These Terms and Conditions shall apply to Customer’s use of Services of the Replicated software. This agreement will be superseded by any signed contract between Replicated and Customer. This Agreement represents the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Replicated ordering document, and no terms included in any such purchase order or other non-Replicated ordering document shall apply to the Services.
2.1 As part of the registration process, Customer will identify an administrative user name and password for Customer’s Replicated account. Replicated reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
3.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms of the SaaS Services or any Distributed Software or other software, documentation or data related to the Services (collectively “Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Replicated or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise outside of the rights expressly granted to Customer; or otherwise for the benefit of a third party (including by assisting a third party in building or supporting, products or services competitive to Replicated); use the Services to deliver any application other than the Customer Application without Replicated’s express written consent; remove any proprietary notices or labels.
3.2 Customer shall not make commercial use of Replicated service without agreeing to service and payment terms defined in the Replicated Order Form. To the extent that Customer provides its Clients with access to the Customer Application in connection with the Services, Customer will enter into a written agreement with the applicable Client (a “Client Agreement”) which (i) prohibits Client from directly or indirectly taking any of the actions enumerated under Section 3.1 hereof, (ii) prohibits title to the Services or any portion thereof from passing to Client or any person claiming through Client, (iii) disclaims any liability of Replicated to Client for damages, whether direct or indirect, incidental or consequential or for loss of profits, arising in connection with the Client Agreement, and (iv) state that Replicated disclaims any warranty of any kind directly to the Client with respect to the Services, including any warranty of performance, title, merchantability, fitness for a particular purpose, and non-infringement. In such Client Agreement, the references to Replicated may be made by referencing “[Customer]’s licensor(s).”
3.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations. Without limiting the foregoing, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.4 Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Replicated’s provision of the Services.
3.5 From time to time, Replicated may provide updates to the Distributed Software (“Updates”). Customer and Clients shall promptly, and in no event later than twenty (20) business days from the availability of any Update, install such Update and cease to use any former versions of the Distributed Software. Failure to do so may result in loss of support and product functionality.
3.6 Although Replicated has no obligation to monitor Customer’s use of the Services, Replicated may do so, and Replicated may immediately suspend Customer’s password, account, and access to the Services if (i) Customer fails to make payment due within ten business days after Replicated has provided Customer with notice of such failure; or (ii) Customer violates Section 3, 4, or 10 of these Terms and Conditions. Any suspension by Replicated of the Services under the preceding sentence shall not relieve Customer of its payment obligations under this Agreement.
3.7 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Replicated includes non-public information regarding features, functionality and performance of the Services, and shall include the Software (notwithstanding any term of this Agreement to the contrary). Proprietary Information of Customer includes non-public data provided by or on behalf of Customer to Replicated to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Receiving Party’s obligations hereunder will last for five years following disclosure by the Disclosing Party. Notwithstanding the foregoing, the Receiving Party will have no obligations with respect to Proprietary Information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2 Customer shall own all right, title and interest in and to the Customer Data. Replicated shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing listed in (a) – (c).
4.3 Notwithstanding anything to the contrary, Replicated shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data, whether relating to Customer or its Clients, and any data derived therefrom), and Replicated will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Replicated offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business; provided, however, that the foregoing expressly excludes any and all information of Clients (including, without limitation, Customer Data of Customer’s Clients). No rights or licenses are granted except as expressly set forth herein.
5.1 Replicated shall have the right to terminate this agreement at any time without notice.
5.2 Upon termination of this Agreement, Customer shall promptly cease to use any Distributed Software, return all copies of any Distributed Software in its possession, and delete any Distributed Software installed on servers or machines under Customer’s control, and shall promptly cause Clients to take the foregoing actions unless Customer and Company enter into a written agreement providing for continued use of any distributed Software by such Clients.
Customer represents and warrants to Replicated that: (a) it is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority, and is duly authorized, to enter into the Agreement and to carry out the provisions thereof; (b) the person executing the Agreement on such party’s behalf is authorized to do so; (c) the execution, delivery and performance of the Agreement does not violate any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it; and (d) will comply with all applicable federal, state and local laws, rules and regulations in fulfilling its obligations hereunder, including, without limitation, privacy and data security statutes and regulations promulgated and in effect under such statutes and all applicable privacy and data security standards and generally accepted industry standards.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, REPLICATED AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND REPLICATED’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Replicated’s prior written consent; provided that Customer may assign this Agreement in connection with a merger, reorganization, or sale of all or substantially all of Customer’s assets. Replicated may not transfer and assign any of its rights and obligations under this Agreement without Customer’s consent; provided that Replicated may assign this Agreement in connection with a merger, reorganization, or sale of all or substantially all of Customer’s assets. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Replicated in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws/provisions.