End User License Agreement Version 1.0 - 10/10/2017
This License Agreement (the "Agreement") is made and entered into by and between WeDoIT (as defined below) and you as, or on behalf of, Licensee (as defined below). This Agreement governs Licensee's access to the INVOKE Technology and use of the Licensee Instance (as these terms are defined below). Each of WeDoIT and Licensee is a "Party" to this Agreement and together they are indicated as the "Parties".
By either (a) submitting a signed Quote; (b) providing a purchase order complying with a Quote, (c) checking the "I read the License Terms and I Accept them" checkbox and subsequently clicking the "Next" button during the installation and configuration process of the Licensee Instance (as defined below) with the INVOKE Technology (as defined below), or (d) accessing or using the Licensee Instance, you as, or on behalf of, Licensee, are accepting and agreeing to be bound by the terms and conditions of this Agreement, which becomes effective as of the date you click the "Next" button (or first access or use the Licensee Instance) (the "Effective Date"). If you are accepting on behalf of Licensee, you represent and warrant that: (i) you have full legal authority to bind Licensee to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Licensee, to this Agreement. If you do not have the legal authority to bind Licensee, please do not click the "Next" button (or access or use the Licensee Instance).
1. License Grant. WeDoIT grants Licensee a limited, personal, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the License Term: (i) install and configure the INVOKE Technology on a single Licensee Instance, unless otherwise expressly permitted in writing by WeDoIT; (ii) Manage Licensee compute and storage resources using Licensee Instance(s) for the internal business use of (a) Licensee; and (b) Managed Users of Licensee, but only if and to the extent Licensee has been expressly authorized in writing by WeDoIT to use License Instance(s) to manage, monitor and protect Managed Users (collectively, "Permitted Use"); and (iii) copy and use data resulting from, and Documentation for, a Permitted Use.
2. Ownership and License Restrictions
2.1. Ownership. WeDoIT exclusively owns and reserves all right, title, and interest in and to the INVOKE Technology, which are licensed, not sold, to Licensee.
2.2. License Restrictions. Except as expressly granted and permitted in the License, neither Licensee nor any End User or, if applicable, Managed User obtains any right in and to the INVOKE Technology or may copy or use the INVOKE Technology in any manner, or for any purpose other than, the Permitted Use. Neither Licensee nor any End User or, if applicable, Managed User, may, or may attempt to (a) modify, alter, translate, tamper with, repair, or otherwise create derivative works of any INVOKE Technology; (b) reverse engineer, disassemble, decompile or decrypt the INVOKE Technology or otherwise apply any other process or procedure to discover, extract, reconstruct, or derive the source code, underlying ideas, algorithms, file format, programming or interoperability interfaces, components, trade secrets or other proprietary information embodied in or associated with, the INVOKE Technology; (c) disable or circumvent any security or encryption mechanisms used by or in the INVOKE Technology or the Licensee Instance; (d) access, copy or use the INVOKE Technology in a way intended to avoid incurring fees or exceeding usage limits or quotas; (e) except as and to the extent expressly permitted under Section 1 above, rent, lease, resell, sublicense or otherwise distribute the INVOKE Technology to other people or entities, or otherwise charge them for the use of the INVOKE Technology or the work done on their behalf if it involves the use of Licensee's right to use the INVOKE Technology; or (f) use the INVOKE Technology (or any of its underlying concepts and ideas) to create or improve (directly or indirectly) a substantially similar product or service. All licenses granted to Licensee in this Agreement are conditional on Licensee's continued and full compliance with the terms and conditions of this Agreement, and may be terminated by WeDoIT if Licensee does not comply with any term or condition of this Agreement. During and after the term of this Agreement, Licensee will not assert, nor will Licensee authorize, assist, or encourage any third party to assert, against WeDoIT or any of its, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding the INVOKE Technology used by Licensee.
2.3. Feedback. The provision of any Feedback is voluntary. WeDoIT will own all right, title, and interest in and to any Feedback and be entitled to use the Feedback without restriction. Licensee hereby irrevocably assign to WeDoIT all right, title, and interest in and to the Feedback and agrees to provide WeDoIT any reasonably required assistance to document, perfect, and maintain WeDoIT's rights in the Feedback.
3. Access to the INVOKE Technology; use of the Licensee Instance; support
3.1. Account & Email. Licensee must have a valid account with the Service Provider and an e-mail address to access the INVOKE Technology and exercise its License rights. 3.2. Support to Licensee. If Licensee has fully paid for support during the License Term, WeDoIT will provide support to Licensee (but not to End Users or Managed Users) in accordance with WeDoIT's standard support terms then in effect.
3.3. New Features. WeDoIT may make new tools, features or functionality related to the INVOKE Technology available from time to time, the use of which may be contingent upon Licensee's agreement to additional terms.
3.4. Changes. From time to time, WeDoIT may make changes to the terms of this Agreement. Substantial changes to existing terms will become effective 30 days after they are posted on the WeDoIT website or notified in writing to Licensee, including by email. Changes that are insignificant or apply to new feature or functionality will be effective immediately upon posting or, if notified by email, as stated in the email message. If Licensee does not agree to the changed or revised terms, it must stop using Licensee Instance. By continuing to access the INVOKE Technology and/or use the Licensed Instance after the effective date of any change to this Agreement, Licensee agrees to be bound by the changed terms. Licensee is responsible to check the WeDoIT website regularly for changes.
4.1. Licensee Responsibilities. Licensee is solely responsible for (i) all setup, use, operation, configuration and monitoring of the Licensee Instance and the routine backing-up and, if needed, restoration of Licensee Information, occurring under its own and, if applicable, its Managed Users' accounts with the Service Provider, whether performed by Licensee (or any employee, contractor or agent acting on its behalf) or any End User or Managed User (ii) maintaining the confidentiality of any log-in credentials and private keys provided for Licensee's access to the INVOKE Technology or use of a Licensee Instance.
4.2. Disclaimer of responsibility. WeDoIT shall not be responsible for unauthorized access to Licensee's or any Managed User's account with the Service Provider. Licensee will immediately inform WeDoIT if it believes an unauthorized third party may be accessing the INVOKE Technology or using the Licensee Instance on its behalf.
4.3. End User and Managed User Violations. Licensee is responsible for any use or action of End Users and Managed Users related to this Agreement, including any exercise of the License by an End User or a Managed User. Licensee will ensure that all End Users and Managed Users comply with Licensee's obligations under this Agreement. Licensee will further ensure that the terms of Licensee's agreement with each End User and Managed Users are consistent with this Agreement. If Licensee becomes aware of any violation of Licensee's obligations under this Agreement by an End User or a Managed User, Licensee will immediately terminate such End User's or Managed User's access to the INVOKE Technology and/or Licensee Instance.
4.4. End User Support. Licensee is responsible for providing support service (if any) to End Users and, if applicable, Managed Users.
5. Payment terms
5.1. Fees. Fees and charges applicable to Licensee's rights to exercise the License and receive support services (a) are described in either the applicable Quote provided by WeDoIT to Licensee, or in the absence of such a Quote, on the website of WeDoIT or the Service Provider, as applicable; (b) will be calculated and charged periodically by WeDoIT or the Service Provider, as applicable; and (c) will be paid by Licensee either through the Service Provider or directly to WeDoIT (or via a third party acting on its behalf), as agreed between Licensee, WeDoIT and, if applicable, the Service Provider, using one of the supported payment methods.
5.2. Payment terms. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Unless as expressly otherwise set forth in a Quote provided by WeDoIT to Licensee, the fees and charges for the License and support may be changed upon a 30 days' advance notice. Licensee waives all claims relating to the fees under this Agreement unless claimed within sixty days after charged. Late payment shall bear an Interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). In the event of a late payment (or other breaches of the Agreement by Licensee or an End User), WeDoIT reserves the right to suspend the access to the INVOKE Technology or the use of the Licensee Instance.
5.3. Taxes. All fees and charges payable by Licensee are exclusive of applicable taxes and duties, including VAT and applicable sales tax. Licensee will provide to WeDoIT and/or the Service Provider, as applicable, any information reasonably requested to determine whether an obligation to collect VAT and applicable sales tax from Licensee, including without limitation the Licensee's VAT identification number. To apply any exemption from any sales, use, or similar transaction tax Licensee is legally entitled to, Licensee must provide to WeDoIT and/or the Service Provider a legally-sufficient tax exemption certificates for each taxing jurisdiction. The tax exemption certificates will be applied to charges under Licensee's account occurring after the date the tax exemption certificates are received. Licensee must notify WeDoIT and/or the Service Provider of any deduction or withholding that is required by law and pay to WeDoIT and/or the Service Provider any additional amounts necessary to ensure that the net amount received, after any deduction and withholding, equals the amount that would have been received if no deduction or withholding had been required. Additionally, Licensee will provide to WeDoIT and/or the Service Provider any documentation evidencing the actual payment of any amounts withheld and deducted to the relevant taxing authority.
6. Confidentiality. During the term of this Agreement and for five (5) years thereafter, the Receiving Party will (a) take reasonable measures to protect the Confidential Information of the Disclosing Party that are no less than those measures taken by the Receiving Party to protect its own Confidential Information of similar nature; (b) not disclose the Confidential Information of the Disclosing Party, except to Affiliates, employees, agents or professional advisors on a need to know basis, provided that they have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential, or except when required by law after giving reasonable notice the Disclosing Party if allowed by law; (c) ensure that all individuals and entities who have access to the Confidential Information of the Disclosing Party use the Confidential Information for the sole purpose of exercising the Receiving Party's rights and fulfilling its obligations under this Agreement, while using reasonable care.
7. Limited Warranty
7.1. Limited Warranty. WeDoIT warrants that for a period of ninety (30) days from the date on which the INVOKE Technology first become accessible to Licensee, the Licensee Instance will perform substantially as described in the then-current Documentation, provided that Licensee Instance is (a) installed by Licensee with an original and unmodified copy of the most updated version of the INVOKE Technology, as made available by WeDoIT or the Service Provider; (b) is properly configured and managed by Licensee; and (c) used by Licensee per the instructions specified in the Documentation and in compliance with this Agreement.
7.2. Unwarranted situations. This limited warranty covers only problems that are reproducible and verifiable and does not cover (a) any software, item or services not provided by, or on behalf of, WeDoIT; or (b) problems caused by or arise from Licensee's, an End User's or a Managed User's, abuse, misuse, unauthorized use, or unauthorized installation of, or modification to, the INVOKE Technology or the Licensee Instance or failure to take any of the measures described as part of the responsibility of Licensee under this Agreement, or that are caused by events beyond WeDoIT's reasonable control, including, without limitations, any failures in the Provider Services (such as starting/stopping instances as expected).
7.3. Exclusive Remedy. The sole and exclusive obligation of WeDoIT and Licensee's (including without limitation its Managed User's) sole and exclusive remedy in case of a breach of the limited warranty stated above will be to repair or replace the INVOKE Technology in a manner enabling conformity to the Limited warranty above. WeDoIT also has the option to repay to Licensee the fees paid by Licensee for to the License (for the period during which the breach of warranty occurred) instead of repairing or replacing the INVOKE Technology. Prior to repayment, Licensee must permanently stop the use of any Licensee Image and uninstall INVOKE Technology from any Licensee Instance. WeDoIT'S LIABILITY WITH RESPECT TO THE INVOKE Technology, UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY IS EXCLUSIVELY LIMITED TO THE REPAIR OR REPLACEMENT OF THE INVOKE Technology OR TO THE REPAYMENT OF FEES, AS STATED ABOVE.
7.4. GENERAL WARRANTY DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY STATED ABOVE, WeDoIT MAKES NO OTHER EXPRESS, IMPLIED OR STATUTORY REPRESENATIONS, GUARANTEES OR WARRANTIES OF ANY KIND WITH REGARD TO THE INVOKE Technology. THE INVOKE Technology AND THE ACCOMPANYING DOCUMENTATION ARE OTHERWISE PROVIDED "AS IS" WITHOUT ANY WARRANTY INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, CORRESPONDENCE TO DESCRIPTION, TITLE, QUIET ENJOYMENT, AND NONINFRINGEMENT, WHICH ARE ALL EXPRESSLY DISCLAIMED.
7.5. SPECIFIC WARRANTY DESCLAIMERS. LICENSEE ACKNOWLEDGES THAT, EXCEPT TO THE EXTENT EXPRESSLY STATED OTHERWISE IN THE DOCUMENTATION, THE COMPUTE COST OPTIMIZATION OPERATIONS PERFOMRED USING THE LICENSEE INSTANCE ARE BASED ON THE USE OF CLOUD RESOURCES, AN UNDERLYING CLOUD SERVICES PROVIDED BY THE SERVICE PROVIDER. ACCORDINGLY, WeDoIT IS NOT RESPONSIBLE OR LIABLE FOR THE SECURITY OR AVAILABILITY, ANY LICENSEE INFORMATION. AS BETWEEN WeDoIT AND LICENSEE, LICENSEE IS SOLELY RESPONSIBLE FOR THE SECURITY AND AVAILABILITY OF INSTANCES FURTHER, WeDoIT DOES NOT WARRANT THAT THE OPERATION OF ANY LICENSEE INSTANCE WILL BE ERROR-FREE, UNINTERRUPTED OR COMPLETELY SECURE.
8. Limitation of liability
8.1. LIMITATION ON INDIRECT LIABILITY. WeDoIT WILL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES, LOSS OF PROFITS OR SAVINGS, LOSS OR CURRUPTION OF DATA, OR LOSS OR INTERRUPTION OF BUSINESS), EVEN IF WeDoIT KNEW, SHOULD HAVE KNOWN OR HAS BEEN ADVISED OF, THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY AS A REMEDY. FURTHER, WeDoIT WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) LICENSEE'S INABILITY TO USE THE INVOKE Technology; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY LICENSEE IN CONNECTION WITH THIS AGREEMENT OR LICENSEE'S EXERCISE OF THE LICENSE; OR (D) ANY UNAUTHORIZED ACCESS OR DAMAGE TO,OR ALTERATION, DELETION, DESTRUCTION, LOSS OR FAILURE TO STORE ANY OF, LICENSEE INFORMATION OR OTHER DATA.
8.2. LIMITATION ON AMOUNT OF LIABILITY. IN NO EVENT SHALL WeDoIT'S AGGREGATE LIABILITY UNDER THIS AGREEMENT, FOR ANY DAMAGE OR CLAIM ARISING FROM LICENSEE'S EXERCISE OF THE LICENSE, USE OF INVOKE Technology OR THE ACCOMPANYING DOCUMENTATION, EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO WeDoIT DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.
9. Term and Termination
9.1. Term. This Agreement commences on the Effective Date will remain in effect, unless and until terminated as set forth in this Agreement.
9.2. Termination for Breach. Either Party may terminate this Agreement for breach if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days.
9.3. Termination for Convenience. Either Party may terminate this Agreement for its convenience at any time and for any reason by providing a prior written notice to the other Party. The notice period shall be thirty (30) days in case of termination by WeDoIT and immediate in case of termination by Licensee. Notwithstanding the foregoing, in the event a Quote agreed to by WeDoIT and Licensee includes a defined expiration date for the License, WeDoIT may not terminate such License for convenience prior to the expiration date.
9.4. Effects of Termination. Upon the expiration or termination of this Agreement: (i) any and all rights granted by one Party to the other will immediately cease; (ii) all fees and charges (including taxes) owed by Licensee to WeDoIT through the effective day of termination are immediately due upon receipt of the final invoice or electronic bill; (iii) Licensee must permanently stop exercising any of its License rights; (iv) upon request, each Party will use commercially reasonable efforts to return or destroy all Confidential Information of the other Party; and (v) upon request by Licensee, WeDoIT will provide to Licensee post-termination data retrieval assistance, subject to payment of applicable charges for such post-termination data retrieval assistance, similar to the services and charges generally available and charged to WeDoIT licensees then-currently in effect.
10. Data Collection.
10.1 Usage Data. Unless Licensee is either paying for the License via a Service Provider or has prepaid for the License Term and received a self-expiring license key from WeDoIT, Licensee acknowledges and agrees that WeDoIT may collect the Usage Data gathered in connection with Licensee's use of the Licensee Instance for the purpose of calculating the fees applicable to Licensee's use of the Licensed Instance, for itself and, if applicable, its Managed Users and verifying Licensee compliance with the License terms.
10.2 Licensee Identity. Licensee acknowledges and agrees that WeDoIT may collect Licensee's name, address and account number(s) of with the Service Provider, during or after, the configuration process of the Licensee Instance for the purpose of improving support to Licensee. If Licensee is either paying for the License via a Service Provider or has prepaid for the License Term and received a self-expiring license key from WeDoIT, Licensee may skip the above functionality during the configuration process of the Licensee Instance.
10.3 Public Reference. Licensee agrees that WeDoIT may use its name and logo to identify Licensee as a customer of WeDoIT, such as on Licensee's website, subject to WeDoIT's compliance with any guidelines, if provided by Licensee to WeDoIT, with respect to the use of Licensee's name and logo.
11.1. Notices. All notices, communications, reports, approvals or consents, required or permitted by this Agreement, must be in writing, in English, and addressed to the other Party's primary point of contact. Notices to WeDoIT must be sent by email to firstname.lastname@example.org and will be treated as given upon their receipt, as verified by written or automated receipt or by electronic log. Licensee may also mail notices to WeDoIT's address, as listed on the WeDoIT website. Notices to Licensee will be emailed by WeDoIT to the email address provided by Licensee during the registration with WeDoIT or otherwise associated with Licensee's account and will be treated as given when sent. Licensee is responsible to keep its email account with WeDoIT current.
11.2. Assignment. Licensee may not assign, transfer, delegate or sublicense this Agreement, any part thereof or any right thereunder, without the prior written consent of WeDoIT, except to an Affiliate where: (a) the Affiliate has agreed in writing to be bound by the terms of this Agreement; (b) Licensee remains liable for obligations under the Agreement in case of default by the Affiliate; and (c) Licensee has notified WeDoIT of the assignment. Any other attempt to assign is void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the Parties and their respective successors and assigns.
11.3. Force Majeure. WeDoIT will not be liable for failure or delay to perform any obligation under this Agreement, to the extent caused by circumstances beyond its reasonable control.
11.4. No Agency. This Agreement does not create any agency, partnership or joint venture between the Parties and neither Party has any authority to bind the other.
11.5. Government Purposes (applicable to US government customers only). The INVOKE Technology was developed at private expense and is provided to the U.S. Government as "commercial computer software", "commercial computer software documentation" and "technical data" with the same rights and restrictions generally applicable to the INVOKE Technology. If Licensee exercises the License on behalf of the U.S. Government and these terms fail to meet the U.S. Government's needs or are inconsistent in any respect with federal law, Licensee will immediately discontinue the exercise of its License. The terms "commercial item", "commercial computer software", "commercial computer software documentation" and "technical data" are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
11.6. No Waiver. Neither Party will be deemed to have waived, or restricted its right to enforce, any rights under this Agreement by failing to exercise or enforce (or delaying the exercise or enforcement of) such rights. All waivers by us must be in writing to be effective.
11.7. Severability. If any term of this Agreement (or part thereof) is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, it will interpreted to have been limited, eliminated or severed, to the minimum extent, as necessary to keep the obligations of the Parties, and the rest of the Agreement, in full force and effect.
11.8. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party individual or entity that is not a Party to this Agreement, unless it expressly states that it does.
11.9. Equitable Relief. Parties acknowledge that a breach of any provisions of this Agreement pertaining to Confidential Information, or the ownership of, license to and restriction on, IPR, may cause irreparable injury to the injured Party, for which monetary damages would not be an adequate remedy, and the injured Party shall be entitled to seek injunctive or other equitable relief in any state, federal, or national court of competent jurisdiction for any actual or alleged breach of these provisions.
11.10. Applicable Law. This Agreement shall be deemed to have been made in, governed by and construed pursuant to, the laws of either (a) the State of Virginia, USA, excluding its conflict of law rules; (b) if the principal place of business and registered offices of both Parties are located in another state or country, in the state or country in which WeDoIT's principal place of business resides; or (c) the state or country expressly otherwise agreed to by both Parties in writing. The United Nations Convention on Contracts for the International Sales of Goods is specifically disclaimed.
11.11. Venue. All claims or disputes arising out of or relating to this Agreement will be litigated exclusively in the courts located in either (a) the State of Virginia, USA; (b) if the principal place of business and registered offices of both Parties are located in another state or country, in the state or country in which WeDoIT's principal place of business resides; or (c) the state or country expressly otherwise agreed to by both Parties in writing. The Parties consent to the personal jurisdiction in those courts.
11.12. Amendments. Any amendment or waiver shall be effective only if made in writing, expressly stating it to be an amendment or waiver of this Agreement and signed by an authorized representative of each Party.
11.13. Survival. The following Sections will survive expiration or termination of this Agreement: 2 (Ownership and License Restrictions), 4 (Licensee Responsibilities), 5 (Fees and Taxes), 6 (Confidential Information), 7.2, 7.4 and 7.5 (Disclaimer of Warranties), 8 (Limitation of Liability), 9.4 (Effects of Termination), 11 (Miscellaneous) and 12 (Definitions).
11.14. Entire Agreement. This Agreement, including all applicable policies, procedures and/or guidelines appearing on the WeDoIT website (www.wedoitllc.com) from time to time, which are hereby incorporated by this reference into, and made part of, this Agreement, is the entire agreement between WeDoIT and Licensee regarding the subject matter of this Agreement. This Agreement supersedes all other agreements between the Parties relating to its subject matter. In entering into this Agreement, neither Party has relied on, and neither Party will have any right or remedy based on, any prior or contemporaneous communication, statement, understanding, representation or warranty (whether written or verbal) regarding the subject matter of this Agreement, except those expressly set out in this Agreement or a written document signed by the Parties. If there is a conflict between the documents and URLs that make up this Agreement, the documents will control in the following order: the Agreement, and the terms located at any URL. WeDoIT may provide to Licensee, in addition to, or in place of, any previously-referenced URL, new or updated URLs, which shall be incorporated into this Agreement by reference. WeDoIT will not be bound by, and specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by Licensee in any order, receipt, acceptance, confirmation, correspondence or other document.
12.1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, for as long as such control exists; for the preceding sentence, control means control of greater than fifty percent of the voting rights or equity interests of a Party.
12.2. "Confidential Information" means all nonpublic information (including information pertaining to technology, data, customers, business plans, marketing activities, finances and other business affairs of a Party, its End Users and its Managed Users), disclosed by one Party or its Affiliate (the "Disclosing Party") to the other Party or its Affiliate (the "Receiving Party") under this Agreement, including by or to their respective employees, contractors or agents, that is marked or designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the Receiving Party at the time of first disclosure by the Disclosing Party; (iii) is received by the Receiving Party from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party. The INVOKE Technology is considered Confidential Information of WeDoIT; Licensee Information and Usage Data are considered Confidential Information of Licensee, its End Users and/or Managed Users.
12.3. "INVOKE Technology" means a specific virtual machine image generated by the INVOKE Technology, of the type, supported feature set and under the terms for which Licensee purchased a right to install and use on a Licensee Instance.
12.4. "INVOKE Technology" means the software of WeDoIT, including any related machine image, appliance, data, database, tools, APIs, utilities, scripts, Documentation, error correction, revision, update, translation, recast, modification, compilation, improvement, enhancement and derivatives thereof and any IPR related thereto or embodied therein.
12.5. "Documentation" means the documentation (as may be updated from time to time) in the form generally made available by WeDoIT to its licensees and customers for use with the INVOKE Technology.
12.6. "End User" means any individual or entity that, directly or indirectly, accesses, copies or installs a Licensee Instance, the INVOKE Technology or uses the Licensee Instance, under Licensee's account.
12.7. "Feedback" means all remarks, requests, suggestions, proposals, data, reports, ideas and improvements pertaining to the INVOKE Technology.
12.8. "Intellectual Property Rights" or "IPR" means any and all, current and future, worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
12.9. "License" means the license specified in Section 2.1 of this Agreement.
12.10. "License Term" means a period (ending prior to the expiration or termination of this Agreement) for which Licensee has paid, or is committed to pay, the fees described in Section 5.1 of this Agreement.
12.11. "Licensee" means the individual or legal business entity that is either (i) appear on the Quote as Licensee, or (b) represented by an authorized representative (as an employee or agent) acting on its behalf, agreeing to this Agreement.
12.12. "Licensee Information" means software, machine images, data, text, audio, video, images or other content that Licensee or End User(s), or, if applicable and expressly authorized by WeDoIT, a Managed User, runs on, causes to interface with, uploads to, or otherwise transfers, transmits, displays, processes, uses or stores in connection with, the Provider Services, under Licensee's, End User's or, if applicable, Managed User's account with the Service Provider, and any intellectual property rights related thereto, and explicitly excluding any INVOKE Technology.
12.13. "Licensee Instance" means each virtual machine instance(s), configured and managed by Licensee that is installed with (or launched from) the INVOKE Technology, provided that Licensee has a right to access and use such instance as part of the Provider Services and, unless Licensee is either paying for the License via a Service Provider or has prepaid for the License Term and received a self-expiring license key from WeDoIT, submitted to WeDoIT the applicable account number of such instance with the Service Provider.
12.14. "Managed User" means any individual, entity, device or account with the Service Provider, not owned by Licensee, that, directly or indirectly, in whole or in part, is managed, monitored and/or protected by Licensee using the Licensed Instance.
12.15. "WeDoIT" means either or all of, as the context admits, WeDoIT LLC, an Virginia, USA company, and/or any other Affiliate of WeDoIT LLC.
12.16 "Non-Identifiable Metadata" means information about certain predetermined attributes and characteristics, pertaining to Licensee's use of the INVOKE Technology which does not reflect or reference Licensee or any individually identifiable End Users.
12.17. "Provider Services" means the web-based services (including without limitation computing, storage, connectivity, software, machine images, and APIs) made available by the Service Provider to Licensee and/or its Managed Users.
12.18. "Quote" a price quotation or an order form that is (i) generated by WeDoIT and (ii) agreed to in writing and sent to WeDoIT by Licensee.
12.19. "Service Provider" means Amazon Web Services and its Affiliates (collectively, "AWS").
12.21 "Usage Data" means information about attributes and characteristics, pertaining to Licensee's, End Users' and/or Managed Users' use of the INVOKE Technology, such as Licensee's name and address, account numbers with the Service Provider of Licensee, its End Users and/or Managed Users, virtual machines and data retaining services (e.g., AWS account numbers, EC2 instances, EBS volumes etc.,), which are interacted with Licensee Instance(s).
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