UnityOne END USER LICENSE AGREEMENT
IMPORTANT: PLEASE READ THESE (“UnityOne”) UnityOne MULTICLOUD MANAGEMENT PLATFORM TERMS (THE “SAAS AGREEMENT”) CAREFULLY BEFORE USING THE SOFTWARE AND SERVICES OFFERED BY UnityOne. BY SIGNING A UnityOne SERVICE AGREEMENT OR SIGNING OR ORDER DOCUMENT WHICH REFERENCES THIS AGREEMENT INCLUDING ANY AMENDMENT OR SCHEDULE THERETO, YOU OR THE ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS UNITY MULTICLOUD MANAGEMENT PLATFORM TERMS CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS AND CONDITIONS IN THE SAAS AGREEMENT. PROVISION OF THE PRODUCT IS CONDITIONED ON, AND CUSTOMER’S USE OF THE SAAS PRODUCT SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS SAAS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. THE TERMS OF ANY CUSTOMER SERVICE AGREEMENT, PURCHASE ORDER, ORDER, CONFIRMATION, OR SIMILAR DOCUMENT PROVIDED BY CUSTOMER WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY UnityOne. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY AND STRICTLY LIMITED TO SUCH TERMS OF THIS AGREEMENT.
- LICENSE GRANT. UnityOne grants you a license to use one copy of the version of this SOFTWARE on a single computer. “You” means the company, entity, or individual whose funds are used to pay the license fee. “Use” means storing, loading, installing, executing, or displaying the SOFTWARE. You may not modify the SOFTWARE or disable any licensing or control features of the SOFTWARE except as an intended part of the SOFTWARE programming features. This license is not transferable to any other system or another organization or individual.
- OWNERSHIP. The SOFTWARE is owned and copyrighted by UnityOne. Your license confers no title or ownership in the SOFTWARE and should not be construed as a sale of any right in the SOFTWARE.
- COPYRIGHT. The SOFTWARE and all rights, without limitation including proprietary rights therein, are owned by UnityOne or its suppliers and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE is licensed, not sold. You acknowledge that no title to the intellectual property in the SOFTWARE is transferred to you. You further acknowledge that title and full ownership rights to the SOFTWARE will remain the exclusive property of UnityOne, and you will not acquire any rights to the SOFTWARE except as expressly set forth in this license. You agree that any SOFTWARE copies will contain the same proprietary notices that appear on and in the SOFTWARE.
- REVERSE ENGINEERING. You agree that you will not attempt to reverse compile, modify, translate, or disassemble the SOFTWARE in whole or in part.
- NO OTHER WARRANTIES. THE SOFTWARE PRODUCT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. UnityOne DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
- SEVERABILITY. In the event of invalidity of any provision of this license, the parties agree that such invalidity shall not affect the validity of the remaining portions of this license.
- NO LIABILITY FOR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL UnityOne OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF THE SOFTWARE, EVEN IF UnityOne HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL UnityOne BE HELD LIABLE FOR ANY CLAIM, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, IN EXCESS OF THE LICENSE FEE PAID BY YOU, IF ANY.
- GOVERNING LAW. This agreement is governed by the laws of the State of Delaware. If for any provision or portion thereof of this License Agreement is found to be unenforceable by a court of competent jurisdiction, that provision shall be enforced in such manner as to affect the intention of the parties hereof, and the remainder of the License Agreement shall continue in full force and effect.
- GENERAL PROVISION. This is the entire agreement between you and UnityOne, which supersedes any prior agreement or understanding, whether written or oral, relating to the subject matter of this license. If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of the agreement, which shall remain valid and enforceable according to its terms. This agreement shall automatically terminate upon failure by you to comply with its terms. UnityOne, at its sole discretion, may modify this agreement in writing at any time.
- PAYMENT AND TERM. Customer will pay Company the then applicable fees described in the Service Order Form for the Services and Implementation Services in accordance with the terms therein. If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), the Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. UnityOne is on a Month to Month payment plan and the Customer shall pay all applicable federal, state, and local taxes arising out of the Agreement (except those based upon UnityOne’s income). Customer acknowledges that Customer can pay in advance for a year and avail of a 20% discount. The customer also acknowledges that the Customer can cancel this agreement anytime and will not be Invoiced anymore under the Advance Payment Plan. UnityOne may charge interest on all due and unpaid fees at the rate of 1.5% per month (or the maximum interest rate permitted by law, whichever is lower). Customer shall pay to UnityOne all costs of collection, including attorneys’ fees, costs, and expenses incurred in connection therewith. The customer also acknowledges that on severing the agreement, all the data pertaining to the Customer in UnityOne will be erased within 30 days from the date of termination/severing of the agreement.
- INDEMNIFICATION AND LIMITATION OF LIABILITY Customer agrees to indemnify, defend and/or handle at its own cost and expense any claim or action against UnityOne, its parent companies, and its affiliates and their successors, and their respective officers, directors, employees, shareholders, representatives, and agents (each an “Indemnified Party”) from and against any action or Claims (defined below) by a third party arising out of, or relating directly or indirectly to the Agreement, the License (if any) granted under the Agreement and the use of the Services by Customer or any person or entity acting through or on behalf of Customer, excepting therefrom Claims arising out of the gross negligence or intentional misconduct of UnityOne as determined by a court of competent jurisdiction. For purposes of the Agreement, the term “Claims” means any and all claims, causes of action (whether based on tort or contract law principles, law or equity, or otherwise), charges, assessments, fines, and penalties of any kind (including consultant and expert expenses, court costs, and reasonable attorneys’ fees and costs). Claims include claims for injury to any person (including death at any time resulting from that injury), and loss of, injury or damage to, or destruction of real or personal property. The provisions of this section shall survive the expiration or earlier termination of the Agreement. An Indemnified Party shall give Customer prompt notice of any claim asserted or threatened against it and the basis of which the Indemnified Party intends to seek indemnification, but the obligations of the Customer shall not be conditioned upon receipt of such notice except to the extent that Customer is actually prejudiced by such failure to give notice. Customer shall promptly assume the defense of the Indemnified Party with counsel reasonably satisfactory to the Indemnified Party and the fees and expenses of such counsel shall be at the sole cost and expense of the Customer. Notwithstanding the foregoing, the Indemnified Party shall be entitled, at its expense, to employ counsel separate from counsel for the Customer and from any other party in such action, proceeding, or investigation. An Indemnified Party may not agree to a settlement of a Claim without the prior written approval of the Customer, which approval shall not be unreasonably withheld. Customer may not agree to a settlement of a Claim against an Indemnified Party unless such settlement includes a full release of the Indemnified Party.UnityOne agrees to indemnify, defend and/or handle at its own cost and expense any claim or action against Customer, its officers, directors, employees, representatives, and agents based upon or in connection with any Claim by a third party arising out UnityOne’s gross negligence or intentional misconduct. The provisions of this section shall survive the expiration or earlier termination of the Agreement. UnityOne shall be given prompt notice of any claim asserted or threatened against and the basis on which indemnification is sought. UnityOne shall solely conduct the defense of any such claim or action and all negotiations for its settlement or compromise; provided, however, that (i) no settlement or compromise affecting the financial or legal obligations of Customer shall be entered into or agreed to without Customer’s prior approval unless such settlement contains an unconditional release by the claimant or the plaintiff of Customer, its officers, directors, employees, representatives, and agents from all liability in respect of such claim or action and (ii) Customer has the right to participate, at its own expense, in the defense and/or settlement of any such claim or action in order to protect its own interests. UnityOne shall have no liability for any damage to the Customer’s personal property or Equipment.
- U.S. GOVERNMENT RESTRICTED RIGHTS. Any use of the Service by or on behalf of the United States of America, its agencies, and/or instrumentalities (“U.S. Government”), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph I(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs I(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable.
- GENERAL Assignment Customer may not assign, transfer or convey the Agreement, or any rights or obligations thereunder, by merger, share exchange, asset sale, reorganization, operation of law or otherwise, to any other party without UnityOne’s prior written consent, which consent shall not be unreasonably withheld provided that (i) the proposed assignee assumes all of the Customer’s obligations under the Agreement, (ii) Customer is in compliance with all of the terms, covenants, and conditions of the Agreement, and (iii) the Tangible Net Worth of the proposed assignee is not less than the Tangible Net Worth of Customer as of the date of the assignment. The term “Tangible Net Worth” means the excess of total assets over total liabilities (in each case, determined in accordance with GAAP) excluding from the determination of total assets all assets which would be classified as intangible assets under GAAP, including, without limitation, goodwill, licenses, patents, trademarks, trade names, copyrights, and franchises. Any assignment of the Agreement without the consent of UnityOne shall be void ab initio. The Agreement shall be binding upon, and enforceable by, and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. In the event that UnityOne assigns its interest in the Agreement, UnityOne shall be released from any liability arising thereafter based upon any of the terms, covenants, or conditions, express or implied, which are contained in the Agreement. In such an event, the Customer agrees to look solely to UnityOne’s successor in interest for any liability under the Agreement after such assignment. Customer agrees to attorn in writing to UnityOne’s successor in interest if requested to do so.Notice. Unless otherwise specifically provided herein, all notices required under the Agreement shall be in writing and (unless otherwise provided herein) shall be delivered via personal delivery, facsimile, overnight mail by a nationally recognized overnight service, by U.S. Mail, postage prepaid, to UnityOne at 200 Paul Avenue, Suite 110, San Francisco, California 94124, or to Customer at the address set forth on the signature page of the most recent Service Order Form, unless, by notice, a Party changes or supplements the addressee and addresses for giving notice.Publicity; Press Releases. Neither Party shall be entitled to use the name, service or trademarks, logos or otherwise identify or refer to the other Party in any press releases, publicity, marketing, or promotional material without the prior, express approval of such other Party in each instance. Customer authorizes UnityOne to use customer’s name, logos, and trademarks in publicity, marketing, or promotional material and to release Customer’s name to other UnityOne potential and current customers.Arbitration. For any disputes, Customer and UnityOne shall initially commence good faith efforts to resolve disputes by escalating to successively higher levels of management (if necessary). The parties shall use commercially reasonable, good faith efforts to resolve any dispute, controversy, or claim arising out of or relating to any disputed amounts by mediation or arbitration before resorting to the filing of the suit in a court of competent jurisdiction. Any such arbitration would be administered under the rules of the American Arbitration Association (AAA) in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be the laws of the state of California. The seat of arbitration shall be in San Francisco, California. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in English. For the avoidance of doubt, each party’s obligations under this Lease shall continue during the dispute resolution.
- SURVIVAL. The provisions of Article 10, Article 11, and Article 14 hereof, shall survive the cancellation, expiration, or termination of the Agreement.
- ENTIRE AGREEMENT. All Service Order Forms preexisting the date hereof shall be governed by this End User License Agreement. The End User License Agreement, together with the Service Order Forms, constitutes the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations, and promises, written or oral with respect to the subject matter hereof. In the event of a conflict between the End User License Agreement and any Service Order Form, the terms of the End User License Agreement shall prevail. The customer acknowledges that it has read the Agreement, and agrees to be bound thereto and that the End User License Agreement and the Service Order Forms supersedes all previous communications, oral or in writing, relating to the subject matter hereof.