End-User License Agreement

PLEASE READ THE FOLLOWING CAREFULLY BEFORE INSTALLING AND/OR USING THE SOFTWARE. YOU ARE DOWNLOADING THIS SOFTWARE FROM A MARKETPLACE (“MARKETPLACE“) OPERATED BY A THIRD PARTY CLOUD SERVICES PROVIDER (“MARKETPLACE PROVIDER“).

By clicking the “accept” or “OK” button, or installing and/or using the GigaSpaces software application you expressly acknowledge and agree that you are entering into a legal agreement with GigaSpaces Technologies Inc. (“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 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 and all references herein to “you” shall be deemed to apply to such entity or organization.
  2. License.
    • 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 and customer-related business purposes, and to distribute, transmit, transfer and sub-license the Software to your channels (e.g., and without limitation managed service providers) and customers for use only with your hosted and/or on-premises products and services, including without limitation your products when operating on customers’ “Infrastructure-as-a-Service” solutions. The 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” here under shall include any documentation made available to you by GigaSpaces in connection with the GigaSpaces software application (if any).
    • The license granted under Section 2.1 is a subscription-based 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 subscription plan, which will be displayed during your Software download process on the Marketplace (“Subscription Plan”), and any such Subscription Plan terms shall be incorporated into, and made part of, this Agreement. In the event of any conflict or contradiction between this Agreement and any Subscription Plan terms, the Subscription Plan terms shall prevail with respect only to the matter in conflict or contradiction.
  3. License Restrictions. You have no right and will not, nor will you authorize or assist others to: (a) distribute, assign, transmit, sub-license, 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 1; (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. Usages Rules. If you are downloading the Software from a third party mobile device platform or service provider (“Distributor”), please be aware that the Distributor may have established usage rules which also govern your use of the Software (“Usage Rules”). You acknowledge that, prior to downloading the Software from a Distributor, you have had the opportunity to review and understand, and will comply with, its Usage Rules. The Usage Rules that are applicable to your use of the Software are incorporated into this Agreement by this reference. You represent that you are not prohibited by any applicable Usage Rules and/or applicable law from using the Software; if you are unable to make such a representation you are prohibited from installing and/or using the Software. Usage Rules include, without limitation, the applicable usage rules and policies of the Marketplace and Marketplace Provider.
  5. Intellectual Property Rights
    • 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 licencors and that GigaSpaces and our licencors retain all title, ownership rights and Intellectual Property Rights (defined below) in and to the Software (and its related software). Other than the limited license granted to y
    • GigaSpaces and our licencors 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.
    • 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 (the “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 licencors 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.
    • Use of Content. The content on the Software is provided to you “as is” for your personal use 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. 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 the Marketplace Provider the subscription fees specified in the Subscription Plan (“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 Subscription Plan, to the means of payment that you provide to the Marketplace Provider. All payment for your use of the Software shall be charged by the Marketplace Provider, in accordance with payment terms and policies of the Marketplace Provider. GigaSpaces shall not be responsible for any payment charging and/or refunds.
  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
    • 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.
    • 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.
    • 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.
    • YOU ARE SOLELY RESPONSIBLE FOR PROPER CONFIGURATION OF ALL HARDWARE AND OTHER EQUIPMENT AND ALL DATABASES AND OTHER SOFTWARE USED WITH THE SOFTWARE.
    • 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
    • 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.
    • 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
    • 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 Subscription Plan, and subject to continued payment of applicable Subscription Fees (defined below) by you, shall thereafter renew in accordance with the terms of your Subscription Plan, 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 Subscription Plan and/or the Marketplace Provider. 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.
    • 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, ‎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 ten (10) days following the foregoing modification thereof, and your continued use of the Software thereafter means that you accept those changes.
    • We reserve the right to, and to allow the Marketplace Provider to, change the available Subscription Plan offering at any time, eliminate any Subscription Plans offered at any time, offer new Subscription Plans, and/or modify the terms and conditions of any available Subscription Plan.
  14. Miscellaneous
    • This Agreement constitutes 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.
    • 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.
    • 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.
    • 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.
    • 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.

This Agreement, and any rights and licenses granted here under, may not be transferred or assigned by you but may be assigned