Last Updated: 20 Oct, 2019

XCOMPUTE – End-User License Agreement (EULA)

PLEASE READ THIS LICENSE AGREEMENT CAREFULLY, AS IT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND XPLICIT COMPUTING, INC. (“XPLICIT”).

By clicking on the button or mechanism designed to acknowledge agreement to the terms of an electronic copy of this License Agreement (“Agreement”), or by accessing or otherwise using all or any portion of the Program (as defined below), (i) you accept this Agreement on behalf of the entity for which you are authorized to act (e.g., an employer) (any such entity, an “Organization”) and acknowledge that such Organization is legally bound by this Agreement or, if there is no such Organization, you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement, and (ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such Organization (if any) and yourself. References to “Licensee” in this Agreement will refer both to you the individual using the Program and to such Organization (if any).

In addition, to enter into this Agreement, and thereby use the Program, you as an individual must be at least 18 years old. Accordingly, you represent and warrant that you are at least 18 years old.

Definitions

“Period” means the period commencing on the Effective Date and ending on the earlier of when Licensee no longer has access to the Program on the Platform or this Agreement terminates pursuant to Section 7.1.
“Documentation” means the standard user guides for installation and use of the Program that Xplicit makes generally available to its similarly situated users.
“Effective Date” means the date on which Licensee acknowledges agreement to the terms of this Agreement.
“Jobs” means the execution of a workflow on the Platform which invokes the Program.
“Platform” means the networked or individual high performance computing environment on which Licensee runs Jobs.
“Program” means the Xplicit software, in object code form only, and the media, Documentation and any updates made available by Xplicit to Licensee through the Platform and for which Licensee is granted a license pursuant to this Agreement.

Program

Limited License. Subject to and conditioned on the terms and conditions of this Agreement, Xplicit hereby grants to Licensee a limited, non-exclusive, personal, non-transferable, non-sublicenseable license during the Period: (a) to access and use the Program solely in accordance with the limitations, technical specifications and other requirements set forth or referenced in the Documentation or this Agreement; and (b) to access and use the Documentation provided with the Program in support of Licensee’s use of the Program as set forth in clause (a).
Restrictions. The license and other rights granted to Licensee in this Agreement are subject to and conditioned on the terms and conditions of this Agreement and Licensee’s compliance therewith, including the limitations and restrictions set forth in this Section 2.2. Licensee hereby acknowledges and agrees that: (a) Licensee will not use or copy the Program or the Documentation except as expressly set forth in Section 2.1; and (b) Licensee will use the Program and the Documentation in accordance with all applicable laws, rules, and regulations. Except as expressly provided in Section 2.1, Licensee will not, and will not permit any third party to: (i) copy all or any portion of the Program or the Documentation; (ii) decompile, disassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary) the Program or any portion thereof; (iii) modify, translate, or create any derivative works based upon the Program or the Documentation; (iv) distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Program or the Documentation, in whole or in part, to any third party; (v) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Program or the Documentation; (vi) perform, or release the results of, benchmark tests or other comparisons of the Program with other software or materials; (vii) permit the Program to be used for purposes of or in connection with services or arrangements for facility management, service bureau, or time-sharing, or otherwise used for processing data or other information on behalf of any third party; (viii) incorporate the Program, the Documentation or any portion thereof into any other materials, products, or services; (ix) determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Program or any portion thereof, or (x) use, reproduce, distribute or otherwise exploit the Program or the Documentation for any purpose other than as expressly authorized by this Agreement. Without limiting Section 7, in the event of any violation of this Section 2.2, Xplicit may immediately terminate this Agreement.
Ownership. Xplicit is the sole and exclusive owner of, and retains all right, title and interest in and to, the Program and Documentation, including (without limiting Section 2.2) all enhancements, modifications, and derivative works of the Program and Documentation, and all patent, copyright, trademark, trade secret and any other intellectual property rights in the Program, subject only to the limited license set forth in this Agreement. Licensee does not acquire any other rights, express or implied, in the Program or Documentation other than those rights expressly granted under this Agreement.
Open Source Software. Licensee acknowledges and agrees that the Program may contain or have dependencies on certain open source software as identified in the Documentation or as otherwise identified by Xplicit. To the extent that the Program contains or has dependencies on any open source software and the applicable open source license requires that Xplicit provide Licensee any rights (or impose any restrictions or other terms) with respect to such open source software that are inconsistent with or in addition to the license or other terms in this Agreement, then such open source license will take precedence over such license or other terms in this Agreement only with respect to the applicable open source software. Licensee acknowledges and agrees that Licensee’s use of such open source software is governed by the applicable open source license terms and that, subject to applicable law, Xplicit has no obligation or liability with respect to such open source software under this Agreement. Licensee will not (and will not permit any third party to) use any such open source software in a manner that would require the Program (or any portion thereof) to be distributed or made available free of charge, in source code form, or under any open source license terms.
Limited Support and Maintenance. Licensee acknowledges and agrees that Xplicit has no obligation to issue Updates under this Agreement and that the issuance of Updates is subject to Xplicit’s development schedule, for which Xplicit maintains exclusive control. Xplicit has no obligation to provide Licensee with any support or maintenance for the Program. To avoid doubt, any Updates provided by Xplicit will be deemed part of the Program under this Agreement and will be subject to the terms and conditions of this Agreement.
Feedback. Xplicit may from time to time request that Licensee provide feedback, suggestions, comments, ideas, or other information to Xplicit regarding the features, functionality, or other aspects of the Program (including without limitation identifying errors and potential improvements) or any other subject matter (“Feedback”). Licensee hereby grants and agrees to grant to Xplicit a worldwide, royalty-free, transferable, irrevocable and perpetual license, with the right to sublicense through one or more tiers, to use, modify, display, distribute, disclose and otherwise exploit any Feedback and authorize others to do the same.

Fees. Xplicit shall, from time to time, determine the fees and charges for the access and use rights granted hereunder. Licensee shall promptly pay to Xplicit or the Platform, as applicable, all fees due and owing for such rights without offset or deduction.
Confidentiality

Confidential Information. “Confidential Information” means any non-public documents, materials, and information disclosed by Xplicit to Licensee in written, oral, graphic, or electronic form, trade secrets, know-how, and technical information (such as specifications, designs, and interfaces). Confidential Information includes the Program and any information related to its features, functions, and performance that are not made generally available by Xplicit.
Generally. Licensee will not use for any purpose, and will keep confidential and not disclose or otherwise make available to any third party (other than Licensee’s employees who have a need to know such Confidential Information and are bound in writing by confidentiality obligations at least as protective of Xplicit as those set forth in this Agreement), any Confidential Information that is provided or made available by Xplicit under this Agreement, except that Licensee may use and disclose such Confidential Information as required to exercise Licensee’s rights or perform Licensee’s obligations under this Agreement. Licensee will exercise the same level of care in preserving the secrecy of the Confidential Information as the care used in preserving the secrecy of Licensee’s own comparable confidential information, but in no event less than reasonable care. The obligations regarding use and disclosure will survive the termination of this Agreement.
Exclusions. Notwithstanding the foregoing, the restrictions on use and disclosure will not apply to any information which: (a) is or becomes publicly known through no breach by Licensee of Licensee’s obligations under this Agreement; (b) Licensee rightfully receives from a third party who owes no obligations of confidentiality to Xplicit with respect thereto; or (c) was already known to Licensee at the time of disclosure as shown by Licensee’s prior written records and without obligations of confidentiality to Xplicit with respect thereto.
Required Disclosure. If Licensee is requested or required by any legal or investigative process to disclose any Confidential Information, Licensee will provide Xplicit with prompt notice of each such request and the information requested so that Xplicit may seek to prevent disclosure or the entry of a protective order. If disclosure is required and a protective order is not obtained, Licensee will disclose only such information that Licensee’s counsel advises Licensee is legally required to disclose.
Equitable Relief. Licensee acknowledges and agrees that: (a) due to the unique nature of the Confidential Information there can be no adequate remedy at law to compensate Xplicit for the breach of any provision of this Section 4; (b) any such breach will allow Licensee or third parties to compete unfairly with Xplicit resulting in irreparable harm to Xplicit that would be difficult to measure; and (c) upon any such breach or threat thereof, Xplicit will be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies it may have at law.

Warranties; Limitation of Liability

Representations and Warranties. Each party represents and warrants to the other party that the execution, delivery and performance of this Agreement does not and will not contravene or constitute a default under, and is not and will not be inconsistent with, any judgment decree or order, or any contract, agreement, or other undertaking, applicable to such party. Xplicit represents and warrants to Licensee that the execution, delivery and performance of this Agreement is within its corporate powers and has been duly authorized by all necessary corporate action on its part. If Licensee is an Organization, Licensee represents and warrants to Xplicit that the execution, delivery and performance of this Agreement is within its corporate powers and has been duly authorized by all necessary corporate action on its part.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1, XPLICIT MAKES NO, AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW HEREBY DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Except as expressly set forth in Section 5.1 and except as otherwise prohibited by applicable law, Xplicit does not warrant that the operation of the Program will be uninterrupted or error-free and Xplicit hereby disclaims any and all liability in connection therewith.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) IN NO EVENT WILL XPLICIT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS, CUSTOMERS, USE, PROFITS, REVENUE, SAVINGS OR DATA, OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY LICENSEE OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT, STATUTE OR OTHERWISE, AND EVEN IF XPLICIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE; AND (B) IN NO EVENT WILL XPLICIT’S AGGREGATE LIABILITY FOR ANY CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, THE PROGRAM OR OTHER SUBJECT MATTER HEREOF EXCEED THE FEES PAID TO XPLICIT BY LICENSEE HEREUNDER. THE FOREGOING EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF WHETHER THE DAMAGES OR LIABILITY ARISE FROM CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, INDEMNIFICATION, MITIGATION, WARRANTY, STRICT LIABILITY OR OTHERWISE. The parties acknowledge that the limitations of liability in this Section 5.3 and in the other provisions of this Agreement and the allocation of risk herein are an essential element of the bargain between the parties, without which Xplicit would not have entered into this Agreement.

Indemnification. Licensee will indemnify, defend and hold harmless Xplicit and its affiliates and its and their officers, directors, shareholders, employees, agents, licensors, distributors and suppliers from and against any and all claims, suits and proceedings, and all associated losses, liabilities, costs (including reasonable attorneys’ fees) and damages, arising from or related to (a) Licensee’s use or misuse of the Program or Documentation or other activities under this Agreement, including Licensee’s breach or alleged breach of this Agreement; or (b) any product, service, technology or other material developed, designed, sold, licensed, distributed, or otherwise provided by or for Licensee, including any claim that such product, service, technology or other material infringes, misappropriates or otherwise violates any third party intellectual property rights.
Term; Termination

Term; Termination. This Agreement will commence on the Effective Date and will remain in effect until the last day of the Period, unless earlier terminated in accordance with its terms. Xplicit may terminate this Agreement upon written notice to the Licensee if (a) Licensee materially breaches any term or condition of this Agreement and fails to correct such breach within thirty (30) days following written notice specifying such breach; or (b) Licensee ceases to operate its business, or applies for or consents to the appointment of a receiver, trustee or liquidator for substantially all of its assets, or such a receiver, trustee or liquidator is appointed for Licensee, or the Licensee has filed against it an involuntary petition for bankruptcy that has not been dismissed within sixty (60) days thereof, or the other party files a voluntary petition for bankruptcy or a petition or answer seeking reorganization, becomes or is insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors. In addition, Xplicit may terminate this Agreement upon notice to Licensee if Licensee breaches Section 2.2 or Section 2.6, or if Licensee takes any action in derogation of Xplicit’s rights in and to the Program.
Effect of Termination. Upon any expiration or termination of this Agreement: (a) the license and rights granted to Licensee under this Agreement will terminate; (b) Licensee will cease all use of the Program and Documentation; and (c) Licensee will destroy (or, if directed by Xplicit, return to Xplicit) all copies of the Program, Documentation, any other Confidential Information, and all related materials in Licensee’s possession or control (and, at Xplicit’s request, so certify to Xplicit). The following Sections will survive any termination of this Agreement: 2.3, 2.4, 2.6, 4, 5.2, 5.3, 6, 7 and 8.

General Provisions

Entire Agreement. This Agreement constitutes the entire understanding between the parties regarding the subject matter of this Agreement and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. Any modification of this Agreement will be effective only if made in writing and signed by authorized representatives of the parties. It is expressly agreed that any pre-printed terms appearing on the face or reverse side of any form, including an invoice, order form, acknowledgement or confirmation, that are different from or in addition to the terms provided in this Agreement are not binding on the parties, even if signed and returned, and the parties object to any such different or additional terms. Any offer by either party and any acceptance of such an offer by the other party is limited to the terms in this Agreement only, and each party’s acceptance of any offer is expressly made conditional on assent to the terms of this Agreement.
Exclusion of Terms. The parties hereby acknowledge and agree that any provisions of any law adopting exactly or in modified form the Uniform Computer Information Transactions Act (“UCITA”) will not be applicable to this Agreement. Furthermore, both parties waive any and all rights arising from any such law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply.
Choice of Law and Venue. This Agreement will be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and obligations of the parties, and, to the extent federal law is applicable, the laws of the United States of America without giving effect to any choice of law rule that would cause the application of the laws of any other country. Each party (a) hereby irrevocably submits itself to and consents to the jurisdiction of the United States District Court for the Southern District of California (or if such court lacks jurisdiction, the state courts in Los Angeles County, California) for the purposes of any action, claim, suit or proceeding in connection with any controversy, claim or dispute arising out of or relating to the Agreement, and (b) hereby waives, and agrees not to assert, by way of motion, as a defense or otherwise, in any such action, claim, suit or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that the action, claim, suit or proceeding is brought in an inconvenient forum or that the venue of the action, claim, suit or proceeding is improper.
Assignment. Licensee may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise (including in connection with the sale of all or substantially all of Licensee’s stock or other equity, or any other event representing a change of control of Licensee), this Agreement or any rights or obligations under this Agreement without the prior written consent of Xplicit. Any purported assignment, transfer or delegation by Licensee will be null and void. Xplicit may assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise (including in connection with the sale of all or substantially all of Xplicit’s stock or other equity, or any other event representing a change of control of Xplicit), this Agreement or any rights or obligations under this Agreement without Licensee’s prior written consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
Notices. Any notice under this Agreement will be addressed to the applicable party at such party’s address as follows (or such other address as either party may notify the other of in accordance with this Section): (a) if to Xplicit, 26607 Redstart Ct, Canyon Country, California 91351; and (b) if to Licensee, the mailing address provided by Licensee during the account registration process. All notices will be sent by personal delivery, registered or certified mail (postage prepaid, return receipt requested), or internationally recognized courier service (e.g., UPS, FedEx) (delivery charges prepaid, return receipt requested). Notices will be deemed given receipt.
Relationship of the Parties. Nothing contained in this Agreement will be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party nor its agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.
Waiver. None of the conditions of this Agreement will be considered waived unless such waiver is in writing and signed by the waiving party. No such waiver will be a waiver of any past or future default, breach or modification of any of the conditions of this Agreement unless expressly stipulated in such waiver.
Partial Invalidity. Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement will not be affected and will continue in effect and the invalid provision will be deemed modified to the least degree necessary to remedy such invalidity.
Public Announcements. Xplicit will be required to obtain prior written consent to use Licensee’s name (or the name of the entity on whose behalf Licensee is entering into this Agreement) as a customer reference on Xplicit’s customer lists. Licensee reserves the right opt-out of announcements.
Export Administration. Licensee will comply fully with all relevant export laws and regulations, including without limitation the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, Licensee will not, and Licensee will require Licensee’s representatives not to, use the Program (or any direct product thereof) in, or export, direct or transfer the Program (or any direct product thereof) to, any destination, person or entity restricted or prohibited by the Export Controls. Licensee represents and warrants that Licensee is not such a person and is not located in, under the control of, or a national or resident of any such destination or entity.
U.S. Government Rights. If Licensee is, or is entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Program and Documentation are “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Program and Documentation are governed by the terms of this Agreement.
Interpretation. For purposes of interpreting this Agreement, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or paragraph; (c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; and (d) the captions and Section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.