This Scality® Connect Service End User License Agreement ("Terms") provides the terms and conditions under which Scality, Inc. ("Scality") licenses the Scality® Connect Software Service (the "Software") to the person or entity ("You" or similar pronouns) that has purchased this license on the Microsoft Azure Marketplace currently located at https://azuremarketplace.microsoft.com/ (the "Azure Marketplace"). This license is a binding contract between Scality and You upon the earlier of your acceptance via electronic means, or use of the Software. If you do not agree to these Terms you are not authorized to use the Software.
1. LICENSE. Subject to your compliance with all of these Terms including payment of all applicable fees, Scality hereby grants You a limited, non-exclusive and non-transferable/non-sublicensable license to access and use the Software for your internal business or personal use only. You may not and covenant not to (i) reproduce, modify, translate or create derivatives of all or any part of the Software; (ii) rent, lease, loan or otherwise distribute the Software to any third party or otherwise allow a third party to use the Software; (iii) copy, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, processes or algorithms of all or any part of the Software by any legal or technical means whatsoever, nor disclose any of the foregoing; (iv) publish or disclose to any third party any opinions relating to, or the results of any test or benchmarking or comparative study of the Software, or use such results for its own competing software development activities; or (v) remove any product identification, proprietary, copyright or other notices contained in the Software.
2. OWNERSHIP. These Terms grant you a license, not ownership of any Software or any copy of any Software. Scality (or the owners of the third party software) owns and retains all right, title and interest, including without limitation intellectual property rights in and to the Software and Scality Confidential Information. All rights not expressly granted under these Terms by Scality are hereby reserved by Scality.
3. MAINTENANCE AND SUPPORT. If You have elected to purchase a maintenance and support plan, support for the Software will be provided under such plan. In all other cases, support for the software is limited to the documentation related thereto, and community support may be available on the online Scality community. Please check www.scality.com. Scality may, but is not required, to provide other support, such as by chat or email.
4. REMOTE MONITORING AND DIAGNOSIS. The Software contains functionality that allows Scality to remotely monitor the health of the Software. You acknowledge that the Software and its monitoring tools collect and transmit certain status information to Scality regarding the installation and operation of the Software. The information is collected by Scality for the purpose of evaluating and improving Software performance and installation success rate. These tools do not collect personal information or your data.
5. FEES; PAYMENT. In consideration for the licenses granted to you and the performance of Scality’s obligations under these terms, you shall pay to Scality the fees indicated in your order made through the Azure Marketplace, without offset or deduction. All fees are non-refundable. If you fail to pay a fee Scality may suspend the provision of access to the Service, without additional notice, though Scality may elect to provide you notice before such suspension.
6. CONFIDENTIALITY. The Software and Software documentation is Confidential Information of Scality. Your data stored in or on the Software is your Confidential Information. Each Party agrees that Confidential Information received from the other Party: (a) will only be used as necessary to achieve the purposes and objectives of these Terms; (b) will not be disclosed to any third party without prior written approval of the other party; (c) may only be disclosed within the receiving organization on a need-to-know basis to persons who have been advised of the existence of these Terms and agree to be bound by its terms; and (d) will be treated with at least the same degree of care as the party holding it treats its own Confidential Information, but in no event with less than a reasonable degree of care. Each party will notify the other party promptly of any unauthorized use or disclosure of the other party’s Confidential Information and cooperate with and assist the other party in every reasonable way to stop or minimize such unauthorized use or disclosure. Notwithstanding the above, Confidential Information will not include information that: (i) is or becomes known to the public without breach of these Terms; (ii) is already known to or in the possession of a party at the time of disclosure; (iii) is independently developed by or for a party as evidenced by its own files and records; (iv) is rightfully obtained by a party from a third party that was lawfully in possession of the information and had the right to disclose the same; or (v) is released in writing from the obligations of confidentiality herein by the party who owns such Confidential Information. In addition, notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order or otherwise maintain the confidentiality of the information to be disclosed; or (b) to establish a Party’s rights under these Terms, including to make such court filings as it may be required to do.
7. WARRANTY; DISCLAIMER. Scality represents and warrants that the Software will conform in all material respects to the documentation for a period of ninety (90) days after the Software is made available to you pursuant to these Terms, provided that such warranty will not apply to failures to conform to the documentation to the extent such failures arise, in whole or in part, from (a) any use of the Software other than in accordance with the documentation, (b) modification of the Software by you or any third party, or (c) any combination of the Software with software, hardware or other technology not provided by Scality under these Terms or specified by Scality as not interoperable with the Software. For all warranty claims made by you during the warranty period, Scality will use commercially reasonable efforts to resolve, at no charge to You, any such non-conformities. This is your sole and exclusive remedy for a breach of this warranty. EXCEPT AS EXPRESSLY WARRANTED ABOVE, THE SOFTWARE, AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY SCALITY ARE PROVIDED AS IS AND WITH ALL FAULTS, AND SCALITY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUIET ENJOYMENT, ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY SCALITY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. SCALITY DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES PROVIDED UNDER THESE TERMS WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
8. TERM AND TERMINATION. These Terms become effective when the order for such Software is completed on the Azure Marketplace and shall remain effective for the term stated in such order unless earlier terminated as provided below or herein. Unless the order placed on the Azure Marketplace states otherwise, an order is non-cancelable for the term stated in the order. Either party may terminate these Terms if the other Party is in material breach of these Terms and fails to remedy such failure or breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; provided that as stated above, non-payment of fees shall constitute an automatic material breach by you, for which Scality may suspend or terminate access to the Software. Upon a termination or expiration, all amounts due under the order shall automatically be accelerated and be due and payable. Upon the termination or expiration of these Terms: (a) all licenses granted herein automatically terminate; (b) You will cease all access to and use of the Software; (c) you shall certify in writing to Scality that the Software and all other Confidential Information in your possession have been destroyed; and (d) Scality will have the right to destroy all of your data and Confidential Information stored on the Software (provided that if Scality retains any of your data, it shall remain subject to the confidentiality provisions above).
9. INFRINGEMENT CLAIM. If the Software becomes the subject of a claim that it infringes or misappropriates any intellectual property rights of a third party, Scality shall either attempt to resolve such claim by license or revision of the Software, or at Scality’s option, terminate your access to the Software and refund any prepaid fees you actually paid to Scality for the infringing Software. Scality will also indemnify you from any actual damages claimed against you by reason of such infringement, provided however that Scality shall have no obligation or liability to you to the extent that the infringement arises from (1) the combination, operation, or use of the Software with products, services, information, materials, technologies, business methods or processes not furnished by Scality; (2) modifications to the Software, which modifications are not made by Scality; (3) failure to use updates to the Software provided by Scality; or (4) use of the Software except in accordance with the documentation. Scality’s maximum liability for infringement herein shall be equal to the amount you have actually paid to Scality for the infringing Software. The obligations set forth in this Section shall constitute Scality’s entire liability and Your sole remedy for any actual or alleged infringement or misappropriation of intellectual property rights.
10. INDEMNIFICATION. You hereby covenant to indemnify, hold harmless, and defend Scality from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities sought by or awarded to a third party arising from or in connection with your breach of this Agreement, violation of applicable law, rules, regulations or orders, or any intellectual property right infringement claim arising from your use of the Software (other than infringement claims for which Scality owes a duty to indemnify you as provided above).
11. LIMIT OF LIABILITY. If You should become entitled to claim damages from Scality (including for breach of contract, breach of warranty, negligence or other tort claim), Scality will be liable only for the amount of Your actual direct damages, not to exceed (in the aggregate for all claims) the amount paid by You to Scality for the specifically deployed Software that caused the liability and is the subject of the claim in the 12 months preceding the accrual of such claim. This provision shall not limit any claim for which there is actual insurance coverage.
12. NO CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION HEREIN, SCALITY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOST REVENUE, LOST SAVINGS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE PERFORMANCE OF THE SOFTWARE OR SCALITY’S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THESE TERMS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitations of liability set forth in Sections 11 and 12 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in these Terms.
13. LAWS AND DISPUTE RESOLUTION.
13.1. Applicable law and venue. These Terms and the relationship between Scality and you are governed by the laws of the State of California, without regard to any provision of California law that would require or permit the application of the substantive law of any other jurisdiction. These Terms will not be subject to (a) the United Nations Convention on Contracts for the International Sale of Goods; or (b) any version of the Uniform Computer Information Transactions Act (UCITA) as it is, or may be, adopted in any state. The Parties hereby irrevocably consent to the sole and exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco, California.
13.2. Informal Dispute Resolution. At the written request of either Party, the Parties will attempt to resolve any dispute arising under or relating to these Terms through the informal means and negotiations in an effort to resolve the dispute without the necessity of any formal proceeding. Except for a claim for an injunction or equitable relief which may be brought immediately in a court identified in Section 13.1, no formal proceedings may be commenced until thirty (30) calendar days have passed since the initial request to negotiate the dispute was made.
13.3. Arbitration. Except for a claim for an injunction or equitable relief which may be brought immediately in a court identified in Section 13.1, all disputes, claims, or causes of action, in law or equity, whether in tort, for violation of statutes or regulations, or arising from or relating to the enforcement, breach, performance, or interpretation of these Terms shall be resolved, to the fullest extent permitted by law, by final, binding and confidential arbitration in San Francisco, California under JAMS,Inc. ("JAMS") or its successor’s then applicable rules and procedures before a single arbitrator. Both parties acknowledge that by agreeing to this arbitration procedure, both parties waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (b) issue a written statement signed by the arbitrator regarding the disposition of each claim and the relief, if any, awarded as to each claim, the reasons for the award, and the arbitrator’s essential findings and conclusions on which the award is based. No award against Scality may exceed the limits set forth in Section 11 or include damages described in Section 12; subject to those limitations, the arbitrator shall be authorized to award all relief that either party would be entitled to seek in a court of law, including, but not limited to, allocating in the arbitrator’s discretion, between the parties, all costs of the arbitration, including facility fees and the fees and expenses of the arbitrator and reasonable attorneys’ fees, costs and expert witness fees of the parties, if permitted by applicable law.
14.1. Entire Agreement. These Terms constitutes the entire agreement between the Parties, and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter of these Terms. These Terms may be modified or amended solely in a writing signed by both Parties.
14.2. Compliance with Laws. Each Party, at its sole expense, will perform its obligations and exercise its rights in a manner that complies with laws that are applicable to it. If a charge is made that a Party is not complying with any such laws, such Party will promptly notify the other Party of such charges in writing.
14.3. No export. You may not export the Software outside of the United States, Canada or Mexico, or if you desire to export the Software, you shall be responsible for compliance with the export laws and regulations of the United States and other applicable jurisdictions including without limitation the Export Administration Act (EAA), the Export Administration Regulations (EAR), the International Emergency Economic Powers Act (IEEPA), the anti-boycott and embargo regulations and guidelines issued under the EAA, and the regulations of the U.S. Department of the Treasury, Office of Foreign Assets Control and the Foreign Corrupt Practices Act. Without limiting the foregoing, You will be required to obtain all permits, licenses and other consents necessary for the development and distribution of the Software contemplated by any Order. If You violate this Section Scality may terminate these Terms upon notice to you.
14.4. Assignment. You may not assign or otherwise transfer any right or obligation set forth in these Terms (whether by operation of law or otherwise) without Scality’s prior written consent, which consent shall not be unreasonably delayed, conditioned or withheld; provided, however, that You may assign these Terms to any company which controls, is controlled by, or is under common control with You, or in the event of a merger, acquisition or sale of all or substantially all of the assets thereof. Notwithstanding the foregoing, You may not assign or otherwise transfer any right or obligation set forth in these Terms (whether by operation of law or otherwise) without Scality’s prior written consent if the assignee or transferee is a competitor of, or in competition with, Scality. Any purported assignment in violation of the preceding sentence will be void. Scality may assign all or part of its rights or obligations set forth in these Terms (whether by operation of law or otherwise) and all sums due or to become due pursuant to these Terms for any reason. These Terms will be binding upon the Parties’ respective successors and permitted assigns.
14.5. Order of Precedence; Interpretation. If there is any conflict between the general terms and conditions of these Terms and the terms contained in any Order, the Parties will attempt to read any such conflicting provisions consistently, however, in the event such a consistent reading cannot be accomplished, the Order will take precedence over such other terms solely with respect to such Order and solely with respect to such conflicting terms. These Terms have been mutually negotiated, and are deemed to have been prepared at arm’s length at the joint direction and construction of the Parties and is to be interpreted in accordance with its terms without favor to either Party.
14.6. Notice. Any legal notice or other communication required or permitted to be made or given by either Party pursuant to these Terms will be in writing, in English, and will be deemed to have been duly given: (a) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (b) when transmitted if sent by electronic mail, provided that the sender does not receive a notice such electronic mail was rejected; or (c) when delivered if delivered personally or sent by express courier service. All notices will be sent to the other Party at its address as set forth in the Azure Marketplace contact information records. You consent to receive communications from Scality electronically. Scality may communicate with You by electronic mail. You shall maintain an electronic email address with the Azure Marketplace that Scality can use to communicate with you, and Scality is not responsible for your failure to review or read such electronic mail.
14.7. Severability. The provisions of these Terms will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of these Terms, for any reason, is declared to be unenforceable, the Parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the Parties.
14.8. No Waiver. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the Party may have under these Terms.
14.9. Third Parties. Except for the suppliers of Third Party Software as contemplated in these Terms, these Terms is not intended nor will it be interpreted to confer any benefit, right or privilege in any person or entity not a party to these Terms.
14.10. Excusable Delay. Except for the obligations related to Confidential Information, License rights and restrictions, and payment, neither Party is responsible for any failure to comply with the terms of these Terms where the failure or delay is due to causes beyond the reasonable control of the Party.
14.11. Independent Relationship. The relationship established by these Terms is solely that of licensor and licensee, and each Party will act at all times as an independent party for its own account. Neither Party may represent or hold itself out as an agent or representative of the other. Neither Party has any authority to, and is expressly prohibited from, creating or assuming any obligation on behalf of the other, and from otherwise making or extending any representation, warranty, guarantee or other commitment for or on behalf of the other.
14.12. Survival of Certain Provisions. Any provisions of these Terms that by their nature are intended to survive any expiration or termination will survive expiration or termination of these Terms for any reason. For the avoidance of doubt the terms set forth in the sections 2, 6, 7 (Disclaimer provisions only) and 11 through 14 shall survive any termination of these Terms.