This End User License EULA (the “EULA”) is made between You (both the individual and the business organization) using the License (defined below) granted under this EULA and/or otherwise using StreamPC’s Hosted PC’s (defined below) and the CloudWRX™ management software CloudWRX (defined below) to offer hosted and managed cloud computing, virtual desktops, virtual or virtualized applications, desktops as a service (DaaS) (all collectively referred to hereafter as “Hosted PC’s) for small and medium sized businesses whether licensed directly or indirectly through a Partner, Reseller, Distributor or Managed Service Provider. Hereafter, You or Your business organization may be referred to as “You” or “Your” or “Licensee” and StreamPC, Inc. of 299 South Main Street, Suite 1300, Salt Lake City, Utah 84111 shall be referred to as “StreamPC” or the “Company”.
PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE ACCEPTING, AND/OR BEFORE USING OUR HOSTED PC’S OR CLOUDWRX, OR ANY PART THEREOF. CLOUDWRX© IS COPYRIGHTED AND PATENTED, IS LICENSED FOR USE AND NOT SOLD. TAKING ANY STEP TO USE AND/OR LOG-IN TO OUR HOSTED PC’S OR CLOUDWRX CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS EULA. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS EULA. YOUR USE OF OUR HOSTED PC’S AND CLOUDWRX IS EXPRESSLY MADE CONDITIONAL ON ASSENTING TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, YOU MUST IMMEDIATELY CEASE ALL USE OF OUR HOSTED PC’S AND CLOUDWRX.
(1) ALL USE OF OUR HOSTED PC’S AND CLOUDWRX SHALL BE SUBJECT TO THE SPECIFICATIONS, FEES, FEATURES, SCOPE, DURATION AND SUCH ADDITIONAL TERMS AND CONDITIONS, WHICH ARE SPECIFIED UNDER THE CORRESPONDING SUBSCRIPTION AND LICENSING AGREEMENT ENTERED INTO AND EXECUTED BY YOU AND YOUR BUSINESS ORGANIZATION (“SUBSCRIPTION AGREEMENT”). ALL HOSTED PC’S AND CLOUDWRX ARE MADE AVAILABE SOLELY BY LICENSE FOR USE BY A SUBSCRIPTION AGREEMENT. THE TERMS AND CONDITIONS OF YOUR SUBSCRIPTION AGREEMENT, THIS EULA AND ANY ACCOMPAHYING ORDER FORM ARE HEREBY INCORPORATED BY REFERENCE.
In addition to capitalized terms defined elsewhere in this EULA, the following terms shall have the meanings set forth opposite each one of them:
“Confidential Information” – means any proprietary information of either party (“Disclosing Party”) disclosed to the other party hereto (“Receiving Party”) including without limitation, information relating to either party’s products, technology, know-how, specifications, and concepts; as well as information of business and commercial nature, of either party, all in any form or medium whatsoever including in written, physical, digitalized, oral or visual form. All aspects of the CloudWRX, CloudLock™ and StreamPC’s Hosted PC’s are deemed the Confidential Information of StreamPC for purposes of this EULA. “Confidential Information” does not include information that is: (a) public knowledge at the time of disclosure or thereafter becomes generally known other than through an act of negligence by the Receiving Party; (b) already known to the other Receiving Party prior to its receipt from the Disclosing Party, as evident by written records; (c) demonstrably independently developed at any time by the Receiving Party without use of the Confidential Information received hereunder; (d) rightfully obtained by the Receiving Party from other unrestricted sources, as evident by its written records; or (e) disclosed with the prior written permission of the Disclosing Party.
“CloudLock™” shall mean software developed by StreamPC for its’ proprietary end points and thin clients, in addition to software developed for use by existing or legacy PC’s, desktops or laptops and the machine readable code version of computer programs developed, licensed or marketed by StreamPC for any end point or computing node that is used to access StreamPC’s Hosted PC’s.
“CloudWRX” shall mean software, hardware reference architecture(s), requirements and specifications, diagrams, charts or program scripts and the machine readable (object code) version of computer programs developed, licensed or marketed by StreamPC for its’ Hosted PC’s, Data Security and Compliance offerings. All references to CloudWRX herein shall include Updates and Upgrades.
“Hosted PC’s” shall mean the hosted and managed computers residing in StreamPC’s Cumulus9’s instance of CloudBlock that are made available to StreamPC’s customers as a subscription desktop or workspace as a service subscription.
2.1. Scope of License: Subject to the timely payment of Your applicable subscription fees (the “Fees”) specified in Your Subscription Agreement which incorporates this EULA by reference, Company hereby grants Your organization a non-exclusive, non-transferable, license to use, without any right to sub-license, for the term specified in Your Subscription Agreement StreamPC’s Hosted PC’s, CloudLock and CloudWRX software platform to manage them in connection with Your own working or production environment.
2.2. Restrictions: Other than the rights expressly licensed hereunder to You, no other rights or interest whatsoever in our Hosted PC’s, CloudLock or CloudWRX software platform and/or any component thereof, are transferred or granted to any Licensee. Without limiting the foregoing, You or any Licensee may not: (i) use the Hosted PC’s, CloudLock or CloudWRX for purposes other than the purposes explicitly set forth in your Subscription Agreement; (ii) reverse engineer or de-compile, modify or revise any aspect of our Hosted PC’s, CloudLock or CloudWRX, or create derivative works thereof; (iii) sub-license or resale our Hosted PC’s, CloudLock or CloudWRX software or platform.
2.3. Certain portions of software provided by StreamPC may be subject to “open source”, “third party license fees” or “free software” licenses (“Third Party Code”). Such Third Party Code is not subject to the terms and conditions of this EULA, but is licensed under the terms and conditions of Your Subscripiton Agreement and the license which accompanies such Third Party Code. Hosted PC’s, CloudLock or CloudWRX must always be used in strict accordance with any and all relevant Third Party Code terms and conditions.
3.1. Throughout the term of Your Subscription Agreement (and any extensions thereof) following the Effective Date and so long as You are not in default of Your Subscription Agreement, maintenance and any other fees provided for in the Subscription Agreement, the Company shall provide support for the Hosted PC’s, CloudLock or CloudWRCloudWRX in the scope and manner specified in your Subscription Agreement (“Support Services”).
3.2. The Support Services do not include providing services in the event that the Hosted PC’s, CloudLock or CloudWRX, or any part or component thereof: (i) have been subject to misuse, negligence, accident or improper installation, use or maintenance by anyone other than Company, or; (ii) has been modified or repaired by anyone other than Company; or (iii) has been used in a manner for which it was not intended, or not in compliance with its specifications; (iv) has been installed on, in attachment to or incorporated in products or environment other than as expressly set forth under Your Subscription Agreement or as otherwise expressly approved in writing by the Company; (v) has been damaged by any factor beyond Company’s reasonable control such as, but not limited to, power failure, electric power surges, or unsuitable third party components or end point devices used by You.
In consideration for the rights and services granted and/or to be provided under this EULA, Licensee shall pay to Company the Fees specified under Your Subscription Agreement in the manner and time depicted therein.
Except with respect to Third Party Code (as defined above), Company owns and shall retain all rights, including all intellectual property rights, in and to the Hosted PC’s, CloudLock or CloudWRX, and any and all adaptations, modifications, enhancements, or improvements thereto made by any party, and in and to Company’s Confidential Information. To remove any doubt, any content, suggestions, feedback or modifications obtained by StreamPC from You or Your organization that are incorporated into the Hosted PC’s, CloudLock or CloudWRX or used to develop any other technologies or products shall be the sole and exclusive property of the Company.
6. Indemnification Disclaimer of Warranty; Limitation of Liability.
Indemnification. Company shall defend, indemnify and hold harmless Licensee, from and against any and all damage, cost and expenses (including reasonable attorneys’ fees) finally awarded by a competent court, which incurred as a result of any claim, suit or proceeding brought against any of them based on a claim that the Hosted PC’s, CloudLock or CloudWRX infringes upon intellectual property rights of a third party; provided that Licensee has notified Company promptly in writing of such claim, and gave the Company the authority, information, and assistance (at Company’s expense) to control and handle the claim or the defense of any such suit, proceeding or settlement. The above indemnification shall be the sole remedy to which Your or any Licensee shall be entitled in connection with the foregoing.
This shall not apply to the extent that the infringement arises: (i) from the use of the Hosted PC’s, CloudLock or CloudWRX (or any components thereof) in a manner for which it was not intended or not authorized under this EULA or Your Subscription Agreement, or (ii) not in compliance with the documentation and specifications thereof, or (iii) where the infringement results from the combination of the Hosted PC’s, CloudLock or CloudWRX with other software or components not specifically authorized by StreamPC.
Limitation of Liability. IN ANY EVENTS OF STRICT LIABILITY, NEGLIGENCE, GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,OR PUNITIVE DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENURES OR LOSS OF GOODWILL, IN CONNECTION WITH OR ARISING OUT OF THIS EULA OR YOUR SUBSCRIPTION AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS EULA OR YOUR SUBSCRIPTION AGREEMENT EXCEED THE AGGREGATE FEES ACTUALLY PAID TO COMPANY HEREUNDER DURING THE 6 MONTHS PERIOD PRECEEDING THE RESPECTIVE APPLICABLE CLAIM.
Disclaimer of Warranty. LICENSEE ACKNOWLEDGES THAT, THE HOSTED PC’S CLOUDLOCK AND CLOUDWRX AND ANY RELATED MATERIALS (IF ANY) PROVIDED TO LICENSEE ARE PROVIDED “AS IS”. THE ENTIRE RISK ARISING OUT OF THE USE AND PERFORMANCE OF THE HOSTED PC’S CLOUDLOCK AND CLOUDWRX AND ANY SUCH RELATED MATERIALS IS BORNE BY LICENSEE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE HOSTED PC’S CLOUDLOCK AND CLOUDWRX AND ANY RELATED MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Each Receiving Party, shall maintain and protect the Confidential Information of the other party, shall not, without the Disclosing Party prior consent, disclose to any third party any Confidential Information except to its own personnel, agents and officers having a legitimate need-to-know such Confidential Information and who are bound by an agreement at least as rigorous as this EULA. Receiving Party shall use Confidential Information only if and as required for the purposes of this EULA.
8.1. This EULA shall come into force upon its execution and remain in force for the period specified under the Subscription Agreement, unless sooner terminated pursuant to the terms of this EULA.
8.2. In case of a material breach of this EULA by either Party not remedied within thirty (30) days from the other Party’s notice thereof, or in case either Party should become bankrupt or insolvent and such event had not been challenged within sixty (60) days of filing, the other Party shall have the right to terminate this EULA with immediate effect.
8.3. Effects of Termination: In any event of termination of Your Subscription Agreement or this EULA:
(a) All licenses and rights granted hereunder shall immediately expire and Your license to use or exploit the Hosted PC’s, CloudLock and CloudWRX shall immediately cease and expire.
(b) The Provisions contained in this EULA, with respect Confidentiality, Intellectual Property Rights, Proprietary Rights and the Liability Limitations are intended to survive the termination of this EULA.
9.1. Any notice required or permitted to be given by either Party under this EULA shall be in writing and may be delivered by courier, sent by registered letter, telefacsimile or electronic mail. When the notice is sent by telefacsimile or electronic mail, the sender shall confirm the notice by also sending the notice by courier or registered letter.
9.2. Neither Party may assign this EULA in whole or in part without the prior written consent of the other Party. Such consent shall not be unreasonably withheld. Notwithstanding the above, such consent shall not be required, in connection with any merger, consolidation, reorganization or restructuring, or the sale of substantially all of a Party’s assets as long as such successor or assignee of this EULA agrees in writing to be bound by this EULA.
9.3. This EULA shall be governed by and construed in accordance with the laws of Utah and the Partes consent to the venue and jurisdiction of the Utah Federal and State Courts located in Salt Lake City, Utah.