END-USER DEVELOPMENT LICENSE AGREEMENT

PLEASE READ THE FOLLOWING CAREFULLY BEFORE INSTALLING AND/OR USING THE SOFTWARE.

By clicking the “accept” or “ok” button, or installing and/or using the GigaSpaces software application (“Software”) You expressly acknowledge and agree that You are entering into a legal agreement with GigaSpaces Technologies Ltd. (“GigaSpaces”, we”, “us” or “our”), and have understood and agree to comply with, and be legally bound by, the terms and conditions of this End-User Development License Agreement (“Agreement”). You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If You do not agree to be bound by this Agreement please do not download, install or use the Software.

  1. Ability to Accept. By installing the Software You affirm that You are over 18 years old. The Software is not intended for user under the age of 18. If You are accepting this Agreement, installing and/or using the Software on behalf of an entity or organization, then by installing the Software You confirm You are authorized to agree to and accept this Agreement on behalf of the entity or organization that You represent. The terms “You” and “Your” will apply collectively to such organization and such user, unless otherwise evident from the context.
  2. Development License
    1. Subject to your payment of the applicable Subscription Fees (as defined below) and other terms and conditions of this Agreement, we hereby grant You a, non-exclusive, non-transferable, non-assignable license, during the Term, to install, execute, display, host and otherwise use the Software for Your internal development purposes, including without limitation Your products when operating on customers’ “Infrastructure-as-a-Service” solutions. The development license also includes Your right to make the number of copies of the Software reasonably required for authorized use under this Agreement, provided that You maintain all proprietary rights notices on all copies of the Software. For clarify, any references to Software hereunder shall also include any documentation made available to You by GigaSpaces in connection with Your use of the Software (if any).
    2. The development license granted under Section 2.1 is a subscription-based development license. In addition to the terms and conditions set forth in this Agreement, Your use of the Software shall be subject to the specific terms and conditions of Your Commercial Offer issued by GigaSpaces and signed by You (“Commercial Offer”). The terms of the Commercial Offer shall be incorporated into, and made part of, this Agreement. In the event of any conflict or contradiction between this Agreement and any of the Commercial Offer terms, the Commercial Offer shall prevail.
  3. Development License Restrictions. You have no right and will not, nor will You authorize or assist others to: (a) distribute, assign, transmit, sublicense, redistribute, sell, lease, lend, rent or otherwise transfer the Software or any part thereof, or any of Your rights therein, except as expressly permitted under Section 2; (b) make the Software available over a network where it could be used by multiple devices owned or operated by different people at the same time; (c) use the Software in a standalone manner on a service bureau or time sharing basis, or distribute the Software for use in any manner; (d) disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of, the Software or any part thereof, except and solely to the extent permitted under applicable law notwithstanding this restriction; (e) copy, modify, modify, translate, alter, improve or create derivative works of the Software or any part thereof; (f) circumvent, disable or otherwise interfere with security-related features of the Software or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Software; (g) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the Software;; (h) use the GigaSpaces name, logo or trademarks without our prior written consent; (i) use the Software to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement; (j) use the Software in order to conduct any comparisons, competitive analysis, penetration testing, vulnerability assessment, aimed identified security vulnerability, or other benchmarking activities, either alone or in connection with any other product or hardware without the our prior written consent; and/or (k) publish reviews of the Software without our prior written consent.
  4. Confidentiality
    1. Each party (“Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (“Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to its employees or contractors who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
    2. The Receiving Party’s obligations under this Section, with respect to any Confidential Information of the Disclosing Party, shall not apply to and/or shall terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The confidentiality obligations set forth in this Agreement shall bind the parties for a period of 5 years from the date of termination or expiration of this Agreement.
    3. The Receiving Party hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to the Disclosing Party that may be difficult to ascertain. Accordingly, the Receiving Party agrees that the Disclosing Party, in addition to any other right or remedy that it may have available to it at law or in equity, will have the right to seek and obtain immediate injunctive relief, in any competent jurisdiction, to enforce obligations under this Agreement without the necessity of proving actual damages, posting bond or making any undertaking in connection therewith.
    4. Upon the expiration or termination of this Agreement, or upon the Disclosing Party’s written request, the Receiving Party must cease all use of Confidential Information received hereunder and return or destroy all such Confidential Information, as directed by the Disclosing Party, including all copies thereof (irrespective of whether such copies were furnished by the Disclosing Party or were prepared by the Receiving Party), and, if destroyed, furnish the Disclosing Party with written certification of destruction.
  5. Intellectual Property Rights
    1. Ownership. The Software is licensed and not sold to You under this Agreement and You acknowledge the Software contains proprietary and trade secret information of GigaSpaces or our licensors and that GigaSpaces and our licensors retain all title, ownership rights and Intellectual Property Rights (as defined below) in and to the Software (and its related software). Other than the limited license granted to You hereunder, GigaSpaces and our licensors reserve all rights and ownership in and to the Software including any and all copies made by You, if applicable. “Intellectual Property Rights” means any and all rights, titles and interests in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, whether foreign or domestic.
    2. Content. The: (i) content on the Software, including without limitation, the text, information, documents, descriptions, products, software, graphics, photos, sounds, videos, interactive features, and services (“Materials”); and (ii) the trademarks, service marks and logos contained therein (“Marks”, and together with the Materials, the “Content”), are the property of GigaSpaces and/or its licensors and may be protected by applicable copyright or other intellectual property laws and treaties. “GigaSpaces” and the GigaSpaces’ logo are Marks of GigaSpaces and its affiliates. All other Marks used on the Software are the trademarks, service marks, or logos of their respective owners.
    3. Use of Content. The content on the Software is provided to You “as is” for the purpose of Your internal development only and may not be used, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without our prior written consent. If You download or print a copy of the Content You must retain all copyright and other proprietary notices contained therein.
  6. Open Source Software. Portions of the Software may include third party open source software certain third party open source software and materials (“Open Source Software”) which are subject to third party open source licenses (“Open Source Licenses”). A list of any Open Source Software and related Open Source Licenses is available at: https://docs.gigaspaces.com/latest/rn/third-party.html. By executing this Agreement, You hereby acknowledge and agree to comply with the terms and condition of the Open Source Licenses, as may be amended from time to time. If there is a conflict between the terms of any Open Source License and the terms of this Agreement, then the Open Source License terms shall prevail, but solely in connection with the related Open Source Software.
  7. Pricing and Payment. You shall pay to GigaSpaces the subscription fees specified in the Commercial Offer (“Subscription Fees”). Subscription Fees will be charged in accordance with the billing cycles (e.g., monthly or yearly) and at such times (e.g., up front or on a recurring basis) as specified in the Commercial Offer, to the means of payment that You provide to GigaSpaces.
  8. Support. GigaSpaces may, at its sole discretion provide standard online, email and/or telephone support and troubleshooting with respect to the Software.
  9. Limited Warranties; Disclaimer of Warranties
    1. THE SOFTWARE IS PROVIDED BY US ON AN “AS IS” AND “AS AVAILABLE” BASIS AND GIGASPACES AND OUR SUPPLIERS MAKE NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY. FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
    2. WE DO NOT WARRANT THAT THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE SOFTWARE OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL CODE OR THAT WE WILL CORRECT ANY ERRORS IN THE SOFTWARE.
    3. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
    4. YOU ARE SOLELY RESPONSIBLE FOR PROPER CONFIGURATION OF ALL HARDWARE AND OTHER EQUIPMENT AND ALL DATABASES AND OTHER SOFTWARE USED WITH THE SOFTWARE.
    5. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
  10. Indemnity. You agree to defend, indemnify and hold harmless GigaSpaces and our affiliates, and our respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) Your use of, or inability to use, the Software; (ii) Your violation of this Agreement; and (iii) Your violation of any third party right, including without limitation any copyright, property, or privacy right. Without derogating from or excusing Your obligations under this Section, we reserve the right (at your own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by You if You choose not to defend or settle it. You agree not to settle any matter subject to an indemnification by You without first obtaining our express approval.
  11. Limitation of Liability
    1. IN NO EVENT SHALL GIGASPACES BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, BUSINESS OR REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SOFTWARE, OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, EVEN IF GIGASPACES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. IN ANY EVENT GIGASPACES’ ENTIRE LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES FROM ANY CAUSE WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF FORM OR ACTION, WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE, SHALL IN ANY EVENT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS PAID BY YOU PURSUANT TO THIS AGREEMENT WITHIN A 3 MONTH PERIOD PRIOR TO BRINGING OF ANY PARTICULAR CLAIM.
  12. Term and Termination
    1. Term and Termination. This Agreement shall become effective upon Your download of the Software and shall remain in effect for the period specified in the applicable Commercial Offer, and subject to continued payment of applicable Subscription Fees by You, shall thereafter renew in accordance with the terms of Your Commercial Offer, unless earlier terminated in accordance with this Section 12.1 (“Term“). You may terminate this Agreement in accordance with the terms and conditions of Your Commercial Offer, to the extent that the Commercial Offer provides such early termination rights. Notwithstanding the foregoing, GigaSpaces shall have the right to immediately terminate this Agreement, or otherwise modify, suspend or discontinue Your access to and use of the Software, for any reason whatsoever, at any time, and without notice or obligation to You, and You agree that GigaSpaces shall have no liability to You for any such termination, modification, suspension, or discontinuance.
    2. Effect of Termination. Upon termination of this Agreement, the license granted to you under Section 1 will terminate and you: (i) will cease any and all rights to use the Software; and (ii) will remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession or under your control. All provisions of this Agreement which may reasonably be interpreted or construed as surviving the expiration or termination of this Agreement including, but not limited to, Sections 3, 4, 5, 6, 9, 10, 11, 12.2, 13 and 14 shall survive any expiration or termination of this Agreement. For the avoidance of doubt, termination of this Agreement for any reason shall not relieve either party from its obligation to pay the other any outstanding payments due and payable under this Agreement as of the effective date of termination or expiration.
  13. Modification. We reserve the right to modify this Agreement at any time by publishing the revised Agreement in the Software. Such change will be effective 10 days following the foregoing modification thereof, and Your continued use of the Software thereafter means that You accept those changes.
  14. Miscellaneous
    1. This Agreement and the Commercial Offer constitute the entire Agreement between You and GigaSpaces, and supersedes any prior or contemporaneous agreements between the parties with respect to the subject of this Agreement.
    2. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, exclusive of its conflict of laws principles. Any dispute arising under or relating to this Agreement will be resolved exclusively in the applicable state or federal courts in Tel-Aviv, Israel, and the parties hereby expressly consent to jurisdiction therein. The prevailing party in any of the litigation proceedings shall be awarded reasonable attorneys’ fees, expert witness costs and expenses, and all other reasonable costs and expenses incurred directly or indirectly in connection with the proceedings, unless the court for good cause determines otherwise.
    3. If any provision of this Agreement shall be declared invalid, illegal or unenforceable, then such provision shall be deemed modified or excluded to the extent necessary so that it is no longer invalid, in violation of law or unenforceable and all remaining provisions shall continue in full force and effect.
    4. Nothing in this Agreement shall be construed to limit or delay either GigaSpaces’ ability to seek immediate relief at law or in equity for any breach by the other, including a breach by you of the license or requirements upon termination thereof.
    5. Any failure to require compliance with any of the terms, provisions, warranties, covenants or conditions of this Agreement, shall not be deemed a waiver of such term or any other term, and failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
    6. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by You but may be assigned by GigaSpaces without restriction or notification.