This Gluware® End User License Agreement (the “Gluware EULA”) sets forth the terms and conditions pursuant to which Gluware, Inc. (herein referred to as “Company”) provides the Gluware Software. By using the Gluware Software, as defined below, End User agrees to be bound by the Gluware EULA in accordance with Company’s privacy practices found here: http://gluware.com/privacy-statement/. “End User” is defined as the company subscribing to, licensing or evaluating the Gluware Software, its wholly-owned affiliates, authorized employees or contractors of the company or its affiliates.
If End User does not agree to the Gluware EULA do not use the Gluware Software.
Company has developed “Gluware Software” a network automation engine and applications used to design, deploy and manage networks at scale for a plurality of network devices, which maintains the network devices and their configurations.
All Gluware Software including any and all Gluware Configurations (defined below) provided by Company shall be pursuant to the Gluware EULA, which may be updated from time to time, in order to access and use the Gluware Software. The Gluware EULA will be presented to each End User to click and accept when they access the Gluware Software for the first time, or when it is updated. Unless otherwise agreed to in a Commercial Agreement (defined below), End User’s use is also subject to Company’s standard terms and conditions of sale, which can be found at http://gluware.com/terms-and-conditions-of-sale/.
The Gluware Software is licensed to End User by Company. The commercial arrangement under which the Gluware Software is provided to End User, includes, but is not limited to, the term of the contract, the cost of software and/or service and the payment terms as specified in either i) one or more sales orders, customer orders, service agreements or service orders with Company or with an authorized Company service provider or reseller (“Reseller”) or ii) any Company evaluation agreement, collectively referred to as (“Commercial Agreement(s)”). Gluware Support & Maintenance is subject to the relevant Commercial Agreement and the Gluware Software purchased, licensed, provided to, or made available by Company to access or download by End User. Details of the services provided under Gluware Support & Maintenance can be found at: http://gluware.com/gluware-software-support-maintenance/. Free Offerings are not eligible to receive Software Support and Maintenance services. Self-service support is available on Company’s support portal at support.gluware.com.
For the avoidance of doubt:
(a) “Gluware Software” means any software licensed by Company at any time and if applicable, any Gluware Configurations.
- All Gluware Software is the intellectual property of Company.
(b) “Gluware Configurations” means the custom device configurations created by i) the Gluware SD-WAN application for deployment on End User routers by the Gluware Software and ii) any device configurations and features developed and supplied by Company.
- All Gluware Configurations are the intellectual property of Company.
(c) “Gluware Network” means an SD-WAN network deployed and managed by the Gluware SD-WAN application using Gluware Configurations.
(d) “End User Configurations” are End User defined device configurations which may be discovered, uploaded into, managed and modified by the Gluware Software.
- End User Configurations are and will always remain the intellectual property of End User.
(e) A Gluware “Device”, sometimes also referred to as a “Node”, is defined to be an individual (physical or virtual) router, firewall, Wide Area Network (“WAN”) acceleration device, Wireless Lan Controller (“WLC”), cloud resource or a switch; however, in the case of a switch each blade will consume one (1) device license, for example a switch chassis with two (2) blades is equal to two (2) devices, a chassis with four (4) blades will consume four (4) device licenses, etc.
(f) “Purchased Offering” means the services, subscriptions and licenses to the Gluware Software that are acquired by End User under a Commercial Agreement, whether directly or through an authorized reseller.
The software and documentation accessed by the Gluware Software whether hosted in Company’s data center, on End User’s own servers, desktops, laptops, on disk, in read only memory, on any other media or in any other form are licensed, not sold, to End User by Company or its Resellers for use only under the terms of the Gluware EULA, and Company reserves all rights not expressly granted to End User. The rights granted herein are limited to Company’s intellectual property rights in the Gluware Software and do not include any other patents or intellectual property rights.
Subject to the terms of the Gluware EULA and the terms and conditions of the relevant Commercial Agreement, End Users are granted a personal, non-exclusive, revocable, non-transferable, and non-sub-licensable license and right to access and use the Gluware Software along with the Documentation (as defined in the Software Support & Maintenance Agreement which can be found at: http://gluware.com/gluware-software-support-maintenance/). Any End User use beyond the specified term in the relevant Commercial Agreement would be a breach of contract. The number of network devices managed using the Gluware Software shall not exceed the Device quantity specified in the relevant Commercial Agreement.
Trials, Evaluations, and Free Licenses
(a) Trials and Evaluations The Gluware Software may be provided for a proof of concept trial or evaluation at no charge and such use will be for a specified limited duration. Unless otherwise agreed upon in writing, these trial and evaluation licenses (each a “Trial Offering”) may not be used for any revenue generation, commercial activity, or other productive business or purpose.
(b) Beta Licenses Some of the Gluware Software may be available to End User as a preview, or as an alpha, beta or other pre-release version (each, a “Beta Offering”). All rights for Beta Offerings are solely for internal testing and evaluation. End User use of a Beta Offering will be for the term specified by Company, and if no term is specified, then for the earlier of one year from the start date of the Beta Offering or when that version of the Beta Offering becomes generally available. Company may discontinue the Beta Offering at any time and may decide not to make any of the features and functionality generally available.
(c) Free Licenses From time to time, limited capabilities of the Gluware Software may be available for full use (i.e., not subject to limited evaluation purposes) at no charge. These “Free Offering(s)” may have limited features, functions and other technical limitations and will not have access to Company’s Software and Support Maintenance. Company may discontinue or change the features and functionality of the Free Offering at any time.
Lab Test, Development and Staging Licenses
Unless otherwise agreed to in writing, the use of Gluware Software identified as “Lab Test”, “Development” or “Staging” offerings (each a “Lab Test Offering”) in a Commercial Agreement, may only be used for the specified number of Devices on a non-production system for non-production uses, including product migration testing or pre-production staging, or testing new data sources, types, or use cases. These Lab Test Offerings may not be used for any revenue generation, commercial activity, or other productive business or purpose.
Notwithstanding anything to the contrary in this section, Company does not provide maintenance and support, warranties, or indemnification for, Trial Offerings, Beta Offerings or Free Offerings unless otherwise stated in the relevant Commercial Agreement.
3. Restrictions on Use
End User shall solely use the Gluware Software, Documentation and Gluware Configurations (the “Intellectual Property”) in a manner consistent with the licenses granted herein for their individual or internal business operations, i) subject to the relevant Commercial Agreement or ii) in the case of the Free Offering, subject to the EULA.
End User shall not take any of the following actions:
(a) create or enable the creation of derivative works, modifications, or adaptations of the Gluware Software;
(b) decompile, reverse engineer or disassemble the Gluware Software;
(c) distribute or disclose the Gluware Software or the Gluware Configurations to third parties;
(d) remove or modify any proprietary marking or restrictive legends placed on the Gluware Software;
(e) use any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the Gluware Software;
(f) allow any third party, not authorized by End User to use the Gluware Software;
(g) publish any results of benchmark test runs on the Gluware Software or Gluware Configurations;
(h) disclose, provide, or otherwise make available trade secrets or confidential information contained within the Gluware Software or Gluware Configurations in any form to any third party without the prior written consent of Company and End User shall implement reasonable security measures to protect such trade secrets and confidential information.
(i) use the Gluware OS Manager application to update the Operating System (“OS“) of any individual network device (routers, switches, firewalls, load balancers, WAN acceleration devices, whether physical or virtual) owned or leased by End User without having a valid vendor license or support contract entitling said network device to the OS Manager.
In the case of a Purchased Offering, the license under the Gluware EULA is effective until terminated according to the terms of End User’s Commercial Agreement with Company or its Resellers under which access to the Gluware Software is provided. The right to use the Gluware Software shall terminate immediately upon i) expiration of any SaaS or on-premises subscription, ii) breach of the Gluware EULA or Commercial Agreement, whichever occurs first. In the case of a Free Offering, Company reserves the right to terminate at any time for any reason. Upon termination, End User shall immediately cease any use of the Gluware Software including, where applicable, any Gluware Configurations created using the Gluware SD-WAN. For the avoidance of doubt, any End User Configurations managed by the Gluware Software prior to termination remain the property of End User. End User shall return or at Company’s option, destroy, all of Company’s Confidential Information (as defined in the Standard Terms and Conditions of Sale which can be found at: http://gluware.com/terms-and-conditions-of-sale/ and provide written certification of End User’s compliance of such destruction to email@example.com within thirty (30) days of the termination date.
In addition to the above:
(a) In the case of termination of a SaaS subscription, Company will terminate SaaS access to the Gluware Software.
(b) In the case of termination of an on-premises license, End User shall uninstall and permanently destroy, all Gluware Software, Gluware Configurations and provide written certification of End User’s compliance of such destruction to firstname.lastname@example.org within thirty (30) days of the termination date.
The following provisions shall survive any termination of the Gluware EULA: Section 3 (“Restrictions on Use”), this Section 4 (“Termination”), Section 5 (“Intellectual Property Rights”), Section 7 (“Disclaimer of Warranties”), Section 8 (“Limitation of Liability”), and Section 10 (“Miscellaneous”). End User’s rights under the Gluware EULA will terminate automatically without notice if End User fails to comply with any term(s) herein.
5. Intellectual Property Rights
“Intellectual Property Rights” shall mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing throughout the universe (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, design rights, and other industrial property rights, (e) all registrations, applications (including continuations, continuations-in-part, and divisions thereof), renewals, extensions, reissues and re-examinations thereof now or hereafter in force (including all rights in any of the foregoing), and (f) all other intellectual and industrial property rights (of every kind and nature and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise. End User agrees and acknowledges that Company owns all right, title and interest, including, but not limited to, all intellectual property rights, in and to the Gluware Software or Gluware Configurations and any modifications, improvements, or customizations thereto. Though not authorized to do so, should End User or any party acting on behalf of End User create any derivative works of the Gluware Software or Gluware Configurations, End User hereby assigns, agrees to assign and shall cause such third party to assign any and all right, title and interest (including, without limitation, Intellectual Property Rights) in such derivative works to Company. No intellectual property rights of any kind are assigned or transferred under the Gluware EULA. End User’s license with respect to the Gluware Software is only as expressly set forth in the Gluware EULA. End User shall have no right to use the Gluware Software for any purpose other than as set forth herein. End User shall not challenge, or assist any person or entity in challenging, Company’s right, title, and interest in the Gluware Software and/or the Gluware Configurations.
6. Limited Warranty
Company represents and warrants that:
(a) (i) for a period of ninety (90) days from first activation of the Gluware Software by End User (“Warranty Period”), the Gluware Software will be free of material defects, and any software supplied by Company in connection with the Gluware Software will be free of any viruses, trap doors or other malicious code, and will function in accordance with its specifications and Documentation provided to End User; and (ii) Company will comply with the terms of all open source licenses governing the Gluware Software.
(b) If the Gluware Software fails to comply with the warranty set forth in Section 6(a), Company’s exclusive liability and the exclusive remedy of End User shall be, at Company’s sole option, to correct or replace the Gluware Software, provided that if such correction or replacement cannot reasonably be accomplished, to issue a pro-rata refund of the license fees paid by End User for the period of the license then remaining.
(c) The warranty in Section 6(a) applies only if End User can establish the claim arose during the Warranty Period. The warranty is void to the extent failure of the Gluware Software is (i) caused by use or operation of the Gluware Software in an application or environment not specified in Company documentation; (ii) caused by internet or network connections, streaming services, computers, equipment or devices not supplied by Company; or (iii) caused by modifications not made by Company other than those modifications approved by Company in writing.
(d) Any software used by the Gluware Software will not contain any open source technology, which would create obligations, or purport to create obligations for End User with respect to any products or proprietary technology of End User to donate back or contribute ownership into any open source pool or general licensing scheme.
7. Disclaimer of Warranties
EXCEPT AS SET FORTH HEREIN, COMPANY DOES NOT WARRANT THE COMPLETENESS, ADEQUACY, ACCURACY, OR USEFULNESS OF THE GLUWARE SOFTWARE. THE GLUWARE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL DEFECTS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT MAKE ANY WARRANTY THAT (i) THE GLUWARE SOFTWARE WILL MEET THE REQUIREMENTS OF END USER, (ii) THE GLUWARE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE GLUWARE SOFTWARE WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE GLUWARE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR COMMUNICATIONS GIVEN BY COMPANY, ITS EMPLOYEES, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTY OR CREATE ANY NEW OR ADDITIONAL WARRANTIES. To the extent that Company may not as a matter of applicable law disclaim an implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
8. Limitation of Liability
COMPANY WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS, LOSS OF GOODWILL OR REPUTATION) OR LOSS OF DATA WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING FROM OR RELATING TO THE GLUWARE SOFTWARE OR OTHERWISE ARISING FROM OR RELATING TO THE GLUWARE EULA, REGARDLESS OF WHETHER COMPANY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. To the extent the foregoing exclusion of liability is not permitted under applicable law, Company’s liability in such case will be limited to the greatest extent permitted by law.
9. Audit Rights
End User shall implement reasonable controls to ensure End User’s comply with the licenses granted. Company may at its sole expense, and upon delivery of written notice to End User, perform a confidential audit, test or inspection of End User’s compliance with the licenses granted. The parties shall agree on the date, time, location and duration of the audit, provided that it shall take place not later than ten (10) business days of the written notice. Unless otherwise agreed between the parties, such audits will be performed no more than once a year, unless there are operational or compliance risks or significant regulatory change that warrants additional audits. End User will provide Company with the support required to perform such audit and will, without prejudice to the other rights of Company, address any non-compliant situation identified by the audit, for example by promptly procuring additional licenses, ceasing use of any unlicensed software or reducing the number of Devices managed by the Gluware Software to be within the number licensed. Failure to correct such matters shall be considered a material breach of the Gluware EULA.
End User may provide Company feedback, comments, ideas, suggestions, and other input (collectively the “Feedback”) regarding the Gluware Software. End User represents and warrants that prior to providing the Feedback (a) End User owns and controls all of the rights to the Feedback that End User provides or End User otherwise has the right to provide such Feedback to Company; (b) the Feedback is accurate and not misleading; and (c) the use of the Feedback does not violate any applicable law, rule or regulation and will not infringe or violate any rights of, or cause injury to, any person or entity. Once provided, such Feedback will be the property of Company. End User agrees to assign, and hereby assigns, all right, title and interest worldwide in the Feedback, and any related intellectual property rights, to Company. Further, any Feedback provided by End User in connection with the Gluware Software may be used by Company without restriction and without payment of compensation or other obligation to End User.
From time to time, Company may collect Usage Data generated as a by-product of End User’s use of the Gluware Software, accessed through any Purchased Offering, Trial Offering, Beta Offering or Free Offering. Usage Data may include technical information about End User’s operating environment and sessions, systems architecture, systems performance, page loads and views, product versions, number and type of searches, number of users, ingest volume, number of active and licensed Devices, task concurrency or source type and format. Usage Data does not include End User Content (defined below). Company may collect Usage Data for a variety of reasons, such as to identify, understand, and anticipate performance issues and the factors that affect them, to provide updates and personalized experiences to End Users, and to improve the Gluware Software offerings. “End User Content” means i) the data, information or material the End-User provides, inputs, processes or submits into the Gluware Software and ii) the data, information or content carried over an End User network that is managed using the Gluware Software. Details on Company’s Usage Data collection practices are set forth in Gluware’s Privacy Statement.
End of Life (“EOL”)
Company reserves the right to discontinue the sale and support of prior versions of the Gluware Software. Company will provide a ninety (90)-calendar day notification to End User regarding such EOL.
End Users with access to Company hosted SaaS version of the Gluware Software will always access the latest supported version.
Due to potential impact to and risks associated with the performance, functionality, use and security of EOL versions of Gluware Software, Company strongly recommends that End Users with on-premises installations of the Gluware Software complete the upgrade to the currently supported version of the Gluware Software prior to any EOL date. In the event of failure to complete the upgrade prior to the EOL of that version, the following with apply:
(a) Notwithstanding anything to the contrary in the relevant Commercial Agreement, performance and delivery of the Gluware Software, an EOL release version is supplied on an “as is” and “as available” basis without any warranty of any kind, by its continued access to or use of the EOL release version, End User assumes all risk associated with the use of such version.
(b) An EOL release version is not eligible for support, software patches or service packs of any kind.
(c) Any Documentation associated with the Gluware Software may no longer accurately reflect the functionality and capabilities of an EOL version.
(d) At Company’s sole discretion, Company may deprecate certain features of the Gluware Software or require End User to upgrade to a more current release version at any time. Such feature deprecation may be required due to reasons such as data security, product stability and interoperability, and legal or regulatory requirements.
(e) Company may terminate or suspend the Gluware Software at its discretion if End User fails to upgrade to the latest version.
Subject to Case Number Z1486550 the U.S Department of Commerce, Bureau of Industry and Security (BIS) have classified the Gluware Software and the Gluware Device Agent under Export Control Classification Number (ECCN) 5D002 and they are eligible for export in accordance with export License Exception ENC to all countries except Cuba, North Korea, Iran, Syria, Sudan and the Crimean region of the Ukraine in accordance with Export Administration Regulations (EAR) subsections 740.17(a) and (b)(1). The End User agrees that the End User will not export or re-export the Gluware Software in contravention of the export control restrictions described above.
The Gluware Software under the Gluware EULA is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). 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 subject to the terms and the Gluware EULA as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations (“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 Gluware EULA as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
Except as to claims or disputes arising out of or relating to Sections 3 (“Restrictions on Use”) and 5 (“Intellectual Property Rights”) of the Gluware EULA (the “Non-Arbitrable Claims”), any controversy, claim or dispute arising out of or relating to the Gluware EULA, shall be determined by arbitration in Sacramento, California before a sole arbitrator. The arbitration shall be administered by the American Arbitration Association (“AAA”) pursuant to its then existing Commercial Arbitration rules and procedures. If the parties are unable to agree on an arbitrator within thirty (30) days of the filing of the demand for arbitration, an arbitrator shall be selected pursuant to the Commercial Arbitration rules and procedures of the AAA. The parties hereto shall be entitled to reasonable discovery (both documentary and depositions) in any such arbitration. The non-prevailing party shall bear all costs and expenses, including attorneys’ fees, administrative costs and the fees of the arbitrator in connection with such arbitration. The arbitration award shall be in writing and, shall specify the factual and legal basis for the award and shall be conclusive and final. Judgment on the award may be entered in any of the federal or state courts in Sacramento, California.
The Gluware EULA shall be governed in all respects by the laws of the State of California, without giving effect to its internal conflict of law provisions. If the State of California adopts the current proposed Uniform Computer Information Transactions Act (UCITA, formerly proposed Article 2B to the Uniform Commercial Code), or a version of the proposed UCITA, that part of the laws shall not apply to any transaction under the Gluware EULA. The parties subject to the Gluware EULA, will voluntarily appear before and hereby consents and submits to the exclusive jurisdiction of the state and federal courts in Sacramento, California in connection with any suit, action, proceeding or counterclaim against it arising out of or in any way relating to Non-Arbitrable Claims. In addition, each party consents to venue and hereby waives objections to venue for any such action commenced in such courts related to such Non-Arbitrable Claims and to enforcement of the arbitration requirements above or enforcement of any arbitration decision or award pursuant to the arbitration provision above. The prevailing party in any such litigation or dispute shall be entitled to recover from the other party its costs and fees, including attorneys’ fees, associated with such litigation or dispute.
All notices permitted or required under the Gluware EULA shall be in writing and shall be delivered by personal or electronic delivery, facsimile transmission, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal or electronic delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission, and addressed to the party to whom notice is given to, at such address as either party may specify in writing, provided that Company may give notice to End User under the Gluware EULA by providing such notice to the Reseller through which End User licensed the Gluware Software.
The Gluware EULA contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms or conditions with respect to the subject matter of the Gluware EULA, and neither party has relied upon any representation, express or implied, not contained in the Gluware EULA.
The rights and remedies of the parties are cumulative and not alternative. No waiver of any rights is to be charged against any party unless such waiver is in writing signed by an authorized representative of the party so charged. Neither the failure nor any delay by any party in exercising any right, power, or privilege under the Gluware EULA will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
If any provision of the Gluware EULA is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of the Gluware EULA will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties’ intent.
Nonperformance of the Gluware Software shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of Company or its Resellers.