End User License Agreement for MidVision Cloud
MIDVISION CLOUD ON AMAZON WEB SERVICES
NOTICE TO USER (“LICENSEE”): THIS AGREEMENT GOVERNS USE BY LICENSEES OF THE MIDVISION SOFTWARE DESCRIBED HEREIN. LICENSEE AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE. BY CLICKING TO ACKNOWLEDGE AGREEMENT TO BE BOUND TO THIS LICENSE, OR USING THE SOFTWARE, LICENSEE ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT USES THE SOFTWARE AND ANY PERSON OR ENTITY (E.G., SYSTEM INTEGRATOR, CONSULTANT OR CONTRACTOR) THAT USES THE SOFTWARE ON ANOTHER PERSON’S OR ENTITY’S BEHALF.
THIS agreement SHALL APPLY ONLY TO THE SOFTWARE to which Licensee has obtained a valid license REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.
YOU MAY HAVE ANOTHER WRITTEN AGREEMENT WITH MIDVISION THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.
1.1 “MidVision” means a Delaware registered company, trading as MidVision, Inc.
1.2 “Midvision-Cloud” or “Software” means MidVision Cloud software pre-installed as an Amazon Machine Image (“AMI”) that can be run only on the Amazon Web Services environment licensed on a per-hour usage basis, and consisting of “Third Party Software” and “Value Add Components”.
1.3 “Amazon” means Amazon.com, Inc., 1200 12th Avenue South, Suite 1200, Seattle, Washington 98144.
1.4 “Amazon Machine Image” or “AMI” means virtual machine images containing software applications, libraries, data and associated configuration settings as made available on AWS.
1.5 “AWS” means the Amazon Web Services comprising a virtual computing environment including, without limitation, one (1) or more AMIs and the “Amazon Elastic Compute Cloud”, as defined at http://aws.amazon.com/ec2.
1.6 “Amazon Web Services Account” means the Licensee’s AWS account registered on Amazon.com used to launch AMI instances, store and transfer data, run applications and receive billing.
1.7 “Authorized Platform” means either the Windows or Linux operating systems.
1.8 “Authorized Users” means employees and individual contractors (e.g., temporary employees) of Licensee that develops and/or builds applications using the Software.
1.9 “Documentation” means the user manuals and technical publications as applicable, supplied in connection with validly licensed Software relating to the installation, use and administration of the Software.
1.10 “Sample Application Code” means the sample software code, application programming interface, header files and related information, and the file format specifications, if any, included as part of the Software as described in the Documentation or a “Read Me” file accompanying the applicable Software.
1.11 “Value-Add Components” means the MidVision software, patch management, remote access management, asset management, application integration, or other services that MidVision provides, which together with the third party software, forms the Software.
Subject to the terms and conditions of this Agreement, MidVision grants Licensee a non-exclusive license to permit Authorized Users to use the Software solely on AWS on the Authorized Platforms, in the manner, on the versions of AWS, and for the purposes described in the Documentation.
2.1 License Limitations. Licensee may only use the Software in an active state for the number of hours for which Licensee has purchased such AMI.
2.2 Sample Application Code. Licensee’s Authorized Users may install, modify and use the Sample Application Code solely for purposes of facilitating use of validly licensed Software in accordance with this Agreement. Licensee may modify the Sample Application Code solely for the purposes of designing, developing and testing Licensee’s own software applications. However, Licensee is permitted to use, copy and redistribute its modified Sample Application Code only if all of the following conditions are met: (a) Licensee includes MidVision’s copyright notice (if any) with Licensee’s application, including every location in which any other copyright notice appears in such application; and (b) Licensee does not otherwise use MidVision’s name, logos or other MidVision trademarks to market Licensee’s application. Licensee agrees to defend, indemnify, and hold MidVision and its suppliers harmless from and against any claims or lawsuits, including attorneys’ reasonable fees, that arise or result from the use or distribution of Licensee’s applications, provided that MidVision gives Licensee prompt written notice of any such claim, tenders to Licensee the defense or settlement of such a claim at Licensee’s expense, and cooperates with Licensee, at Licensee’s expense, in defending or settling such claim.
2.3 Documentation. Licensee may make and distribute copies of the Documentation for use by Authorized Users in connection with use of the Software in accordance with this Agreement, but no more than the amount reasonably necessary. Any permitted copy of the Documentation that Licensee makes must contain the same copyright and other proprietary notices that appear on or in the Documentation.
2.4 Outsourcing. Licensee may sublicense use of the Software to an Authorized User to operate the Software on Licensee’s behalf, provided that: (a) Licensee provides MidVision with prior written notice; (b) Licensee is responsible for ensuring that any such Authorize User agrees to abide by and fully complies with the terms of this Agreement as they relate to the use of the Software on the same basis as applies to Licensee; (c) such use is only in relation to Licensee’s direct beneficial business purposes as restricted herein; (d) such use does not represent or constitute an increase in the scope or number of licenses provided hereunder; and (e) Licensee shall remain fully liable for any and all acts or omissions by the Authorized User related to this Agreement.
2.5.1 Limited Modifications, No Reverse Engineering. Licensee shall not modify, port, adapt or translate the Software. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. For the avoidance of doubt, Licensee is permitted to use and modify the AMI (“Modified AMI”) in accordance with the AWS terms of service, and save the Modified AMI, including the Software only in the Licensee’s Amazon Web Services Account. However any Modified AMI may only be used and/or stored within AWS, as may be permitted under the AWS terms of service.
2.5.2 No Unbundling. The Software may include various applications, utilities and components, may support multiple platforms and languages or may be provided to Licensee on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to Licensee solely within AWS as permitted herein. Licensee is not required to use all component parts of the Software, but Licensee shall not unbundle the component parts of the Software. Licensee shall not unbundle or repackage the Software for distribution, transfer or other disposition.
2.5.3 No Transfer. Licensee shall not sublicense, assign or transfer the Software or Licensee’s rights in the Software, or authorize any portion of the Software to be copied onto or accessed from another individual or entity except as may be explicitly provided in this Agreement.
2.5.4 Prohibited Use. Except as expressly authorized through a separate custom hosting agreement, Licensee is prohibited from: (a) using the Software on behalf of third parties; (b) renting, leasing, lending or granting other rights in the Software including rights on a membership or subscription basis; (c) providing use of the Software in a computer service business, third party outsourcing facility or service, service bureau arrangement, time sharing basis, or as part of a hosted service; (d) using or downloading the Software on any other device or system, including but not limited to on-premises computing systems, other virtualized or cloud computing environments, or other AWS virtual machines; (e) working around any technical limitations in the Software; (f) duplicating the Software or publishing the Software for others to copy; or (g) using any component, library, or other technology included with the Software other than solely in connection with its use of the Software. For more information about how to obtain a custom hosting agreement, please register your interest in Partnership at: http://www.midvision.com/company/become-a-mv-partner
2.5.5 License Limit. Licensee shall only use the Software within AWS and only as allowed by the Licensee’s designated instance type. For more information on instance types please see https://www.midvisioncloud.com/ibm-websphere-on-amazon-web-services/.
2.5.6 Export Rules. Licensee acknowledges that the Software is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and that Licensee will comply with the Export Laws. Licensee will not ship, transfer, export, or re-export the Software , directly or indirectly, to: (a) any countries that are subject to US export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria) (each, an “Embargoed Country”), (b) any end user whom Licensee knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”), or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a “Sanctioned Party”). In addition, Licensee is responsible for complying with any local laws in its jurisdiction which may impact Licensee’s right to import, export or use the Software. Licensee represents and warrants that (i) it is not a citizen of, or located within, an Embargoed Country, (ii) it will not use the Software for a Prohibited Use, and (iii) it is not a Sanctioned Party. All rights to use the Software are granted on condition that such rights are forfeited if Licensee fails to comply with the terms of this Agreement.
2.5.7 In the event that Licensee fails to comply with this Agreement, MidVision may terminate the license and Licensee must destroy all copies of the Software (with all other rights of both parties and all other provisions of this Agreement surviving any such termination).
2.5.8 Licensee shall make substantial use of the Value Add Components when using the Software.
2.6 Delivery. The Software shall be made available solely via the AMI.
3. Intellectual Property Rights.
The Software and any copies that Licensee is authorized by MidVision to make are the intellectual property of and are owned by MidVision Limited and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of MidVision Limited and its suppliers. The Software is protected by copyright, including without limitation by United Kingdom Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this Agreement does not grant Licensee any intellectual property rights in the Software and all rights not expressly granted are reserved by MidVision.
All upgrades and updates are provided to Licensee at MidVision’s sole discretion and are subject to the terms of this Agreement on a license exchange basis. Licensee agrees that by using an upgrade or update Licensee voluntarily terminates Licensee’s right to use any previous version of the Software. As an exception, Licensee may maintain installations of previous versions of the Software on AWS for a reasonable period of time (but not to exceeding ninety (90) days) after Licensee obtains the upgrade or update to assist Licensee in the transition to the upgrade or update, provided that Licensee’s right to such simultaneous installations does not constitute an increase in the number of copies, licensed amounts or scope of use granted to Licensee hereunder. Any obligations that MidVision may have to support previous versions during the license term may end upon the availability of this update. Upgrades and updates may be licensed to Licensee by MidVision with additional or different terms.
Licensees shall be entitled to ‘standard’ web based support from MidVision for the Software as described at https://www.midvisioncloud.com/support-services/support-slas/. For the avoidance of doubt, MidVision has no liability and provides no support for the hardware or any AWS services provided by Amazon.
6. NO WARRANTY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED BY MIDVISION “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, MIDVISION MAKES NO WARRANTY THAT (I) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (III) THE QUALITY OF THE SOFTWARE WILL MEET YOUR EXPECTATIONS; OR THAT (IV) ANY ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MIDVISION OR THROUGH OR FROM USE OF THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
MIDVISION SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF THE SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE SOFTWARE. MIDVISION ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER AS A RESULT YOUR USE OF THE SOFTWARE.
MIDVISION DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY AMAZON OR OTHER THIRD PARTIES ACCESSIBLE THROUGH AWS. MIDVISION MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT AWS, AND SHALL NOT BE LIABLE FOR, AMAZON OR OTHER THIRD PARTIES, THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
MIDVISION WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF USING AWS OR A THIRD PARTY USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN CONNECTION WITH THE SOFTWARE, EITHER WITH OR WITHOUT YOUR KNOWLEDGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
7. LIMITATION OF LIABILITY.
EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE AND AS OTHERWISE PROVIDED IN SECTION 11, IN NO EVENT WILL MIDVISION OR ITS AFFILIATES OR SUPPLIERS BE LIABLE TO LICENSEE FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY EVEN IF A MIDVISION REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE’S JURISDICTION. MIDVISION’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE LESSER OF EITHER FIVE HUNDERED UNITED STATES DOLLARS ($500) OR THE AGGREGATE AMOUNT PAID BY YOU FOR THE SOFTWARE. THIS LIMITATION WILL APPLY EVEN IF MIDVISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 7 APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
8. Governing Law.
This Agreement, each transaction entered into hereunder, and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in the State of Delaware. The respective courts of Delaware shall have exclusive jurisdiction over all disputes relating to this Agreement. Notwithstanding any provision in this agreement, MidVision or you may request any judicial, administrative, or other authority to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institution of legal or arbitration proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies. This agreement will not be governed by the following, the application of which is hereby expressly excluded: (x) the conflict of law rules of any jurisdiction, (y) the United Nations Convention on Contracts for the International Sale of Goods, and (z) the Uniform Computer Information Transactions Act, as enacted in any jurisdiction.
9. General Provisions.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. Updates and upgrades may be licensed to Licensee by MidVision with additional or different terms. The English version of this Agreement shall be the version used when interpreting or construing this Agreement. This is the entire agreement between MidVision and Licensee relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software. Licensee shall comply with all applicable laws and regulations pertaining to this Agreement.
10. Notice to U.S. Government End Users.
10.1 Commercial Items. The Software and Documentation are “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. MidVision ……, Delaware, USA.
10.2 U.S. Government Licensing of MidVision Technology. Licensee agrees that when licensing MidVision Software for acquisition by the U.S. Government, or any contractor therefore, Licensee will license consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. Sections 227 7202 1 and 227 7202 4 (for the Department of Defense). For U.S. Government End Users, MidVision agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 C.F.R. Parts 60 1 through 60 60, 60 250, and 60 741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
11. Term and Termination.
This Agreement shall remain in effect until either (a) any material breach of this Agreement by Licensee occurs, or (b) Licensee’s cancellation of the Software on AWS. Upon the occurrence of a or b, above, this Agreement shall automatically terminate. Upon termination of this Agreement for any reason, Licensee shall discontinue use of the Software and shall destroy the Software, Documentation and all copies thereto. Termination shall not, however, relieve either party of obligations incurred prior to the termination. The following Sections shall survive termination of this Agreement: 1 (Definitions), 3 (Intellectual Property Rights), 6 (No Warranty), 7 (Limitation of Liability), 8 (Governing Law), 9 (General Provisions), 10 (Notice to U.S. Government End Users), and 11 (Term and Termination). MidVision reserves the right, in its sole discretion, to change, cease to provide or discontinue support for the Software at any time. In the event that MidVision opts to cease provide or discontinue support for the Software, MidVision will provide Licensees with prior notice.
12. Third-Party Beneficiary.
Licensee acknowledges and agrees that MidVision’s licensors (and/or MidVision if Licensee obtained the Software from any party other than MidVision) are third party beneficiaries of this Agreement, with the right to enforce the obligations set forth herein with respect to the respective technology of such licensors and/or MidVision.
13. Third Party Software.
The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at https://www.midvisioncloud.com/eula-third-party/ (or a successor website thereto) and are made a part of and incorporated by reference into this Agreement.
If Licensee has any questions regarding this Agreement or if Licensee wishes to request any information from MidVision please use the address and contact information included with this product to contact the MidVision office serving the Licensee’s jurisdiction.
MidVision and MidVision-Cloud are either registered trademarks or trademarks of MidVision Limited in the United States and/or other countries. All other trademarks are the property of their respective owners.