THESE TERMS AND CONDITIONS (the "Agreement") CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND CLUSTERWATCH (AS DEFINED BELOW). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IN ANY EVENT, REFERENCES HEREIN TO "Customer" MEANS YOU OR SUCH ENTITY (AS THE CASE MAY BE). "CLUSTERWATCH" SHALL MEAN CLUSTERWATCH, INC.
By clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of your Order Form or using any part of the Software (as defined below) , Customer acknowledges these terms and conditions and represents that it has fully read and understood, and agrees to be bound by, this Agreement and other supplemental terms and policies that this Agreement expressly incorporates by reference, and which are thereby made a part of this Agreement. The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to or use of the Software or (b) the effective date of the first Order referencing this Agreement.
IF CUSTOMER DOES NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, CUSTOMER MUST NEITHER CLICK "I agree" NOR INSTALL OR USE ANY PART OF THE SOFTWARE.
By entering into the Agreement, Customer hereby irrevocably and unconditionally waives any law or regulation applicable to Customer requiring that the Agreement be localized to meet Customer's language or requiring an original (i.e. non-electronic) signature or delivery or retention of non-electronic records.
Subject to the terms and conditions of this Agreement, Clusterwatch grants Customer a limited, non-exclusive, non-assignable, non-transferable, and non-sublicensable license (hereinafter, the “License”) for the provision of Clusterwatch’s software (hereinafter, the “Software”). The Software for purposes of this Agreement is a tool provided by Clusterwatch to monitor costs and infrastructure issues in Customer’s environment. The License allows Customer to do the following: (i) install the Software in Customer's on-premise, private cloud, or other installation environment (the "Environment(s)"), and (ii) submit improvements or enhancements to the open source code as permitted at the following URL: github.com/kubecost and subject to licenses specified therein.
Except to the extent expressly permitted in this Agreement (or otherwise mandated under any law applicable to Customer), Customer shall not, and shall not permit or encourage any third party to, do any of the following: (a) copy the Software; (b) sell, assign, lease, lend, rent, sublicense, or make available the Software to any third party, or otherwise use the Software to operate in a time-sharing, outsourcing, or service bureau environment; (c) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, and interfaces) of, the Software; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the Software; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software (such as usage monitoring features); (f) make a derivative work of the Software, or use the Software to develop any service or product that is the same as (or substantially similar to) the Software; (g) use, publish or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software; and/or (i) access the Software and/or its servers through or use with the Software any unauthorized means, services or tools, including, without limitation, any data mining, robots, or similar automated means or data gathering and extraction tools, including, without limitation, in order to extract for re-utilization of any parts of the Software. The software shall only be used by Customer for its internal monitoring purposes (the “Use Restrictions”) and may not be used to evaluate any systems or infrastructure which is not owned by Customer. Customer shall indemnify Clusterwatch from and against damages, liabilities, losses, costs and expenses resulting from any third-party claims from Customer’s breach of the foregoing Use Restrictions, Customer shall not ship, transfer, or export the Software or any component thereof or use the Software in any manner, prohibited by law, including without limitation to, sell, distribute, export or download the Software: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon, Syria, or the Crimea Region of Ukraine, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or any foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The foregoing conditions are limitations on the scope of the License.
Customer will be responsible for the installation of the Software, including without limitation all configurations (including without limitation to the Environment and other third party systems) in connection therewith.
The Software may include third party software components that are subject to open source and/or pass-through commercial licenses and/or notices (such third party programs, "Third Party Software" and "Third Party Software Terms and Notices", respectively). Some of the Third Party Software Terms and Notices may be made available to Customer in the Software, its Documentation or via a supplementary list provided by Clusterwatch. Any covenants, representations, warranties, indemnities and other commitments with respect to the Software in this Agreement are made by Clusterwatch and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software. Any use of Third Party Software is subject solely to the rights and obligations under the applicable Third Party Software Terms and Notices. Notwithstanding anything in this Agreement to the contrary, Clusterwatch does not make any representation, warranty, guarantee, or condition, and does not undertake any liability or obligation, with respect to any Third Party Software.
Customer may have access to certain non-public or proprietary information or materials of Clusterwatch (the "Discloser"), whether in tangible or intangible form ("Confidential Information"). Without derogating from the foregoing, the Software, license keys and terms of the Purchase Order shall be deemed as Clusterwatch's Confidential Information. Confidential Information will not include information or material which Customer can demonstrate: (a) was in the public domain at the time of disclosure by Clusterwatch to Customer hereunder; and/or (b) became part of the public domain after disclosure by Clusterwatch to Customer hereunder, through no fault of Customer; (c) was in the Customer's possession at the time of disclosure by the Clusterwatch hereunder, and was not subject to prior continuing obligations of confidentiality by Customer to Clusterwatch; (d) was rightfully disclosed to the Customer by a third party having the lawful right to do so; and/or (e) was independently and rightfully developed by the Recipient without (direct or indirect) use of, or reliance upon, Clusterwatch’s Confidential Information.
In the event that Customer is required to disclose Confidential Information of Clusterwatch pursuant to any law or governmental or judicial order, Customer will promptly notify Clusterwatch in writing of such law or order and reasonably cooperate with Clusterwatch in opposing such disclosure or obtaining such other protective measures. In any event, such disclosure made pursuant to this paragraph will be made solely to the extent required by such law or order (as the case may be).
Customer will use Clusterwatch’s Confidential Information solely for the purpose of performing its obligations and/or exercising its rights under this Agreement and will not disclose or make available the Confidential Information to any third party, except to its employees that have a need to know such information and that are bound by obligations at least as protective as provided herein. Customer will take measures at a level at least as protective as those taken to protect its own confidential information of like nature (but in no event less than a reasonable level) to protect Clusterwatch’s Confidential Information. Customer will promptly notify Clusterwatch in writing in the event of any actual or suspected unauthorized use or disclosure of any Clusterwatch Confidential Information.
Each Party acknowledges that in the event of a breach or threatened breach of this Section 5 (Confidentiality) by Customer, Clusterwatch may suffer irreparable harm or damage for which monetary damages will be inadequate, and will, therefore, be entitled to injunctive relief and specific performance to enforce the obligations under this Section 5 (Confidentiality) without the need to post a bond.
As between the Parties, Clusterwatch is, and shall remain, the sole and exclusive owner of all Intellectual Property Rights in and to the Software and all its copies (as well as any modifications, improvements or derivatives thereto), and any other products or services provided by Clusterwatch (hereinafter, "Clusterwatch IPR"). Clusterwatch reserves all rights not expressly granted herein and except for the License, Customer is granted no other right or license in or to any Clusterwatch IPR. Customer undertakes not to contest Clusterwatch's ownership in the Clusterwatch IPR. "Intellectual Property Rights" means any and all right, title and interest in and to patents, inventions, discoveries, copyrights, works of authorship, trade secrets, trademarks, service marks, trade dress, technical information, data, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, software, code, algorithms, architecture, records, documentation, and other similar intellectual or industrial property, in any form and embodied in any media, whether capable of protection or not, whether registered or unregistered, and including all applications, registrations, renewals, extensions, continuations, divisions or reissues thereof.
All fees for paid plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following default terms apply: (i) for monthly paid plans, Customer will pay all fees at the end of the month and (ii) for annual paid plans, Customer will pay all fees within thirty (30) days of invoice. Clusterwatch reserves the right to increase the rates specified in the Order Form upon any renewal of a Service Term. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Clusterwatch. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. If Customer believes that Clusterwatch has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
THE SOFTWARE AND ANY SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED. CLUSTERWATCH DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, COMPLETENESS, OR QUALITY OF THE SOFTWARE, OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE OR THAT ERRORS/BUGS ARE REPRODUCIBLE OR THAT ERRORS/BUGS ARE REPAIRABLE.
IN NO EVENT WILL CLUSTERWATCH, ANY OF ITS AFFILIATES, PARTNERS, DISTRIBUTORS OR ANY OF THEIR LICENSORS AND SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, THE SOFTWARE, THE WEBSITE, OR OTHERWISE FOR: (A) ANY AND ALL DAMAGES, WHETHER DIRECT, CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE; (B) ANY LOSS OF PROFITS, BUSINESS, ANTICIPATED SAVINGS, OR DATA AND/OR DAMAGE TO OR LOSS OF REPUTATION, OR GOODWILL; AND/OR (C) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (A) EVEN IF A PARTY OR AN AFFILIATE, DISTRIBITOR OR SUPPLIER OF CLUSTERWATCH HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY).
Term. This Agreement commences as of the Effective Date and will continue in full force and effect for the duration of the License Term, unless earlier terminated in accordance with this Agreement.
Termination. For unpaid plans, each Party may terminate this Agreement at any time and for its convenience effective upon written notice (including via e-mail) to the other Party. For paid plans, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the software and services up to and including the last day on which the software and/or services are provided.
Effect of Termination; Survival. Upon expiration or the effective date of termination of this Agreement (as the case may be): (a) this License will automatically terminate and Customer will uninstall and permanently erase all copies of the Software from the Customer's systems and (b) Customer shall, at Clusterwatch's election, erase or return to Clusterwatch all Clusterwatch Confidential Information in its possession or under its control. Sections 1 (License), 2 (License Restrictions), 4 (Third Party Software) through 10 (Miscellaneous ) will survive the expiration or termination of this Agreement.
Customer agrees to indemnify and hold harmless Clusterwatch, its affiliates and their licensors and vendors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees and associated litigation expenses) arising out of or relating to: (a) Customer’s use and/or its user’s use of the Software and/or Website; (b) Customer’s breach of this Agreement or violation of applicable law by Customer and/or its users; (c) Customer’s content or the combination of content with other applications, content or processes; and (d) any claim or allegation that Customer’s content infringes or misappropriates the intellectual property rights of any third party.
Entire Agreement. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation not expressly specified in this Agreement. This Agreement may only be amended by a written instrument duly signed by each Party. The Section and subsection headings used in this Agreement are for convenience only.
Publicity Rights. We may identify you as a customer in our promotional materials. We will promptly stop doing so upon your request sent to firstname.lastname@example.org.
Assignment. This Agreement (whether in whole or in part): (a) may not be assigned by Customer without the prior express written consent of Clusterwatch; and (b) may be assigned by Clusterwatch, without obligation or restriction. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment) , this Agreement will bind and benefit each Party and its respective successors and assigns.
Governing Law; Jurisdiction. this Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware, USA without regard to its conflicts of law rules. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the competent federal and state courts located in Delaware, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum or other objections to such courts; The following applies to all users notwithstanding the foregoing, Clusterwatch may seek injunctive relief in any court worldwide that has competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is hereby disclaimed.
Feedback. If Customer provides Clusterwatch with any feedback, ideas or suggestions regarding the Software ("Feedback"), Clusterwatch may, at no cost, freely use such Feedback, for any purpose whatsoever. For the avoidance of doubt, Feedback will not be deemed Customer's Confidential Information.
Relationship. The Parties are solely independent contractors. Nothing in this Agreement shall create a partnership, joint venture, agency, or employment relationship between the Parties. Neither Party may make, or undertake, any commitments or obligations on behalf of the other.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
Notices. All notices and communications between the Parties under, or in connection with, this Agreement ("Notices") shall be in writing, by hand delivery, by nationally recognized courier service or by prepaid certified mail. Clusterwatch may send Notices to Customer through the management module of the Software. Customer shall send all Notices to the mailing and email addresses and contact person listed in the Purchase Order, unless Customer has no Purchase Order with Clusterwatch in which case Notices shall be sent to: Clusterwatch Inc., 315 Montgomery St, Floor 9, San Francisco, CA 94123.
Force Majeure. Neither Party will be liable for failure or delay in performance of any of its obligations under or in connection with this Agreement arising out of any event or circumstance beyond that Party’s reasonable control, including without limitation an Act of God, fire, flood, lightning, war, revolution, act of terrorism, riot, civil commotion, adverse weather condition, adverse traffic condition, strike, lock-out or other industrial action, and failure of supply of power, fuel, transport, equipment, raw materials, or other goods or services.
Customer Data Storage. Customer acknowledges that the Software is not intended to, and will not, operate as an archive or file-storage product or service for Customer Data (as defined below), and Customer will be solely responsible for the maintenance and backup of all Customer Data. "Customer Data" means Customer's content, code, or data uploaded to, or otherwise processed by, the Software.
Waiver. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given.