULA. ScaleMP will publish any such change to http://www.scalemp.com/eula – at which time it will become immediately effective, and ScaleMP may notify Licensee about this change electronically. Your continued use of the Licensed Work will indicate your agreement to the change.
- Miscellaneous. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and administrators and permitted assigns. Licensee may not assign this Agreement without the prior written consent of ScaleMP which may be withheld in its sole discretion. This Agreement is governed by the laws of the State of Delaware. In the event of any dispute between the parties whether it results in proceedings in any court in any jurisdiction or in arbitration the parties hereby knowingly and voluntarily and having had an opportunity to consult with counsel waive all rights to trial by jury and agree that any and all matters shall be decided by a judge or arbitrator without a jury to the fullest extent permissible under applicable law. If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed and the remainder of this Agreement will continue in full force and effect. This Agreement constitute the parties’ final, exclusive and complete understanding and agreement with respect to the subject matter hereof, and supersede all prior and contemporaneous understandings and agreements relating to its subject matter. Any waiver, modification or amendment of any provision of this Agreement shall be effective only if in writing and signed by the parties to this Agreement.
YOU UNDERSTAND THAT BY INSTALLING THE LICENSED WORK YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN SCALEMP AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.