IMPORTANT: PLEASE READ BEFORE USE OF GREENBYTES, INC. (“GREENBYTES”) PRODUCT, HARDWARE OR SOFTWARE. THIS END USER LICENSE AGREEMENT APPLIES TO GREENBYTES SOFTWARE (“SOFTWARE”), AND HARDWARE, IF ANY, (“HARDWARE”) (THE HARDWARE AND SOFTWARE, EACH AND COLLECTIVELY, THE “PRODUCT”). BY INSTALLING OR IN ANY WAY USING THE SOFTWARE, HARDWARE OR PRODUCT THE ENTITY OR COMPANY THAT YOU REPRESENT (“CUSTOMER”) IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS GREENBYTES END USER LICENSE AGREEMENT (“GB EULA”). IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS GB EULA, INSTALLATION OR USE OF THE SOFTWARE, HARDWARE OR PRODUCT IS STRICTLY PROHIBITED. IF THE TERMS OF THIS GB EULA ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. SOFTWARE LICENSE GRANT. Software is licensed to Customer, not sold. Terms such as “sell” and “purchase,” apply only to the extent the Products consist of Hardware items other than Software. Subject to the terms of this GB EULA, including payment of the purchase price and/or all fees for the Product, GreenBytes hereby grants Customer a limited, personal, non-sublicensable, non-transferable, non-exclusive license to use the Software only for Customer’s internal use as part of the Product in which it is contained or for which it is provided and only in accordance with any accompanying documentation. Customer expressly acknowledges and agrees that Customer has no right to and will not sell, transfer, or license any Software to any third party.
2. LICENSE RESTRICTIONS. Customer shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, or distribute the Software; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except to the extent the foregoing is expressly prohibited by applicable local law); (iii) rent, lease, or permit access to the Software by third parties; or (iv) use the Software for comparisons or “benchmarking” except for Customer’s confidential internal purposes or publish or disclose the results thereof. Customer shall maintain and not remove or obscure any proprietary notices on the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof, shall remain in GreenBytes and its suppliers or licensors. The Software is protected by copyright laws and treaties. This GB EULA does not give Customer any rights not expressly granted herein.
3. OPEN-SOURCE SOFTWARE. The Software may be distributed with certain independent code that is licensed under the Common Distribution and Development License v 1.0 (CDDL v.1.0”) and/or other open-source licenses (“Open-Source Code”). Customer can obtain a copy of the CDDL v.1.0 at www.getgreenbytes.com/legal/cddl/.
4. SUPPORT. Support for Software is not provided under this GB EULA. Support, if purchased by Customer, is provided subject to GreenBytes’s standard Purchase Terms and Conditions at www.getgreenbytes.com/schedules/. Any Software that may be made available by GreenBytes pursuant to such support shall become part of the Software and subject to this GB EULA.
5. WARRANTY DISCLAIMER. GreenBytes makes no representation or warranty with respect to any Software under this GB EULA. Any warranty for the Software is as set forth in the GreenBytes standard Limited Warranties at www.getgreenbytes.com/legal/ (the “Limited Warranties”). EXCEPT AS MAY BE EXPRESSLY MADE IN THE LIMITED WARRANTIES, GREENBYTES does not make, and hereby expressly disclaims any warranty or representation with respect to the ProductS, EXPRESS OR IMPLIED, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, PERFORMANCE, ACCURACY, RELIABILITY, and non-infringement. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER. GREENBYTES DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
6. Limitation of Liability. WHETHER UNDER ANY WARRANTY, CONTRACT, TORT, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, THE FOLLOWING WILL APPLY TO GREENBYTES AND ITS AFFILIATES AND ALL PRODUCTS, INCLUDING SOFTWARE, AND SERVICES OF GREENBYTES IN ALL CIRCUMSTANCES (EXCEPT WITH RESPECT TO BODILY INJURY OR DEATH OF A PERSON): (A) GREENBYTES WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF PROFITS, OR LOSS OR INACCURACY OF DATA; AND (B) GREENBYTES’S CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES IS LIMITED TO AMOUNTS PAID TO GREENBYTES BY CUSTOMER OR GREENBYTES’S AUTHORIZED RESELLER FOR THE PARTICULAR PRODUCTS AND/OR SERVICES WITH RESPECT TO WHICH A CLAIM IS MADE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
7. TERM AND TERMINATION. This GB EULA shall continue until terminated as set forth in this Section 7. Customer may terminate this GB EULA at any time. GreenBytes may terminate this GB EULA if Customer violates any material provision of this GB EULA. Any termination of this GB EULA shall also terminate the licenses granted hereunder. Upon termination of this GB EULA for any reason, Customer shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software, and shall so certify to GreenBytes that such actions have occurred. GreenBytes shall have the right to inspect and audit Customer’s facilities to confirm the foregoing. Section 2 and Sections 6 through 12 (inclusive), and all accrued rights to payment, shall survive termination of this GB EULA.
8. U.S. GOVERNMENT RIGHTS. The Software is “commercial computer software” as defined in the U.S. Federal Acquisition Regulations (“FAR”) at 2.101. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of the GB EULA as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the “FAR” and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the GB EULA as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in the Software. Any confidential or proprietary information received by the Government in connection with the GB EULA is exempt from release under the Freedom of Information Act and is prohibited from release under the Federal Trade Secrets Act, 18 U.S.C. 1905.
9. EXPORT COMPLIANCE. Customer shall comply with all export laws and regulations of the Applicable Law (as defined in Section 11, below) and of the U.S. Department of Commerce, the U.S. States Department of Treasury Office of Foreign Assets Control, or other U.S. or foreign agency or authority, and Customer shall not export, or allow the export or re-export of any Product in violation of any such laws or regulations. By installing or using the Software, Customer agrees to the foregoing and represents and warrants that Customer is not located in, under the control of, or a national or resident of any restricted country.
10. CHOICE OF LAW/VENUE. This GB EULA shall be governed by Delaware law if Customer is located in the Americas, and the laws of England if Customer is located outside of the Americas, without regard to the Uniform Computer Information Transactions Act (“Applicable Law”). Choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods will not apply. If Customer is located in the Americas, the parties agree to jurisdiction and venue for claims or actions arising under this GB EULA in the state or federal courts located in Rhode Island, USA. If Customer is located outside of the Americas, then any dispute between the parties arising under this Agreement shall be finally settled by binding arbitration in London, England. Such arbitration shall be conducted in English in accordance with the rules of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with such rules. The arbitrator shall allow such discovery as is appropriate to the purposes of arbitration in accomplishing a fair, speedy, and cost-effective resolution of the dispute, and shall be expressly empowered to issue appropriate injunctive relief. The award of arbitration shall be final and binding upon both parties, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any monetary award shall be payable in United States dollars. Notwithstanding the foregoing, either party may also seek and obtain appropriate relief in any court of competent jurisdiction for claims regarding (i) the scope of any licenses granted herein or (ii) either party’s intellectual property rights and confidential information. The prevailing party in an action to enforce this GB EULA shall be entitled to costs and attorneys’ and experts’ fees and expenses.
11. GENERAL. Customer may not assign any rights or delegate any duties under this GB EULA and any attempt to do so is void and without effect. This GB EULA is the parties’ entire agreement relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any communication between the parties relating to its subject matter. No modification to this GB EULA will be binding unless in writing and signed by an authorized representative of each party. Any express waiver or failure to exercise promptly any right under this GB EULA will not create a continuing waiver or any expectation of non-enforcement. If any provision of this GB EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. To the extent that any and all provisions of this GB EULA shall exclude or limit any statutory liability which, according to mandatory provisions of Applicable Law cannot be contractually excluded or limited by mutual agreement of the parties, then such provision shall be given only such effect, if any, as is permitted by the Applicable Law. Neither party will be responsible for any failure or delay in its performance under this GB EULA, excluding Customer’s payment obligations, due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or natural disasters.