Free Evaluation License

VERSITY SOFTWARE, INC. Software Evaluation End-User Licence Agreement (EULA)

This Software License and Support Agreement (this “Agreement”) a legal agreement between the user of the software (“Customer”) and Versity Software, Inc. (“Versity”), a Delaware corporation with an address at 100 Pine Street, Suite 1250, San Francisco, CA 94111. This Agreement is entered into as of the date when you clicked the box, accepting the Agreement. This agreement describes the terms and conditions pursuant to which Versity will license to Customer certain Software (as defined below).

In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:

ARTICLE 1: DEFINITIONS

“Documentation” means any user instructions, manuals or other materials, and on-line help files regarding the use of the Software that are generally provided by Versity in connection with the Software.

“Software” means the Versity Storage Manager (VSM) or Scale Out Archive Manager (ScoutAM) computer software program provided to Customer pursuant to this Agreement, together with any Updates and Upgrades that may be provided by Versity hereunder.

“Term” has the meaning set forth in Section 9.1.

“Third-Party Dependencies” means the open source software and other third-party software listed in Exhibit B hereto.

“Updates and Upgrades” means releases or versions of the Software containing functional enhancements, extensions, error corrections or fixes, which releases or versions are generally made available free of charge to Versity’s customers.

ARTICLE 2: GRANT OF LICENSE

Section 2.1      

Grant.  

Subject to the payment of fees as set forth in Article 4 and the restrictions on Customer’s use of the Software as set forth in Article 2 and Article 3, Versity hereby grants to Customer a nonexclusive, nonsublicensable, nontransferable license during the Term to (a) use the Software on any number of host servers (the “Versity Nodes”) at the locations specified in Exhibit A for Customer’s internal data storage, internal information processing, and computing needs, and to make copies as necessary for such use, and (b) use the Documentation in connection with use of the Software.  Customer acknowledges and agrees that Versity will retain title to, and is the exclusive owner of all right, title and interest, including without limitation all intellectual property rights, in and to, the Software and Documentation.  Versity hereby reserves all rights to the Software, Documentation, and any copyrights, patents, or trademarks, embodied or used in connection therewith, except for the rights expressly granted herein.

Section 2.2

Updates and Upgrades at No Charge

Versity shall from time to time deliver to Customer major or minor Updates and Upgrades (“Maintenance”).  Any such Updates and Upgrades shall be provided at Versity’s sole expense.

Perpetual Read Right.  

Customer’s right to use the Software to read data that is written by the Software as run by the Customer during the Term, as licensed in Section 2.1, shall be perpetual and irrevocable.  Subject only to the foregoing provision of this Section 2.3, Customer shall have no right to, and shall not, make any use of the Software, including without limitation writing or processing data with the Software, following any expiration or termination of this Agreement.

Section 2.3        

Delivery  

Versity shall make the Software and the Documentation available to Customer not later than three business days after the Effective Date.  Customer acknowledges that no source code of the Software will be provided to Customer.

Section 2.4      

Copies

Customer may make a reasonable number of machine-readable copies of the Software for backup or archival purposes. Customer shall not copy the Software, except as permitted by this Agreement. Customer shall maintain accurate and up-to-date records of the number and location of all copies of the Software and, upon Versity’s request, inform Versity in writing of such location.  All copies of the Software will be subject to all terms and conditions of this Agreement.  Whenever Customer is permitted to copy or reproduce all or any part of the Software, Customer shall reproduce and not efface any and all titles, trademark symbols, copyright symbols and legends, and other proprietary markings on the Software.

Section 2.5

Third-Party Dependencies.  

Customer hereby acknowledges that the Software will not function unless Customer downloads, installs and runs the Third-Party Dependencies on the Master Server (and, as applicable, the High Availability Server), and Versity’s obligations hereunder are conditioned on Customer’s doing so.  THE THIRD-PARTY DEPENDENCIES ARE NOT PROVIDED BY VERSITY AND VERSITY MAKES NO WARRANTY OF ANY KIND WITH RESPECT THERETO.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VERSITY HEREBY DISCLAIMS ANY IMPLIED WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

Section 2.6

Customer Feedback

Customer may, from time to time, provide Versity with feedback, suggestions or other ideas relating to the Software, Versity, or its market, whether orally, in writing or by other means (“Feedback”).  Customer shall and does hereby grant to Versity the irrevocable right, without payment of any kind to Customer, in perpetuity and throughout the world, to make any and all use of the Feedback, including in the modification of the Software, development of new products, or otherwise.

ARTICLE 3: LICENSE RESTRICTIONS

Section 3.1

Evaluation License  

Customer shall abide by the following applicable restrictions.  Customer’s license key may prohibit use of the Software after the time indicated on Exhibit A.  Customer may use the Software; (i) solely for its own internal computing needs, and not on behalf of any other entity or affiliate (except to the extent such entities may be listed specifically on Exhibit A), (ii) use the Software solely at the premises indicated on Exhibit A and allow use of the Software solely by persons located at such site, and (iii) use the software solely during the evaluation period indicated on Exhibit A.  All Software subject to this evaluation license is delivered; (i) “AS-IS,” without any express or implied warranties, and no warranties or maintenance obligations will apply to Versity, and (ii) VERSITY HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO SUCH SOFTWARE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Section 3.2

Additional Restrictions 

Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party:

  1. sell, lease, license or sublicense the Software or the Documentation;
  2. modify, decompile, disassemble, or reverse engineer the Software, in whole or in part;
  3. allow access to the Software by anyone other than Customer’s employees;
  4. write or develop any derivative software or any other software program based upon the Software or any Confidential Information;
  5. use the Software to provide processing services to third parties, or otherwise use the Software on a ‘service bureau’, software-as-a-service (SaaS), or cloud computing basis;
  6. develop, use, sell, import, distribute, market, or promote any software tools for use with the Software or extensions to the Software without Versity’s prior written consent; or
  7. provide, disclose, divulge or make available to, or permit use of the Software by, any third party without Versity’s prior written consent.

ARTICLE 4: SUBSCRIPTION FEE

Section 4.1        

Evaluation License Fee  

The evaluation license is free during the term. There is no fee associated with the evaluation software license.

ARTICLE 5: TECHNICAL SUPPORT

Section 5.1
Technical Support.

During the Term, Versity shall provide limited technical support (“Support”) for the Software at its sole discretion.  Such support may consist of assistance with respect to the Software, including (i) clarification of functions and features of the Software;

(ii) clarification of Documentation pertaining to the Software;

(iii) guidance in the operation of the Software; and

(iv) error verification, analysis and correction.  Versity shall use commercially reasonable efforts to commence the resolution of each reported incident but shall have no specific obligations under this agreement.

Section 5.2

Eligibility of Software

Maintenance and Support will not include services requested as a result of, or with respect to, the following, and any services requested as a result thereof and agreed upon by the parties in writing will be performed by Versity and billed to Customer at Versity’s then-current rates:

  1. unlicensed use of the Software;
  2. improper installation by Customer or use of the Software that deviates from any operating procedures established by Versity;
  3. modification, alteration or addition or attempted modification, alteration or addition of the Software undertaken by persons other than Versity or Versity’s authorized representatives;
  4. hardware that does not conform to either (i) Versity’s reference hardware specifications, as the same may be made available or updated by Versity from time to time; or (ii) other hardware that Versity may designate as supported from time to time; or
  5. software or technology of any party other than Versity.
Section 5.3

Responsibilities of Customer

Versity’s obligations under Section 5.1 are subject to the following:

  1. Customer shall provide Versity with access to Customer’s personnel and equipment during normal business hours.
  2. Customer shall provide supervision, control and management of the use of the Software.  In addition, Customer shall implement procedures for the protection of information and the implementation of backup facilities in the event of errors or malfunction of the Software or the equipment on which it runs.
  3. Customer shall document and promptly report all errors or malfunctions of the Software to Versity.  Customer shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from Versity.

ARTICLE 6: LIMITED WARRANTY AND LIMITATION OF LIABILITY

Section 6.1

Performance  

Versity warrants that the Software will perform substantially in accordance with the Documentation during the Term.  If the Software does not perform as warranted, Versity shall use commercially reasonable efforts to correct the Software.  The foregoing is Customer’s sole and exclusive remedy for breach of warranty.  The warranty set forth above is made to and for the benefit of Customer only.  The warranty will apply only if:

  1. the Software has been purchased under the terms of a commercial license
  2. the Software has been properly installed and used at all times and in accordance with the Documentation; and
  3. no modification, alteration or addition has been made to the Software by any person other than Versity or Versity’s authorized representative.
Section 6.2

Disclaimer

Except as set forth above, Versity makes no warranties, whether express, implied, or statutory regarding or relating to the evaluation Software or the Documentation, or any materials or services furnished or provided to Customer under this Agreement, including Maintenance and Support.  VERSITY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SUCH OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.

Section 6.3

Limitation of Liability  

IN NO EVENT WILL VERSITY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF VERSITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  VERSITY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEE PAID BY CUSTOMER TO VERSITY UNDER THIS AGREEMENT.  THESE LIMITATIONS WILL SURVIVE AND APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.  The provisions of this Article 6 allocate risks under this Agreement between Customer and Versity.  Versity’s pricing of the Software license and support reflects this allocation of risks and limitation of liability.

ARTICLE 7: INDEMNIFICATION FOR INFRINGEMENT

Section 7.1

Indemnity

Versity shall, at its expense, defend or settle any claim, action or proceeding brought against Customer to the extent that it alleges that the Software infringes any copyright or trade secret of any third party, and Versity shall pay any final judgments awarded or settlements entered into in connection therewith; provided that Customer gives prompt written notice to Versity of any such claim, action or allegation of infringement and gives Versity the authority to proceed as contemplated herein.  Versity will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action or allegation, except with prior written consent of Versity.  Customer shall give such assistance and information as Versity may reasonably require to settle or to oppose such claims.

Section 7.2

Options

In the event any such infringement, claim, action or proceeding is brought or threatened, Versity may, at its sole option and expense:

  1. procure for Customer the right to continue use of the Software or infringing part thereof; or
  2. modify or amend the Software or infringing part thereof, or replace the Software or infringing part thereof with other software having substantially the same or better capabilities; or, if neither of the foregoing is commercially practicable,
  3. terminate this Agreement and repay to Customer any license fees paid hereunder for the period following the date of such termination.
Section 7.3       

Exclusions

The foregoing obligations will not apply to the extent the infringement arises as a result of modifications to the Software made by any party other than Versity or Versity’s authorized representative, as a result of the combination of the Software with any materials or products not provided by Versity, if such infringement would not arise but for such combination, or as a result of the use of the Software other than in compliance with the terms of this Agreement.

Section 7.4        

Limitation 

This Article 7 states the entire liability of Versity with respect to infringement of any patent, copyright, trade secret or other proprietary right.

ARTICLE 8: CONFIDENTIAL INFORMATION

Section 8.1       

Confidential Information  

Confidential Information” means any information in written, graphic, machine-readable or other tangible form that is marked or otherwise designated as confidential. Confidential Information shall exclude information that Customer can demonstrate:  

(i) was independently developed by Customer without any use of the Confidential Information or by Customer’s employees or other agents (or independent contractors hired by Customer) who have not been exposed to the Confidential Information;

(ii) becomes known to Customer, without restriction, from a source other than Versity that had a right to disclose it;

(iii) was in the public domain at the time it was disclosed or becomes in the public domain through no act or omission of Customer; or

(iv) was rightfully known to Customer, without restriction, at the time of disclosure.  The Software and Documentation shall be Confidential Information.

Section 8.2       

Non-Use and Non-Disclosure  

Customer agrees not to use any Confidential Information for any purpose except to exercise its rights and perform its obligations under this Agreement.  Customer agrees not to disclose any Confidential Information to third parties or to Customer’s employees, except to those employees of the Customer with a need to know. 

Section 8.3      

Maintenance of Confidentiality  

Customer shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information.  Without limiting the foregoing, Customer shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees.  Customer shall not make any copies of the Confidential Information unless previously approved in writing by Versity.  Customer shall reproduce the proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.

Section 8.4      

Return of Materials  

Upon the termination of this Agreement, Customer shall deliver to Versity all Confidential Information that Customer may have in its possession or control.

ARTICLE 9: TERM AND TERMINATION

Section 9.1

Term

This Agreement will take effect on the Effective Date and will remain in force until terminated in accordance with this Agreement or for the length of time indicated on Exhibit A (such period, the “Term”).

Section 9.2.

Termination by Customer

This Agreement may be terminated by Customer upon written notice to Versity, with or without cause.

Section 9.3

Termination Events 

Versity may, by written notice to Customer, terminate this Agreement if any of the following events (“Termination Events”) occur:

  1. Customer is in material breach of any nonmonetary term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within 30 days after Versity gives Customer written notice of such breach; or
  2. Customer (i) terminates or suspends its business, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
Section 9.4       

If any Termination Event occurs, termination will become effective immediately or on the date set forth in the written notice of termination.  Termination of this Agreement will not affect the provisions regarding (i) Customer’s or Versity’s treatment of Confidential Information, (ii) the Feedback, , (iii) limits or disclaimers of Versity’s liability, or (iv) warranty disclaimers, which provisions will survive termination of this Agreement.

Section 9.5    

No later than 30 days after the date of termination or discontinuance of this Agreement for any reason whatsoever, Customer shall return the Software and all copies, in whole or in part, all Documentation relating thereto, and any other Confidential Information in its possession that is in tangible form.  Customer shall furnish Versity with a certificate signed by an executive officer of Customer verifying that the same has been done.

ARTICLE 10: MISCELLANEOUS

Section 10.1

Non-assignment/Binding Agreement

Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Versity.  Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

Section 10.2.

Notices  

Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth above.  Either party may change its address for notice by notice to the other party given in accordance with this Section.  Notices will be considered to have been given at the time of actual delivery in person, 3 business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.

Section 10.3

Limitation on Claims 

No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either party more than one year after the cause of action has accrued.  For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.

Section 10.4

No Warranties  

No employee, agent, representative or affiliate of Versity has authority to bind Versity to any oral representations or warranty concerning the Software.  Any written representation or warranty not expressly contained in this Agreement will not be enforceable.

Section 10.5

Force Majeure  

Except with respect to the payment of money, neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties.  Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.

Section 10.6

Waiver

Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective.  Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action.  No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.

Section 10.7

Severability 

If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement.  If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

Section 10.8

Integration  

This Agreement (including the Exhibits and any addenda hereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.  This Agreement may not be amended, except by a writing signed by both parties.

Section 10.9

Purchase Orders  

No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Versity to object to such terms, provisions or conditions.

Section 10.10

Export

Customer may not export or re-export the Software without the prior written consent of Versity and without the appropriate United States and foreign government licenses.

Section 10.11

Construction 

Titles, article headings and section headings are for reference only and shall not affect the interpretation of this Agreement.  The word “including” when used herein is illustrative rather than exclusive, and means “including, without limitation.”  No rule of construction interpreting this Agreement in favor of the non-drafting party shall be applied hereto.

Section 10.12

Government Licensees 

  1. This Section 10.13 shall apply only when Customer is the United States government or an agency thereof.
  2. Portions of the Software were developed at private expense and constitute and/or embody trade secrets or published copyrighted software.  Customer hereby agrees that the Software and the related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable.  Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227-7202-1 through 227-7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein, as provided in DFARS 227-7202-1(a) and 227-7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (Oct. 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14 (Alt III), as applicable. The terms and conditions of this Agreement shall pertain to the government’s use and disclosure of the Software, and shall supersede any conflicting contractual terms or conditions.  The foregoing statutory references shall be deemed to refer to applicable successor provisions.
Section 10.13 

Counterparts  

This Agreement may be executed in counter-parts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.

Section 10.14  

Governing Law  

This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles.  The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California for resolution of any disputes arising out of this Agreement.

This EULA is entered into as of the date when the Customer clicked the box, agreeing to the EULA.

EXHIBIT A: SOFTWARE AND LICENSE FEE

License Type:

            – Evaluation License

            – Evaluation License Period:  90 days

Monthly License Fee: $­­­­­­­0

EXHIBIT B: THIRD-PARTY DEPENDENCIES

Red Hat Enterprise Linux or

CentOS

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