WIND RIVER SYSTEMS, INC.
CLOUD SERVICES AGREEMENT
IMPORTANT - THIS CLOUD SERVICES AGREEMENT ("AGREEMENT") IS A LEGAL CONTRACT BETWEEN YOU ("YOU" OR "YOUR") AND WIND RIVER SYSTEMS, INC. ("WIND RIVER"). THE RIGHT TO ACCESS AND USE THE SERVICES PROVIDED UNDER THIS AGREEMENT IS GRANTED ONLY ON THE CONDITION THAT YOU AGREE TO THE FOLLOWING TERMS:
"Confidential Information" means (i) technology, ideas, know-how, documentation, processes, algorithms and trade secrets associated with the Services, (ii) usernames and passwords related to the Services, and (iii) any other business or technical information of Wind River, its suppliers, or licensors that is provided or made accessible to You in connection with this Agreement or the Services. Confidential Information does not include any information which is (a) published or otherwise available to the public other than by breach of this Agreement by You; (b) rightfully received by You from a third party without confidential limitations; (c) independently developed by You as evidenced by appropriate records; (d) known to You prior to Your first receipt of same from Wind River, its suppliers, or licensors as evidenced by appropriate records; (e) hereinafter disclosed by Wind River, its suppliers, or licensors to a third party without restriction on disclosure; or (f) approved for public release by written authorization of Wind River. If any Confidential Information must be disclosed to a third party by reason of legal, accounting, or regulatory requirements beyond Your reasonable control, You will promptly notify Wind River of the order or request and permit Wind River (at its own expense) to seek an appropriate protective order.
"Customer Content" means the applications, files, information, data, software, and other content created by You as a part of the Services.
"Documentation" means written materials and instructions made available to You in connection with the operation of the Services and any Downloadable Software, and any updates to those materials and instructions.
"Downloadable Software" means any computer software programs, in Source Code or Object Code forms, made available by Wind River for download by You from the Services.
"Feedback" means Your opinions, observations, comments, criticisms, and suggested improvements, whether in written or oral form, resulting from Your use of the Services or Downloadable Software.
"Intellectual Property Rights" means all copyrights, trademarks, trade secrets, patents, mask works, and other intellectual property rights recognized in any jurisdiction worldwide, including all applications and registrations with respect thereto.
"Object Code" means computer programming code in the form not readily perceivable by humans and suitable for machine execution without the intervening steps of interpretation or compilation.
"Services" means the Wind River cloud-based services that are available at https://app.cloud.windriver.com.
"Source Code" means computer programming code in human readable form that is not suitable for machine execution without the intervening steps of interpretation or compilation.
- ACCESS AND USE OF THE SERVICES. Subject to Your compliance with the terms and conditions of this Agreement, Wind River hereby grants to You a royalty-free, restricted, personal, non-transferable, non-exclusive, limited right under Wind River’s copyrights, to access and use the Services, all subject to the following conditions and other limitations set forth in this Agreement: (i) You may not modify, create derivative works of, translate, reverse engineer, decompile, disassemble or attempt to derive the Source Code of any software accessible by or underlying the Services, except as provided by applicable law and then only to the extent necessary to achieve interoperability; (ii) You may not market, distribute or otherwise transfer copies of the Services to others; (iii) You may not sublicense, rent, lease, loan, timeshare, sell, distribute, disclose, publish, assign or transfer any rights, grant a security interest in, or transfer any rights granted under this Agreement to the Services; (iv) You may not copy any features or the look-and-feel of the Services; (v) You may not interfere or attempt to interfere with the operation of the Services or any activities of Wind River; (vi) You may not bypass or seek to circumvent any security or other measures used by Wind River to restrict or prevent unauthorized access to the Services; (vii) You may not give access to the Services or share Your login or password; and (viii) You may not give to any third party any communication that compares the features, functions, or performance characteristics of the Services with any other product or service of You or any third party.
- THIRD PARTY AND DOWNLOADABLE SOFTWARE. If the Services include access to or use of any third party software, Customer agrees to be bound by any separate license provided for such third party software. Any Downloadable Software provided in connection with the Services is subject to the terms of a separate license agreement that accompanies the Downloadable Software.
- CONFIDENTIAL INFORMATION. You will not use or disclose any Confidential Information, except as expressly authorized by this Agreement, and will protect all such Confidential Information using the same degree of care which You use with respect to Your own proprietary information, but in no event with safeguards less than a reasonably prudent business or person would exercise under similar circumstances. Your obligations regarding the protection of Confidential Information will survive any expiration or termination of the Agreement. You will take prompt and appropriate action to prevent unauthorized use or disclosure of the Confidential Information.
- CUSTOMER CONTENT. You are solely responsible for the creation, content, operation, maintenance, security, backup, use of and claims relating to any Customer Content. You acknowledge that You bear the sole responsibility for the security of any Customer Content, and any software and systems You employ when accessing or using the Services and agree to implement security measures that are commercially reasonable for Your access and use of the Services and to protect the Services from unauthorized access, reproduction, disclosure or use. You agree to indemnity and hold harmless Wind River from any claims, loss or liability arising out of Your Customer Content or any breach of this Agreement.
- OWNERSHIP. Wind River, its suppliers, and licensors retain exclusive ownership of all Intellectual Property Rights in and to the Services and any modifications thereof and all such rights not expressly granted to You in this Agreement are expressly reserved for Wind River, its suppliers, and licensors. If You provide Wind River with Feedback, Wind River will have the right to use such Feedback for any purpose as it deems appropriate. You own the Intellectual Property Rights in the Customer Content and the software applications that You create using the Services.
- CHANGES; NO SUPPORT. Wind River may change or discontinue all or part of the Services, change or remove features or functionality of the Services, or remove Downloadable Software from the Services, at any time in Wind River’s sole discretion. Wind River does not provide support, updates, or training for the Services.
- TERM AND TERMINATION. This Agreement commences on the date You have completed Your registration for the Services and ‘Accepted’ this Agreement, and continues until terminated. Wind River may terminate this Agreement at any time in Wind River’s sole discretion. Upon termination, You will (i) not access or use the Services for any purpose whatsoever, and (ii) immediately destroy or return Your username and password, together with any material and Confidential Information belonging to Wind River, its suppliers, or licensors in Your possession or control. These remedies are cumulative and in addition to any other remedies available to Wind River. Notwithstanding the foregoing, in the event Wind River elects to terminate this Agreement or to cease providing the Services, Wind River will make commercially reasonable efforts to make the Services available solely for the purpose of allowing You to recover any Customer Content for a period of not less than ten (10) days after notice to You. Sections 1, 3, 4, 7, 8, 9, 11, 12 and 14 will survive termination of this Agreement.
- ACCOUNT ACCESS, USERNAME AND PASSWORD. To access and use the Services, You must create an account associated with a valid e-mail address. You may create only one account per e-mail address. You are responsible for all activities within or from Your account. Wind River, its subsidiaries, suppliers, and licensors are not responsible for unauthorized access to Your account. Wind River agrees to provide to a username and password that permit You to access and use the access keys for the Services, provided that You provide any information required to issue such username and password. All usernames and passwords are Confidential Information of Wind River. You agree to use Your best efforts to protect Your user name, password and other access to the Services from unauthorized access, reproduction, disclosure or use. In the event You become aware of any such unauthorized access, reproduction, disclosure or use, You agree to notify Wind River immediately and fully cooperate, at Wind River’s direction and at Your expense, to minimize the effects of such unauthorized access, reproduction, disclosure or use.
- WARRANTY DISCLAIMER. THE SERVICES ARE PROVIDED FOR YOUR ACCESS AND USE "AS IS." WIND RIVER, ITS SUBSIDIARIES, SUPPLIERS, AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WIND RIVER, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES WILL IN ANY WAY MODIFY THIS DISCLAIMER OR CREATE ANY WARRANTY. Without limitation, Wind River, its subsidiaries, suppliers, and licensors (i) make no warranty with respect to the Services or to any malfunctions or other errors in hardware or software products caused by virus, infection, worm, or similar malicious code, (ii) make no warranty that the Services or any hardware or software products will protect against all possible security threats, including intentional misconduct by third parties, and (iii) are not liable for any downtime or service interruption, for any lost or stolen data or systems, or for any other damages arising out of or relating to any such actions or intrusions.
- LIMITATION OF LIABILITY. WIND RIVER, ITS SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR LOST INFORMATION) ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING THE USE OF OR INABILITY TO USE THE SERVICES REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WIND RIVER'S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED U.S.$50.00 OR THE AMOUNT (IF ANY) ACTUALLY PAID BY YOU TO WIND RIVER UNDER THIS AGREEMENT. SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, TRANSPORTATION SYSTEMS, NUCLEAR SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE SERVICES COULD LEAD TO PERSONAL INJURY OR DEATH. THE WARRANTY DISCLAIMER AND LIMITED LIABILITY PROVISIONS OF THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND WIND RIVER AND WIND RIVER WOULD NOT BE ABLE TO PROVIDE THE SERVICES WITHOUT SUCH LIMITATIONS.
- EXPORT CONTROL. The Services and any software and technical information delivered or otherwise made available under this Agreement are subject to U.S. export controls under the Export Administration Regulations (the “EAR”) or the International Traffic in Arms Regulations (the “ITAR”) and may be subject to export, re-export or import regulations in other countries. You agree to strictly comply with all such laws and regulations. You may not export or re-export the software and technical information, directly or indirectly, to: (i) any countries that are subject to US export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria); (ii) any end user whom You know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems; or (iii) any end user who has been prohibited from participating in US export transactions by any federal agency of the US government. Some of Wind River’s products are classified as “restricted” encryption products under Section 740.17(b)(2) of the EAR and may not be exported or re-exported to government end-users (as defined in Section 772 of the EAR) outside the countries listed in Supplement No. 3 to Part 740 of the EAR without authorization from the U.S. government.
- Governing Law and Venue. This Agreement is governed in all respects by the laws of the United States of America and the State of Delaware, without reference to conflict of laws principles, and is subject to the exclusive jurisdiction of the courts of the State of Delaware or of the Federal courts sitting in that State, provided, however, that wind River will be entitled to seek injunctive relief in any appropriate forum. You consent to the personal jurisdiction of the designated courts and waive all objections to the designated jurisdiction and venue for those disputes. If You reside outside of the United States, You may have other legal rights that vary from jurisdiction to jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
- Government End Users. All software and any data relating thereto or derived therefrom are "commercial items" as defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. If You are a U.S. Government agency, department, or instrumentality, then the use, duplication, reproduction, release, modification, disclosure, or transfer of the any software and any data relating thereto or derived therefrom, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. Any software provided to the U.S. Government or to U.S. Government end users only pursuant to an end user license agreement in accordance with the terms of this Agreement. This U.S. Government end users clause is in lieu of, and supersedes, any Federal Acquisition Regulations (“FAR”), the Defense FAR Supplement (“DFARS”), or other clause or provision that addresses U.S. Government rights in computer software or technical data.
- Injunctive Relief. You agree that Your breach of this Agreement may cause Wind River irreparable harm for which recovery of money damages would be inadequate, and that Wind River will therefore be entitled to obtain timely injunctive relief to protect Wind River’s rights in addition to any and all remedies available at law.
- Notices. Wind River will provide any notices to You under this Agreement by posting a notice on the website for the Services or by sending a message to the email address associated with Your account, or both, notice to be effective upon the earlier of posting or email transmittal. You will provide any notices to Wind River under this Agreement by sending a written notice by certified or registered U.S. mail or by recognized overnight commercial courier, return receipt requested, addressed to Wind River Systems, Inc., 500 Wind River Way, Alameda, California 94501, USA, Attn: General Counsel, notice to be effective upon receipt.
- Force Majeure. Wind River, its suppliers, and licensors will not be liable for any failure or delay on account of strikes, shortages, riots, insurrection, fires, explosions, acts of God, war, governmental action, labor conditions, material shortages, or any other cause which is beyond their reasonable control, including, without limitation, failure of the Internet, power failure, or any failure of third party service providers.
- Assignment. You may not assign, transfer, or delegate any right, license or obligation under this Agreement to a third party. Any purported assignment, transfer, or delegation is null and void. Wind River may assign, transfer, or delegate this Agreement or any right, license, or obligation hereunder in its sole discretion.
- Miscellaneous. This Agreement does not create any agency, employment relationship, partnership, or other form of joint enterprise between You and Wind River. Failure to require Your performance of any obligation under this Agreement will not preclude Wind River from requiring performance in the future. This Agreement constitutes the entire agreement and supersedes all prior oral or written agreements by You and Wind River with respect to the Services. The terms and conditions of any purchase order or other instrument issued by You in connection with this Agreement will be of no force or effect. This Agreement may only be amended by a writing signed by You and Wind River that refers explicitly to this Agreement. If a provision of this Agreement is unenforceable or invalid, the provision will be revised so as to best accomplish the objectives You and Wind River. This Agreement is in the English language only, which language will be controlling in all respects, and all versions of this Agreement in any other language will be for accommodation only and will not be binding on You or Wind River.
PLEASE READ THE TERMS CAREFULLY. BY CLICKING THE “ACCEPT” BUTTON, YOU ACKNOWLEDGE AND AGREE TO ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO THE TERMS, THEN WIND RIVER DOES NOT GRANT YOU ANY RIGHT TO ACCESS OR USE THE SERVICES.