BY CLICKING ON THE "ACCEPT" BUTTON, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT ("LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT ("EULA"). LICENSEE'S CONTINUED USE OF THE DOWNLOADED MATERIALS SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE DOWNLOAD AND INST ALLA TION PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. GRANT OF LICENSE.
Robin Systems, Inc. ("RSI"), as licensor, grants to Licensee, a revocable, non-exclusive, non-transferrable, limited right to, upon payment of all applicable license fees, install and use the Robin Cloud Native Storage Enterprise Edition ("Software") in accordance with any restrictions shown in the online form used to access the download or, if none are shown, for a thirty (30) day trial ("Limits"). RSI shall have the right to terminate this license if Licensee exceeds any of the Limits. RSI further permits Licensee to reproduce a reasonable number of the sets of technical documentation which RSI generally makes available, included printed updates, "Read Me" files and release notes (the "Doc Sets"). Neither the Software, the Doc Sets, nor any portion thereof may be resold or redistributed in any form whatsoever. All rights not expressly granted to Licensee are reserved to RSI and/or its licensors. Licensee agrees that it will not attempt to rent, lease, sublicense, loan, reverse compile, modify, translate, or disassemble the Software in whole or in part, or authorize others to do any of the foregoing.
2. SOFTWARE OWNERSHIP.
The Software is protected by copyright, patent and trade secret laws and international treaty provisions. No title to the intellectual property in the Software is transferred to Licensee. Licensee does not acquire any rights to the Software except as expressly set forth in this EULA. RSI shall retain full and complete title to the Software and all subsequent copies of the Software, regardless of the media or form on or in which the original copies may exist. The License is not a sale of the original Software or any of the underlying material. Licensee understand that RSI may modify or discontinue offering the Software at any time.
All rights, title, and interest in and to the Software (including, but not limited to, any images, photographs, animations, video, audio, music and text incorporated into the Software), and any and all copies of the Software are owned by RSI or its licensors. Copyright laws and international treaty provisions protect the Software. Therefore, Licensee must treat the Software like any other copyrighted material. This EULA does not grant Licensee any rights to trademarks or service marks of RSI. The Software is licensed, not sold.
4. RESTRICTIONS ON USE.
Except as expressly and unambiguously permitted by this EULA, Licensee shall not, nor permit anyone else to, directly or indirectly: (a) use the Software on any other systems, servers or devices except the single device or server associated with this installation, (b) distribute, share, sublicense, lend, lease or otherwise make the Software available to any third party (on the Internet, an information network or tangible media, by broadcast or in any other manner), (c) copy, modify, adapt, or create derivative works from or translate any part of the Software, (d) reverse engineer, decompile or disassemble the Software or otherwise attempt to obtain its source code, (e) remove or alter any copyright, trademark or other proprietary notice contained in the Software, (f) use the Software in any manner not set forth in this EULA or in Doc Sets or (g) use the Software for performing comparisons or other "benchmarking" activities, either alone or in connection with any software (and Licensee will not publish any such performance information or comparisons). If Licensee uses open source software in conjunction with the Software, Licensee must ensure that its use does not create, or purport to create, obligations with respect to the Software. For instance, Licensee may not combine the Software with programs licensed under the GNU General Public License ("GPL") in any manner that could cause, or could be interpreted or asserted to cause, the Software or any modifications thereto to become subject to the terms of the GPL.
5. INTELLECTUAL PROPERTY; CONTENT.
As a condition to Licensee's use of the Software, Licensee represents, warrants and covenants that Licensee will not use the Software: (i) to infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any applicable law, statute, ordinance or regulation; (iii) to disseminate information or materials in any form or format ("Content") that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Licensee, not RSI, remains solely responsible for all Content that Licensee uploads, posts, e-mails, transmits, or otherwise disseminates using, or in connection with, the Software. Licensee acknowledges that all Content that Licensee accesses using the Software is at Licensee's own risk and Licensee will be solely responsible for any damage to any party resulting therefrom.
6. THIRD PARTY SOFTWARE AND OPEN SOURCE SOFTWARE.
The Software has been developed to operate with other software and technology owned and controlled by third parties. Licensee agrees that (a) Licensee will use such third party hardware, services, software or technology in accordance with this EULA, (b) RSI does not make any warranties, conditions, undertakings or representations of any kind, either express or implied, to Licensee concerning such third party hardware, services, software or other technology, (c) no third party will have any obligation or liability to Licensee as a result of this EULA, (d) such third party materials may be licensed under license terms which grant Licensee additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this EULA, and (e) any and all third party hardware, software or technology that may be distributed or used together with the Software will be subject to Licensee explicitly accepting those separate licensing terms and conditions required for such use. The inclusion of any third-party hardware, services, software or technology does not imply an endorsement by RSI of the third party hardware, services, software or technology. Additionally, the Software may be delivered with open source software that is subject to open source licensing terms. The open source Software is not subject to the terms and conditions of this EULA. Instead, each item of open source software is licensed under the terms of the end-user license agreement that accompanies such open source software. Nothing in this EULA limits Licensee's rights under, or grants Licensee rights that supersede, the terms and conditions of any applicable end user license for the open source software.
Licensee may not assign any right under this EULA, including to any affiliate, subsidiary, or joint venturer, without the prior written consent of RSI. Any purported assignment by Licensee shall be null and void. To the extent that this prohibition may be unenforceable, any such assignment must be subject to the terms and conditions of this EULA.
To the extent RSI gives its written consent to an assignment or transfer of the Software to the U.S. Government, the Software may only be transferred with "Restricted Rights", as that term is defined in the Department of Defense ("DOD") Supplement to the Federal Acquisition Regulations ("DFARS") in paragraph 252.227-7202.32 (c)(1) if to the DOD, or, if the Software is supplied to any unit or agency of the U.S. Government other than DOD, the U.S. Government's rights in Software shall be no greater than those set forth in FAR 52.227-19(c)(1) or (c)(2), Commercial Computer software - Restricted Rights; or FAR 52.227-14, Rights in General Data Alternative III, as applicable.
Licensee's right to use the Software will automatically terminate if Licensee fails to comply with any provision of this EULA. If Licensee's right to use the Software is terminated, Licensee must: (a) cease all use of the Software, (b) destroy the original and all copies of the Software and (c) permanently delete all copies of the Software from the computer on which it has been installed. Sections 2, 4, 5, 9 through 17 shall survive the termination of this EULA.
The Software includes Confidential Information that is secret and valuable to RSI and its licensors. Licensee is not entitled to use or disclose that Confidential Information other than strictly in accordance with the terms of this EULA. Licensee agrees (i) to hold RSI's Confidential Information in strict confidence; (ii) not to disclose Confidential Information to any third parties, except for employees and independent contractors who have a "need to know" and who have signed agreements containing disclosure and use restrictions no less stringent than those set forth herein; and (iii) not to use any Confidential Information for any purpose except as required to perform under this EULA. This provision shall not prohibit Licensee from disclosing information to the extent required by law; provided that Licensee shall provide prior notice to RSI of such required disclosure and the opportunity to obtain an appropriate protective or other court order. For the purposes of this EULA, "Confidential Information" shall mean data and information of a proprietary or confidential nature disclosed by RSI to Licensee under or relating to this EULA, including, but not limited to, trade secrets, computer programs, product plans, business strategies, proprietary tools, methodologies, software, and the serial numbers that accompany the Software. Confidential Information shall not include (or shall cease to include) data or information that (i) is or becomes generally known to the public on or after the effective date of this EULA, other than as a result of any act or omission of Licensee; (ii) was rightfully known to Licensee prior to its receipt from RSI; (iii) is rightfully furnished to Licensee by a third party without restriction as to use or disclosure; (iv) is independently developed by Licensee without use of or reference to the RSI's Confidential Information; or (v) is disclosed with the prior written consent of the RSI. Data and information shall be considered to be Confidential Information if (i) designated as such by RSI orally, in writing, or in any other form before the disclosure, or (ii) due to its character or nature, a reasonable person in a like position and under like circumstances as the parties would treat it as secret and confidential. Licensee acknowledges that any unauthorized use or disclosure of the Software may cause irreparable damage to RSI. If an unauthorized use or disclosure occurs, Licensee will promptly notify RSI and take, at Licensee's expense, all steps which are necessary to recover the Software and to prevent its subsequent unauthorized use or dissemination, including availing itself of actions for seizure and injunctive relief. If Licensee fails to take these steps in a timely and adequate manner, RSI may take them in its own or Licensee's name and at Licensee's expense.
10. WARRANTY DISCLAIMER.
THE SOFTWARE IS PROVIDED "AS IS." TO THE FULL EXTENT ALLOWABLE BY LOCAL LAW, RSI DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RSI OR AN RSI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. WITHOUT LIMITATION OF THE FOREGOING, RSI AND THE THIRD PARTY PROVIDERS DO NOT WARRANT THAT: (a) THE SOFTWARE WILL BE ERROR-FREE, (b) LICENSEE'S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, (c) THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR (d) THE SOFTWARE WILL OPERATE WITH THE HARDWARE OR SOFTWARE CONFIGURATION LICENSEE CHOOSES.
11. LIMITATION ON LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL RSI OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE'S USE OF THE SOFTWARE., RSI'S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS EULA SHALL BE LIMITED TO THE FEES PAID BY LICENSEE HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF RSI SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
Licensee agrees that RSI shall have no liability whatsoever for any use Licensee makes of the Software. Licensee shall indemnify and hold harmless RSI from any third party claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Licensee's use of the Software as well as from Licensee's failure to comply with any term of this EULA.
13. EXPORT RESTRICTIONS.
Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By downloading or using the Software, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
14. UPDATES AND SUPPORT.
This EULA does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Software. However, RSI may from time to time make available to Licensee updates for the Software, subject to the terms and conditions of this EULA, or, in RSI's sole discretion, RSI may condition release of such upgrades to Licensee upon Licensee's acceptance of another EULA or other execution of a separate agreement. If Licensee should elect to install or otherwise use updates, Licensee's use of such updates will be subject to the applicable license and the terms and conditions of this EULA or other agreement.
15. GOVERNMENT USE.
If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this EULA.
This EULA will be binding upon and inure to the benefit of RSI and Licensee, and its respective successors and permitted assigns. If any provision of this EULA is determined to be invalid or unenforceable, such determination will not affect the validity or enforceability of any other provision of this EULA. Any waiver of any breach or failure to enforce any provision of this EULA will not be deemed a future waiver of such term or a waiver of any other provision. Any waiver, amendment, supplementation or modification of any provision of this EULA will be effective only if it is in writing and signed by RSI and Licensee. This EULA constitutes the complete and exclusive agreement between Licensee and RSI which supersedes any prior agreement, proposal, written or oral, and any other communication relating to the subject matter of this EULA.
17. GOVERNING LAW.
This EULA shall be governed by the laws of the United States and the State of California, irrespective of California's conflicts of laws rules. Any action arising out of or relating to this EULA may be brought exclusively in the appropriate state or federal court in Santa Clara County, California and RSI and Licensee irrevocably consents to the jurisdiction of such courts and venue in Santa Clara County, California.