End User License Agreement
STARK & WAYNE, LLC
END USER LICENSE AGREEMENT
This End User License Agreement (“EULA”) is an agreement to license
Dingo S3 (“Software”) between Licensee and Stark & Wayne, LLC (“Company”).
This EULA shall govern Licensee’s initial purchase on the Effective Date as well
as any future purchases made by Licensee which reference this EULA. This EULA
covers all major and minor releases of Software. Company provides the Software
listed on an Order Form on a subscription basis (each, a “Subscription”). By
downloading, installing or using Software, Licensee is agreeing to these terms.
1. EVALUATION LICENSE.
If Licensee is licensing Software as Evaluation Software, then such use is
solely for use in a non-production environment for the Evaluation Period.
Notwithstanding any other provision in this EULA, Evaluation Software are
provided “AS-IS” without indemnification, support, or warranty of any kind,
expressed or implied. All such licenses expire at the the end of the Evaluation
Period. Evaluation Terms, including but not limited to length of Evaluation
Period, will be set on an Order Form.
2. LICENSE GRANT
2.1 License Grant. Subject to all of the terms and conditions of this EULA,
during the Subscription Term, Company grants to Licensee a non-transferable,
non-sub-licensable, non-exclusive, limited license to install the Software
specified in an Order Form and for Licensee’s employees to use the Software
for Licensee’s own internal business operations, but only in accordance with
i. The Documentation
ii. This EULA
iii. The Subscription Term
iv. All restrictions set forth in the applicable Order Form
2.2 License Restrictions. Customer shall not, on its own or through any parent,
subsidiary, Affiliate, agent or other third party:
a) Sell, lease, license, sublicense or otherwise transfer the Software to a
b) Allow access or permit use of the Software by any users other than
authorized users, or any use which violates the technical restrictions of
the Software, the terms of this EULA, and any additional licensing terms
provided by Company via documentation, notification, and/or policy change
posted at http://www.dingotiles.com/dingopg/pcfeula.
2.3 Subscription Term and Renewal. The length of the Subscription Term shall be
designated in the Order Form. At least 60 days before expiration of the
Subscription Term, Company will notify Licensee for renewal of Subscription.
Company does not guarantee the same Subscription Terms for renewed Subscription.
If Licensee intends not to renew, Licensee agrees to cease using Software at the
expiration of the Subscription Period and will certify cessation of use to Pivotal.
2.4. Open Source Software (OSS). The Software contains OSS, which is licensed to
Licensee under the applicable OSS license terms (a) located in the
open_source_licenses.txt file included in or along with Software,
Evaluation Software, or the corresponding source files available at
http://www.dingotiles.com/dingopg/open-source. Licensee is responsible for
complying with all applicable OSS terms and conditions, which shall take
precedence over this EULA, solely with respect to such OSS.
3. PAYMENT TERMS. Fees and payment terms are as set forth in the applicable
4. WARRANTY/DISCLAIMER. COMPANY AND ITS PARTNERS, SUPPLIERS, OR DISTRIBUTORS
DOES NOT WARRANT THAT THE SOFTWARE AND SUPPORT PROVIDED TO CUSTOMER UNDER THIS
EULA WILL OPERATE UNINTERRUPTED, THAT THEY WILL BE FREE FROM DEFECTS, OR THAT
THE SOFTWARE IS DESIGNED TO MEET CUSTOMER’S BUSINESS REQUIREMENTS. NEITHER
COMPANY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT.
CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED
BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE
LIMITED TO THE LIMITED WARRANTY PERIOD. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE
IS NOT INTENDED FOR USE IN CONNECTION WITH ANY HIGH RISK OR STRICT LIABILITY
ACTIVITY (INCLUDING, WITHOUT LIMITATION, AIR OR SPACE TRAVEL, POWER PLANT
OPERATION, OR LIFE SUPPORT OR EMERGENCY MEDICAL OPERATIONS) AND THAT COMPANY
AND ITS SUPPLIERS MAKE NO WARRANTY AND SHALL HAVE NO LIABILITY IN CONNECTION
WITH ANY USE OF THE SOFTWARE OR CLOUD SERVICES IN SUCH SITUATIONS.
5. LIMITATION OF REMEDIES. NEITHER COMPANY NOR ITS PARTNERS, SUPPLIERS, OR
DISTRIBUTORS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY
MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST
PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED
OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
6. LIMITATION OF LIABILITY. COMPANY, OR ITS PARTNERS’, SUPPLIERS’, AND
DISTRIBUTORS’, TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISING HEREUNDER SHALL BE
LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY COMPANY OR ITS SUPPLIERS IN AN AMOUNT
NOT TO EXCEED THE AMOUNT PAID BY LICENSEE TO COMPANY OR ITS SUPPLIERS DURING THE
TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE
TO THE CLAUSE OF ACTION ARISES. The provisions of this Section allocate risks
under this EULA between Licensee and Company and its Suppliers. Company’s and
its Suppliers’ fees for the Subscriptions reflect this allocation of risks and
limitation of liability. LICENSEE MAY NOT BRING A CLAIM UNDER THIS EULA MORE
THAN 18 MONTHS AFTER THE END OF THE SUBSCRIPTION PERIOD.
7. TERMINATION. Company may terminate this EULA effective immediately upon
written notice to Licensee if: (a) Licensee fails to pay any portion of fees due
under Order Form and/or Payment within 10 days after receiving notice that
payment is past due; (b) Licensee suffers an insolvency or analogous event; (c)
Licensee commits a material breach of this EULA that is incapable of being cured;
or (d) Licensee breaches any other provision of this EULA and does not cure the
breach within 30 days after receiving written notice of breach. If the EULA
expires or terminates, Licensee must remove and destroy all copies of Software,
including all backup copies, from the server, virtual machine, and all computers
and terminals on which Software (including copies) is installed or used and
certify destruction thereof. Company may also terminate this EULA for
convenience by giving 3 month’s written notice to Licensee. All provisions of
this EULA will survive any termination or expiration if by its nature and
context it is intended to survive.
8. AMENDMENTS; WAIVERS. No supplement, modification, or amendment of the terms
of this EULA shall be binding, unless executed in writing by a duly authorized
representative of each party to this EULA. No waiver will be implied from
conduct or failure to enforce or exercise rights under this EULA, nor will any
waiver be effective unless in a writing signed by a duly authorized
representative on behalf of the party claimed to have waived. No provision of
any purchase order or other form employed or provided by Licensee will supersede
the terms and conditions of this EULA, and any such document relating to this
EULA shall be for administrative purposes only and shall have no legal effect.
9. FORCE MAJEURE. Neither party shall be liable to the other for any delay or
failure to perform any obligation under this EULA (except for a failure to pay
fees) if the delay or failure is due to events which are beyond the reasonable
control of such party, including but not limited to any strike, blockade, war,
act of terrorism, riot, natural disaster, failure or diminishment of power or of
telecommunications or data networks or services, or refusal of approval of a
license by a government agency.
10. ASSIGNMENT. Neither party may assign this EULA or any of its rights or
obligations hereunder without the prior written consent of the other party,
which shall not be unreasonably withheld, and any such assignment in violation
of this Section shall be void, except that the transfer of this EULA or rights
granted hereunder to a successor entity in the event of a merger, corporate
reorganization, or acquisition shall not constitute an assignment for purposes
of this Section. This EULA shall inure to the benefit of and be binding upon
the parties hereto, and their successors and permitted assigns.
11. GOVERNING LAW AND JURISDICTION. This EULA is governed by the laws of the
state of Delaware.
12. SURVIVAL. Sections 2 (License Grant), 4 (Warranty Disclaimer), 5 (Limitation
of Remedies and Damages), and 6 (Limitation of Liability) shall survive any
termination or expiration of this EULA.