Introduction and Acceptance. This End User License Agreement (this “Agreement”), including any purchase order that references this Agreement (or effective version) and which is hereby incorporated herein (“Purchase Order”), is a legal agreement between each end user licensee (herein referenced as “you” or with “your”) and Polyverse Corporation (“Polyverse”) regarding the use of one or more Polyverse software products referenced in a Purchase Order that accompany or are provided pursuant this Agreement, which such products include all Updates (as defined below) and user documentation provided in “online” or electronic form (collectively, the “Software”), as well as any associated services provided by Polyverse in connection with the Software (the “Services”). You and Polyverse are each a “party” and together the “parties” to this Agreement. BY CLICKING THE BUTTON THAT INDICATES YOUR ACCEPTANCE AND ACTIVATING THE SOFTWARE WITH ANY PRODUCT KEY OR OTHER AUTHORIZING CODE PROVIDED BY POLYVERSE, WHICHEVER IS EARLIER, YOU AGREE TO BE BOUND BY AND TO BECOME A PARTY TO THIS AGREEMENT. BY ENTERING INTO THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT: (A) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF YOU ARE AN ENTITY, ORGANIZATION, OR COMPANY, THE INDIVIDUAL ACCEPTING THESE TERMS ON YOUR BEHALF HAS AUTHORITY TO BIND YOUR ENTITY, ORGANIZATION, OR COMPANY TO THESE TERMS AND SUCH ENTITY, ORGANIZATION, OR COMPANY AGREES TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU DO NOT HAVE PERMISSION TO USE THE SOFTWARE OR ANY SERVICES.
Activation. To use the Software, you must activate it with a product key provided by Polyverse for the Software. If Polyverse determines or suspects that a product key has been used with unauthorized or unlicensed copies of the Software, Polyverse reserves the right to suspend the Services or terminate this Agreement (and the right to use the Software) with notice by disabling (or de-activating) the product key or any instance on the physical or virtual instance of an operating system (“Node”).
Licensed Quota, Subscription Period, and Automatic Deactivation. As specified in the applicable Purchase Order agreed to by you and Polyverse, you have acquired a license and subscription to use the Software for a certain number of nodes (“Licensed Quota”) during a certain period (the “Subscription Period”). When the Licensed Quota is met or the Subscription Period expires, the Software may be deactivated automatically, the Software may cease to function in some or all respects, and you may lose access to data made with or stored using the Software. You will need to purchase a new subscription license to activate the Software. You acknowledge that deactivating the Software and suspending the Services or features of the Software (as described above) are key and non-negotiable features of the license rights and responsibilities conveyed under this Agreement.
License. Subject to the terms and conditions of this Agreement (including satisfaction of any applicable payment obligations), Polyverse hereby grants you a non-exclusive, non-transferable, and non-sublicensable license to download and use the Software (in object code form only) for its intended purpose in the applicable documentation during the Subscription Period subject to the limitations set forth in this Agreement and solely in accordance with the manuals and written instructions provided by Polyverse. You are also solely responsible for procuring necessary hardware and obtaining licenses to any third party software that may be required to operate the Software.
Payment. All fees for the Software and/or Services are payable in the amount and manner set forth in the Purchase Order.
Updates. Polyverse may provide updates, upgrades, patches, corrections, modified versions, and supplements for the Software at its sole discretion (“Updates”). You have the right to obtain such Updates during the Subscription Period by downloading or receiving access to the Updates from Polyverse. Polyverse reserves the right to designate specified Updates as requiring purchase of a separate subscription at any time and without notice to you; except that if your purchased subscription already includes particular Updates on the date of purchase, you will not have to pay an additional fee to continue receiving the same Updates for the remainder of your Subscription Period if Polyverse later decides to separately charge for those Updates.
Open Source and Third Party Software. The Software may contain or be distributed with software covered by an open source software license (“Open Source Software”) or covered by a license from a third party (“Third Party Software”). With respect to any Open Source Software that is included in or distributed with the Software, the terms and conditions of this license will not apply to such Open Source Software. For any Third Party Software that is included in or distributed with the Software, the terms and conditions of this license may not apply to such Third Party Software. Some Open Source Software and Third Party Software may contain additional limitations or exclusions of warranties and liabilities. You may find information concerning the inclusion of the Open Source Software and Third Party Software, if any, and the notices, license terms, and disclaimers applicable to such software in the user documentation of the Software. Any breach of the Open Source Software or Third Party Software licenses is also a breach of this Agreement.
License Restrictions. You may not, directly or indirectly:
Use (including make any copies of) the Software beyond the scope of the license granted in this Agreement;
Modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof;
Remove, disable, circumvent, or otherwise create or implement any workaround to any technological copy protection or other security features designed to prevent unauthorized use of the Software;
Combine in an unauthorized manner the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software, including any copy thereof;
Rent, lease, lend, sell, resell, offer for sale, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
Use the Software in violation of any law, regulation, or rule; or
Use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to Polyverse’s commercial disadvantage.
Technical Support. During the Subscription Period, technical support (as further described in the Purchase Order) for the Software is available generally by email. Polyverse may require you to demonstrate that you have a valid subscription for the Software before providing technical support. Polyverse also reserves the right to discontinue technical support for the Software following expiration of the then current Subscription Period. Notwithstanding the availability of technical support, Polyverse is not obligated to correct errors in the Software or correct the effects of errors in the Software (e.g., fix your computer or recover lost data).
Collection and Use of Information. Polyverse may, directly or indirectly through third parties services, collect and store information regarding your navigation or utilization of the Software, Services, and the related instances. Polyverse may use such information for any purpose related to any of your use of the Software and the Services, including but not limited to: (A) improving the performance of the Software or developing Updates; and (B) verifying your compliance with the terms of this Agreement and enforcing Polyverse’s rights, including all Intellectual Property Rights in and to the Software.
WARRANTY DISCLAIMER. Except for having the right to enter into this agreement and make the grant to the software, THE SOFTWARE AND SERVICES ARE OTHERWISE PROVIDED "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAWS, POLYVERSE, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, POLYVERSE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Not Designed for High-Risk Activities. Neither the Software nor Services are fault-tolerant or designed or intended for use in hazardous environments requiring fail-safe performance such as the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software or Services could lead directly to death, personal injury, or severe physical or property damage. Polyverse expressly disclaims any express or implied warranty of fitness for such high-risk activities.
Compliance with Laws. Your use of the Software and Services must strictly comply with all applicable laws and regulations, including laws and regulations relating to privacy and to monitoring the activities of other persons on the Internet or on a computer or other device.
Termination. This Agreement will become effective upon your clicking of the acceptance button or downloading or accessing the Services, whichever is earlier, and remain in effect until the earlier of: (a) expiration of the Subscription Period or exhaustion of the Licensed Quota; (b) your failure to comply with any term of this Agreement; (c) your return, destruction, or deletion of all instances and copies of the Software in your possession, and (d) you filing, or having filed against you, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, making or seeking to make a general assignment for the benefit of its creditors or applying for, or consenting to, the appointment of a trustee, receiver or custodian for a substantial part of your property. Upon termination of this Agreement, you may not use the Software or any Services and must return, destroy and delete all instances and copies of the Software in your possession or from any of your hosts, computers, or storage devices. If requested by Polyverse, you will certify in writing to Polyverse that you have taken such actions. You are not eligible for any refund or other compensation if this Agreement is terminated before the end of the Subscription Period.
Intellectual Property Rights. The Software is licensed under this Agreement. You acquire no ownership interest in and to the Software. Except for the rights expressly granted to you under this Agreement, Polyverse reserves and retains the entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software. You will safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access using not less than commercially reasonable efforts. You will promptly notify Polyverse if you become aware of any infringement of Polyverse’s intellectual property rights and fully cooperate with Polyverse in any legal action taken by Polyverse to enforce its intellectual property rights.
Feedback. If you provide any feedback to Polyverse concerning the functionality and performance of the Software or any Services (including identifying potential errors and improvements) (“Feedback”), you hereby assign to Polyverse all right, title, and interest in and to the Feedback, and Polyverse is free to use the Feedback in perpetuity without any attribution, payment, or restriction.
Confidentiality. In order to protect the trade secrets and proprietary know-how contained in the Software and or with the Services, you will not decompile, disassemble, or reverse engineer the Software or any Services (including any software or other technology underlying or otherwise used to provide any Services). Without limitation of the foregoing, if you are using a pre-release version of the Software, you will maintain the confidentiality of and not disclose to any third party: (a) all non-public information disclosed by Polyverse to you regarding pre-release versions of the Software and (b) all Feedback, Software performance data, and all other information obtained through evaluation of the Software.
LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT THAT IS PROHIBITED BY APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL POLYVERSE OR ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY SERVICES, EVEN IF POLYVERSE OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT TO THE EXTENT THAT IS PROHIBITED BY THE APPLICABLE LAWS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF POLYVERSE AND ITS AFFILIATES FOR ANY KIND OF DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES, IF ANY, PAID BY YOU FOR THE SOFTWARE AND ANY SERVICES DURING THE SUBSCRIPTION PERIOD DURING WHICH THE CLAIM ARISES. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY AND DAMAGES WILL NOT APPLY TO CONSEQUENTIAL DAMAGES FOR PERSONAL INJURY.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE
Government Rights. The Software, including the accompanying documentation, are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212 under United States laws, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the Software and accompanying documentation by the United States Government will be governed solely by the terms of this Agreement and its related Purchase Orders and will be prohibited except to the extent expressly permitted by the terms of this Agreement and its related Purchase Orders.
Indemnification. You will indemnify and hold harmless Polyverse and its affiliates (including their respective officers, employees, directors, subsidiaries, representatives, agents, and licensors) and Polyverse’s suppliers from and against any damages (including attorney’s fees and expenses), claims, and lawsuits that arise or result from your use of the Software and any Services in breach of this Agreement.
Trademarks. Certain of the product and company names (including, without limitation, Polyverse) used in this Agreement or in the Software or any Services may constitute trademarks of Polyverse or third parties. You are not authorized to use any such trademarks.
Export Restrictions. The Software and Services are subject to US export control laws, including the US Export Administration Act and its associated regulations, as well as US economic sanctions laws and regulations implemented by the Department of the Treasury, Office of Foreign Asset Controls (collectively the “OFAC Regulations”), which bar or substantially prohibit any dealings by U.S. persons with designated persons or entities. You may not, directly or indirectly, export, re-export or release the Software or any Services to, or make the Software or Services accessible from, any jurisdiction or country to which export, re-export or release, including the provision of Services or other dealings, is prohibited by law, rule or regulation. You will comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or any Services available outside the US.
Relationship of the Parties. You acknowledge that this Agreement and the non-exclusive license granted herein does not create any agency or other relationship with Polyverse and that any activity that You undertake with the Software or Services is not on behalf of Polyverse, its employees, partners or agents, or in furtherance of its business activities.
This Agreement is governed by the laws of the State of Washington without regard to conflict of law principles. Except for the right of Polyverse to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in Seattle, Washington under the Rules of the American Arbitration Association by one arbitrator appointed in accordance with the Rules. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. Except as set forth above, you and Polyverse submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for resolution of any lawsuit or court proceeding arising out of or related to this Agreement or the licenses granted hereunder.
Polyverse will not be responsible or liable to you, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or your equipment, loss and destruction of property or any other circumstances or causes beyond Polyverse’s reasonable control.
You may not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance, under this Agreement, by operation of law or otherwise, without Polyverse’s prior written consent. Any purported assignment, delegation or transfer in violation of this Section is void. Polyverse may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without your consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
This Agreement, together with the Purchase Order, constitutes the sole and entire agreement between you and Polyverse with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
If there is a discrepancy between this Agreement and the Purchase Order, this Agreement will control.
This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
If you have any questions about this Agreement or if you would like to contact Polyverse for any other reason, please contact Polyverse at firstname.lastname@example.org.