Parablu Inc.

IMPORTANT – READ CAREFULLY: THIS SOFTWARE LICENSE AGREEMENT (“LICENSE AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN Parablu INC. A CALIFORNIA CORPORATION (HEREINAFTER REFERRED TO AS THE “COMPANY”, “Parablu”, “PARBLU”, “WE”, “US” OR “OUR”) AND ANY PERSON, COMPANY OR BUSINESS ENTITY WHO IS USING THE ABOVE-REFERENCED SOFTWARE PRODUCT(S), WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED MEDIA, AND “ONLINE” OR ELECTRONIC DOCUMENTATION (“SOFTWARE”) AND/ OR HAS LICENSED THIS SOFTWARE (HEREINAFTER REFERRED TO AS THE “CUSTOMER”, “YOU”, OR “YOUR”. BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT AND ANY FUTURE AMENDMENTS AND ADDITIONS TO THIS LICENSE AGREEMENT AS PUBLISHED FROM TIME TO TIME AT www.parablu.com/legal OR OTHERWISE NOTIFIED BY THE COMPANY. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE. YOU SHALL INFORM ALL USERS OF THE SOFTWARE OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.

This License Agreement, grants You, the User, a non-exclusive, non-transferable, non-sub-licensable, fee-bearing, limited license to use the Software which is the property of Parablu, under the terms and conditions stated herein. You agree that this Software is licensed, not sold to You. You agree that all upgrades, enhancements, adaptation, modification, translation, maintenance releases, patches, bug-fixes or other modifications to the Software provided to You shall be governed by the terms and conditions, including the Limited Warranty (defined hereinafter), exclusive remedies and limitations of liability provisions, contained in this License Agreement, or the then current version. The Company reserves the sole right to modify the terms and conditions of this License Agreement or its policies relating to the Software at any time, effective upon posting of an updated version of this License Agreement on its website or other notification. You are responsible for regularly reviewing this License Agreement. Continued use of the Software after any such changes shall constitute your consent to all such changes. Except as otherwise provided herein, the license granted herein shall be for the period of time as specified in the purchase order. The Software may automatically deactivate and become non-operational at the end of that period, or on non-payment of the subscription fee during the term, and You will not be entitled to receive any feature or content updates to the Software unless the license subscription is renewed.

This License Agreement shall be in effect for that period or until terminated except as expressly otherwise provided herein. You may terminate this License Agreement at any time by destroying all copies of Software and corresponding documentation. This License Agreement will terminate immediately without notice from Parablu if You fail to comply with any provisions of this License Agreement. Upon termination, You must destroy all copies of Software in Your possession or control with immediate effect.

You may: (i) use the Software, in numbers equal to the number of licenses purchased for all items; (ii) make copies of the Software, documentation or other user information accompanying the Software solely for back-up purposes, provided such back-up copies are only utilized as a replacement for the original copy ; and, (iii) make a copy or print documentation provided in electronic form for internal use. You must incorporate all copyright and other notices included on the materials on any copies or partial copies that You make, (iv) use the Software only for lawful purposes and not use the Software for any fraudulent purposes,(v) keep secure and confidential your account password or any identification we provide you which allows access to the Software.

You shall not:(i) make a copy of any of the Software for any purpose not explicitly permitted herein; (ii) provide commercial hosting services, sell, sublicense, rent, loan or lease the Software to another party, without the prior written consent of Parablu; (iii) except to the extent that such a prohibition is expressly prohibited by law, You shall not translate, recreate, decompile, disassemble, reverse engineer or modify, in any manner, even partially, or attempt to or enable third parties to perform such acts on the Software; (iv) transfer or assign your rights to use the Software; (v) use the Software in violation of applicable local, federal or other laws or regulations; (vi) use the Software for any purpose other than as permitted in this License Agreement, (vii) use someone else’s copyrighted or trademarked work with the Software, if you are not permitted to use it, (viii) use any pirated version of the Software or share the Software with a third party without the prior written permission of Parablu, (ix) attempt to impair the operation of the Software, (x) try to harm the Software in any way whatsoever, (xi) modify, alter or remove the copyright identifications, the trademarks, or any other intellectual property notice appearing on or included in the Software or which enables to identify the Software.

Any software Parablu and/or its licensors may provide You as part of the subscription are governed by this License Agreement, unless separate terms are provided. You agree that Parablu and/or its licensors may, for business purposes, collect, process, and use technical information gathered as part of any support services provided to You related to the Software and any other technical information You provide to Parablu.

All title and intellectual property rights in and to the Software, and any copies You are permitted to make herein, are owned by Parablu and/or its licensors and is protected by United States and other country patent, copyright, trade secret, and other laws and by international treaty provisions.

Acceptance of the Software occurs upon shipment by Parablu. Parablu and/or its licensors retain ownership of the Software. No rights are granted to You other than a license to use the Software upon the terms expressly set forth in this License Agreement. Such licensors, in addition to any other rights or remedies available to them, are third party beneficiaries of this License Agreement for their respective software and may have the right to enforce such terms against You. The structure, sequence, organization and source code of the Software are valuable trade secrets of Parablu and/or its licensors. Any reports regarding Your use of the Software and any other usage information, results, comments, or suggestions provided by You to Parablu regarding the Software (collectively, the “Feedback”) may be used by Parablu to improve the Software and its performance and also to prepare a data analysis on the usage of the Software among its users. By using the Software you agree that Parablu shall on occasions, at its sole discretion, provide the Feedback information to third parties during its business operations. By providing Feedback, You grant and assign to Parablu, under Your intellectual property rights and other ownership rights, a worldwide, royalty-free, irrevocable, and non-exclusive license, with the right to sublicense to Parablu’s Licensees and customers, the rights to use and disclose the Feedback in any manner Parablu chooses, and to display, perform, copy, make, have made, use, sell, and otherwise dispose of Parablu’s products embodying the Feedback in any manner and via any media Parablu or its sub-licensees choose, without obligation to You. To the extent that You may acquire by operation of law or equity, any right, title, or interest, including any intellectual property rights, in or to the Feedback, or any modifications, or developments related thereto, You hereby assign to Parablu Your entire right, title, and interest, including all intellectual property rights, therein and thereto, and agree to execute any necessary documents as reasonably required and requested by Parablu in connection with the foregoing. The above provisions and rights granted regarding title and intellectual property rights associated with the Software and the Feedback shall survive termination of this License Agreement.

Intellectual Property Ownership

Parablu alone shall own all right, title and interest, including all related intellectual property rights, in and to the Software and any suggestions, adaptation, translation, modification, ideas, enhancement requests, Feedback, recommendations or other information provided by You relating to the Software. This License Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software, or any intellectual property rights owned by Parablu. The Company name, the Company logo, and the product names associated with the Software are trademarks of the Company or third parties, and no right or license is granted to You to use them. All rights not expressly granted hereunder are expressly reserved by Parablu.

Third Party Interactions

During use of the Software, you may enter into correspondence or an activity with the third parties. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. The Company and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction between You and any such third-party. The Company does not endorse any sites on the Internet that may be linked through the Software, and in no event shall the Company or its licensors be responsible for any content, services or other materials on or available from such sites or third parties. The Company provides the Software to you pursuant to the terms and conditions of this License Agreement. You recognize, however, that certain third-parties may require your agreement to additional or different terms and conditions prior to your use of or access to their services, and the Company disclaims any and all responsibility or liability arising from such agreements between you and the third parties.

Support Services

Parablu shall provide You with support services in consideration for the subscription payment or in consideration of an annual support fee. You shall have the right to receive bug fixes and upgrades to minor versions of the Software. Parablu, at its sole discretion, may make new features, and major release versions available during the term of the subscription agreement. Additionally, Parablu may modify the terms and conditions that apply to Your use of the Software to reflect such updated versions of the software and You agree to such updated terms.

Fees & Payment

In consideration of the rights granted to use the Software under this License Agreement, You shall pay to Parablu the price of the Software in the form of a perpetual license price or in the form of a periodic subscription amount in accordance with the purchase order which governs this sale. You expressly agree that all the payments made by You under this License Agreement to Parablu are firm and not refundable.

Audit rights

You agree that, upon a three (3) business days’ written notice given to You, Parablu or a third party appointed by Parablu, may at its own costs inspect and audit Your records and/or premises, to ensure that Your use of the Software complies with the terms and conditions of the license granted under this License Agreement. You agree to co-operate with Parablu or the third party appointed by Parablu so that such audit can be carried out. In the event, you do not co-operate with Parablu or the third party appointed by Parablu for such audit, then the audit team shall determine the extent of unauthorised usage based on the information available and such audit report shall be final and binding on You.

If the audit reveals any unauthorized use of the Software, You shall immediately take steps to correct such use and pay the due amount for the additional licenses that would have been necessary for Your use of the Software in compliance with the terms of this License Agreement, the due amount being the then current price of the additional licenses. You agree that the foregoing right of raising invoice for unauthorized use of the Software is without prejudice to any other legal remedies available to Parablu under law. This audit right shall remain in force for two (2) years after the termination or expiration of this License Agreement for any reason whatsoever.

Indemnification

By entering into License Agreement and using the Software, you agree that you shall defend, indemnify and hold the Company, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys, assigns and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
a. your violation or breach of any term of License Agreement or any applicable law or regulation, whether or not referenced herein; or
b. your violation of any rights of any third party while using the Software; or
c. your use or misuse of the Software.

Software Labelled “Not for Resale” or Provided for Beta, Demonstration, Test, or Evaluation Purposes

If the Software is provided to you for beta, demonstration, test or evaluation purposes or is labelled “Not for Resale,” then, notwithstanding anything to the contrary in this License Agreement: (i) The licenses granted herein shall be for a term of thirty (30) days (the “Evaluation Period”) unless otherwise agreed to in writing by Parablu, and Parablu reserves the right to terminate this License Agreement or any licenses granted hereunder immediately upon written notice at its convenience; (ii) Your use of the Software is limited to use for demonstration, test or evaluation purposes, and you may not resell or otherwise transfer the Software; (iii) You agree to keep confidential and not to disclose or otherwise make publicly available any information related to the Software, including, but not limited to test results, characteristics, and performance of the software; (iv) You agree not to copy the Software and not to provide a copy of the Software to any other party; (v) You agree not to use the Software in a production environment or for production data processing purposes, and that any use of the Software in a production environment or for production data processing purposes is at your sole risk to backup data and take other appropriate measures to protect your computer programs and data; and (vi) You agree to immediately, on or before the end of the Evaluation Period, promptly remove, destroy, and erase from computer memory and storage media any installed copy of the Software, and return the Software to Parablu together with all documentation and other materials provided by Parablu. Limited duration licenses, site licenses, beta, evaluation, test or demonstration Software products are delivered “AS IS” without a warranty of any kind. Parablu shall have no obligation to support, maintain, or provide other assistance regarding any limited duration licenses, site licenses, beta, evaluation, test, or demonstration Software products. IF THE SOFTWARE IS PROVIDED TO YOU FOR BETA, DEMONSTRATION, TEST, OR EVALUATION PURPOSES OR IS LABELED “NOT FOR RESALE,” IN NO EVENT WILL Parablu BE LIABLE FOR ANY DAMAGES FOR ANY CAUSE OR FOR ANY CLAIM BY BORROWER OR FOR ANY THIRD PARTY CLAIM, INCLUDING BUT NOT LIMITED TO ANY DIRECT DAMAGES, ACTUAL DAMAGES, LOST PROFITS, LOST DATA, LOST SAVINGS, OR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF Parablu HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Note on JAVA Support

THIS SOFTWARE PRODUCT MAY CONTAIN SUPPORT FOR PROGRAMS WRITTEN IN JAVA. JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

Prerequisites

You acknowledge that you have been made aware of the technical pre-requisites such as hardware and software required to run the Software, prior to the conclusion of this License Agreement.
You are responsible for and in charge of the purchase, the use and the upgrade/ maintenance of any third party’s software license/ hardware required for the running of the Software.

Limited Warranty

With the exception of Software provided to You for beta, demonstration, test or evaluation purposes or that is labelled “Not for Resale”, Parablu warrants that the Software licensed hereunder shall be new and shall operate substantially in accordance with the capabilities as advertised, for a period of thirty (30) days from the date of shipment by Parablu (hereinafter the “Warranty Period”). If, during the Warranty Period, You believe any Software product to be defective, You must immediately notify Parablu in writing and follow Parablu’s instructions regarding the return of such Software product. Parablu’s sole liability to You, and Your sole remedy, shall be, at Parablu’s option, (i) repair or replacement of the Software product which does not comply with this Limited Warranty, or (ii) return of the amount paid by You for the Software product which does not comply with the Limited Warranty. In the event Parablu determines that the software product is in compliance with this Limited Warranty, You shall pay the cost of all charges associated with the inspection and shipment of such Software product by Parablu.

Governing Law and Jurisdiction

The export of the Software may be restricted by the export control laws of the United States of America and other countries. You agree to comply strictly with all such regulations and acknowledge that You have the responsibility to obtain licenses to export, re-export, or import Software. This License Agreement shall be governed by the laws of California, USA without regard to any provisions concerning the applicability of the laws of other jurisdictions. This License Agreement is the complete and exclusive statement of Your agreement with Parablu with respect to the subject matter hereof and supersedes all prior agreements. If any provision of this License Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this License Agreement shall remain in full force and effect. You and the Company agree that any legal disputes or claims arising out of or related to License Agreement (including but not limited to the use of the Software, or the interpretation, enforceability, revocability, or validity of the Agreement, or the arbitrability of any dispute), that cannot be resolved informally shall be submitted to binding arbitration in the state in which License Agreement was performed. The arbitration shall be conducted by the American Arbitration Association under its Commercial Arbitration Rules, or as otherwise mutually agreed by you and the Company. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be brought within the time required by applicable law. You and the Company agree that any claim, action or proceeding arising out of or related to License Agreement must be brought in your individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative, collective, or class proceeding.

Disclaimer

PARABLU DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE. THIS LIMITED WARRANTY PROVIDED HEREIN IS IN LIEU OF ALL OTHER WARRANTIES. PARABLU AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND PARABLU AND ITS LICENSORS EXPRESSLY EXCLUDE AND DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THE PROVISIONS SET FORTH ABOVE STATE PARABLU’S AND ITS LICENSORS’ ENTIRE RESPONSIBILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF ANY WARRANTY.

No Consequential Damages

NEITHER PARABLU, NOR ANY OF ITS LICENSORS, WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY OTHER PARTY, FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOSS OF INFORMATION OR DATA OR ANY OTHER SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR FAILURE TO MEET ANY DUTY INCLUDING GOOD FAITH OR REASONABLE CARE, FOR NEGLIGENCE, FOR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) REGARDLESS OF THE FORM OF ACTION OR RESULTING FROM THE LICENSE OF SOFTWARE PRODUCTS OR USE BY YOU OR ANY OTHER PARTY OF SUCH PRODUCTS, OR INABILITY TO USE THE SOFTWARE AND EVEN IF Parablu OR ANOTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF THIS LIMITED WARRANTY.

Limitation of Liability

IN THE EVENT PARABLU OR ITS LICENSORS ARE SUBJECT TO ANY LIABILITY IN CONNECTION WITH THE SOFTWARE PRODUCT FOR ANY REASON WHATSOEVER WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE NEITHER PARABLU’S LIABILITY NOR THE LIABILITY OF ITS LICENSORS SHALL EXCEED THE SUM PAID BY YOU TO Parablu FOR THE SOFTWARE PRODUCT WHICH WAS FOUND TO HAVE NOT COMPLIED WITH THIS LIMITED WARRANTY. THIS LIMITATION SHALL APPLY EVEN IF PARABLU OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY.

United States Government and DOD

This article applies to all acquisitions of this Software by or for the Federal Government. By accepting delivery of this Software, You hereby agree that this software qualifies as “commercial computer software” as that term is used in the acquisition regulation(s) applicable to this procurement. The terms and conditions of this License Agreement shall pertain to the Government’s use and disclosure of this Software, and shall supersede any conflicting contractual terms and conditions. If this License Agreement fails to meet the Government’s minimum needs or is inconsistent in any respect with Federal procurement law, the Government agrees to return this software, unused, to Parablu.
All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.

Trademark Acknowledgment

Parablu, Parablu Systems and logo, ParaCloud, Blu-Cloud, BluSync, BluDoD, BluTrak, BluChek, BluSafe, BluVault, BluKrypt, and “The Cloud You Can Trust” are trademarks, and may be registered trademarks of Parablu Inc.

Patent Acknowledgment

This Software is covered by patent 9282168 granted by the USPTO.

Copyright Acknowledgment

© 2012-2017 Parablu Inc. All rights reserved .

 

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