ScaleXtreme Cloud Management 1.0

EULA - End User License Agreement

ScaleXtreme
Terms of Use

IMPORTANT: PLEASE READ THESE TERMS OF USE BEFORE ACCESSING, DOWNLOADING OR OTHERWISE USING THE SCALEXTREME WEBSITE OR ANY SCALEXTREME SOFTWARE, SERVICES, CONTENT OR MATERIALS FOUND ON THE WEBSITE (collectively "Offerings"). THE SCALEXTREME TERMS OF USE ("Terms") is a legal agreement between you (either an individual or a single entity whom you represent ("you", "your" or "yours")) and ScaleXtreme, Inc. ("ScaleXtreme") for any and all OFFERINGS made available to you through the ScaleXtreme web site at www.scalextreme.com ("Website"). YOU AGREE TO BE BOUND BY THESE TERMS BY VIEWING, DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE OFFERINGS. IF YOU DO NOT AGREE, DO NOT DOWNLOAD, INSTALL, COPY OR USE THE OFFERINGS.

1. WEBSITE USE AND AVAILABILITY: Subject your full compliance with all of these Terms, you are granted a limited, nonexclusive license to access and use the Offerings for your personal and internal business use only, and at your own risk. The Website and all Offerings therein and these Terms, are subject to change, modification, suspension or discontinuation at any time without notice to you. You are responsible for obtaining and maintaining all equipment and services needed to access and use the Website and Offerings. The Offerings may contain references to third party products or links to other websites controlled by third parties other than ScaleXtreme, and ScaleXtreme is not responsible for and does not endorse the content or use of these other products or websites.

2. ACCESS TO AUTHORIZED ACCOUNTS. To access certain features of the Offerings and to use the Hosting Software and Agents (each as defined below) required to use the Website ("Software") , you may be asked to open an account. ScaleXtreme will collect certain information about you (including email address) and ScaleXtreme's use of such information will be governed by the ScaleXtreme Privacy Policy http://www.scalextreme.com/about/privacy. You acknowledge that ScaleXtreme may use your email and other contact information to send messages, and for other tracking purposes related to the Offerings. You are responsible for maintaining the confidentiality of your password and for any and all activity that occurs under your password. You agree to notify ScaleXtreme immediately of any unauthorized use of your password or any other breach of security relating to the Website. ScaleXtreme reserves the right to refuse registration, or to refuse or limit access to the Website and Offerings to anyone in its sole discretion for any or no reason.

3. SOFTWARE LICENSE: The Software includes both a server component hosted at ScaleXtreme"s data center and accessible to you through the Website ("Host Software") and a client component which you download and install on your servers ("Agent"). Any Software downloaded or used by you is subject to the terms and conditions of this Agreement. Upon your registration as an authorized user and subject to your compliance with these Terms, ScaleXtreme grants to you a nonexclusive, nontransferable license to download up to Four Hundred (400) Agents from the Website and install those Agents on servers owned or leased by you solely for your internal business purposes. You acknowledge that any use of the Software is at your own risk. There is no technical support available for the Software pursuant to these Terms. At ScaleXtreme's sole option and discretion, ScaleXtreme may release updated versions of the Software. In the event ScaleXtreme makes a newer version available, you agree to immediately discontinue using the older version of the Software. You acknowledge that any support by ScaleXtreme of the Software or the Offerings will be subject to separate terms and conditions. You shall not (and shall not permit others to) reverse engineer, decompile or disassemble any of the Software, except and only to the extent that such activity is expressly prohibited by applicable law notwithstanding this limitation.

4. RESTRICTIONS: You shall not (and shall not permit others to) (i) modify, sell, rent, lease, lend, distribute, publicly perform, publicly display, any of the Offerings or Software; (ii) use any data mining, robots or similar data gathering or extraction methods in connection with the Website or Offerings; (iii) interfere with or disrupt the Website, Software or Offerings or servers or networks connected to the Website, Software or Offerings; (iv) attempt to gain unauthorized access to any portion of the Website; (v) use any of the Offerings or Software in a manner that infringes, violates or misappropriates any third party's intellectual property rights; (vi) use any of the Offerings or Software in violation of any local, state, national, foreign or international statute, regulation, treaties or other laws; or (vii) otherwise use any of the Offerings, Website or Software in a manner other than its intended purposes;.

5. CONFIDENTIALITY: You acknowledge that the Offerings are under development and that the Offerings, and any and all Software, documentation, screen shots, and other content or materials which you are exposed to as an authorized user shall be considered ScaleXtreme "Confidential Information" and are trade secrets of ScaleXtreme. You agree not to disclose, provide, or otherwise make available the ScaleXtreme Confidential Information in any form to any third party without ScaleXtreme's prior written consent during and after termination of these Terms.

6. OWNERSHIP: The Offerings, including any and all Software, documentation, screen shots, and other content or materials accessed through the Website, are protected by copyright, patent, trade secret and other intellectual property laws and treaties. ScaleXtreme and its licensors own all title, copyright, and other intellectual property rights in the Offerings. ScaleXtreme reserves all rights not expressly granted to you in these Terms.

7. NO WARRANTIES: YOU ACKNOWLEDGE AND AGREE THAT NEITHER SCALEXTREME NOR ITS LICENSORS HAS MADE ANY EXPRESS WARRANTIES OR CONDITIONS REGARDING THE OFFERINGS, SOFTWARE OR WEBSITE AND THAT THE OFFERINGS, SOFTWARE AND WEBSITE ARE BEING PROVIDED TO YOU "AS IS", "WITH ALL FAULTS", AND WITHOUT WARRANTY OR CONDITION OF ANY KIND. SCALEXTREME (ON BEHALF OF ITSELF AND ITS LICENSORS) DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE OFFERINGS, SOFTWARE AND WEBSITE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, NEITHER SCALEXTREME NOR ITS LICENSORS MAKE ANY WARRANTY THAT THE OFFERINGS, SOFTWARE OR WEBSITE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT DEFECTS IN THE OFFERINGS WILL BE CORRECTED, OR THAT ANY RESULTS WILL BE RELIABLE OR ACCURATE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE OFFERINGS, SOFTWARE AND WEBSITE.

8. LIMITATION OF LIABILITY: IN NO EVENT WILL SCALEXTREME NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ITS LICENSORS BE LIABLE TO YOU FOR ANY (I) CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, BUSINESS INFORMATION AND THE LIKE), OR (II) ANY DIRECT DAMAGES IN EXCESS OF THE LAST TWELVE (12) MONTHS OF FEES PAID BY YOU TO SCALEXTREME, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR THE WEBSITE, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF SCALEXTREME OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THESE TERMS OR ANY REMEDY HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THIS LIMITATION WILL NOT APPLY IN THE CASE OF PERSONAL INJURY ONLY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

9. TERM & TERMINATION: These Terms are effective upon your initial use of any of the Offerings or Software, or access to the Website (whichever occurs first). ScaleXtreme may terminate, suspend your access to any of the Offerings, Software or Website in all or in part, without notice, at any time and for any reason. ScaleXtreme may also terminate or suspend these Terms and your use of the Offerings, Software or Website immediately if you breach any provision of these Terms. You may terminate your license to use the Offerings Software or Website at any time by ceasing to use any of the Offerings Software or Website. Upon termination for any reason, you must destroy all electronic or hard copies of the Software, ScaleXtreme Confidential Information or other materials and documentation relating to the Offerings in your possession. Sections 4-12 shall survive any termination of these Terms.

10. FEEDBACK. From time to time, ScaleXtreme may request feedback from you regarding the performance of the Software or other Offerings. Any feedback, suggestions or ideas provided by you to ScaleXtreme (collectively "Feedback") shall be owned by ScaleXtreme and you hereby assign any ownership interest in such Feedback to ScaleXtreme and acknowledge that such Feedback may be used by ScaleXtreme without account to you.

11. EXPORT AND INTERNATIONAL USE. You agree to comply strictly with all applicable US and international export control laws and regulations, including the U.S. Export Administration Regulations. If you choose to access the Website from outside of the United States, you do so at your own initiative and you are solely responsible for complying with applicable local laws in addition to these Terms.

12. FORCE MAJEURE. ScaleXtreme shall not be liable for any loss of customer data, temporary or permanent suspension of the Offerings, or any other loss or liability resulting directly or indirectly from delays or interruptions due to electronic or mechanical equipment failure, denial of service attacks, data processing failures, telecommunications or internet problems, utility failures or problems, acts of God, war, strikes, fire, earthquakes or other causes beyond ScaleXtreme's control.

12. GENERAL: These Terms shall be governed by, and construed in accordance with the laws of the State of California, without regard to the California conflict of laws rules. You shall not assign, delegate or transfer these Terms or any of your rights or obligations hereunder. ScaleXtreme may freely assign and delegate these Terms and any of its rights or obligations. These Terms are the entire agreement between ScaleXtreme and you relating to the Software. If any term of these Terms is held to be invalid or unenforceable, then these Terms, including all the remaining terms and conditions, will remain in full force and effect, as if such invalid or unenforceable term was limited to the greatest extent permitted by applicable law in such jurisdiction.