ClearSky Data, Inc., located at 100 Summer Street, Boston, MA 02110 ("ClearSky") is willing to license the Software to you under these ClearSky License Terms and Conditions (the "Terms") and only upon the condition that you accept all of these Terms. By clicking on the "I accept" button or by installing or using the Software, you indicate that you understand and agree to all of these Terms. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms, in which case "you" and “your” shall refer to such entity.If you do not agree to these Terms, you may not install or use the Software.
"Documentation" means the end user documentation relating to the Software furnished by ClearSky to users.
"Software"means certain supplemental software such as applications or tools relating to the data monitoring application for Splunk as made available to you by ClearSky in its sole discretion under these Terms for your use in conjunction with the ClearSky Service. As used herein the term “Software” shall include Updates and Documentation.
“Service” means the ClearSky storage managed service made available by ClearSky under a separate written license agreement.
2.1 License. Subject to your agreement to and compliance with these Terms, ClearSky grants to you a limited, nonexclusive, nontransferable license, without the right to sublicense, to: (a) execute the Software solely for the purpose of operating ClearSky’s Service; (b) install an unlimited number of copies of the Software, in object code form only, at a location owned or controlled by you; (c) use each copy of the Software installed solely in conjunction with your use of the ClearSky's Service in accordance with the Documentation and solely for your internal purposes; and (d) make copies of the Software for archival and backup purposes only. This Agreement does not provide you with a license to use the Service. The Service must be licensed pursuant to a separate written agreement between you and ClearSky or an authorized ClearSky partner.
2.2 Restrictions. You acknowledge and agree that the Software and its structure, organization, source code, and Documentation constitute valuable Intellectual Property Rights (as defined in Section 7.1) of ClearSky. You agree not to: (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) merge the Software (in whole or in part) with any other software; (c) distribute, sublicense, lease, rent, loan, make available or otherwise transfer the Software to any third party; (d) reverse-engineer the Software or decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (e) otherwise use or copy the Software except as expressly permitted hereunder.
3. NO WARRANTY AND DISCLAIMER. CLEARSKY PROVIDES THE SOFTWARE AND THE DOCUMENTATION "AS IS" WITHOUT WARRANTIES OF ANY KIND. CLEARSKY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND RELATING TO SOFTWARE OR SERVICES PROVIDED HEREUNDER, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. CLEARSKY DOES NOT WARRANT THAT THE SOFTWARE WILL IN EVERY CASE PROCESS ALL DATA CORRECTLY, OR THAT OPERATION OF THE SOFTWARE, WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. THE DISCLAIMERS IN THIS SECTION 3 WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE SOFTWARE IS NOT DESIGNED, INTENDED, OR CERTIFIED FOR USE IN COMPONENTS OF SYSTEMS INTENDED FOR THE OPERATION OF WEAPONS, WEAPONS SYSTEMS, NUCLEAR INSTALLATIONS, MEANS OF MASS TRANSPORTATION, AVIATION, MEDICAL SYSTEMS, DEVICES, IMPLANTS, OR EQUIPMENT, POLLUTION CONTROL, HAZARDOUS SUBSTANCES MANAGEMENT, OR FOR ANY OTHER DANGEROUS APPLICATION IN WHICH THE FAILURE OF THE PRODUCTS COULD CREATE A SITUATION WHERE BODILY INJURY OR DEATH MAY OCCUR. YOU UNDERSTAND THAT USE OF THE SOFTWARE IN ANY SUCH APPLICATION IS SOLELY AT YOUR OWN RISK.
4. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL CLEARSKY BE LIABLE FOR (A) ANY DIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES, OR (B) ANY DAMAGES FOR LOST DATA, LOST PROFITS, LOST ANTICIPATED SAVINGS, OR THE COST OF PROCUREMENT OF SUBSTITUTE OR ALTERNATIVE HARDWARE, SOFTWARE OR SERVICES, IN EITHER EVENT ARISING FROM OR RELATING TO THESE TERMS OR THE SOFTWARE, EVEN IF CLEARSKY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. CLEARSKY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THESE TERMS AND THE SOFTWARE, WHETHER IN CONTRACT, WARRANTY, TORT, STATUTE, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE FOR THE SOFTWARE. CLEARSKY DOES NOT LIMIT OR EXCLUDE ANY LIABILITY TO THE EXTENT THAT IT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
5. UPDATES. ClearSky shall have no obligation under these Terms to furnish any bug fixes, enhancements, or updates (“Updates”) to you. Any Updates, that ClearSky may provide will be deemed part of the Software and licensed to you under these Terms.
6. CONFIDENTIALITY. The Software, any benchmark or performance tests relating to the Software, any underlying service or software, and any methodologies, technical information or know-how relating thereto and information regarding ClearSky’s business is considered ClearSky’s "Confidential Information". Confidential Information excludes information to the extent it is or becomes publicly available. You shall protect the Confidential Information from disclosure to third parties using the same degree of care that you use to protect your own like information and, in any event, will use no less than a reasonable degree of care in protecting such Confidential Information. You will use the Confidential Information only for those purposes expressly authorized in these Terms. You will not disclose to third parties the Confidential Information without the prior written consent of ClearSky.
7.1 Intellectual Property Rights. You acknowledge and agree that ClearSky and its suppliers exclusively own all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, and other intellectual property rights worldwide (collectively, "Intellectual Property Rights") in and to the Software, the Documentation, and all Confidential Information. ClearSky and its suppliers expressly reserve all rights not expressly granted to you in these Terms. There are no implied licenses granted hereunder. You shall not engage, and will not authorize or direct any third party to engage, in any act or omission that would impair any Intellectual Property Right of ClearSky or any of its suppliers.
7.2 Feedback. Any questions, comments, or feedback provided by you to ClearSky regarding the Software and any other services, or materials provided by ClearSky (collectively, "Feedback") will be deemed non- confidential and non- proprietary information for purposes of these Terms. ClearSky will have no obligation to you or any third party with respect to such Feedback, and be free to use and exploit such Feedback in any form or manner and for any purpose and without payment of any consideration to you or any third party.
7.3 Trademarks. You will not remove, deface, or obscure any ClearSky copyright or trademark notices and/or legends or other proprietary notices on, incorporated in, or associated with the Software and you will include such notices on all copies of the Software.
8. TERM AND TERMINATION. ClearSky may terminate these Terms immediately, with or without notice. Sections 1, 2.2, 3, 4, 5, 6, 7, and 9 will survive the termination or expiration of these Terms for any reason. If ClearSky believes, in its sole discretion, that you have violated or attempted to violate any term, condition, or the spirit of this Agreement, the license to and ability to use and access the Software may be temporarily or permanently revoked, with or without notice.
9.1 Governing Law. These Terms will be governed by the laws of the State of Massachusetts, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding arising from or relating to these Terms must be brought in a state or federal court located in Middlesex County, Massachusetts, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding, except that ClearSky may file a claim or take action in any court having jurisdiction to protect its Intellectual Property Rights or Confidential Information.
9.2 Miscellaneous. ClearSky may freely assign its rights or delegate any of its duties under these Terms. You may not assign or transfer, by operation of law or otherwise, any of your rights under these Terms without ClearSky’s prior written consent. Any attempted assignment or transfer by you in violation of the foregoing will be void. All waivers must be in writing. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of these Terms is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
9.3 Export Restrictions; Entire Agreement. You acknowledge that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin. You agree that you will not export or re-export the Software in any form without the appropriate United States and/or foreign government licenses. You shall not, unless authorized by U.S. export license or other government authorizations, directly or indirectly export the Software to (or use the Software in) countries subject to U.S. embargoes or trade sanctions programs. You are not a party, nor will it export or re-export to a party, identified on any government export exclusion lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists; and will not use the Software for any purposes prohibited by US law. Headings used in these Terms are for ease of reference only and shall not be used to interpret any aspect of these Terms. These Terms constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Nothing in this Agreement shall modify or supersede any agreement between the parties regarding the Service. Nothing in these Terms, express or implied, is intended to nor shall be construed to confer upon or give to any third party (including any customer) other than the parties hereto, any interest, right, remedy, or other benefit with respect to or in connection with these Terms.