Gluster Subscription Agreement

Gluster Subscription Agreement

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PLEASE READ THIS GLUSTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) CAREFULLY. BY CLICKING THE “I ACCEPT THE PRIVACY POLICY AND TERMS OF SERVICE” BUTTON AS PART OF THE PROCESS REQUIRED TO PURCHASE PRODUCTS OR SERVICES THAT ARE MADE AVAILABLE TO YOU THROUGH THE WEB SITE OWNED AND OPERATED BY GLUSTER, INC. (“GLUSTER”) AT WWW.GLUSTER.COM, YOU, AS A GLUSTER CLIENT (THE “CLIENT”), ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, PURCHASE OR USE THE GLUSTER PRODUCTS OR SERVICES. THE TERM “CLIENT” FOR PURPOSES OF THIS AGREEMENT, MEANS BOTH YOU IN YOUR INDIVIDUAL CAPACITY, AND THE COMPANY OR OTHER ENTITY WHOM YOU REPRESENT AND ON WHOSE BEHALF YOU PURCHASE THE GLUSTER PRODUCTS AND SERVICES UNDER ACTUAL OR APPARENT AUTHORITY. BY AGREEING TO THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO REPRESENT AND LEGALLY BIND THE COMPANY OR OTHER ENTITY FOR WHOM YOU ARE ACTING. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT PURCHASE GLUSTER PRODUCTS AND SERVICES.

This Subscription Agreement, including all schedules and appendices hereto (the “Agreement“), is between Gluster, Inc. (“Gluster”) having its HQ at 640 W California Ave, Suite 200, Sunnyvale, CA 94086, and the party identified by registering to download and use Gluster products below (“Client”) at the address set forth in such registration.  The Client accepts the terms of this Agreement.  The effective date of this Agreement (“Effective Date“) is the earlier of the date that the Client Accepts the Privacy Policy and Terms of Service or makes a payment for Installed Servers or Services (as defined below).

1. Background

This Agreement establishes the terms and conditions under which Gluster will provide Software and Services to Client. “Software” means the software programs distributed by Gluster to Client including all modifications and additions to such software that is distributed to Client. Each copy of the Software can perform one of two functions: (1) providing access to data from a computer (“Server Software”) or (2) receiving data from the Server Software (“Client Software”). “Services” means deployment services, configuration services, support services, training services and other services described in the final written quotation between the parties (“Final Quotation”) for the Servers listed in the Final Quotation. “Servers” means a computer with a copy of the Software acting as  Server Software installed.   “Installed Servers” means Servers for which Client has paid the Fees.  “Subscription” package includes items listed in the “Final Quotation”. The parties agree that the terms of this Agreement will govern future purchases by Client of Subscriptions from Gluster unless otherwise agreed by the parties in writing. “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

2. Assistance

Client will provide Gluster access to the systems and software of Client (“Client Information“) as reasonably requested to enable Gluster to provide the Services on the Installed Servers and access type provided by the Client will either be remote or on-site as mutually agreed by both parties. Client understands and agrees that the completeness and accuracy of and extent of access to the Client Information provided to Gluster may affect the ability to provide Services. Client will obtain any third party consents necessary to grant Gluster access to the Client Information that is subject to proprietary rights of, or controlled by, any third party. Client may, for legitimate security concerns, deny Gluster certain access to Client Information and the Installed Systems, provided, however, that Gluster shall be relieved from performing Services which reasonably require such access.

3. Payment

3.1.  Fees and Expenses. Fees for the Services  on the Installed Servers (the “Fees“) are stated in United States Dollars, must be paid in United States Dollars, and are exclusive of out-of-pocket expenses. Client will reimburse Gluster for reasonable and pre-approved expenses incurred in connection with the performance of Services involving travel. The parties agree that the terms of this Agreement will govern future purchases by Client of additional Services for additional Servers listed herein during the Initial Term and any Renewal Term.  The Fees for any Renewal Term will be determined by Gluster’s standard fee schedule on the first day of such Renewal Term. Unless otherwise agreed by the parties in writing, during the term of this Agreement, such additional Servers can be purchased and renewed at the rates set forth in the Final Quotation, exclusive of expenses, if any. The provision of Services for any additional Servers shall be invoiced  for remaining period beginning on the effective date of execution of the Final Quotation for the relevant Initial Term and any Renewal Term.  The Fee shall be pro rated for the remaining period of the relevant Initial Term or Renewal Term.

3.2.  Invoices. If Client is paying by credit card, Client authorizes Gluster to bill Client’s credit card for the Services for the Initial Term and for the amount due at the time of renewal. “Initial Term” shall mean one calendar year after the Effective Date or the period set forth in the Final Quotation. The period of any renewal term shall commence on the day after the last day of the prior Initial Term or Renewal Term as appropriate and shall continue for a calendar year (“Renewal Term”) or the period set forth in the Final Quotation.  If Gluster has approved Client to be invoiced, Gluster will invoice Client for the Fees at the time of execution of this Agreement and upon the submission of any future purchase order. Any and all payments made by Client pursuant to this Agreement are non-refundable. Client will make payment within thirty (30) days of the date of the invoice; provided Gluster reserves the right to suspend or cancel performance of all or part of the Services or change its credit terms if actual payment has not been received within sixty (60) days of the invoice date.

3.3.  Taxes. All Fees are exclusive of any Taxes. Client will pay to Gluster an amount equal to any Taxes arising from or relating to this Agreement, including without limitation, sales, service, use or value added taxes, which are paid by or are payable by Gluster. “Taxes” means any form of taxation, levy, duty, customs fee, charge, contribution or impost of whatever nature and by whatever authority imposed (including without limitation any fine, penalty, surcharge or interest), excluding, however, any taxes based solely on the income of Gluster. If Client is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Gluster, then the sum payable to Gluster will be increased by the amount necessary so that Gluster receives an amount equal to the sum it would have received had Client made no withholdings or deductions.

4. License and Ownership

4.1.  License. Gluster will provide both the Client Software and Server Software to Client under version 3 of the GNU GPL (General Public License).

4.2.  Marks. No right or license, express or implied, is granted hereunder for the use of any of Gluster, Gluster Affiliate, or Client trade names, service marks or trademarks, including, without limitation, the distribution of the Software utilizing any Gluster or any Gluster Affiliate’s trademarks.

5. End of Life.

It is understood that Gluster may, in its discretion, at certain times elect to discontinue production, distribution and support of a Product Line, and thereby designate such Product Line as end of life (“EOL”).  In the event that Gluster wishes to announce EOL for any Product Line, Gluster will provide (6) months prior written notice.  Partner will have a period of six (6) months after receipt of notice from Gluster to Partner to upgrade their clients to the last commercially available version of the software and continue exercising all of the rights set forth in this Agreement with respect to such EOL Product Line.  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 Product Line in accordance with Exhibit F for a period of one (1) year from the announced EOL date. End Users will continue to pay applicable license and support fees during the wind down period for support described above.Term and Termination

5.1.  Term. The term of this Agreement and the provision of Services hereunder begin on the Effective Date and continue for the Initial Term and shall automatically renew for the Renewal Term unless the Client gives written notice to Gluster on or before sixty (60) days prior to the last day of the relevant Initial Term and Renewal Term. Client must use any Services purchased during the initial Term or Renewal Term; if unused, such Services will be forfeited.

5.2.  Termination. If Client or Gluster materially breaches the terms of this Agreement, and such breach is not cured or remedied within thirty (30) days after written notice of the breach is given to the breaching party, then the Agreement will automatically terminate; provided, however, that for any breach of the obligations in Section 7 (Confidentiality) shall be deemed incapable of cure and the Agreement shall terminate immediately upon notice . Without prejudice to any other right or remedy of Gluster, in the event either party terminates this Agreement, Client will pay Gluster for all Services provided up to the effective date of termination.

5.3.  Effect of Termination. If this Agreement is terminated for any reason, Sections 3 (Payment), 4.2 (Marks), 5.3 (Effect of Termination), 6 (Limitation of Liability and Disclaimer of Damages), 7 (Confidentiality), 8.2 (Disclaimer of Warranty), 9 (Infringement Claims) and 10 (General) of this Agreement will survive such termination.

6. Limitation of Liability and Disclaimer of Damages

6.1.  Limitation of Liability. FOR ALL EVENTS AND CIRCUMSTANCES, GLUSTER’S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT TO EXCEED THE AMOUNT THAT CLIENT PAID TO GLUSTER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.

6.2.  Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL GLUSTER OR ITS AFFILIATES BE LIABLE TO THE CLIENT OR ITS AFFILIATES FOR: ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF GLUSTER OR ITS AFFILIATES  HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. Confidentiality

7.1.  During the term of this Agreement, both parties agree that (i) Confidential Information will be used only in accordance with the terms and conditions of this Agreement; (ii) each will use the same degree of care it utilizes to protect its own confidential information, but in no event less than reasonable care; and (iii) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. Both parties agree that obligations of confidentiality will exist for a period of two (2) years following initial disclosure of the particular Confidential Information. “Confidential Information” means all information disclosed by either Gluster or Client (“Disclosing Party) to the other party (“Recipient“) during the term of this Agreement that is either (a) marked confidential or (b) disclosed orally and described as confidential at the time of disclosure and subsequently set forth in writing, marked confidential, and sent to the Recipient within thirty (30) days following the oral disclosure.

7.2.  Exclusions. Confidential Information will not include information which: (i) is or later becomes publicly available without breach of this Agreement, or is disclosed by the Disclosing Party without any obligation of confidentiality; (ii) is known to the Recipient at the time of disclosure by the Disclosing Party; (iii) is independently developed by the Recipient without use of the Disclosing Party’s Confidential Information; (iv) becomes lawfully known or available to the Recipient without restriction from a source having the lawful right to disclose the information; (v) is generally known or easily ascertainable by persons of ordinary skill in the business of the Recipient; or (vi) is software code in either object code or source code form that is licensed under an open source license. The Recipient will not be prohibited from complying with any disclosure mandated by applicable law if, where reasonably practicable and without breaching any legal or regulatory requirement, it gives the Disclosing Party advance notice of the disclosure requirement.

8. Representations and Warranties

8.1.  General Representations and Warranties. Gluster represents and warrants that: (a) it has the authority to enter into this Agreement with Client; and (b) to Gluster’s knowledge the Software does not include malicious or hidden mechanisms or code for the purpose of damaging or corrupting the Software.

8.2.  Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION THE SERVICES AND THE SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE WARRANTIES IN THIS SECTION 8 ARE THE SOLE AND EXCLUSIVE WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GLUSTER, ITS AFFILIATES, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. GLUSTER DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.

9. Infringement Claims

Upon notice of a claim or action by any third party alleging that the Software furnished and used within the scope of this Agreement infringes any United States patent issued as of the Effective Date, copyright or trade secret enforceable in the United States, or if in Gluster’s opinion such a claim is likely, Gluster shall have the right, at its sole option and expense, (i) to modify the Software or substitute other non-infringing software with similar operating capabilities, (ii) replace the infringing portion of the Software with non-infringing code or (iii) in Gluster’s sole discretion, Gluster  may require that Client cease using the infringing Software.   THIS SECTION 9 (Infringement Claims) SETS FORTH GLUSTER’S SOLE AND EXCLUSIVE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT FROM AUTHORIZED USE OF THE SOFTWARE OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

10. General

10.1.      Notices. Notices must be in English, in writing, and will be deemed given when delivered by hand or five (5) days after being sent to the parties’ respective addresses indicated in this Agreement or to the facsimile numbers or email addresses, using a method that provides for positive confirmation of delivery. Any notice from Client to Gluster should be sent to: Gluster, Inc., Attention: General Counsel, 640 W California Ave, Suite 200, Sunnyvale, CA 94086 Fax: 408-692-9998; Email:  dl-notices-US@gluster.com. Notices to Client will be sent to the address or fax number or email address provided by Client in connection with Client’s purchase of the Services under this Agreement.

10.2.      Assignment. This Agreement is binding on the parties to this Agreement, and nothing in this Agreement confers upon any other person or entity any right, benefit or remedy of any nature whatsoever, save for the parties’ Affiliates as expressly provided in this Agreement. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to its Affiliate or pursuant to a merger or a sale of all or substantially all of such party’s assets or stock upon written notice and without the prior approval of the other party.

10.3.      Subcontracting. Gluster may subcontract Services under this Agreement to third parties or Affiliates without the prior approval of Client; provided, however, that (i) subcontractors must agree to comply with the obligations in Section 7 (Confidentiality) for any Confidential Information received from Gluster or Client, and (ii) Gluster remains responsible to Client for the performance of its obligations hereunder. Client acknowledges and agrees that to provide the Services, it may be necessary for Client’s Confidential Information to be transferred between Gluster, its Affiliates, or subcontractors, which may be located worldwide.

10.4.      Independent Contractor. Gluster is an independent contractor and nothing in this Agreement will be construed to create an employee relationship between Client (or any Client personnel) and Gluster (or any Gluster personnel). Each party will be solely responsible for payment of its personnel including applicable taxes, deductions, other payments and benefits.

10.5.      Force Majeure. Except with respect to the payment of Fees owed under this Agreement, neither party will be liable for nonperformance or delays caused by acts of wars, riots, fires, floods, earthquakes, government restrictions, terrorist acts or other causes beyond its reasonable control.

10.6.      Non-solicitation. During the term of this Agreement and for a period of one (2) years thereafter, Client agrees not to solicit or hire any personnel of Gluster with whom Client has had contact in connection with this Agreement; provided that Client may hire an individual employed by Gluster who, without other solicitation, responds to advertisements or solicitations aimed at the general public.

10.7.      Export Issues.

10.7.1.  Export Responsibilities. Gluster may supply Client with technical data that may be subject to export control restrictions as listed under Section 10.7.2. Gluster will not be responsible for compliance by Client with applicable export obligations or requirements for such technical data. Client agrees to materially comply with all applicable export control restrictions. In the event that Client breaches the Export Control Regulations set forth by the Government of USA, or any provision referencing the Export Control Regulations, Gluster may terminate this Agreement and its obligations hereunder without liability to Client.

10.7.2.  Export Control. As required by U.S. law, Client represents and warrants that it: (a) understands that the Software is subject to export controls under the U.S. Commerce Department’s Export Administration Regulations (“EAR“); (b) is not located in a prohibited destination country under the EAR or U.S. sanctions regulations (currently Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria); (c) will not export, re-export, or transfer the Software to any prohibited destination, entity, or individual without the necessary export license(s) or authorizations(s) from the U.S. Government; (d) will not use or transfer the Software for use in any sensitive nuclear, chemical or biological weapons, or missile technology end-uses unless authorized by the U.S. Government by regulation or specific license; (e) understands and agrees that if it is in the United States and exports or transfers the Software to eligible end users, it will, as required by EAR Section 740.17(e), submit semi-annual reports to the Commerce Department’s Bureau of Industry & Security (BIS), which include the name and address (including country) of each transferee; and (f) understands that countries other than the United States may restrict the import, use, or export of encryption products and that it shall be solely responsible for compliance with any such import, use, or export restrictions.

10.8.      Dispute Resolution. If Client is not satisfied with the Services provided by Gluster, Client agrees to give Gluster a written description of the problem(s) and to make a good faith effort to amicably resolve the problem with Gluster before commencing any proceeding. Gluster also agrees to make a good faith effort to amicably resolve any problem with Client before commencing any proceeding.

10.9.      Headings. All headings contained in this Agreement are inserted for identification and convenience, and will not be deemed part of this Agreement for purposes of interpretation.

10.10.   Severability. If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement; provided, however, that if Sections 3 (Payment), 6 (Limitation of Liability and Disclaimer of Damages), 8 (Representations and Warranties) and 9 (Infringement Claims) cannot be modified to be valid and enforceable, this Agreement will be deemed invalid in its entirety.

10.11.   Waiver. The delay or failure of either party to exercise any rights hereunder will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced.

10.12.   Complete Agreement. This Agreement constitutes the exclusive terms and conditions with respect to the subject matter hereof, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Client to place orders or otherwise effect transactions hereunder. This Agreement represents the entire, final, complete and exclusive statement of the agreement between the parties with respect to subject matter hereof and supersedes all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter hereof.

10.13.   Governing Law and Venue.  .  This Agreement will be governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its conflicts of law provisions Client and Gluster agree to submit to the personal and exclusive jurisdiction of the courts located in Santa Clara County, California for all disputes arising out of this Agreement, provided that the parties may enforce any judgment in another court. The parties agree the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

10.14.   Amendment. This Agreement may not be amended, supplemented or modified except by a written instrument signed by the parties hereto, which instrument makes specific reference to this Agreement.

10.15.   U.S. Government End Users. The Software under this Agreement is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1).  If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms and this Agreement as specified in 48C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors.  If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors

10.16.   Counterparts and Acceptance. This Agreement may be accepted in counterparts, each of which will be deemed an original and all of which will constitute one and the same instrument. The parties may accept this Agreement by “click-through” (as below) and such acceptances will be effective to bind the parties.

BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

 

1.1. License. Gluster will provide both the Client Software and Server Software to Client under version 3 of the GNU GPL (General Public License).