IMPORTANT -PLEASE READ THIS AGREEMENT (the “Agreement” or “EULA”) CAREFULLY BEFORE PURCHASING AND/OR USING SOFTWARE OR SERVICES FROM SMARTX (SMARTX INC.). BY DOWNLOADING, INSTALLING, COPYING, CONFIGURING, DEPLOYING, OR USING SmartX SOFTWARE (INCLUDING ITS COMPONENTS) OR SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGE YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT OR UNDERSTAND ANY OF THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT PURCHASE, DOWNLOAD OR USE SmartX SOFTWARE OR SERVICES IN ANY WAY.
SmartX may amend this EULA at any time by posting the amended terms on its website. An amendment or addendum to this EULA may also be attached at any time. All amended terms shall automatically be effective thirty (30) days after they are initially posted on SmartX's website.
This Agreement is between You (“End User” or “licensee”), on behalf of the company, partnership or business entity that You represent (“You” or “Your”) and either (a) SmartX (“Company” or “licensor”), headquartered at 3401 El Camino Real，Palo Alto, CA 94306, USA, if the Software was purchased in China; or #712, C-North Tower, Raycom Infotech Park, No. 2 Kexueyuan South Road, Haidian District, Beijing, if the Software was purchased in any other country are both referred to herein as “SmartX”).
“Software” means any SmartX software, Purchased Software, library, utility, tool or other computer or program code or add-ons, in object (binary) or source-code form provided, directly or indirectly to You, including without limitation firmware. The term “Software” also includes any Updates, Upgrades or other new features, functionality or enhancements to the Software made available directly or indirectly to You by SmartX.
“Documentation” means that any published documentation that is generally provided to You by SmartX with the Software, as revised by SmartX from time to time.
“Fees” means any license, maintenance, professional services, consulting or other fees agreed to by the parties as set forth in the Purchase Order.
“Guest Operating Systems” means instances of third-party operating systems licensed to You, installed in a Virtual Machine and run using the Software.
“Intellectual Property Rights” means all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.
“License” means a license granted by SmartX or one of its registered licensors.
“License Key” means a serial number that enables You to activate and use the software.
“License Term” means the duration of a License as specified in the Purchase Order.
“License Type” means the type of License applicable to the Software, as more fully described in the Purchase Order.
“Purchase Order” means a purchase order, enterprise license agreement, or other ordering document issued by You to SmartX or a SmartX authorized reseller that references and incorporates this EULA and is accepted by SmartX.
“Product Guide” means the current version of the SmartX Product Guide at the time of Your Order. This is subject to change and may be updated by SmartX from time to time.
“Support Services Terms” means SmartX's then-current support policies.
This Agreement becomes effective on the date You legally acquire the Software and will automatically terminate if You breach any of its terms.
The software product is licensed, not sold, to you by SmartX. SmartX and its suppliers own all right, title and interest in and to the software and reserve all right not expressly granted to you in this EULA. You agree to refrain from any action that would diminish such rights. This is a license for a limited, revocable, non-assignable, non-exclusive, non-sub-licensable, non-transferable, worldwide right to run a single copy of the software in object code format (“license”) as subjected to the terms of the Purchase Order during its license period solely for internal business purposes. There are no other implied licenses granted to you under this EULA.
Limitations on use
Licensee must not, on its own or through any parent, subsidiary, affiliate, agent or third party:
- (a) Copy, sell, lease, rent, lend, transfer, license, sublicense or otherwise provide access to the Software to a third party;
- (b) Allow access or permit use of the Software by any users other than authorized users, or any use which violates the technical restrictions of the Software, the terms of this EULA, and any additional licensing terms as directed in the Purchase Order.
- (c) Alter, decompile, recompile, disassemble, modify, unbundle, reverse engineer or create any derivative work of the software or attempt to discover the underlying source code in any way.
- (d) Disclose the results of the testing, benchmarking or other performance or evaluation information related to the Software to any third party without prior written consent of SmartX.
- (e) Use any restricted or locked feature or functionality of the software outside the terms of the license and obtain license key through any means except purchasing from SmartX or a verified SmartX partner.
- (f) Remove or obscure any proprietary notices on the Software or Documentation.
You must not cause, encourage or permit any third party to do any of the foregoing.
Open Source Components
The software may contain open source software which is licensed to Licensee under the applicable license terms. Licensee is responsible for complying with all applicable Open Source Software terms and conditions, which takes precedence over this EULA, solely with respect to such Open Source Software. Please obtain the latest copy of all said software from your SmartX representative.
You acknowledge and agree that the Software belongs to SmartX or its licensors. You agree that You neither own nor hereby acquire any claim or right of ownership to the Software and Documentation or to any related patents, copyrights, trademarks or other intellectual property, including all modifications and derivative works of any of the foregoing. SmartX and its licensors retain all right, title and interest both tangible and intangible in and to all copies of the Documentation and the Software at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy。 You acquire only a conditional license to use the Software. The Software and Documentation are protected by copyright and other intellectual property laws and by international treaties. Any and all other copies of the Software or Documentation made by You are in violation of this license. All content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright law. This license gives You no rights to such content. All trademarks used in connection with the Software and Documentation are owned by SmartX, its affiliates and/or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder.
Fees and payment terms are as set forth in the applicable Purchase Order.
SmartX may terminate this EULA effective immediately upon written notice to Licensee if: (a) Licensee fails to pay any portion of fees due under Order Form and/or Payment within 90 days after receiving notice that payment is past due; (b) Licensee suffers an insolvency or analogous event; (c) Licensee commits a material breach of this EULA that is incapable of being cured; or (d) Licensee breaches any other provision of this EULA and does not cure the breach within 90 days after receiving written notice of breach. If the EULA expires or terminates, all licenses are immediately deemed null and You must remove and destroy all copies of Software, including all backup copies, from the server, virtual machine, and all computers and terminals on which Software (including copies) is installed or used and certify destruction thereof if requested upon by SmartX. SmartX may also terminate this EULA for convenience by giving 3 month's written notice to Licensee. All provisions of this EULA will survive any termination or expiration if by its nature and context it is intended to survive.
You acknowledge that the Software including its features, functionality and capability, and all Documentation and other related information are confidential to SmartX, its suppliers and licensors except to the extent information is: (a) already in your possession or received by You without restriction; (b) independently developed by You without use or reference to SmartX's Confidential Information; (c) publicly disclosed by SmartX or through other means not as a result of Your breach of this Agreement; or, (d) approved for release in writing by SmartX, or (e) the information is licensed under an Open Source License.
Disclaimer of Damages
THE SOFTWARE AND DOCUMENTATION IS PROVIDED ‘AS IS' AND THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ITS AFFILIATES, PARTNERS, SUPPLIERS, OR DISTRIBUTORS WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES INCLUDING LOSS OF USE, FAILURE OF SECURITY MECHANISMS, OR FOR ANY DAMAGES FOR LOST OR DAMAGED DATA, ACCURACY, LOST PROFITS, LOST SAVINGS OR BUSINESS OR SERVICE INTERRUPTION, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SMARTX AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL.
Limitation of Liability
COMPANY, ITS EMPLOYEES, ITS SUBSIDIARIES, OR ITS PARTNERS', SUPPLIERS', AND DISTRIBUTORS', TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY COMPANY OR ITS SUPPLIERS IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY LICENSEE TO COMPANY OR ITS SUPPLIERS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE TO THE CLAUSE OF ACTION ARISES. THIS LIMITATION APPLIES REGARDLESS OF THE NATURE OF THE CLAIM, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL THEORY. LICENSEE MAY NOT BRING A CLAIM UNDER THIS EULA MORE THAN 18 MONTHS AFTER THE END OF THE SUBSCRIPTION PERIOD. A “CLAIM” SHALL MEAN, COLLECTIVELY, ALL CAUSES OF ACTION, DAMAGES, CLAIMS OR DISPUTES OR SIMILAR REQUESTS FOR COMPENSATION THAT ARE RELATED TO OR ARISE FROM THIS AGREEMENT AND FROM A PARTICULAR EVENT, ACT, OMISSION, FAILURE OR ROOT CAUSE.
Amendments and Waivers
No supplement, modification, or amendment of the terms of this EULA shall be binding, unless executed in writing by a duly authorized representative of each party to this EULA. No waiver will be implied from conduct or failure to enforce or exercise rights under this EULA, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other form employed or provided by Licensee will supersede the terms and conditions of this EULA, and any such document relating to this EULA shall be for administrative purposes only and shall have no legal effect.
The Agreement, and any claim, controversy or dispute related to the Agreement, are governed by and construed in accordance with the laws of the People's Republic of China without giving effect to any conflicts of laws provisions. To the extent permissible, the United Nations Convention on Contracts for the International Sale of Goods will not apply, even if adopted as part of the laws of the People's Republic of China. Any dispute, claim, suit, action or proceeding arising out of or relating to this Agreement or its subject matter, including breach thereof, will be finally settled exclusively by binding arbitration administered by China International Economic and Trade Arbitration Commission (“CIETAC”) in Beijing in accordance with the then current CIETAC Arbitration Rules. The arbitration will be carried out before one (1) arbitrator. The arbitrator shall be appointed by CIETAC in accordance with CIETAC Arbitration Rules. The language to be used in the arbitral proceedings shall be English. The arbitral award will be final and binding on the parties. The expense of arbitration will be borne between the parties as determined by the arbitrator. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the party first became aware, or reasonably should have been aware, of the basis for the claim. To the fullest extent permitted, each party waives the right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
The following sections shall survive any termination or expiration of this EULA:
- General Terms
- License Grant
- Payment Terms
- Disclaimer of Damages
- Limitation of Liability
- Amendments and Waivers
- Governing Law