PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE SUBSCRIBING TO, ACCESSING OR USING THE SWARM64 SOFTWARE MADE AVAILABLE ON CLOUD PROVIDERS. THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”) GOVERN USE OF THE SOFTWARE AND ITS DOCUMENTATION
Swarm64 Incorporated (“Swarm64”) is willing to license the software it makes available on the AWS Marketplace to you or the entity that you represent (“you” or “Licensee”), only upon the condition that (a) you accept all the terms contained in this EULA and (b) you have been registered as the end user Licensee for the purposes of this EULA. If you are not registered as the end user Licensee you have no license to use the software or its documentation and the limited warranty in this EULA does not apply to you
By subscribing to the Swarm64 software, you indicate that you understand this EULA and accept all of its terms. If you are entering into this EULA on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this EULA, in which case “you” or “your” or “Licensee” shall refer to such entity. If you do not agree to the terms of this EULA, you may not download, install or use the Software or its documentation
1.1 “Software” means the Swarm64 data-processing software that is licensed to Licensee pursuant to a valid Subscription and any related documentation furnished by Swarm64. The Software also includes any error corrections and updates to the foregoing that Swarm64 generally offers to end-user licensees of the Software, as described in its then-current maintenance and support policies.
1.2 “Trial Subscription” means Licensee’s entitlement to access and use the Software, which commences on the date Licensee subscribes to the applicable Software and (unless earlier terminated as set forth herein) continues for the period selected when subscribing and any applicable renewal period(s), in each case subject to the terms for the Software shown on its listing page, including pricing terms. Such Trial Subscription limits the Licensee’s entitlement to access and use the Software, for a predefined and limited period of time for testing purposes and not for any Production Use.
1.3 “Production Use” means any deployment of the Software in a production environment, or the use or deployment of the Software, or any output from the Software, in the operation of a business, government agency, academic institution, or for any other production or commercial data-processing purposes.
1.4 “Trial Period” – means limited time period further defined under 2.2 below.
2.1 License Grant. Subject to Licensee’s compliance with the terms and conditions of this EULA, and for the Trial Period, Swarm64 grants to Licensee a non-exclusive, non-transferable, worldwide, limited license to run the Software, solely for Licensee’s testing purposes (and not for any Production Use, including processing data for or on behalf of any third party).
2.2 Trial period. During the initial trial period Swarm64 may cover the Licensees infrastructure, both costs and operations, in case the Licensee does not yet sign up for the extended trial through the respective cloud provider (such as AWS). As a result of operating such infrastructure, including virtual servers and storage systems, the test data installed during this initial trial will not be within the Licensee’s current or future direct contractual relationship with the cloud provider. As a result, Swarm64 cannot permit the Licensee to use any data for the initial trial that is subject to specific restrictions, regulations, or certifications – such as, but not limited to, health data under HIPAA. It is generally recommended to use anonymized data and whereas Swarm64 will take reasonable precautions (including providing secret access credentials to the signed-up Licensee only), it cannot be held liable for the any damages arising from using unsuitable test data.
2.3 License Restrictions. Except as expressly provided in this EULA, Licensee shall not and shall not attempt to: (a)access, download or otherwise use the Software except as provided on the hosted Amazon Machine Image made available through the AWS Marketplace under Licensee’s account; (b) copy or modify the Software, in whole or in part; (c)transfer, sublicense, lease, lend or rent or otherwise distribute the Software to any third party; or (d)make the functionality of the Software available to third-party users through any means, including but not limited to by uploading the Software to a network or file-sharing service, or through any hosting service, software-as-a-service solution, data processing service,or any other type of services. Licensee may not and will not use or permit use of the Software in any manner that is inconsistent with applicable laws or regulations, the legal rights of third parties, the terms of this EULA, or Swarm64’s published documentation, or for any unlawful or improper purpose. Licensee may not and will not use or permit use of the Software or any of its output for benchmarking purposes, or to develop any similar or competing software or technology, or for other competitive purposes, without Swarm64’s prior written consent. Licensee acknowledges and agrees that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Swarm64 and its licensors. Accordingly, Licensee agrees not to disassemble, decompile or reverse engineer the Software or permit or authorize a third party to do so, except to the extent such restrictions are expressly prohibited by law.
2.4 Limited Rights. Licensee’s rights in the Software will be limited to those expressly granted in this EULA. Swarm64 reserves all rights and licenses in and to the Software not expressly granted to Licensee under this EULA.
2.5 U.S. Government End Users. The Software is a“commercial item,”containing “commercial computer software”and “commercial computer software documentation,”as those terms are used in FAR12.212, FAR227.72, and any other applicable government procurement regulations and supplements. If it is to be used by the U.S. government, the government’s rights in relation to the Software will be limited to those granted in (and are subject to the terms and conditions of) this EULA and any relevant open-source licenses where applicable, to the exclusion of any other rights the government may otherwise have under any FAR, DFARS, or other clauses, provisions, or regulations.
2.6 Open Source Software. The Software may include or be accompanied by programs, libraries, and/or other items that are licensed by third parties under open-source or similar license terms, as indicated in the applicable Software code or documentation furnished by Swarm64. With respect to any such items, nothing in this EULA will be construed to limit any rights Licensee or any other person may otherwise have (nor diminish any terms or conditions to which such rights are subject) under the applicable open-source or similar license terms that are included in or provided with the Software.
3.1 Software. Licensee expressly acknowledges that Swarm64 and its licensors own all worldwide right, title and interest in and to the Software, including all copyrights, patent rights, trademarks, trade secrets, know-how, and other intellectual property and intellectual property rights therein. Licensee will not delete or in any manner alter the copyright, patent, trademark or other proprietary rights notices appearing on the Software as delivered to Licensee. Licensee will reproduce such notices on all copies it makes of the Software.
3.2 Licensee Data. Licensee owns all worldwide right, title and interest in and to all Licensee data that is processed by the Software and any output data generated by the Software to the extent based on such Licensee data.
4. SUPPORT SERVICES
Swarm64 will provide Licensee with basic support services for the Software, at the same level Swarm64 generally provides support services to its licensees of the Software at no additional charge (which includes technical support only during Swarm64’s business hours), in accordance with the terms of its then-current maintenance and support policy
If applicable, licensee’s rights under this EULA are subject to Licensee’s timely payment of all license fees, renewal fees, and other Software-related charges as billed through the AWS Marketplace.Swarm64 reserves for itself all rights of recovery for any unpaid amounts.
6. WARRANTY AND DISCLAIMERS
6.1 Limited Warranty. Swarm64 warrants that the Software will be capable of performing as specified in Swarm64’s applicable published documentation in all material respects. As Licensee’s sole and exclusive remedy and Swarm64’s entire liability for any breach of the foregoing warranty, Swarm64 will, at its option: (a) promptly correct any portion of the Software that fails to meet this limited warranty; or (b) provide Licensee with a reasonable procedure to circumvent the nonconformity
6.2 Third-party Products and Services. The foregoing warranty excludes, and Licensee agrees that Swarm64 makes no representations or warranties and has no responsibility or liability to Licensee of any kind in relation to,any products or services that Licensee obtains from a third party. In particular, and without limiting the foregoing, Swarm64 will have no responsibility to Licensee for the design, availability, unavailability, performance, failure of the services provided by or on behalf of Amazon Web Services, the AWS Marketplace or any related systems that are used to host or make the Software available for Licensee’s use.
6.3 Disclaimers. SWARM 64 DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW,ALL REPRESENTATIONS AND WARRANTIES IN RELATION TO THE SOFTWARE, WHETHER EXPRESS,IMPLIED,STATUTORY, OR OTHER WISE ARISING,INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SWARM64, RESELLER,OR ELSEWHERE,WILL CREATE ANY WARRANTY FOR THE SOFTWARE ON SWARM64’S BEHALF.FOR CLARITY, AND WITHOUT LIMITING THE DISCLAIMERS ABOVE, SWARM64MAKES NO GUARANTYTHAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE CONFIGURATIONS OR APPLICATIONSTHAT LICENSEEMAY SELECT FOR USE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED.
7. LIMITATION OF LIABILITY
7.1 Exclusion and Limitation.TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE PARTIES AGREE AND ACKNOWLEDGE THAT SWARM64’S AGGREGATE LIABILITY TO LICENSEE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED$500(OR, IF GREATER, THE ACTUAL FEES PAID BY LICENSEE FOR THE SOFTWARE), AND IN NO EVENT WILL SWARM64 BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOSS OF BUSINESS OR REVENUE,OR THE COST OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT FORESEEABLE.
7.2 Acknowledgment of Risk Allocation.The parties acknowledge that the limitations and exclusions contained in this Section 7and elsewhere in this EULA represent a bargained-for allocation of risk between the parties considering their respective obligations and benefits under this EULA.Accordingly, the parties agree that such limitations and exclusions will survive and apply to the fullest extent permitted under applicable law,even if any exclusive remedy specified in this EULA is found to have failed of its essential purpose.
8. TERM AND TERMINATION
8.1 Term.The term of this EULA will commence as of the beginning of, and continue for the duration of, the Trial Subscription, unless earlier terminated as provided below.
8.2 Termination for Cause. Either party may terminate this EULA and the Trial Subscription if the other party: (a) breaches any material term of this EULA and fails to cure such breach within thirty (30) days after written notice thereof; or (b)becomes unable to pay its debts when due or enters into liquidation or has a receiver or examiner or a person in the nature of a receiver or examiner appointed to its undertaking or assets or enters into any arrangement with its creditors. No termination on the basis of this provision will entitle Licensee to a refund of any portion of the fees paid to Swarm64.
8.3 Survival.The provisions of Sections 3,5,7, 8.3, and 9, and the parties’ rights and obligations thereunder, will survive the expiration or any termination of this EULA.
9.1 Assignment. Licensee may not assign or transfer this EULA or a Trial Subscription, in whole or in part, by operation of law or otherwise, without Swarm64’s express prior consent. Any attempt to assign or transfer this EULA or a Trial Subscription, without such consent, will be void.Swarm64may assign this EULA to a third party that acquires or succeeds to all or substantially all of Swarm64’s assets or related business (whether by merger, sale, operation of law or otherwise). Subject to the foregoing, this EULA will inure to the benefit of and be binding on the parties,their respective successors and permitted assigns.
9.2 Publicity. Neither party will issue any press release or make any other public statement regarding this EULA or the parties’ relationship hereunder without the other party’s express approval.
9.3 Governing Law, Venue.This EULA will be governed by and construed in accordance with the laws of the State of California excluding that body of law known as conflict of laws.The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this EULA.Any legal action or proceeding arising under this EULA will be brought exclusively in the federal or state courts located in the Northern District of California (except as provided in Section 9.4) and the parties hereby irrevocably consent to the jurisdiction of and venue in such courts. Each party consents to receiving service of process and other documents directly via notice given in accordance Section 9.9, to the fullest extent such consent may be effective under applicable laws.
9.4 Equitable Relief. Licensee acknowledges that a breach of any confidentiality obligation, license restriction, or proprietary rights provision of this EULA (including Section 2.2) or infringement or misappropriation of Swarm64’sintellectual property rights may cause Swarm64 irreparable damage, for which the award of damages would not be adequate compensation. Swarm64 may seek and obtain injunctive or other equitable relief in any court of competent jurisdiction to prevent or remedy any such breach, infringement, or misappropriation (whether threatened or actual), in addition to any other relief to which Swarm64may be entitled at law or in equity.
9.5 Severability. If for any reason a court of competent jurisdiction finds any provision of this EULA invalid or unenforceable, that provision of the EULA will be enforced to the maximum extent permissible and the other provisions of this EULA will remain in full force and effect.
9.6 Waiver.A failure by either party to enforce any provision of this EULA will not constitute a waiver of future enforcement of that or any other provision.
9.7 Remedies.Except as expressly set forth in this EULA, the exercise by either party of any of its remedies under this EULA will be without prejudice to its other remedies under this EULA or otherwise. The prevailing party in any legal action to enforce this EULA shall be entitled to recover all of its reasonable attorney’s fees and other reasonable costs of litigation.
9.8 Relationship of Parties.The parties to this EULA are independent contractors and this EULA will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
9.9 Notices. All notices, approvals, consents and other communications required or permitted under this EULA will be in writing, will reference this EULA, and will be sent to the other party at its address as documented in its Swarm64 trial account information or to such other address as such other party may specify by notice given in accordance with this Section. Notices will be deemed given upon receipt (with confirmation of such receipt, in the case of notices delivered by email).
9.10 Force Majeure.Neither party will be responsible or liable to the other party for any failure or delay in its performance under this EULA(other than the payment of fees) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortage of or inability to obtain energy, or supplies, war, terrorism, riot or acts of God (each a “Force Majeure”). In the event of a Force Majeure, the party that is unable to perform or whose performance is delayed will promptly notify the other party of the Force Majeure and will use its commercially reasonable efforts to resume performance.
9.11 Export Control. Licensee agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that neither the Software, nor any direct product thereof is: (a)exported or re-exported directly or indirectly in violation of Export Laws; or (b)used for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation.
9.12 Entire Agreement.This EULA constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter.This EULA may be modified or any rights under it waived only by a written document executed by both parties.
9.13 Language. The parties acknowledge that it is their express wish that this EULA and all notices and other documents to be given or executed pursuant hereto, and all dispute resolution proceedings hereunder, will be in English. Any translation or version of the foregoing in any language other than English will be solely for the parties’ convenience and will not be binding on the parties nor affect the interpretation of the English version.
If you have any questions regarding this EULA, you may contact Swarm64 at email@example.com
Swarm’s address for notice:
470 Ramona St.
Palo Alto, CA 94301