EULA

GLUSTER, INC.

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VIRTUAL APPLIANCE FOR VMWARE / AMAZON MACHINE IMAGE / GLUSTER STORAGE SOFTWARE APPLIANCE

END USER SOFTWARE LICENSE (SUBSCRIPTION) AGREEMENT

[Clickwrap Version]

THIS IS A CLICKWRAP ONLINE DOCUMENT.  PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE” OR “AGREEMENT”) CAREFULLY BEFORE DOWNLOADING, INSTALLING FROM MEDIA OR OTHERWISE USING THE SOFTWARE. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, YOU ARE NOT AUTHORIZED TO DOWNLOAD, INSTALL OR USE THE SOFTWARE.

FREE 30-DAY TRIAL: YOU MAY DOWNLOAD AND USE THIS SOFTWARE ON A 30-DAY FREE TRIAL BASIS.  PLEASE READ THE TERMS FOR TRIAL IN SECTION 3.2 BELOW.  USE OF THIS SOFTWARE, TRIAL OR OTHERWISE, IS SUBJECT TO THIS AGREEMENT.

APPLICABILITY TO GVA, AMI and SSA: THIS AGREEMENT APPLIES TO YOUR USE OF EITHER THE GLUSTER VIRTUAL STORAGE APPLIANCE FOR VMWARE, Xen or KVM (GVA), THE GLUSTER AMAZON MACHINE IMAGE (AMI) OR THE GLUSTER STORAGE SOFTWARE APPLIANCE (SSA) DEPENDING ON WHICH SOFTWARE PACKAGE YOU OBTAIN, AS PROVIDED IN THESE END USER LICENSE TERMS.

This License governs your use of any and all computer software or other code, whether on disk, in read only memory, or on any other media (collectively, the “Gluster Software”) and any printed or electronic documentation for the Gluster Software (“Documentation”) prepared from time to time by Gluster, Inc. (“Gluster”) or provided to you by or on behalf of Gluster, however Gluster may elect not to produce Documentation for any particular software package.  The Gluster Software package includes either Standard Support or Platinum Support (described in Section 5 below), depending on which Gluster Software package you obtained. Depending on the software package you choose to download or install, the “Gluster Software” and “Documentation” comprise either (i) the “Gluster Virtual Storage Appliance for VMware, Xen or KVM (Gluster VA)”, (ii) the “Gluster AMI” or (iii) The “Gluster Storage Software Appliance (SSA)”. The Gluster AMI is made available to you within the Amazon Web Services data imaging, storage and delivery environment (“AWS Environment”).  The Gluster AMI may be accessed in the AWS Environment through Gluster’s online store, or via third party resellers authorized by Gluster.

1. License, not Sale, of Gluster Software. The Gluster Software is (a) in the case of the Gluster VA and the SSA licensed, not sold, to you by Gluster or its affiliates, if any, and (b) in the case of the Gluster AMI, is licensed from the AWS Environment, not sold, to you by Gluster, its affiliates, if any, or other authorized resellers, as the case may be.  If media is provided, you may own the media that contains the Gluster Software, but Gluster or Gluster’s licensors retain title to the Gluster Software.  The Gluster Software is subject to this License, whether the License is paid for or pursuant to any free trial, preliminary evaluation or the like, and whether obtained online or by any other authorized manner.  Gluster hereby grants to you a limited, non-exclusive and non-sublicensable license to use the Gluster Software (i) only as described in the Commercial Quotation (as described in Section 4 below) and the Documentation, if any, or (ii) if there is no applicable Commercial Quotation or Documentation, for data storage in the public cloud, private cloud, or hybrid environments by your enterprise or organization in support of the business of your enterprise or activities of your organization, including the hosted service provider (or similar) business or activity, but for no other use or purpose.

2. Proprietary Rights, GPLv3, Open Source and Third Party Software. The Gluster Software and any copies you are authorized by Gluster to make are the intellectual property of and are owned by Gluster and its suppliers, and contain software licensed under the GPLv3 and applicable Open Source Licenses (collectively, “Open Source Components”). The Gluster Software also may contain proprietary software from other vendors under applicable licenses. The Open Source Components and software components from other vendors under applicable licenses will be collectively referred to as “Third Party Software” in this Agreement.  The Gluster Software is the valuable trade secret and confidential information of Gluster and its suppliers and licensors, and the Third Party Software is subject to applicable licensing.  The Gluster Software is protected by copyright, including without limitation U.S. Copyright Law, patents, other intellectual and industrial property rights, international treaty provisions and applicable laws in the country where used, and the Third Party Software is subject to applicable licensing. Except for the Open Source Components you agree not to reverse engineer, disassemble, de-compile, or otherwise attempt to discover the source code of the Gluster Software or other Third Party Software, or disclose any Gluster trade secret or confidential information.  All trademarks shall be used in accordance with accepted trademark practice. Trademark owners’ names shall be identified.  Use of any trademark does not allow any rights of ownership in that trademark.  Proprietary notices and Third Party Software components and licensing are identified under “Proprietary Rights and Third Party Software Information” below. No rights, other than those specified in this Agreement are expressly or impliedly granted.

3. Permitted Uses.

3.1            General.  This License applies to each instance of the Gluster VA, Gluster SSA or the Gluster AMI regardless of the number of copies obtained and regardless if obtained through purchase, trial or the like.  The Gluster VA and the Gluster SSA is authorized for use on servers on which the Gluster Software has been installed, and the Gluster AMI is authorized for use within the AWS Environment on servers on which the Gluster Software has been installed, and for which in either case, subject to Section 3.2 below, a Gluster Software License Key has been provided to you. As part of the use of the Gluster Software, you acknowledge that Gluster may from time to time communicate with the Gluster Software’s License Manager over a secure Internet connection, however you may request that Gluster cease conducting such communications.  You may make one (1) copy of the Gluster Software in machine-readable form for backup purposes only, provided that such backup copy must include all copyright and other proprietary information and notices contained in the original.  This License authorizes you to use the Documentation, if any, solely for your use in operating the Gluster Software.  You may make copies of the Documentation, if any, in human readable form, provided that such copies are (a) complete and not edited or abridged and (b) include all copyright and other proprietary information and notices contained in the original.

3.2            Trial. You are permitted to download and use the Gluster VA, Gluster SSA or Gluster AMI without charge on a trial basis for thirty (30) days.  However, such trial will automatically terminate at the end of such thirty (30) days, unless the trial is extended by Gluster.  During the trial, you will receive Support only on an “as available and reasonable effort” basis, and any other support, including SLAs, will not apply to any trial.  To continue use of the Gluster VA, Gluster SSA or Gluster AMI beyond the trial you must purchase and obtain a full license (subscription) to a Gluster Software Package, at which time you will be provided a License Key for continued use.  It is solely your responsibility to secure your data used in the trial.  You are encouraged to use only trial, or sample, data in the trial because all data used in the trial will be lost if you do not elect continued use.  Gluster will not be responsible, and hereby disclaims, any responsibility whatsoever for any and all data you may use in the trial.

3.3            End of Life.  It is understood that Gluster may, in its discretion, at certain times elect to discontinue production, distribution and support of parts or versions of the Gluster Software, and thereby designate such parts or versions as end of life (“EOL”).  In the event that Gluster wishes to announce EOL for any such parts or versions, Gluster will provide six (6) months prior written notice, which may be by direct notice or posting on Gluster’s website.  Gluster’s Third Party Providers (defined in Section 8.4 below) will have a period of six (6) months after receipt of such notice to upgrade you to the last commercially available version of the software during which period you may continue exercising all of the rights set forth in this Agreement with respect to such EOL software.  Gluster (either directly or through a third party contractor selected by Gluster) will continue providing support for the last commercially available version of such EOL software in accordance with Gluster’s applicable support terms for a period of one (1) year from the announced EOL date, provided that you continue to pay applicable license and support fees, if any, during the wind down period for support described above.

4. Fees and Payments. The fees and payment of fees by you for this License shall be in accordance with the then-current Gluster pricing terms included (a) in the applicable online Gluster Pricing and Support Terms for the Gluster VA and Gluster SSA, (b) online in the AWS Environment store or the Gluster store for the Gluster AMI, or (c) for either the Gluster VA, Gluster SSA or Gluster AMI, in a Gluster Commercial Quotation, as the case may be.  All fees and payments for this License are ONLY for the particular Gluster Software Package you choose, and do not include any fees or payments for any other software, services, data access, add-ons or the like.  You are responsible for purchasing all other software, services, data access, add-ons and the like directly from other appropriate vendors and providers for the Gluster VA or Gluster SSA, and from the AWS Environment and other appropriate vendors and providers for the Gluster AMI.

5. Support. Gluster will support the Gluster Software (a) for the Gluster VA or Gluster SSA in accordance with the Gluster Standard Support or Platinum Support terms (depending on the package you obtained), and such Support terms are described in the applicable online Gluster Pricing and Support Terms, (b) for the Gluster AMI, in accordance with the Gluster AMI Standard Support or Platinum Support terms (depending on the Gluster AMI Software package you obtained), and such Support terms are described online in the Gluster store or in the AWS Environment, or (c) for either the Gluster VA, Gluster SSA or Gluster AMI, in a Gluster Commercial Quotation, as the case may be. The Gluster Software and Support are subject to the applicable Gluster Service Level Agreement (SLA) terms located at gluster.com, unless the SLA is provided to you in a separate document for signature by you and Gluster.

6. Noncompliance. All rights to use the Gluster Software are granted on the condition that you are in compliance with this License and will be forfeited for failure to comply.  Your rights under this License will terminate automatically without notice from Gluster if (a) for the Gluster VA or Gluster SSA you fail to comply with any terms of this License, or (b) for the Gluster AMI, you fail to comply with any terms of this License or the terms of use under the AWS Environment.  The source code components of the Gluster Software other than the Open Source Components are the proprietary and confidential information of Gluster and its suppliers.  You acknowledge and agree that any unauthorized use, transfer, sublicensing or disclosure of the Gluster Software may cause irreparable injury to Gluster, and under such circumstances Gluster shall be entitled to equitable relief without posting bond or other security, including but not limited to preliminary and permanent injunctive relief.

7. Term and Termination.

7.1            Term.

(a)            VA and SSA.            If you have not otherwise elected another term or duration for this License in accordance with Gluster’s quotation or contract requirements, then, with respect to the Gluster VA and Gluster SSA unless and until it is terminated as provided below, this License is effective for one (1) year (the “Term”) from the date that your initial payment of the License fee is received by Gluster (the “Effective Date”).  The Term will be one (1) year whether you pay for the full year’s subscription in one annual payment or elect to pay on a monthly basis.  This License may be renewed for additional one-year terms at your election, subject to approval of Gluster.

(b)            AMI.            With respect to the Gluster AMI, unless and until it is terminated as provided below, this License remains in effect for so long as, subject to approval of Gluster, you continue to use and pay for the use of the Gluster Software within the AWS Environment, beginning with the date that you commence such use (the “Effective Date”).  Such use may be on an hourly, monthly, annual or other basis as specified for the particular Gluster AMI Software package you obtained.

7.2            Termination.  You may terminate this License at any time by destroying or returning to Gluster or its authorized distributor, reseller or similar third party all copies of the Gluster Software in your possession or under your control.  However, with respect to (a) the Gluster VA and Gluster SSA, you will not receive a refund if you have paid for a full year’s subscription, and if you are paying on a monthly basis, you will remain responsible for paying for the remaining Term, and (b) the Gluster AMI, you will remain responsible for paying any accrued and outstanding amounts.  Gluster may terminate this License without notice, and with or without using the Gluster Software License Key, at Gluster’s election, for any material violation of any of the terms of this License.  Termination of this License shall be without prejudice and does not limit other remedies or the accrued obligations of either party.  All terms and provisions in this Agreement that are specified to survive, or by their nature or where required to establish rights or obligations should survive, any termination or expiration of this Agreement, shall be deemed to survive accordingly.

7.3            Return of Gluster Software Upon Termination.  If this License is terminated, you shall (a) immediately cease using the applicable Gluster Software, and (b) upon written request from Gluster, you will certify in writing to Gluster within thirty (30) days after such termination that you have either destroyed, permanently erased or returned the Gluster Software and the Documentation, if any, in all forms and all copies including backup copies to Gluster.

8.  Infringement, Warranty Disclaimer, and Limitation of Liability.

8.1            Infringement.  In the event the Gluster Software is held to infringe or is believed by Gluster to infringe, Gluster shall have the option to (i) modify the Gluster Software to be non?infringing, (ii) obtain for you a license to continue using the Gluster Software, (iii) substitute the Gluster Software with other software reasonably suitable to you, or (iv) if Gluster in its sole discretion determines that it is not commercially practicable to so replace or modify, or obtain a license or rights to, the Gluster Software, terminate this License and refund to you an amount equal to the consideration paid hereunder reduced by two percent (2%) for each complete month from the Effective Date to the date of such termination. This Section 8.1 states your exclusive remedy and Gluster’s entire liability for any infringement. Notwithstanding the foregoing, Gluster shall have no liability for any claim based on:  (A) use of a superseded or altered release of the Gluster Software if such claim would have been avoided by use of current or unaltered releases of the Gluster Software that Gluster makes available to you or (B) the combination, operation or use of any of the Gluster Software furnished under this License with software, programs, data or the like not furnished or authorized by Gluster if such claim would have been avoided by use of the Gluster Software without such software, programs, data or the like.  Collectively, (A) and (B) above are “Unauthorized Use.”  You will defend (or settle) any claim or action brought against Gluster (or its stockholders, officers, directors, employees or agents) for actual or alleged infringement of any patent, copyright, trademark or other intellectual property based upon your Unauthorized Use of the Gluster Software, provided that Gluster promptly notifies you of the claim and allows you to control, and cooperates with you in, the defense and related settlement negotiations. You shall pay any judgment or settlement approved by Gluster to settle such claim or allegation made against Gluster.

8.2            Warranty Disclaimer.  The Gluster Software is provided “As Is” without any warranty.  Gluster does not warrant that (i) the operation of the Gluster Software will be uninterrupted or error-free, (ii) all program errors or defects will be corrected, (iii) the Gluster Software will satisfy your requirements, (iv) the Gluster Software will operate in combinations which you may select for use, or (v) the transmission, downloading, loading or installation of the Gluster Software will be uninterrupted or error-free. THERE ARE NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS WHETHER EXPRESS OR IMPLIED, BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, AS TO ANY MATTER INCLUDING WITHOUT LIMITATION TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON?INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, OR SATISFACTORY QUALITY. IT IS SOLELY YOUR RESPONSIBILITY TO SECURE YOUR DATA USED UNDER THIS LICENSE.  YOU ACKNOWLEDGE THAT ALL DATA USED UNDER THIS LICENSE WILL BE LOST IF YOU DO NOT CONTINUE USE UNDER THIS LICENSE OR OTHERWISE SECURE YOUR DATA.  GLUSTER WILL NOT BE RESPONSIBLE, AND HEREBY DISCLAIMS, ANY RESPONSIBILITY WHATSOEVER FOR ANY AND ALL DATA YOU MAY PROVIDE FOR AND USE UNDER THIS LICENSE.

8.3            Limitation of Liability.  EXCEPT FOR ANY CONDITION, REPRESENTATION OR TERM WHICH CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW TO THE EXTENT APPLICABLE IN YOUR JURISDICTION, IN NO EVENT SHALL GLUSTER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT, INCLUDING LOSS OF PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOST REVENUE, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT OR TORT OR BASED ON A WARRANTY, WHETHER OR NOT YOU OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT ARE BASED ON, AND THE CONSIDERATION PAID UNDER THIS AGREEMENT WOULD BE GREATER IN THE ABSENCE OF, THE LIMITATIONS DESCRIBED ABOVE.

8.4            Third Party Activity.  For the Gluster VA, Gluster SSA and Gluster AMI, Gluster may use or authorize third party resellers, distributors, support organizations and the like in connection with the marketing, licensing, sales, distribution and support of the Gluster Software and Documentation, if any, and, with respect to the Gluster AMI, including without limitation, Amazon LLC (Amazon.com) and the AWS Environment (collectively, “Third Party Providers”). In no event, and regardless of whether any charges from Third Party Providers are included in Gluster billings, will Gluster be responsible for the actions, omissions, performance, reliability or failures, whether negligent or willful, of any Third Party Provider and the remedies, disclaimers and limitations in this Section 8 apply with respect to all such actions, omissions, performance, reliability or failures.

9. Governing Law, Severance, Waiver, and Entire Agreement.  This Agreement is made in accordance with and shall be governed and construed under the laws of the State of California. The federal and state courts of California shall have exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by conflict of law rules of any jurisdiction or by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. In the event any provision of this Agreement is held to be invalid or unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain in full force and effect. Any waiver or modification of this Agreement shall only be effective if in writing and signed by an authorized officer of Gluster.  The waiver or failure of either party to exercise any right provided under this Agreement will not be deemed a waiver of that or any further right under this Agreement.  This is the entire, final, exclusive and complete Agreement between Gluster and you, and it supersedes any prior representations, discussions, undertakings, communications, or advertising regarding the Gluster Software.

10. Export Control.  You agree that the Gluster Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations including the U.S. Commerce Department’s Table of Denial Orders (collectively, the “Export Laws”).  In addition, if the Gluster Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not prohibited under the Export Laws from receiving the Gluster Software (per the US Department of Commerce Bureau of Industry and Security Entity List Part 744 Supplement 4 and Embargoes and Other Special Controls Part 746).

11. Government Contracting. The Software and Documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, et seq., as applicable.  Consistent with the C.F.R. provisions referenced in this section, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to the U.S. Government end users only as Commercial Items and with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Unpublished rights are reserved under the copyright laws of the United States.  For U.S. Government end users, Gluster agrees to comply with all applicable equal opportunity laws.

12. Assignment.  This Agreement may not be assigned or delegated by either party without the prior written consent of the non-assigning or non-delegating party. Such consent shall not be unreasonably withheld. Notwithstanding the foregoing, such consent shall not be required for a transfer made to an entity that acquires substantially all of the transferring party’s stock or assets, except in the event of your acquisition by an entity that would, in the good faith judgment of Gluster, be in competition with Gluster. Except as specifically authorized in this Section, any attempt by either party to assign any of its rights or delegate any of its duties without the prior written consent of the other party is void. In the case of an authorized transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the transferees, successors, executors, heirs, representatives, administrators and assigns of the parties hereto.

PROPRIETARY RIGHTS AND THIRD PARTY SOFTWARE INFORMATION

August 2011

Proprietary Rights Notices

This license and the Gluster Software and Documentation are copyright © 2010-2011 Gluster, Inc.  You may not print, copy, reproduce, modify, distribute or display this work in hard copy, electronic, or any other form, in whole or in part, by any electronic, mechanical, or other means, without the prior written consent of Gluster, Inc., except as expressly authorized in this Agreement.

Gluster and the Gluster logo are trademarks of Gluster, Inc.

All other trademarks are the property of their respective owners.

Portions of this product are under license or other authorization from, and are protected by copyright or other intellectual property rights of, their respective owners.

Third Party Software

In addition to the specific items of Third Party Software listed below, the Gluster Software contains certain other Third Party Software.  Such other Third Party Software is used by Gluster under applicable licenses. You may obtain additional information about the Open Source Components, or a copy of the Open Source Components, by contacting Gluster at info@gluster.com. Information about the Open Source Components listed below and the associated licensing may be requested from the respective parties and / or from the website links and information, specified below.

 

http://www.redhat.com/licenses/rhel_rha_eula.html – Redhat’s EULA

https://www.redhat.com/licenses/thirdparty/eula.html – Third party EULA http://www.vmware.com/download/eula/esx_server.html

http://tech.groups.yahoo.com/group/cfg2html/

http://xen.org/support/

http://www.linux-kvm.org/page/Documents