TERMS AND CONDITIONS FOR AZURE MARKETPLACE
Last Updated: 9/1/17
By accepting these Terms, You represent and warrant that you have authority to bind the individual or entity requesting access to the Racemi Materials via Azure Marketplace (referred to as “You” or “Customer”). These Terms and Conditions (“Terms”) constitute a legally binding agreement between You and Racemi, Inc. (“Racemi”). By checking on the button entitled “I accept” or by otherwise downloading, accessing or using the Racemi Materials, You agree to be bound by these Terms. PLEASE RETAIN A COPY FOR YOUR RECORDS.
You acknowledge and agree that you have completed Racemi’s enrollment and registration process for access to and use of the Racemi Materials for the Azure Marketplace and have executed a license agreement with Racemi for the Racemi Materials (the “License Agreement”) and have been issued License Credentials.
The License Agreement governs the use of the Racemi Materials, and, in the event of any inconsistency with these Terms, the terms and conditions of the License Agreement will supersede and control over these Terms.
2.1 Grant of Rights. Customer acknowledges that Customer receives a limited, revocable, non-exclusive, non-transferable right to use the Racemi Software (including installation of the DynaCenter Provisioning Agent Daemon (DPAD) (“Agent”) on the target server) as made available on the Azure Marketplace solely to perform authorized Migrations in accordance with the Documentation. Customer receives no right or license to the source code for the Racemi Software. Racemi reserves all rights not expressly granted. Upon completion of the applicable Migrations, Customer shall discontinue operation and use of the Racemi Software and shall uninstall the Agent from the target server and any Third Party Materials. In the event Customer enables a service provider or independent contractor to use the Racemi Software, Customer remains solely and fully responsible for compliance by such service provider or contractor and for all liabilities incurred through use of the Racemi Software and any Third Party Materials.
2.2. License Credentials. Customer is responsible for maintaining the security and confidentiality of the License Credentials and is fully responsible for all activities that occur under the License Credentials through the Azure Marketplace.
2.3 Restrictions on Use. Customer acknowledges that Customer shall not, and shall not permit any affiliate entity or third party to: (i) modify, disassemble, decompile, reverse engineer, attempt to discover source code, or otherwise create any derivative work of any part of the Racemi Materials or any Third Party Materials; (ii) use the Racemi Materials or any Third Party Materials for any purpose other than to perform authorized Migrations; (iii) rent, lease, loan, sell, license, sublicense, distribute, assign or otherwise transfer to a third party the Racemi Materials or any Third Party Materials, or any copy thereof, in whole or in part, without Racemi’s prior written consent; (iv) electronically transmit the Racemi Materials or Third Party Materials over a network except as necessary for permitted use by Customer of the Racemi Materials or Third Party Materials; or (v) use run-time versions of third-party products embedded in the Racemi Software, if any, for any use other than the permitted use of the Racemi Software. Customer shall not circumvent or render inoperative any protection procedures provided with the Racemi Software. Customer shall not use the Racemi Materials for the development or design of a computer software program intended to provide substantially similar functionality as the Racemi Software.
2.4 Usage Verification. Customer acknowledges that the Racemi Software contains an embedded license key function that activates the Racemi Software. The number of Migrations is tracked by the Racemi Software. Customer will enable and maintain an outbound HTTPS connection as provided in the Documentation to enable the Racemi Software to access and distribute automated activity or usage reports of the number of Migrations to Racemi solely for verification of the usage of the Racemi Software. Customer acknowledges that User must either (i) maintain the outbound HTTPS connection to enable delivery of the automated activity or usage reports to Racemi or (ii) execute a manual process to upload the reports to Racemi as described in the following documentation (https://racemi.host4kb.com/article/AA-00329/12/DynaCenter/How-to-report-DynaCenter-usage.html). If Customer fails to maintain such outbound HTTPS connection or establish the proper manual process, and such default is not remediated (or Customer has not provided a reasonable timeline for remediation) within five (5) business days following notice from Racemi, the License Credentials will expire and disable the Racemi Software, and Racemi shall have no liability for any disablement of the Racemi Software. Customer shall promptly install upon delivery by Racemi any version of the Racemi Software that includes updates to the automated tracking and reporting functionality for automated measurement of Migrations. Upon the request of Racemi, Customer agrees promptly (and no more than five (5) days after the request from Racemi) to generate and provide to Racemi an activity and usage report showing the number of Migrations completed during the previous month.
3.1 Fees. Customer shall pay the usage fees based on the applicable payment terms set forth in the License Agreement. The usage fees are calculated based on the Migration activity contained in the usage reports provided under Section 2.3. Racemi will invoice Customer for amounts due based the terms set forth in the License Agreement. Fees are due and payable in accordance with the payment terms provided on the invoice. Customer acknowledges that Any pre-paid amounts for Migrations obtained by User are non-transferable and non-refundable. Any unused Migrations will be void after any cancellation or expiration of the applicable usage period and cannot be transferred to another user or account. All fees are due and payable in U.S. Dollars. The fees do not include applicable taxes.
3.2 Service Provider Charges. Customer acknowledges that Racemi is not responsible for charges incurred by Customer or any End User for cloud service provider services, including, but not limited to, fees associated with cloud server instances or storage fees for Images or Workloads. Customer is responsible for the termination, deletion, or removal of cloud server instances that have been instantiated by the Racemi Software, successfully or otherwise. Additionally, Customer acknowledges responsibility for the removal of captured Images and Workloads stored in the cloud. Customer acknowledges that Racemi is not liable for cloud provider fees incurred due to user error, including but not limited to, incorrect entry of numbers, incorrect selection of UI settings, failure to terminate cloud server instances or Workloads, failure to remove Images or Workloads from storage, and/or incorrect selection of cloud services.
5.1 Image Library. Customer acknowledges that Customer is solely responsible for ensuring that the capture, transfer and deployment of each Image: (i) complies with all applicable data protection and privacy protection requirements regarding data included in the Image; (ii) is authorized and permitted under the applicable law of the territory in which the Racemi Software is used; and (iii) 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 the Customer with any third party. Racemi is not responsible and shall have no liability for compliance by Customer with applicable laws, including, without limitation, data security or regulatory compliance regarding any Images captured and/or provisioned by use of the Racemi Software.
5.2 Security. Customer acknowledges that as between Racemi and Customer, Customer is solely responsible for the physical, logical and technical security, back-up, archival and recovery procedures and safeguards for the Customer and/or End User servers, software, applications, data, connectivity and equipment operated, maintained or provided by Customer and/or the End User and the Images and associated data contained therein, including, without limitation, on which the Racemi Software may be installed and operated. Customer shall ensure that it or the applicable End User has implemented back-up and recovery procedures adequate to prevent loss or destruction of data or any portion of the Images and to prevent any business interruption or business loss of Customer or any End User due to or in connection with the performance of (or any malfunction of) the Racemi Software. Racemi has and shall have no liability to Customer or any third party, including, without limitation, any End User, for any breach of security or any loss or destruction of any data or any portion of the Images or for any business interruption or business loss, regardless of the cause.
5.3 Protection of Racemi Materials. Customer shall take appropriate steps and precautions to protect the Racemi Materials and to prevent any use, reproduction, distribution, disclosure, possession or other activity involving any part of the Racemi Materials that is not expressly authorized by Racemi.
5.4 Compliance with Laws. Customer shall comply with all applicable laws, rules and regulations in connection with its use of the Racemi Materials.
7.1 THE RACEMI MATERIALS, THIRD PARTY MATERIALS AND ANY SERVICES ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND IN THEIR PRESENT STATE AND CONDITION. RACEMI MAKES NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, AVAILABILITY, DURABILITY, PERFORMANCE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE RACEMI MATERIALS, THIRD PARTY MATERIALS OR PROVISION OF ANY SERVICES, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. NO ADVICE GIVEN BY AZURE, RACEMI, ANY RESELLER OR AN AUTHORIZED RACEMI REPRESENTATIVE CONCERNING THE RACEMI MATERIALS, ANY THIRD PARTY MATERIALS OR ANY SERVICES SHALL CREATE A WARRANTY. WITHOUT LIMITING THE FOREGOING, RACEMI DOES NOT WARRANT THAT THE RACEMI MATERIALS OR ANY THIRD PARTY MATERIALS ARE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED OR WILL PERFORM IN ACCORDANCE WITH CUSTOMER’S EXPECTATIONS. Racemi shall have no liability or responsibility to obtain any applicable rights, licenses, authorizations or permissions to copy, provision, transmit, or store any images of any servers, operating systems, content, data, software applications, system configurations, or related materials contained in any Images that are captured or deployed. RACEMI DOES NOT TEST ALL SERVERS OR OPERATING SYSTEMS/PLATFORMS WITHIN A SERVER FAMILY AND DOES NOT GUARANTEE SUPPORT FOR ALL MODELS AND/OR CONFIGURATIONS OF SERVER FAMILIES OR OPERATING ENVIRONMENTS. ACCORDING, RACEMI DOES NOT REPRESENT OR WARRANT THAT THE RACEMI SOFTWARE OR THIRD PARTY MATERIALS WILL OPERATE WITH OR SUPPORT ALL MODELS OR CONFIGURATIONS OF SERVER FAMILIES OR OPERATING ENVIRONMENTS.
7.2 Third-Party Materials. The Racemi Materials may interoperate with open source software or Third Party Materials. Use of open source software and Third Party Materials is subject to the terms and conditions imposed by the applicable third party licensors or providers of the open source software or Third Party Materials. The license granted to the Racemi Software does not relieve Customer from its obligations to third party licensors including, but not limited to, the number of licenses required. Racemi hereby expressly disclaims all warranties, whether express, implied, statutory or otherwise, related to any open source software or Third Party Materials, including, without limitation, any warranties of non-infringement, merchantability or fitness for a particular purpose. Racemi shall have no liability (including, without limitation, liability for any direct or indirect damages) based upon any open source software or Third Party Materials.
7.3 RACEMI SHALL NOT BE LIABLE TO CUSTOMER, ITS END USERS OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR PENALTIES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR OTHER BUSINESS OR PROPERTY DAMAGE) THAT ARISE OUT OF OR RELATE TO THE RACEMI MATERIALS, THIRD PARTY MATERIALS OR ANY SERVICES PROVIDED IN CONNECTION WITH THE AZURE MARKETPLACE, EVEN IF SUCH DAMAGES OR PENALTIES ARE FORESEEABLE OR RACEMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR PENALTIES. IN NO EVENT SHALL RACEMI’S CUMULATIVE LIABILITY FOR DAMAGES (DIRECT OR OTHERWISE) EXCEED IN THE AGGREGATE THE FEES THAT CUSTOMER HAS PAID FOR USAGE OF THE RACEMI MATERIALS, IF ANY, DURING THE THREE (3) MONTH PERIOD PRECEDING THE DATE SUCH CLAIM AROSE. RACEMI HAS MADE THE RACEMI MATERIALS AVAILABLE IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMER OF WARRANTIES SET FORTH HEREIN; THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. CLAIMS NOT MADE WITHIN SIX (6) MONTHS AFTER COMPANY KNEW OR SHOULD HAVE KNOWN OF THE EXISTENCE OF THE CLAIM SHALL BE DEEMED WAIVED.
7.4 THIS TERMS ARE ENTERED INTO SOLELY WITH CUSTOMER AND ARE NOT INTENDED FOR THE BENEFIT OF ANY THIRD PARTY OR CLASS OF THIRD PARTIES, WHETHER OR NOT IDENTIFIED HEREIN. IN NO EVENT SHALL RACEMI BE LIABLE TO CUSTOMER’S END USERS OR ANY THIRD PARTY UNDER THESE TERMS OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE. SUCH LIABILITY TO THIRD PARTIES HEREBY IS EXPRESSLY DISCLAIMED AND LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.1 Ownership. Customer acknowledges that Racemi (or its licensors) owns and retains all proprietary rights, including all patent, copyright, trade secret, trademark and other intellectual property rights, in and to the Racemi Property, and any enhancements, improvements, updates or other modifications thereto. In the event that any Racemi Property is used, whether permitted by Racemi or not, to create or develop any works including, without limitation, inventions, technology and software, such works and all intellectual property rights associated therewith shall automatically be deemed the exclusive property of Racemi, and Customer shall have no express or implied rights or license to such works or any intellectual property rights associated therewith.
8.2 Proprietary Notices. Customer shall retain Racemi’s copyright or proprietary rights notice on any copies of the Racemi Materials, including copyright or proprietary rights notices of third parties that are included on media or in documentation provided by Racemi.
11.1 Representations and Warranties. Customer represents and warrants that the information provided at through the Azure Marketplace is true, correct, accurate and complete when supplied and will be updated and revised as and when any data previously provided becomes in accurate.
11.2 Indemnification. Customer 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 to reimburse the Indemnified Parties for all settlements, judgments, fines, costs, expenses, damages, reasonable legal fees, (including, without limitation, court costs, expert fees, costs and expenses) by reason of any claim, demand, penalty or judicial or administrative proceeding or investigation arising from or in connection with: (i) breach by Customer of its covenants, obligations or representations, including, failure of Customer to perform any of the Customer Obligations; (ii) any claim for loss of data, business interruption or business loss of Customer or any End User; (iii) any claim that the capture, transfer or deployment of any Images 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; (iv) Customer’s violation of applicable federal, state, local or municipal laws, rules, regulations, ordinances, or orders, in connection with Customer’s use of the Racemi Materials; or (v) any use of the Racemi Materials or Third Party Materials in a manner that is unauthorized or otherwise inconsistent with the rights and responsibilities of Customer hereunder. Customer shall not, without the express written consent of Racemi, settle or consent to entry of any order or judgment with respect to any suit, claim, demand or proceeding under this Section 11.2 that: (i) involves any relief other than the payment of money or damages, or (ii) includes an admission of liability on the part of any Indemnified Party. Racemi may join in the defense, with its own counsel, at its own expense.
12.1 Remedies. Customer acknowledges and agrees that any breach or threaten breach of any of these Terms, including, without limitation, disclosure of any aspect of the Confidential Information or violation of Racemi’s proprietary rights cannot be remedied solely by the recovery of damages. Accordingly, Racemi shall be entitled to the entry of an injunction, without posting of a bond or other security, against the use, copy or disclosure of the Confidential Information or Racemi Materials by Customer or any third party deriving access, copy, use or disclosure of Confidential Information or Racemi Materials in violation of these Terms and to any other remedies available at law or in equity.
12.2 Benchmark. Customer shall not publish, release, or disclose to any third party any result of benchmark tests run on the Racemi Materials.
12.3 Compliance. Customer acknowledges that the Racemi Materials are subject to the U.S. Export Administration Regulations administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“EAR”) and other U.S. laws. Customer agrees to comply with the EAR and all applicable laws in its handling of the Racemi Materials, and shall have the sole responsibility for obtaining all approvals, consents, licenses and/or permits required under U.S. or country for any export, reexport, import or use of the Racemi Materials and for complying with all applicable laws and regulations, including EAR and applicable US foreign policy controls in its handling of the Racemi Materials prior to use, export or reexport of the Racemi Materials. Customer shall indemnify, defend and hold Racemi harmless from and against any claims against Racemi arising from or otherwise relating to Customer’s breach of this Section 12.3. Without limiting the generality of the foregoing, Customer agrees, represents and warrants that the Racemi Materials will not be accessed from, released in, carried to, transferred to, exported to, reexported to, or used to provide services to any person or entity in any country subject to U.S. sanction or embargo administered by the U.S. Department of the Treasury’s Office of Foreign Asset Control (“OFAC”) or to any person or entity on OFAC’s Specially Designated Nationals List or the Entity List or Denied Persons List of the EAR. Customer further agrees to impose corresponding contractual obligations on all of its subcontractors to ensure they meet the requirements of this Section.
12.4 Restricted Rights. Notice to U.S. Government End Users. The Racemi Materials 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 and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § § 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) 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.
12.5 Force Majeure. Racemi will not be liable to the other for any failure or delay in performance due to circumstances beyond its reasonable control including, without limitation, acts of God, labor disruption, war, terrorist threat or government action, fire, flood, embargo, quarantine, epidemic, malicious acts of third parties (including, without limitation, the introduction of computer viruses), interruption of telecommunications service.
12.6 Notices. Any notices or consents required or permitted by these Terms shall be in writing and shall be deemed delivered if (i) personally delivered; (ii) sent by certified mail, postage prepaid thereon, return receipt requested, or (iii) if delivered by any overnight service, with a signed acknowledgement of receipt. Notices to Racemi shall be sent to the following address: Racemi, Inc., 360 Interstate North Parkway SE, Suite 360, Atlanta, GA, 30339, Attn: Racemi CFO. Notice to Customer shall be sent to the address provided to by Customer through the Azure Marketplace.
12.7 Relationship. Nothing in these Terms shall be construed to make the parties partners, joint ventures, representatives or agents of each other, nor shall either party, directly, indirectly, in writing or otherwise, so represent to any third person. Customer is not entitled to act on behalf of, issue statements or enter into commitments in the name of Racemi. Customer will not make any statements concerning any Racemi Software to any End User or otherwise misrepresent the product features, functionality, or capabilities of any Racemi Software; and (ii) make any representations, warranties, or commitments to any End User the Racemi Software, or provide for any indemnities or related obligations on behalf of Racemi.
12.8 Miscellaneous. Failure or delay by either party to enforce any provisions of these Terms shall in no way be considered to be a waiver or in any way to affect the validity of these Terms. These Terms are governed by, and construed in accordance with, the laws of the State of Georgia without reference to principles of conflicts of law. Jurisdiction and venue for any claim or cause of action arising under these Terms shall be exclusively in the United States District Court for the Northern District of Georgia, and the parties submit to personal jurisdiction of, and waive any personal jurisdiction or inconvenient forum objection to, that court. If subject matter jurisdiction does not exist in the United States District Court for the Northern District of Georgia, then the exclusive forum and venue for any such action shall be the courts of the State of Georgia located in Fulton County and the parties submit to personal jurisdiction of, and waive any personal jurisdiction or inconvenient forum objection to, such court. In the event of a dispute, and prior to filing any litigation, the parties agree to escalate discussions to at least senior management level and to discuss in good faith the possible utilization of alternative dispute resolution procedures, including, but not limited to, non-binding mediation. NOTWITHSTANDING THE FOREGOING, RACEMI MAY SEEK AN INJUNCTION TO PROTECT ITS INTELLECTUAL PROPERTY RIGHTS IN ANY JURISDICTION. Section headings have been included merely for convenience, and are not to be considered part of these Term or to be used in the interpretation hereof. If any provision is held invalid or unenforceable, the provision shall be deemed modified only to the extent necessary to render it valid or eliminated, as applicable, and these Terms shall be enforced and construed as if the provision had been included as modified or not included, as applicable. Racemi may modify these Terms at any time, in its discretion, by posting a revised version in the Azure Marketplace for the Racemi Materials or otherwise making it available to Customer for review. Any modifications will supersede these Terms after posting or availability of the modified Terms and will apply to continued access to and use of the Racemi Materials by Customer via the Azure Marketplace after posting or availability of the modified Terms to Customer.