ROBIN SYSTEMS, INC.
End User License Agreement
LICENSEE SHOULD CAREFULLY READ THE FOLLOWING AGREEMENT BEFORE USING ROBIN SYSTEMS, INC.’S SOFTWARE.
IMPORTANT – READ CAREFULLY:
This End-User License Agreement (“EULA”) is a legal agreement between ROBIN SYSTEMS, INC., a Delaware corporation (“RSI”), and you, the installing party (“Licensee”), for the installation and use of RSI’s virtualization technology software (the “Robin Product Software”). The Robin Product Software licensed hereunder can be in either the form of a feature-limited version of the software (the “Trial Version”) or, upon payment of the applicable license fee, a fully featured version of the software (the “Full Version”). Please read this EULA carefully. Licensee’s use of the Robin Product Software, in either Trial Version or Full Version form, is subject to the terms of this EULA. By using any portion or form of the Robin Product Software, Licensee agrees to be bound by the terms of this EULA. If Licensee does not agree to the terms of this EULA, do not use the Robin Product Software.
1. GRANT OF LICENSE.
RSI, as licensor, grants to Licensee, a revocable, non-exclusive, non-transferrable, limited right to: (1) install and use the Trial Version of the Robin Product Software on a maximum of three server machines, or (2) upon payment of all applicable license fees, install and use the Full Version of the Robin Product Software on the number of server machines specified in the applicable order. RSI further permits Licensee to reproduce a reasonable number of the sets of technical documentation which RSI generally makes available, included printed updates, “Read Me” files and release notes (the “Doc Sets”). Neither the Robin Product Software, the Doc Sets, nor any portion thereof may be resold or redistributed in any form whatsoever. All rights not expressly granted to Licensee are reserved to RSI and/or its licensors. Licensee agrees that it will not attempt to rent, lease, sublicense, loan, reverse compile, modify, translate, or disassemble the Robin Product Software in whole or in part, or authorize others to do any of the foregoing.
2. ROBIN PRODUCT SOFTWARE OWNERSHIP.
The Robin Product Software is protected by copyright, patent and trade secret laws and international treaty provisions. No title to the intellectual property in the Robin Product Software is transferred to Licensee. Licensee does not acquire any rights to the Robin Product Software except as expressly set forth in this EULA. RSI shall retain full and complete title to the Robin Product Software and all subsequent copies of the Robin Product Software, regardless of the media or form on or in which the original copies may exist. The License is not a sale of the original Robin Product Software or any of the underlying material.
All rights, title, and interest in and to the Robin Product Software (including, but not limited to, any images, photographs, animations, video, audio, music and text incorporated into the Robin Product Software), and any and all copies of the Robin Product Software are owned by RSI or its licensors. Copyright laws and international treaty provisions protect the Robin Product Software. Therefore, Licensee must treat the Robin Product Software like any other copyrighted material. This EULA does not grant Licensee any rights to trademarks or service marks of RSI. The Robin Product Software is licensed, not sold.
4. RESTRICTIONS ON USE.
Licensee may not: (a) use the Robin Product Software on any other systems, servers or devices except the single device or server associated with this installation, (b) distribute, share, sublicense, lend, lease or otherwise make the Robin Product Software available to any third party (on the Internet, an information network or tangible media, by broadcast or in any other manner), (c) modify, adapt, or create derivative works from or translate any part of the Robin Product Software, (d) reverse engineer, decompile or disassemble the Robin Product Software or otherwise attempt to obtain its source code, (e) remove or alter any copyright, trademark or other proprietary notice contained in the Robin Product Software or (f) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (g) use the Software if Licensee is a direct competitor of Robin Systems, except with Robin Systems’s prior written consent; (h) use the Software for or on behalf of public cloud service providers; or (i) offer the Software as part of Licensee’s solution within the Licensee’s client environment, where Licensee is a consulting company, or (j) use the Robin Product Software in any manner not set forth in this EULA or in Doc Sets.
5. THIRD PARTY SOFTWARE.
The Robin Product Software has been developed to operate with other software and technology owned and controlled by third parties. Licensee agrees that (a) Licensee will use such third party hardware, services, software or technology in accordance with this EULA, (b) RSI does not make any warranties, conditions, undertakings or representations of any kind, either express or implied, to Licensee concerning such third party hardware, services, software or other technology, (c) no third party will have any obligation or liability to Licensee as a result of this EULA, (d) such third party materials may be licensed under license terms which grant Licensee additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this EULA, and (e) any and all third party hardware, software or technology that may be distributed or used together with the Robin Product Software will be subject to Licensee explicitly accepting those separate licensing terms and conditions required for such use. The inclusion of any third-party hardware, services, software or technology does not imply an endorsement by RSI of the third party hardware, services, software or technology.
Licensee may not assign any right under this EULA, including to any affiliate, subsidiary, or joint venturer, without the prior written consent of RSI. Any purported assignment by Licensee shall be null and void. To the extent that this prohibition may be unenforceable, any such assignment must be subject to the terms and conditions of this EULA. To the extent RSI gives its written consent to an assignment or transfer of the Robin Product Software to the U.S. Government, the Robin Product Software may only be transferred with “Restricted Rights”, as that term is defined in the Department of Defense (“DOD”) Supplement to the Federal Acquisition Regulations (“DFARS”) in paragraph 252.227-7202.32 (c)(1) if to the DOD, or, if the Robin Product Software is supplied to any unit or agency of the U.S. Government other than DOD, the U.S. Government’s rights in Robin Product Software shall be no greater than those set forth in FAR 52.227-19(c)(1) or (c)(2), Commercial Computer software – Restricted Rights; or FAR 52.227-14, Rights in General Data Alternative III, as applicable.
Licensee’s right to use the Robin Product Software will automatically terminate if Licensee fails to comply with any provision of this EULA. If Licensee’s right to use the Robin Product Software is terminated, Licensee must: (a) cease all use of the Robin Product Software, (b) destroy the original and all copies of the Robin Product Software and (c) permanently delete all copies of the Robin Product Software from the computer on which it has been installed. Sections 2, 4, 8 through 11 and 13 through 17 shall survive the termination of this EULA.
The Robin Product Software includes Confidential Information that is secret and valuable to RSI and its licensors. Licensee is not entitled to use or disclose that Confidential Information other than strictly in accordance with the terms of this EULA. Licensee agrees (i) to hold RSI’s Confidential Information in strict confidence; (ii) not to disclose Confidential Information to any third parties, except for employees and independent contractors who have a “need to know” and who have signed agreements containing disclosure and use restrictions no less stringent than those set forth herein; and (iii) not to use any Confidential Information for any purpose except as required to perform under this EULA. This provision shall not prohibit Licensee from disclosing information to the extent required by law; provided that Licensee shall provide prior notice to RSI of such required disclosure and the opportunity to obtain an appropriate protective or other court order. For the purposes of this EULA, “Confidential Information” shall mean data and information of a proprietary or confidential nature disclosed by RSI to Licensee under or relating to this EULA, including, but not limited to, trade secrets, computer programs, product plans, business strategies, proprietary tools, methodologies, software, and the serial numbers that accompany the Robin Product Software. Confidential Information shall not include (or shall cease to include) data or information that (i) is or becomes generally known to the public on or after the effective date of this EULA, other than as a result of any act or omission of Licensee; (ii) was rightfully known to Licensee prior to its receipt from RSI; (iii) is rightfully furnished to Licensee by a third party without restriction as to use or disclosure; (iv) is independently developed by Licensee without use of or reference to the RSI’s Confidential Information; or (v) is disclosed with the prior written consent of the RSI. Data and information shall be considered to be Confidential Information if (i) designated as such by RSI orally, in writing, or in any other form before the disclosure, or (ii) due to its character or nature, a reasonable person in a like position and under like circumstances as the parties would treat it as secret and confidential. Licensee acknowledges that any unauthorized use or disclosure of the Robin Product Software may cause irreparable damage to RSI. If an unauthorized use or disclosure occurs, Licensee will promptly notify RSI and take, at Licensee’s expense, all steps which are necessary to recover the Robin Product Software and to prevent its subsequent unauthorized use or dissemination, including availing itself of actions for seizure and injunctive relief. If Licensee fails to take these steps in a timely and adequate manner, RSI may take them in its own or Licensee’s name and at Licensee’s expense.
9. LIMITED WARRANTY.
THE ROBIN PRODUCT SOFTWARE IS PROVIDED “AS IS.” TO THE FULL EXTENT ALLOWABLE BY LOCAL LAW, RSI DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RSI OR AN RSI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. WITHOUT LIMITATION OF THE FOREGOING, RSI AND THE THIRD PARTY PROVIDERS DO NOT WARRANT THAT: (a) THE ROBIN PRODUCT SOFTWARE WILL BE ERROR-FREE, (b) LICENSEE’S USE OF THE ROBIN PRODUCT SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, (c) THE ROBIN PRODUCT SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR (d) THE ROBIN PRODUCT SOFTWARE WILL OPERATE WITH THE HARDWARE OR
SOFTWARE CONFIGURATION LICENSEE CHOOSES.
10. LIMITATION ON LIABILITY.
RSI’S MAXIMUM LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS EULA SHALL BE LIMITED TO THE AMOUNT LICENSEE PAID RSI FOR THE ROBIN PRODUCT SOFTWARE PROVIDED HEREUNDER. LICENSEE EXPRESSLY AGREES TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION, AND ACKNOWLEDGES THAT WITHOUT ITS AGREEMENT TO THESE LIMITATIONS, LICENSEE’S COST FOR THE LICENSE GRANTED HEREUNDER WOULD BE HIGHER.
11. EXCLUSION OF REMEDIES.
WITHOUT LIMITING ANY OF THE DISCLAIMERS OR LIMITATIONS SET FORTH IN PARAGRAPHS 9 AND 10, ABOVE, IN NO EVENT SHALL RSI BE LIABLE TO LICENSEE OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION, LOST OR CORRUPTED DATA, LOST PROFITS OR SAVINGS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE ROBIN PRODUCT SOFTWARE, THIS EULA OR THE RELATIONSHIP OF THE PARTIES, WHETHER OR NOT THE PARTIES HAVE BEEN ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION OR THEORY ASSERTED.
12. SPECIFIC RIGHTS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF DAMAGES OR LIMITATIONS OF LIABILITY, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO LICENSEE. LICENSEE’S SPECIFIC RIGHTS MAY VARY FROM JURISDICTION TO JURISDICTION.
13. EXPORT RESTRICTIONS.
Licensee shall comply with all applicable export laws, restrictions and regulations of the U.S. Department of Commerce, the U.S. Department of Treasury and any other U.S. or foreign agency or authority. Licensee shall not export or re-export or allow the export or re-export of the Robin Product Software in violation of any such law, restriction or regulation, including, without limitation, export or re-export to Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to applicable U.S. trade embargoes, or to any party on the U.S. Export Administration Table of Denial Orders or the U.S. Department of Treasury List of Specially Designated Nationals and Blocked Persons, or to any prohibited destination in any of the Country Groups specified in the then current Supplement No. 1 to Part 740 or the Commerce Control List specified in the then current Supplement No. 1 to Part 738 of the U.S. Export Administration Regulations (or any successor supplement or regulations). Licensee shall defend, indemnify and hold RSI and its licensors harmless from any claims arising out of Licensee’s violation of such export control laws. By accepting this EULA, Licensee confirms that Licensee is not a resident or citizen of any country currently embargoed by the U.S. A list of embargoed countries is available at the official web site of the Office of Foreign Assets Control of the U.S. Department of the Treasury at: http://www.treas.gov/ofac/.
RSI may from time to time make available to Licensee updates for the Robin Product Software, subject to the terms and conditions of this EULA, or, in RSI’s sole discretion, RSI may condition release of such upgrades to Licensee upon Licensee’s acceptance of another EULA or other execution of a separate agreement. If Licensee should elect to install or otherwise use updates, Licensee’s use of such updates will be subject to the applicable license and the terms and conditions of this EULA or other agreement.
This EULA will be binding upon and inure to the benefit of RSI and Licensee, and our respective successors and permitted assigns. If any provision of this EULA is determined to be invalid or unenforceable, such determination will not affect the validity or enforceability of any other provision of this EULA. Any waiver of any breach or failure to enforce any provision of this EULA will not be deemed a future waiver of such term or a waiver of any other provision. Any waiver, amendment, supplementation or modification of any provision of this EULA will be effective only if it is in writing and signed by RSI and Licensee.
16. GOVERNING LAW.
This EULA shall be governed by the laws of the United States and the State of California, irrespective of California’s conflicts of laws rules. Any action arising out of or relating to this EULA may be brought exclusively in the appropriate state or federal court in Santa Clara County, California and RSI and Licensee irrevocably consents to the jurisdiction of such courts and venue in Santa Clara County, California.
17. ENTIRE AGREEMENT.
This EULA constitutes the complete and exclusive agreement between Licensee and RSI which supersedes any prior agreement, proposal, written or oral, and any other communication relating to the subject matter of this EULA.