Hybrid Cluster End User License Agreement
PLEASE NOTE THAT THE TERMS OF THIS END USER LICENSE AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE, REGARDLESS OF ANY TERMS THAT MAY APPEAR DURING THE INSTALLATION OF THE SOFTWARE.
IMPORTANT – READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, THAT YOU PAID FOR THE SOFTWARE.
EVALUATION LICENSE. If you are licensing the Software for evaluation purposes, your use of the Software is only permitted in a non-production environment and for the period limited by the Software License Key. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided “AS-IS” without support or warranty of any kind, expressed or implied.
1.1 “Documentation” means, collectively, the operation instructions, release notes, user manuals and/or help files for the Software in electronic or written form.
1.2 “Software” means software products that are licensed to you under this EULA, including, but not limited to, any related components purchased or provided with the Software, Documentation, and any maintenance releases thereto. In particular, it refers to both “Control Panel Software” and “Cluster Software” (see 1.4 and 1.5).
1.3 “Software License Key” means a valid serial number issued to you to activate and use the Software.
1.4 “Control Panel Software” means the software which permits a user to manage the domain, websites, databases, mailboxes, etc, through a web user interface. This software provides an “external API” which is documented at www.hybrid-cluster.com/api.
1.5 “Cluster Software” means the software which runs on the servers which provides the data replication, failover, scalability and general management of the servers. This software provides an “internal API” which the Control Panel software uses to initiate creation, deletion, etc, of the domain, website, database, mailbox, etc objects.
2. GRANT AND USE RIGHTS FOR SOFTWARE
2.1 License Grant. The Software is licensed, not sold. Subject to the terms of this EULA, Hybrid Logic grants you a non-exclusive, non-transferable license, without rights to sublicense, to use the Software in the country where you are invoiced in accordance with the Documentation and the Hybrid Logic license model (per CPU socket) specified in Section 8 of this EULA for which you have paid the applicable license fees. If you were invoiced in the European Union for the Software, you may use that Software in any of the European Union member states. You may allow third party consultants or contractors to access and use the Software on your behalf solely for your internal business operations, provided, they are bound by an agreement with you protecting Hybrid Logic’s intellectual property with terms no less stringent than this EULA and you ensure that such third party use of the Software complies with the terms of this EULA. You may make one backup, unmodified copy of the Software solely for archival purpose. If you upgrade or exchange the Software from a previous validly licensed version, you must cease use of the prior version of that Software. You agree to provide written certification of destruction of the previous version of the Software upon Hybrid Logic’s request.
2.2 Restrictions. Except as expressly permitted by this EULA or by applicable law, You may not (i) sell, lease, assign, license, sublicense, distribute or otherwise transfer in whole or in part the Software; (ii) permit any use of or access to the Software by any third party, (iii) operate the Software on behalf of or for the benefit of any third party, including the operation of any service that is accessed by a third party, except that, for the purposes of this Section 2.2(iii), you may use the Software to deliver hosted services to your affiliates that are directly or indirectly controlled by, or are under common control with you. “Control” in this Section 2.2(iii) means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity; (iv) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software; (v) modify or create derivative works based upon the Software; or (vi) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions in the Software. If you wish to exercise any rights to reverse engineer to ensure interoperability in accordance with applicable law, you must first provide Hybrid Logic with written notice and all reasonably requested information to firstname.lastname@example.org within 30 days and permit Hybrid Logic to assess your claim and, at Hybrid Logic’s sole discretion, to make an offer to provide alternatives that reduce any adverse impact on Hybrid Logic’s intellectual property or other rights.
2.3 Benchmarking. You may use the Software to conduct internal performance testing and benchmarking studies, the results of which only you may publish or publicly disseminate, provided that Hybrid Logic has reviewed and approved of the methodology, assumptions and other parameters of your testing and studies. Please contact Hybrid Logic at email@example.com to request such review.
2.4 Third-party Software. You are responsible for separately obtaining and complying with any licenses necessary to operate third-party software, including but not limited to application programs which the Software enables you to run.
2.6 Audit Rights. During the term of this EULA and for two (2) years after termination or expiration of the EULA or support and subscription services for the applicable Software has expired, you agree to maintain accurate records as to your installation and use of the Software, sufficient to provide evidence of compliance with the terms of this EULA. Hybrid Logic, or an independent third party designated by Hybrid Logic, may audit, upon written notice to you, your books, records, and computing devices to determine your compliance with this EULA and your payment of the applicable license and support services fees, if any, for the Software. Hybrid Logic may conduct no more than one (1) audit in any twelve (12) month period. In the event that any such audit reveals an underpayment by you of more than five percent (5%) of the license amounts due to Hybrid Logic in the period being audited, or that you have breached any term of the EULA, then, in addition to paying to Hybrid Logic any underpayments for Software licenses and Support and Subscription fees and any other remedies Hybrid Logic may have, you will promptly pay to Hybrid Logic the audit costs incurred by Hybrid Logic.
Hybrid Logic retains all right, title, and interest in and to the Software, the Software License Key(s) and all related intellectual property rights. Hybrid Logic retains all rights not expressly granted to you in this EULA.
4. SUPPORT AND SUBSCRIPTION SERVICES
Except as expressly specified in Section 8 of this EULA, Hybrid Logic does not provide any support or subscription services for the Software under this EULA. You have no rights to any updates, upgrades or extensions or enhancements to the Software developed by Hybrid Logic unless you separately purchase Hybrid Logic support or subscription services. These support or subscription services are subject to Hybrid Logic’s then-current Support and Subscription Contract Terms and Conditions.
Hybrid Logic may terminate this EULA immediately upon notice if you fail to comply with any term of this EULA. In the event of termination, you must remove and destroy all copies of the Software and Software License Key(s), including all backup copies, from the server and all computers and terminals you own, possess or control and on which the Software is installed. Any obligations to pay fees incurred prior to termination and Sections 1, 2, 3, 6, and 7 of this EULA shall survive termination for any reason.
6. LIMITED WARRANTY AND LIMITATION OF LIABILITY
6.1 Limited Warranty. Hybrid Logic warrants that (i) the physical media, if any, on which the Software is delivered will be free of defects in materials and workmanship; and (ii) that the Software will substantially conform to the functional description set forth in the standard Documentation accompanying the Software for a period of 90 days after the date of delivery of the Software License Key to You (” Warranty Period”). If the physical media is defective and is returned to Hybrid Logic within the Warranty Period, your exclusive remedy will be Hybrid Logic’s option to repair or replace the defective physical media. To return the defective physical media, send an email to firstname.lastname@example.org to request a return authorization number. If during the Warranty Period the Software does not substantially conform to the functional description set forth in the Documentation, your exclusive remedy will be that Hybrid Logic shall, at its sole option, correct the defects in the Software or refund the license fees you paid, if any, for the Software provided that (i) the Software has been properly installed and used at all times and in accordance with the Documentation; (ii) no modification, deletion or addition has been made to the Software by persons other than Hybrid Logic or its authorized representative; and (iii) Hybrid Logic receives written notice of the non-conformity within the Warranty Period. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT MANDATED BY LAW, HYBRID LOGIC AND ITS LICENSORS PROVIDE THE SOFTWARE WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND HYBRID LOGIC AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
6.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL HYBRID LOGIC AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. HYBRID LOGIC’S AND ITS LICENSORS’ LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEES YOU PAID FOR THE SOFTWARE, IF ANY. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER HYBRID LOGIC OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.1 Entire Agreement. This EULA represents the entire agreement between the parties with respect to the Software, and supersedes any prior or contemporaneous oral or written agreements concerning the subject matter contained herein.
7.2 Headings. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA.
7.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written agreement executed by the party against which it is asserted.
7.4 Severability. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
7.5 Governing Law. This EULA is governed by the laws of the United Kingdom, unless mandated by other law.
7.6 Contact Information. Please direct legal notices or other correspondence to Hybrid Logic Ltd, 29 Devizes Road, Swindon, Wiltshire, SN1 4BG. If you have any questions concerning this EULA, please send an email to email@example.com.
8. SOFTWARE-SPECIFIC TERMS AND CONDITIONS.
In addition to the above sections, the Software is subject to the following terms and conditions. In the event of any conflict between the Software-specific terms and conditions and sections 1-7 of the EULA, the Software-specific terms and conditions shall control.
You may transfer the Software between your Servers, provided the same Software usage does not run concurrently.
Hybrid Logic grants you a nonexclusive, non-transferable license, without rights to sublicense, to use the Software for information processing and computing purposes to perform management operations on distributed Servers that are activated for management by the Software, provided that a validly licensed copy of a Hybrid Logic Cluster Management Software Product is installed on each such Server.
A condition of using the Software is that web based interfaces which sell access to the system such as Front End Web Hosting Shops and Control Panels, which are powered by the Software shall bear the phrase “Powered by Hybrid Cluster” hyperlinking back to http://www.hybrid-cluster.com/. If you wish not to be bound by this condition, contact firstname.lastname@example.org to discuss an alternative arrangement.
10. CONTROL PANEL MODIFICATIONS
The source code for the Control Panel software, as defined in 1.4, may, at the discretion of Hybrid Logic Ltd, be made available to the licensee for modification, bug-fixes or improvements. All derivative works of this process must be submitted to Hybrid Logic Ltd via email to email@example.com or via a GitHub pull request to the ‘hybridlogic’ GitHub user account within 7 days of deployment to any development, test or production environment. The licensee must grant copyright of all modifications and additions to existing files to Hybrid Logic, but may retain copyright of any new files added. The licensee may not distribute or sub-license the complete derivative work, except as explicitly agreed by communication with firstname.lastname@example.org.
In the case where copyright is retained by the licensee on new files added, the licensee must grant an unlimited perpetual license to Hybrid Logic Ltd to use any such modified derivative work without charge.
Any and all derivative works of the Control Panel Software must only be used in conjunction with a fully paid and valid software license for the Software.