PLEASE READ THIS END USER LICENSE AGREEMENT ("EULA", "AGREEMENT") CAREFULLY BEFORE USING THIS PRODUCT. BY USING THIS PRODUCT, YOU ("YOU", "LICENSEE", "CUSTOMER") SIGNIFY YOUR AGREEMENT AND ACCEPTANCE OF THIS END USER LICENSE AGREEMENT AND ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ITS TERMS. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY USING THE SOFTWARE AND ANY PERSON OR ENTITY (SUCH AS A SYSTEM INTEGRATOR, CONSULTANT, OR CONTRACTOR) USING THE SOFTWARE ON BEHALF OF ANOTHER PERSON OR ENTITY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE. THIS END USER LICENSE AGREEMENT DOES NOT APPLY TO ANY SERVICES PROVIDED BY US OR OUR BUSINESS PARTNER THAT DO NOT INVOLVE ACCESS TO THE SOFTWARE, SUCH AS UPGRADES. PLEASE REFER TO YOUR SERVICE OR SUBSCRIPTION AGREEMENT(S) THAT YOU MAY HAVE WITH US REGARDING THE SOFTWARE AND SERVICES AND THE PAYMENTS ASSOCIATED WITH THEM.
1.1 "We, "Our", "Us" means Linuxfabrik GmbH, Zurich/Switzerland.
1.2 "Linuxfabrik" or "Software" means the Linuxfabrik software provided by Us, deployed from the Cloud Marketplace ("Linuxfabrik Cloud Marketplace") and delivered by the Cloud Provider (acting as a Business Partner), which can only be run on the licensed hosted or cloud-based environment (the "Cloud") and consists of the Linuxfabrik software application (exclusively or together with any third party software included therein or therewith), which includes or refers to this Agreement and any related documentation (including, without limitation, user and technical documentation, further explanatory written materials related to the Software, etc.). ), services (including, without limitation, SaaS, Internet-based service, etc.), tool, application, component, object code, source code, appearance (including, without limitation, images, designs, fonts, etc.), structure, as well as any modification and update thereof, regardless of the delivery mechanism.
"Services" means Software Support Services and any other services provided by Us or through Our Business Partner on a subscription basis.
1.3 "Cloud Marketplace" means the online marketplace that provides cloud-based application products, access to them, and the ability to deploy them in a cloud environment.
1.4 "Cloud Provider" means an Authorized Hosting Partner's Cloud Marketplace platform, a company that provides cloud computing based services, resources and solutions to businesses and/or offers solutions through the Cloud Marketplace.
1.5 "Authorized Users" means employees or individual contractors to whom Licensee has granted the right to access and use the Software with your credentials pursuant to this Agreement, provided that such access is for your sole benefit and in full compliance with this EULA. All authorized users are bound by the terms of this Agreement.
1.6 "Business Partner" means Our authorized sales agent, partner, cloud provider, reseller or distributor of the Software and Our Services.
Purchases through or from a Business Partner. In cases where Customer purchases through a Business Partner, the final prices and terms of sale shall be as agreed between Customer and the Business Partner from whom Customer makes such purchases; however, the terms and conditions set forth in this EULA shall govern Customer's use and performance of Linuxfabrik. Customer acknowledges that: (a) Linuxfabrik may share information related to Customer's use and consumption of Linuxfabrik with the Business Partner, and vice versa, for account management and billing purposes; (b) the termination provisions below will also apply if Customer's Business Partner fails to pay applicable fees to us; and (c) the Business Partner is not authorized to make any changes to this EULA or otherwise to make any warranties, representations, promises or commitments on our behalf or in any way regarding Linuxfabrik.
"Business Partner's Order" means the order document(s) issued by Our Business Partner during Your purchase process in a manner and form defined by Our Business Partner. Our Business Partner's Purchase Order may describe specific Software and Services, Subscription(s), associated fees, payment terms, and is subject to the terms of this Agreement and the EULA.
1.7 "Customer", "You", "Licensee", "Your" - user of Linuxfabrik and its heirs, representatives, successors, assigns.
Subject to the following terms and conditions, we grant you a perpetual, worldwide license to the Software (most of which contain multiple Software Components) under various open source and public licenses, within the Cloud when deployed through the Cloud Marketplace. The license agreement for each Software Component is included in the source code of the Software Component and permits you to run, copy, modify and redistribute the Software Component (subject in some cases to certain obligations) in both source and binary code forms, except for the images identified in Section 5 below. You must either agree to the terms of each applicable public license or you may not install/use these components or exercise these licensed rights. This EULA applies only to the Software and does not limit your rights under the license terms of any particular component, nor does it grant you any rights that supersede the license terms of any particular component.
Neither Licensee nor Authorized Users acquire under this EULA any right or license to use Linuxfabrik from the Cloud Marketplace beyond the scope and/or duration of the Cloud Provider's terms and conditions of the services purchased (subscriptions, term, fees, etc.) and this Agreement.
2.1 Limited Modifications. For the avoidance of doubt, Licensee may use Linuxfabrik from the Cloud Marketplace in accordance with the Cloud Provider's terms and conditions for the services purchased. Modifications to Cloud Marketplace's images of the Software are not permitted, except as otherwise provided in this Agreement or in another applicable public license, if any.
2.2 No Unbundling. However, the Software is designed and provided to Licensee solely within the Cloud Marketplace as permitted herein. Licensee may not unbundle or repackage the Software for distribution, transfer or other disposition, except as provided in this Agreement.
If We grant You the license set forth in Section 2 on the applicable Cloud Marketplace on a trial, evaluation, beta or other free basis ("Evaluation Software"), You may use the Evaluation Software only on a temporary basis for the period of time limited by the license key or as otherwise specified in writing by Us (or an Authorized Service Provider or Business Partner). If no period is specified, such use is limited to sixty (60) days after the Evaluation Software is made available to you. If you do not stop using and/or return the Evaluation Software or the device or device on which it is authorized to be used by the end of any such trial period, you may be billed the list price of the Evaluation Software and you agree to pay such bill. We (or an authorized service provider or business partner) may, in our sole discretion, stop providing the Evaluation Software at any time, in which case you will no longer have access to any related data, information and files, and you must immediately stop using Linuxfabrik from the Cloud Marketplace. The Evaluation Software may not have been subject to Our usual testing and quality assurance procedures and may contain bugs, errors or other problems. Except as agreed and authorized by Us, you will not put the Evaluation Software into production use. We provide the Evaluation Software "AS IS" without support or any express or implied warranty or indemnity for problems or issues, and We have no liability in connection with your use of the Evaluation Software.
Except as expressly permitted by a separate individual agreement, Licensee and Authorized Users are prohibited from (a) use the Software on behalf of any third party; (b) sublicense, license, rent, lease, loan, or grant any other rights in the Software, including rights on a membership or subscription basis; (c) provide use of the Software in a service bureau arrangement, outsourcing, or on a time-sharing basis; (d) interfere with or disrupt the Software or the systems used to deliver Linuxfabrik from the Cloud Marketplace or any connected equipment or networks; (e) bypass or expose the user authentication or security of the Software or any host, network or account connected thereto, or attempt to gain unauthorized access; (f) store or transmit SPAM or malicious code; (g) reproduce the Software or publish it for others to copy; (h) infringe the intellectual property rights of any entity or person; or (i) use the Software in any way that violates any applicable local, state, national, international or foreign law or regulation. For more information on how to obtain a customized agreement, please contact us at sales@Linuxfabrik.io.
The Software and any component thereof are owned by Us and other licensors and are protected by copyright and other laws, as applicable. Title to the Software and all components and systems, or to any copy or modification thereof, remains with Us and other licensors, subject to the applicable license. The "Linuxfabrik" mark, the individual Software marks and the "Linuxfabrik" logo are trademarks or registered trademarks in Switzerland. Artwork files bearing the Linuxfabrik logo, including but not limited to boot splash images and user interface elements, are our property and are distributed on an "all rights reserved" basis. You may not redistribute these files separately or as part of software without the express permission of the copyright holder. By accepting this Agreement, you agree not to register or apply for registration of any trade name, domain name, email address, trademark, symbol or distinctive sign; sign with similar characteristics, color, typography, style or appearance, or that includes the word "Linuxfabrik" and/or the Linuxfabrik logo.
This EULA does not permit you to distribute the Software using Linuxfabrik trademarks, regardless of whether the Software has been modified. You may not commercially redistribute the Software unless (a) you have a separate written agreement with us authorizing such commercial redistribution or (b) you remove and replace all of our attribution and Linuxfabrik trademarks and logos. Modifications to the Software may damage the Software.
5.1 The licensee grants us the right to use his logos and trademarks for the purpose of displaying his licensee status on the Linuxfabrik website and for the purposes specified in your Linuxfabrik subscription agreement. We will not imply that the Licensee endorses Linuxfabrik and will not publish details of the Licensee's Linuxfabrik usage, network setup, or any other information not specifically provided by the Licensee for public release.
5.1.1 Licensee may revoke Our right to use Licensee's trademarks and logos at any time, unless otherwise agreed in your Linuxfabrik Subscription Agreement.
Along with all Software Update Subscriptions, We will provide security updates, hot fixes and security advisory notifications prior to public release (collectively, the "Updates"). You expressly acknowledge and agree that We are under no obligation to make available and/or provide any Updates. All Upgrades and Updates will be provided by Us or through Our business partners to Licensee at Our sole discretion and will be subject to the terms and conditions of this Agreement on a license exchange basis. Any obligation We may have to support prior versions during the License Term may end upon the availability of such Update. Upgrades and Updates may be licensed by Us to Licensee under additional or different terms.
Licensees are entitled to the standard support plans, if any, detailed in the Cloud Marketplace for the Software provided by Us or through Our Business Partner. For the avoidance of doubt, We have no liability and provide no support for any hardware or Cloud Marketplace services provided by the Cloud Provider. Where available, maintenance and support may be purchased separately, subject to a separate Linuxfabrik support subscription.
Support for software built from source code by a party other than us, with or without modifications made by the Licensee or a third party, is provided only through separate agreements.
For more information on how to purchase Linuxfabrik's software and support subscriptions, please see https://www.linuxfabrik.ch
Term and Termination. This Agreement shall remain in effect until terminated for any of the following reasons: (a) Licensee fails to pay any amounts due under this Agreement when due or otherwise materially breaches this Agreement, any specific Offer, Purchase Order and/or the Subscription or Custom Agreements and fails to cure such breach within ten (10) days of receipt of written or electronic notice; (b) Licensee fails to activate or cancel a subscription to the Software; or (c) Licensee fails to pay the Business Partner or the Cloud Marketplace, or terminates the agreement with the Business Partner or the Cloud Marketplace, or Licensee fails to pay Us the amounts due under this Agreement, (c) Licensee fails to pay the Business Partner or the Cloud Marketplace, or terminates the agreement with a Business Partner or Cloud Marketplace, or the Business Partner or Cloud Marketplace fails to pay Us the applicable fees for Your Software and/or Services, (d) We modify, cease to provide or discontinue the Software at any time, or (e) the Cloud Marketplace ceases to provide Linuxfabrik. Upon the occurrence of (a), (b), (c), (d) or (e) above, We shall be entitled to terminate this Agreement. Upon termination of this Agreement for any reason, Licensee must stop using the Software. If you have copies of the Software obtained while you had an active subscription, you may continue to use them indefinitely as long as you comply with this Agreement and the Linuxfabrik Subscription Agreement, in particular with Section 5 above, and provided that this does not interfere with any rights you may have under other public and open source licenses. Termination shall not, however, release either party from any obligations incurred prior to termination. The following sections shall survive any termination of this Agreement: Definitions, Intellectual Property Rights, Limited Warranty, Limitation of Remedies and Liability, General and Term and Termination, and others which by their nature are intended to survive.
Except as expressly provided in this Section 9, a separate agreement with Us or a license for a particular component, to the maximum extent permitted by applicable law, the Software and the components are provided and licensed "as is" without warranty of any kind, either express or implied, including the implied warranties of merchantability, non-infringement, integration, quiet enjoyment, satisfactory quality or fitness for a particular purpose. Neither we nor our affiliates or business partners warrant that the Software will meet your requirements, will be uninterrupted, timely, or secure; that the operation of the Software will be error-free, appear or perform exactly as described in the accompanying documentation, or comply with any applicable requirements; that the results that may be obtained from the use of the Software will be effective, accurate, or reliable; that the quality of the Software will meet your expectations; or that any errors or defects in the Software will be corrected. This warranty extends only to the party who purchases subscription services for the Software from Us and/or Our affiliates or an authorized business partner of Us.
We and Our affiliates specifically disclaim any liability for any actions resulting from your use of the Software. Any material downloaded or otherwise obtained through the use of the Software is done 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 the use of the Software. We and our affiliates assume no liability for any malicious software that may be downloaded to your computer as a result of your use of the Software.
We do not control, endorse or take responsibility for any materials or services offered by the Cloud Provider or other third parties accessible through the Cloud Marketplace. We make no representations or warranties about the Cloud Marketplace and are not responsible for the Cloud Provider or other third parties, their materials or services. Any dealings you may have with such third parties are at your own risk.
We will not be liable for any loss you may incur as a result of the use of the Cloud Marketplace or as a result of a third party's use of your password or account or account information in connection with the Software, either with or without your knowledge.
Licensee assumes the entire cost of all necessary servicing, repair, or correction of problems caused by viruses or other harmful components; We disclaim and make no warranties or representations as to the accuracy, quality, reliability, suitability, completeness, truthfulness, usefulness, or efficacy of any output, logs, reports, data, results, or other information obtained, generated, or otherwise obtained by Licensee from accessing and/or using the Software or otherwise as a result of this Agreement; and
Licensee uses the Software at Licensee's sole risk and in no event shall We be liable to Licensee for any loss or damage of any kind (except for personal injury or death resulting from Our negligence, fraud or fraudulent misrepresentation and any other liability that cannot be excluded by law) arising out of Licensee's use of or inability to use the Software or any errors or defects in the Software, whether caused by negligence or otherwise.
Licensee agrees to defend, indemnify and hold Us harmless from and against any and all losses, liabilities, damages, actions, claims or expenses (including attorneys' fees and court costs) arising out of or resulting from Licensee's breach of any term of this Agreement or caused by Licensee's acts or omissions.
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.
To the maximum extent permitted by applicable law, in no event will We, Our affiliates, any of Our authorized business partners, or the licensor of any component provided to You under this EULA be liable to You for any direct, indirect, incidental, special, exemplary, punitive, or consequential damages (including, but not limited to, procurement of substitute goods or services; computer failure or malfunction; loss of data or profits; business interruption; etc.) however caused and on any theory of liability, whether by contract, strict liability, or tort (including negligence or otherwise) arising out of the use or inability to use the Software, even if We, Our affiliates, or the licensor of any component provided to You under this EULA have been advised of the possibility of such damages. ) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise), arising in any way out of the use of or inability to use the Software, even if we, our affiliates, an authorized business partner, and/or licensors are aware of or have been advised of the possibility of such damages. To the extent permitted by law, and as a maximum aggregate liability, the liability of Us, Our Affiliates, an Authorized Business Partner or the licensor of any component provided to you under or in connection with this EULA will be limited to the lesser of five hundred United States dollars ($500) or the fees paid by Licensee or Business Partner and received by Us for the Software during the six-month period immediately preceding the first event giving rise to such liability. The limitations and exclusions in this section apply to the maximum extent permitted by applicable law in your jurisdiction. Some jurisdictions do not allow the exclusion or limitation of liability for incidental, consequential or punitive damages. Accordingly, the above limitations and exclusions may not apply to you.
You understand that countries may restrict the import, use, export, re-export or transfer of encryption products and other controlled materials (which may include the Software or related technical information licensed hereunder). You agree to comply with all applicable laws, restrictions and regulations in your use of the Software, including but not limited to export restrictions of various countries to which the Software may be subject and personal data protection regulations. You agree to indemnify and hold us harmless from and against any violation of any such laws and regulations, and from and against any claims or litigation arising out of such violation, and to reimburse us for any loss resulting from such violation. You will not use the Software for any prohibited purpose. 11.1 Compliance with Sanctions. You agree to ensure that neither You nor any person authorized by You to use the Software and the Services is subject to or targeted by any sanctions, embargoes, and restrictive measures ("Sanctions") administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty's Treasury of the United Kingdom, the Department of Foreign Affairs and Trade of the Australian Government, or any other relevant sanctioning authority ("Sanctioning Authorities").
You agree to comply with all of the foregoing Sanctions and to indemnify and hold us harmless from and against any claims by any Sanctioning Authorities and to immediately terminate any relationship with any person who is or becomes subject to or the target of any of the foregoing Sanctions or who assists any person in evading or violating any of the foregoing Sanctions.
Licensee acknowledges and agrees that Our licensors (and/or Us, if Licensee obtained the Software from a party other than Us) 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 Us.
We do not claim any intellectual property rights in: (i) components created by third parties that may be taken from upstream sources in binary form compiled by us from the source code; (ii) source code and documentation for the Software that is collaboratively developed and open to contributions from parties not affiliated with us (for which contributors grant us non-exclusive rights under the licenses to the Software and documentation); (iii) any third party software or programs included in or with the Software.
If any provision of this EULA is found to be unenforceable, the enforceability of the remaining provisions shall not be affected.
Updates and upgrades may be licensed to Licensee by Us under additional or different terms.
You may not transfer or assign this EULA or any rights hereunder without Our prior written consent. Please notify Us of your intention to transfer or assign so that We may act accordingly. Conversely, We may transfer, assign, sublicense or delegate this EULA, or any portion thereof, without restriction. We may also subcontract any services related to the Software to third parties, provided that such subcontracting does not relieve Us of any of Our obligations under this EULA.
Licensee may not sublicense, transfer or assign, whether voluntarily or by operation of law, any right or license in or to the Software. Any attempted sublicense, transfer or assignment will be void.
We may change this Agreement from time to time.
Licensee shall comply with all applicable laws and regulations relating to this Agreement.
This Agreement, together with a Linuxfabrik Subscription Agreement, if any, the Privacy Policy and Terms of Use, any Quotation, Purchase Order and Service Level Agreement, if any, and any other documents deemed to be incorporated by reference herein, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements with respect to such subject matter. If you order Linuxfabrik from a Business Partner or Cloud Marketplace, any agreement you enter into with a Business Partner or Cloud Marketplace is solely between you and such Business Partner or Cloud Marketplace and is not binding on us.
Any claim, controversy or dispute arising out of or relating to this EULA shall be governed exclusively by the laws of California, without regard to its conflict of laws provisions. Before resorting to any external dispute resolution mechanism, the parties agree to use their best efforts in good faith to resolve any dispute relating to this EULA. The parties irrevocably submit and consent, generally and unconditionally, to the jurisdiction of the courts of California in any legal action or proceeding that may be brought at any time relating in any way to this Agreement. Before resorting to any external dispute resolution mechanism, the parties agree to use their best efforts in good faith to resolve any dispute relating to this Agreement.
We may, in our sole discretion, modify this EULA at any time by posting a revised version on Our website and updating the "last updated" date on the applicable page, or by providing reasonable notice. Your continued use of the Software following any changes to the Agreement after the effective date of a revised version of the Agreement constitutes your express acceptance of and agreement to be bound by the Agreement and any future versions or updates thereof.