Enterprise Licence Agreement
Version 1.0, dated Mar 4, 2016
This Enterprise License Agreement (the “Agreement”) is made between Harrow Inc. (the “Company”), a Corporation, organized under the laws of the state of Delaware, and Licensee. By accessing, downloading, installing or using the software, Licensee accepts this Agreement and confirms that he or she understands and agrees to all terms and conditions of this agreement. This Agreement governs Licensee’s use of Software and Services. Company will only License Software to Licensee if Licensee accepts all terms and conditions of this Agreement.
If you are entering into this Agreement on behalf of a company or other legal entity, you hereby represent you have full legal authority to bind such entity to this Agreement. If you do not have full authority to bind such entity, or if you do not accept and agree to all terms and conditions herein, then Company shall not, under any circumstances, license Software to you, and you are expressly prohibited from downloading, installing, or using Software or Services of Company.
1 . DEFINITIONS
- “Company” shall refer to Harrow Inc., and any of its agents, contractors, and entities or persons otherwise expressly authorized to conduct business on behalf of Harrow;
- “Licensee” shall refer to the individual or entity that is acquiring a license to use Company’s Software or Service;
- “Parties” shall refer collectively to Company and Licensee;
- “Software” means the object-code/obfuscated source code version of Company’s proprietary enterprise software application. Software includes any applicable Documentation, as well as any Updates to the Software that we provide you or that you can access under this Agreement;
- “SaaS” shall refer to the acronym of Software as a Service;
- “Documentation” shall refer to any manuals, documentation or other supporting materials related to the Software;
- “Fees” shall refer to the finances required to obtain use of Company’s Software:
- During the applicable license Term; and
- Fees required to pay for any Services that Licensee engages Company to perform.
- “License Term” shall refer to the length of the granted license to use the Software;
- “Services” means training, consulting, or implementation services that we provide to you pursuant to a mutually executed Statement of Work.
- “Statement of Work” or “SOW” means a mutually executed statement of work detailing the Services Company will perform for you, their price, and your related obligations;
- “Update” shall refer to a Software release that we make generally available to our customers, along with any corresponding changes to Documentation. An Update may be an error correction or bug fix, or it may be an enhancement, new feature, or new functionality;
- “Seats” shall refer to the number of User accounts for the Software the Company has authorized you to create in accordance with the terms of this Agreement; and
- “User” shall refer to a single person or machine account that initiates the execution of the Software and/or interacts with or directs the Software in the performance of its functions.
The Software provides stable environments to centralize repeatable, documentable tasks such as testing, software compilation and delivery. Software works for any software programming language, framework or technology which tooling is available to GNU/Linux POSIX compatible systems.
Software allows connections to be built between processes, such that a successful test might trigger a deployment, where an unsuccessful test might simply notify the team. Periodic tests may be performed on application performance, triggering notifications or alerts only in case of degradation in performance, notifying nobody and nothing in case of normal operation.
Software is delivered as a QCOW2 hard disk image (the “Hard Disk Image”) intended for use with a hypervisor such as KVM. The Hard Disk Image contains a second hard disk image that is used as the disk image for a managed pool of virtual machines (the “Base Image”).
Company shall license Software to Licensee in order to provide the SaaS to end-users. The enterprise version of the Software is not hosted on Company’s servers. The following are key assumptions arising under this Agreement:
- Hardware Requirements. Software requires a Linux host with at least 16GiB RAM, a CPU with at least 4 cores, and disk space of at least 100GiB. The host CPU is expected to support Intel VT-x This requirement is satisfied by virtually all Intel server, including most workstation, class CPUs since the year 2000.
- Network Requirements. The Software requires wide area network access (the “WAN”) to install Software packages at runtime.
Note: This is a soft requirement; a specialized Base Image can be provided which requires no runtime WAN access. Many, if not most, of the Software’s’ features may optionally require WAN access which may be overridden to use LAN or VPN connections, this may include but is not limited to:
- Notifications of statuses via email;
- Notifications of statuses via HipChat, Slack, etc.; and
- Consolidation of statuses via Git/SVN.
Licensee is naturally available for consultation to ensure that all desired functionality is functional and compliant with traffic management policies.
3. LICENSE GRANT
Subject to the terms of this Agreement, Company hereby grants to Licensee a non-exclusive, non-transferable, worldwide, limited-term license to install and to use Software only for the internal use of Licensee, during the applicable License Term, and limited to the number of machines and Seats that Licensee has already paid for. Licensee may make backup copies of Software, so long as it is solely for Licensee’s use within Licensee’s business or personal use. Software is being distributed by downloadable content. Licensee may only install and use one (1) license per machine, and is expressly prohibited from creating multiple copies of Software from each license. Any unauthorized use of the Software will be deemed to be a material breach of this Agreement.
Some components of Software may be subject to terms of an “open source” license (the “Open Source Components”). Company may provide third party software, including Open Source Components, to Licensee as part of Licensee’s download of the Software. Third party software is subject to the terms of their accompanying licenses directly from the third party. Company’s warranty of Software includes all Open Source Components embedded in the Software.
4. INTELLECTUAL PROPERTY
All rights, title, interest, and copyrights in and to the Software, including but not limited to all images, photographs, animations, video, audio, music, text, data, computer code, algorithms, and information, are owned by Company. The Software is protected by all applicable copyright laws and international treaties. Therefore, Licensee is required to treat Software like any other copyrighted material, except as otherwise provided for in this Agreement.
Licensee agrees not to, nor permit, nor authorize any third party to:
- Sublicense, sell, rent, lease, transfer, assign, or distribute the Software to third parties;
- Host the Software for the benefit of third parties;
- Reverse engineer or disassemble the Software except and only to the extent that such activity is expressly permitted by applicable law notwithstanding the limitation;
- Disclose or permit any third party to access the Software;
- Modify or create derivative works of the Software, or merge the Software with other software;
- Disassemble, decompile, bypass any code obfuscation, or otherwise reverse engineer the Software or attempt to derive any of its source code, in whole or in part, except to the extent such activities are expressly permitted by law or applicable license notwithstanding this prohibition;
- Modify, obscure, or delete any proprietary rights notices included in or on the Software or Documentation; or
- Otherwise use or copy the Software in a manner not expressly permitted by this Agreement.
- Coverage. Licensee may contact Company’s support team to help answer their questions on installing and using the Software, identifying and verifying the causes of suspected errors in the Software, and helping Licensee find workarounds for Software malfunctions. Company shall do its best to respond to automated support requests; Company typically needs more information than an automated ticketing system can give in order to solve your issue. Support is free of charge and is limited to one (1) hours initial installation support per paid License; and thirty (30) minutes on the usage of the Software per month per paid License. In case longer support times or additional support services are needed, on script implementation for example, Licensee may ask Company for additional Service, as provided for in the Services clause in this Agreement.
- Support Times. Provided that Licensee has paid due fees, Company shall provide Licensee with technical support for the Software twenty-four (24) hours per day, five (5) days per week, excluding weekends and national holidays. Company currently only offers support via email (email@example.com) or through its web-based ticketing system.
- Updates. Company will make Updates available to Licensee on the same secure website where Licensee downloaded the Software.
- Exclusions. Company may not be able to correct every problem encountered, but Company will use its reasonable efforts to correct any material, and reproducible errors in the Software that Licensee makes Company aware of. Company may ask for Licensee’s help in reproducing the error. Company shall not be responsible for supporting Licensee in the following circumstances:
- Licensee is using a free trial version of Software;
- Someone other than Company modifying the Software;
- Changing Licensee’s operating system or environment in a way that adversely affects the Software or its performance;
- Using the Software in a manner for which it was not designed, or other than as authorized under this Agreement; or
- Accident, negligence, or misuse of the Software. Company shall not be required to support a given version of the Software for one (1) year from the date of its commercial release, or six (6) months from the commercial release of the next Update, whichever is longer.
6. CHANGE CONTROL
Software is an integration platform between many different tools and services, some parts of the infrastructure are included in part of our binary delivery, some parts are loaded at startup time, or at runtime.
1 . Not Guarantied Against Change:
- The CLI Tool: The tool is open source and subject to frequent and rapid improvements. The CLI Tool follows the SemVer versioning policy and each user may choose their own desired version and install it on their own machine. If there is no network connection (WAN) between the Software and the developer’s network, the CLI Tool can not be used.
- Operating system package repositories. The Base Image by default will install Software from public package repositories. This means that a command apt-get install libxml2 will pull whatever version is provided by the operating system package maintainers. This can be mitigated by using a specific named version (i.e. apt-get install libxml2=0.16.7) or by using a package repository under more precise control.
- Docker containers. The Base Image is by default connected to the public Docker Hub. This means that a command docker run mysql:latestwill always pull the latest version of the MySQL container. This can be mitigated by using a specific named version (i.e. docker run 5.7.11), or using a specific Docker Hub under more precise control.
- Ruby Gem repositories: Ruby Gem packages are subject to rapid change and are outside the control of the Software.
- Dynamic packages/sources: For components such as dynamically linked libraries (i.e. linked as part of a .NET build). This is best mitigated by ensuring static binary builds of the artifacts.
The above are some examples, however, there will be more cases. Company is available for consultation on what other dynamic sources may be in play in a given Software build or deployment process.
2. Guaranteed Against Change:
- The Hard Disk Image,
- Web Base Image, and the
- Web Application.
3. Software Versioning:
Software is subject to periodic releases which may not follow a regular calendar. Software versioning can be read as following:
- The number in the first position represents the version name;
- The number in the second position represents the feature set number; and
- The number in the third position represents the patch level (aka bug fixes)
4. Although SOFTWARE comprises many parts, releases of SOFTWARE are given to include:
- The Base Image;
- The Hard Disk Image; and
- The Web Application.
Company Services help Licensees get the most out of the Software. If Licensee desires additional Company Services, it shall contact Company, and Company will work with Licensee to prepare a SOW that describes the date, time, location, objectives, and price of the Services. The terms and conditions of the additional services shall be set forth in the SOW.
As part of this Agreement, Company may provide Licensee with a SOW. This Agreement shall hereby reference and incorporate the SOW between Company and Licensee, if one is in existence, or if one is executed in the future. If a SOW is executed by the Parties herein, it shall be incorporated by reference to this Agreement. Licensee agrees, pursuant to a SOW execution, Parties shall also be governed by both the terms this Agreement and the terms of the SOW.
This Agreement is not assignable or transferable by Licensee without the prior written consent of Company; any attempt to do so shall be void. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if delivered personally or mailed by first-class, registered, or certified mail, postage prepaid to the respective addresses of the parties as set forth herein, or such other address as a party may designate by ten (10) days notice.
9. WARRANTY DISCLAIMER
Company, and author of Software, hereby expressly disclaim any warranty for the Software. Software and any related documentation is provided “as is” without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Licensee accepts any and all risk arising out of use or performance of Software.
Licensee agrees to indemnify, defend, and hold harmless, Company and Company Parties, from and against all: claims; injuries; damages; obligations; losses; lawsuits; attorney fees; legal fees or filing fees from any and all claims or demands made by any party related to Licensee’s use of Software, Service, website, or applications; or violations of this Agreement. Company reserves the right to execute the exclusive defense of any issues arising out of such indemnification. Licensee is expressly prohibited from settling such claims without the prior written consent of Company.
11. INDEPENDENT RELATIONSHIP
Nothing in this Agreement shall in any way be construed to constitute Licensee as an agent or employee of Company, and Licensee is expressly not authorized to bind Company to any liability, obligation, or to represent that he or she has any such authority.
All notices permitted or required under this Agreement shall be in writing and shall be delivered in person or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
13. LIMITED LIABILITY
Company shall not be liable to Licensee, or any other person or entity claiming through Licensee any loss of profits, income, savings, or any other consequential, incidental, special, punitive, direct or indirect damage, whether arising in contract, tort, warranty, or otherwise, even if Company has been advised of the possibility of such damages. These limitations shall apply regardless of the essential purpose of any limited remedy. Under no circumstances shall Company’s aggregate liability to Licensee, or any other person or entity claiming through Licensee, exceed the financial amount actually paid by Licensee to Company for the Software.
14. INTEGRATION AND AMENDMENTS
Any waivers or amendments shall be effective only if made in writing and signed by a representative of the respective parties authorized to bind the parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement, with the exception of the SOW if such an agreement has been or will be executed by the Parties.
No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of Delaware or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in commercial arbitration and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in court.
This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the state of Delaware and the United States of America, without regard to conflicts of laws provisions thereof, and it jurisdiction shall supersede any other jurisdiction of either party’s election. Any legal action or proceeding relating to this Agreement shall be brought exclusively in courts located in the state of Delaware, United States of America, and each party consents to the jurisdiction thereof. The prevailing party in any action to enforce this Agreement shall be entitled to recover costs and expenses including, without limitation, attorneys’ fees.
18. TERM, SUBSCRIPTION RENEWAL, AND TERMINATION
The term of this Agreement shall commence upon Licensee’s downloading and installation of Software. This Agreement shall automatically continue and renew on a month to month basis, or by yearly subscription, depending on Licensee’s purchase option. Licensee will be charged the rate stated at the time of purchase, either monthly or yearly, until Licensee terminates the License subscription. The monthly or yearly rate is subject to change, at Company’s discretion, however if the rate changes Company shall notify Licensee of any rate change prior to its implementation and Licensee’s subsequent payment. If Licensee terminates before the end of the billing period, Licensee’s payments that have already been paid are non-refundable and Licensee’s service shall continue until the end of such billing period. License terminations may be made by Licensee at any time by visiting their account page.The Agreement shall terminate under the following conditions:
- Agreement shall automatically terminate in the event that Licensee breaches any terms of this Agreement, with or without notice from Company;
- Company may terminate this Agreement at any time for any reason. Company must give thirty (30) days notice to Licensee in the event of termination; or
- Licensee may terminate this Agreement at any time for any reason. In the event Licensee terminates this Agreement, its current subscription shall continue through the billing period for which it has fully paid prior to termination.
The following Sections of this Agreement shall survive termination: Intellectual Property, Warranty Disclaimer; Indemnification; Independent Relationship; Limited Liability; Integration and Amendments; Severability; Arbitration; and Jurisdiction.