RACEMI CLOUD PATH TERMS AND CONDITIONS
RACEMI TERMS AND CONDITIONS (this “Agreement”)
RACEMI CLOUD PATH SOFTWARE or RACEMI SOFTWARE AS A SERVICE OR RACEMI HOSTED SOFTWARE (the “Product”)
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS REGARDING YOUR USE OF AND/OR ACCESS TO THE PRODUCT, INCLUDING ANY CODE, DOCUMENTATION, PRODUCT INFORMATION OR ASSOCIATED HOSTING SERVICES, BEFORE USING OR ACCESSING THE PRODUCT.
These Racemi Terms and Conditions constitute a legally binding agreement between the INDIVIDUAL OR business entity identified on the registration information (also referred to as “You” or “User”) and Racemi, Inc. (“Racemi”) for access to and use of Product. By entering the registration information below and checking on the button entitled “I accept” during registration or by otherwise accessing and using the Product at any time, You agree to be bound by this Agreement. BY INDICATING YOUR ACCEPTANCE, YOU INDICATE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND YOUR EMPLOYER TO THIS AGREEMENT. THE EFFECTIVE DATE HEREOF SHALL BE THE EARLIER OF THE DATE OF SUBMISSION OF YOUR REGISTRATION OR THE DATE UPON WHICH YOU FIRST INSTALL, ACCESS, USE OR RECEIVE A DEMONSTRATION OF THE PRODUCT.
IF YOU ARE ACCESSING THE PRODUCT AS PART OF A PROMOTIONAL OFFER, THE TERMS AND CONDITIONS OF THE PROMOTIONAL OFFER FURTHER APPLY WITH RESPECT TO YOUR ACCESS TO AND USE OF THE PRODUCT.
1. PRODUCTS. RACEMI MAY PROVIDE USER WITH ACCESS TO A VERSION OF THE PRODUCT AS APPLICABLE, OR CERTAIN COMPONENTS OF THE PRODUCT, OR MAY PROVIDE USER WITH ACCESS TO PRODUCT DEMONSTRATION(S). FOR RACEMI HOSTED SERVICES OR SOFTWARE AS A SERVICE OFFERINGS, RACEMI MAY PROVIDE USER WITH REMOTE ACCESS AND USE OF THE PRODUCT, OR CERTAIN COMPONENTS OF THE PRODUCT. RACEMI RESERVES THE RIGHT TO CHARGE FEES FOR USE OF OR ACCESS TO THE PRODUCT IN ACCORDANCE WITH THE TERMS AND CONDITIONS AND BILLING PROCEDURES PROVIDED WITH THE APPLICABLE PRODUCT.
(a) For Distributed Products. User agrees to complete Racemi’s enrollment request process by, upon Racemi’s request, completing the registration process. Upon receipt of User’s registration and acceptance of this Agreement, Racemi, in its sole discretion, will deliver a license file, deliver related software files, or provide access to Product, as the case may be, to User. Upon receipt of a valid Product license file from Racemi, User agrees to deploy the license file to each and every computer where the Product will operate. The Product will be provided solely for User’s nonexclusive, nontransferable, internal and limited use on, or in connection with, the computer(s) that User has identified or will identify to Racemi. User may copy any distributed Product solely for backup or archival purposes for use during the Period. User acknowledges and agrees that Racemi may refuse to send a valid Product license file or Product if User has not fully completed the registration process.
(b) For Hosted (Saas) Products. Hosting services or SaaS offerings shall mean the provision by Racemi to User of online, remote access and use of the Product located in a single application environment (“Instance”) to be provided by Racemi to User. Upon receipt of access to any hosted (SaaS) Product, User will provide use and access to the hosted (SaaS) Product only as set forth herein. User acknowledges and agrees that Racemi may refuse to provide access to any hosted Product if User has not fully completed the registration process or fails to comply with the terms of this Agreement. In the case of a hosted (SaaS) Product, access thereto will be provided solely for User’s nonexclusive, nontransferable, internal and limited use as set forth herein or in any applicable registration form. If User fails to complete the Product testing criteria, access to or use of the Product may cease to function.
(d) Ownership. The Product is a trade secret of Racemi and Confidential Information of Racemi and its licensors. User agrees to keep the Product strictly confidential and to comply with the requirements of Section 9 (“Confidential Information”) of this Agreement. Title to the Product and all other Confidential Information and all changes, modifications and derivative works thereto shall remain with Racemi and its licensors. The Product is protected by copyright, patent, trademark and other laws and international treaties. All rights not expressly granted under this Agreement are reserved to Racemi.
2. RESTRICITONS. WITHOUT THE PRIOR WRITTEN CONSENT OF RACEMI, USER SHALL NOT:
(a) Transfer, assign, sublicense, use, copy, distribute or modify the Product, in whole or in part, except as expressly permitted in this Agreement, or outsource or use the Product to provide services for or on behalf of any third party, including ,without limitation, for service bureau or MSP services;
(b) Use the Product to develop or market any conversion utility or aid specific thereto that would enable users to convert from the Product to an alternative product;
(c) Modify, create derivative works from, adapt or translate any part of the Product, or decompile, reverse assemble or otherwise reverse engineer the Product, except as expressly permitted under applicable law, or attempt to determine any source code for the Product;
(d) Use the Product to assist in the development or design of a computer software program that is intended to provide substantially similar functionality as the Product;
(e) Remove or alter any of the copyright notices or other proprietary markings on any copies of the Product; or
(f) insert or allow for the insertion of, a virus, Trojan horse or other disabling or disrupting item of code.
3. USAGE PERIOD. The term of usage under this Agreement (the “Period”) shall commence on the date Racemi delivers or provides access to the Product to User and shall end upon the earlier of: (a) the date Racemi discontinues the Product, as Racemi may determine in its sole discretion; (b) the date User discontinues use of the Product; or (c) the date of termination of this Agreement by Racemi, as provided herein. For limited promotional offers, the Period will continue for the duration stated in the promotional offer and will terminate upon expiration of the promotional period. Within three (3) days after termination, unless otherwise agreed to in writing by Racemi, User will (a) either return to Racemi all Confidential Information (as defined below), and all copies thereof, or if so instructed by Racemi, destroy such Confidential Information and all copies thereof and certify in writing to Racemi that such has been destroyed.
4. DOCUMENTATION. During the Period, Racemi may from time to time, in its sole discretion, provide access to available publications, education materials and other documentation respecting the Product (the “Documentation”) to User. All such Documentation, whether or not marked with a trademark notice, copyright notice or restrictive legend, such as “Racemi Confidential,” shall be considered the confidential and proprietary property of Racemi and shall be provided to User subject to the confidentiality provisions of this Agreement.
5. USER OBLIGATIONS.
(a) User acknowledges and agrees to comply with the terms of, and perform the obligations set forth in, Appendix A attached hereto.
(b) User is responsible for and will ensure: (i) compliance with all applicable data protection and privacy protection requirements regarding User’s data processed by the Product and (ii) recovery of any User’s data deleted by User. User acknowledges and agrees that User is solely responsible for the physical, logical and technical security, back-up, archival and recovery procedures, and safeguards for the User servers, software, connectivity and equipment operated, maintained, or provided by User and the image libraries and associated data contained therein. User shall ensure that it has implemented back-up, archival and recovery procedures adequate to prevent loss or destruction of data or any portion of the image library and to prevent any business interruption or business loss of User or any end user or customer of User due to or in connection with the access to or use of the Product. Racemi shall have no liability to User or any third party, including, without limitation, any end user or customer of User, for any breach of security or any loss or destruction of data or any portion of the image library or for any business interruption or business loss, regardless of the cause.
(c) Racemi is not responsible for the security or regulatory compliance of data contained in images captured and/or provisioned by Racemi hosted software. User is responsible for reviewing their own licensing agreements and their cloud vendors licensing policies. User is solely response for ensuring that User has all applicable rights, licenses and authorizations or permissions necessary to copy, provision, transmit or store any images that are captured or deployed using the Racemi services and that such use does not violate, infringe upon, or misappropriate the intellectual property rights or other personal or proprietary rights of any person or entity or violate the terms of any agreement of User with a third party.
6. DISCLAIMER; LIMITATION OF LIABILITY. Racemi may, but has no obligation to, correct bugs or errors in the Product, Documentation or any associated hosting services, as determined, in its sole discretion. Racemi has no obligation to provide support or support tools, or to update, maintain or to continue to host any part of the Products. Racemi does not guarantee or assume responsibility for any impact of use of the Product or any associated hosting services (SaaS) on User’s existing production or other environment or on CPU performance or on any system images or data therein. User acknowledges that the Product may contain bugs, defects and errors. User agrees that Racemi makes no representations regarding the availability, completeness, accuracy of, or User’s use or operation of, the Product or the hosting services. The Product, Documentation AND HOSTING SERVICES are being PROVIDED “AS IS,” IN ITS PRESENT STATE AND CONDITION, WITHOUT WARRANTIES OF ANY KIND. RACEMI DOES NOT WARRANT OR REPRESENT THAT THE PRODUCT OR HOSTING SERVICES WILL MEET USER’S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCT OR HOSTING SERVICES WILL BE ACCURATE, UNINTERRUPTED, SECURE, ERROR FREE OR WILL APPEAR AS DESCRIBED IN THE DOCUMENTATION. RACEMI AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, AND UNDERTAKINGS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF TITLE OR NON-INFRINGEMENT. IN NO EVENT WILL RACEMI BE LIABLE TO USER OR ANY OTHER PERSON FOR LOSSES OR DAMAGES, DIRECT OR INDIRECT, OR EXPENSES INCURRED BY USER IN CONNECTION WITH THE USE OF OR ACCESS TO THE PRODUCT OR HOSTING SERVICES, INCLUDING LOST, STOLEN OR DESTROYED DATA, LOST PROFITS, BUSINESS INTERRUPTION, TIME, MONEY, GOODWILL OR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF THE ACCESS OR USE OR INABILITY TO USE THE PRODUCT OR HOSTING SERVICES EVEN IF RACEMI HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. USER ASSUMES ALL RISKS ASSOCIATED WITH THE ACCESS TO AND USE OF, OR EXCHANGE OF INFORMATION OR DATA WITH, THE PRODUCT. USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE ACCESS AND USE OF THE PRODUCT AND THIS AGREEMENT BY WRITTEN NOTICE TO RACEMI.
7. INDEMNIFICATION. User agrees to indemnify, defend and hold harmless Racemi, its parents, subsidiaries, and affiliates, and their officers, directors, employees, agents, successors and assigns (collectively, “Indemnified Parties”) from and against all liability to third parties and reimburse the Indemnified Parties for all costs and expenses (including, without limitation, all settlements, judgments, fines, damages, reasonable legal fees, court costs, expert fees, etc.) by reason of any claim, demand, penalty or judicial or administrative proceeding or investigation to the extent arising from or in connection with: (i) any claim that the capture, transfer or deployment of any images, data or server instance violates, infringes upon, or misappropriates any intellectual property rights or other personal or proprietary rights of any person or entity or violates the terms of any agreement; (ii) breach by User of its covenants or obligations under this Agreement; (iii) User’s violation of applicable federal, state, local or municipal laws, rules, regulations, ordinances, or orders, in connection with User’s use of the Product; or (iv) any access to or use of the Product, including, without limitation, the hosting services, in a manner that is unauthorized or otherwise inconsistent with the rights and responsibilities granted in this Agreement. User will not enter into any settlement that imposes any liability or obligation on the indemnified party, or contains any admission or acknowledgement of wrongdoing (whether in tort or otherwise), without the indemnified party’s prior written consent. Racemi may join in the defense, with its own counsel, at its own expense.
8. NO COMMITMENT TO FUTURE RELEASE. Racemi does not guarantee that future releases of the Product will be identical to the current Product. Therefore, a re-installation or reconfiguration of the future version of the Product may be required. It is understood that Racemi is not obligated, nor will it be obligated in the future, to make the Product available as a standard Racemi product, appliance or service, or to incorporate any User feedback therein. You acknowledge and agree that you have not relied upon any statements, written or oral, provided by or on behalf of Racemi to the contrary in determining to participate as a User or to access or use the Product.
9. CONFIDENTIAL INFORMATION. In the performance of this Agreement, User may have access to know-how, trade secrets and other confidential information (“Confidential Information”) owned by Racemi, including, without limitation, the Product, Documentation and reports and feedback from third party Users of the Product. User agrees to keep the Confidential Information strictly confidential and not to permit anyone to have access to such Confidential Information other than User’s authorized employees. User further agrees that it will treat any report provided to Racemi and any other information related to the Product, including, without limitation, any such information created by User, disclosed by User or disclosed by Racemi concerning the Product, as Racemi Confidential Information hereunder. User agrees not to copy, disclose, publish, display or otherwise make available the Confidential Information, or any information gained from its use of the Confidential Information to any third party, without the prior written consent of Racemi. User agrees to secure and protect the Confidential Information and any copies thereof in a manner consistent with the maintenance of Racemi’s rights herein, which in any event shall not be less than reasonable care in accordance with applicable industry standards, and to take all necessary and appropriate action by instruction or agreement with its employees who are permitted access to the Product to satisfy User’s obligations hereunder. The obligations of confidentiality under this Agreement shall continue: (a) with respect to Confidential Information that is not considered a “trade secret” for a period of five (5) years after termination of the Testing Period and (b) with respect “trade secrets”, for so long as that information retains its status as a trade secret under applicable law, and for no less than five (5) years.
10. FEEDBACK; PUBLICITY. User acknowledges and agrees that Racemi may use any report, feedback or other information provided by User related to the Product for any Racemi business purpose, without any further consent or accounting in the development, manufacture, marketing and maintenance of the Product and other Racemi products and services, including reproduction and preparation of derivative works based upon such reports, as well as distribution of such derivative works. Racemi reserves the right to disclose User’s employer as a Racemi customer, without further consent from the User. Racemi also reserves the right to include the total number of transactions performed by User within the aggregate statistics regarding use of the Product and Hosting Services and to disclose those aggregate statistics, without further consent from User. Nothing contained herein shall be construed as conferring upon User any right to use in advertising, publicity or other marketing activities, any name, trade name, trademark, or other designation of Racemi, or to refer to the existence hereof in any promotional activity, without the express written consent of Racemi.
11. EXPORT REQUIREMENTS. User acknowledges that the Product is provided with “Restricted Rights” as set forth in 48 C.F.R. Sec. 12.212, 48 C.F.R. Sec. 52.227-19(c)(1) and (2) or DFARS Sec. 252.227.7013(c)(1)(ii) or such applicable successor provisions. Racemi is the manufacturer of the Product. User is required to observe the relevant U.S. Export Administration Regulations and other applicable regulations. In connection with such requirement, User hereby represents and warrants that it will use the Product only for testing purposes and User will not rent, lease, sell, sublicense assign or otherwise transfer or export the Product or provide access to the Product in violation of applicable export requirements. Further, User represents and warrants that it shall not transfer or export any product, process, or service that is the direct product of the Product. Outside the United States, no product support services, if available, will be offered by Racemi, without a proof of purchase or license from an authorized source.
12. ASSIGNMENT; RELATIONSHIP OF THE PARTIES. User may not assign this Agreement or its rights and obligations under this Agreement without the prior written consent of Racemi. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.
13. TERMINATION. Racemi may terminate this Agreement without cause by giving written notice of termination to User. Racemi may immediately terminate this Agreement in the event of any failure to comply with any of the above terms. Such termination shall be in addition to and not in lieu of any criminal, civil or other remedies available to Racemi.
14. GOVERNING LAW. The provisions of this Agreement and all the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to principles of conflicts of laws.
15. MODIFICIATION. Racemi may modify this Agreement at any time, in its discretion, by posting a revised version on the registration website for the Product or otherwise making it available to User for review. Any modifications to this Agreement will supercede the Agreement after posting or availability of the modified Agreement and the continued access to and use of Product after posting or availability of the modified Agreement constitutes User’s agreement to the modifications.
16. The terms of this agreement supersede any other prior or contemporaneous communications (both oral and written) or agreements entered into by User with Racemi regarding the subject matter set forth in this Agreement.
1. User grants Racemi the right to perform the following actions on their behalf:
2. User acknowledges that Racemi is not responsible for charges incurred by User for cloud provider services, including, but not limited to, fees associated with cloud server instances or storage fees for images.
3. User acknowledges User’s responsibility for the termination, deletion, or removal of cloud server instances that have been instantiated by Racemi, successfully or otherwise. Additionally, User acknowledges responsibility for the removal of captured server images stored in the cloud.
4. User acknowledges that Racemi is not liable for cloud provider fees incurred due to user error, including but limited to, incorrect entry of numbers, incorrect selection of UI settings, failure to terminate cloud server instances, failure to remove images from storage, and/or incorrect selection of cloud services.
5. Successful deploy transactions are defined as follows: A) successful creation of a new server instance in the selected cloud environment, B) successful provisioning of User’s selected server image from Amazon S3 or SoftLayer Object Storage to the newly created server instance, C) successful boot of the deployed image on the server instance provisioned by the target cloud provider, D) User can successfully login to the provisioned server instance and run commands. Racemi makes no warranties that existing applications and/or services will function as expected by the User on cloud server instances. The User acknowledges that additional configuration of the server instance may be required by the User in order for provisioned servers to function according to the needs of the User.
6. Racemi is not responsible for the security or regulatory compliance of data contained in images captured and/or provisioned by Racemi hosted software. Images are stored in Amazon S3 storage or SoftLayer Object Storage and are subject to the security and privacy terms and conditions specified in the respective vendor’s license agreement. Please see the terms of your Amazon or SoftLayer agreement for further details.
7. User acknowledges that Racemi is not liable for any hardware or software licensing fees associated with cloud server usage or User images. User is responsible for reviewing their own licensing agreements and their cloud vendors licensing policies.
8. User acknowledges that User images stored in Racemi cloud storage may be deleted during the course of Product updates or refreshes.
If User determines that a Task that was listed by the Racemi software with a status of Success or Warning actually resulted in a server that did not meet the criteria identified in Appendix A Section 5 of this document, User must file an electronic ticket using the Racemi electronic support system built into Cloud Path within five (5) business days of the Task completion time to request either a correction of the task status, so that User won’t be charged for that task at the end of the billing period, or if User has already been charged, a refund for fees associated with the task in question. User is required to demonstrate to Racemi Support personnel the following in order to be eligible for a refund:
– See more at: http://www.racemi.com/tac/#sthash.fYcwi46e.dpuf