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This EULA is applicable to the usage of Otomi Console and Otomi API.

OTOMI CONSOLE & API END USER LICENSE AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING SOFTWARE FROM RED KUBES B.V.. (“RED KUBES”). BY USING RED KUBES SOFTWARE, USER SIGNIFIES ITS ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT AND ACKNOWLEDGES IT HAS READ AND UNDERSTANDS THIS AGREEMENT. IF USER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT USE RED KUBES SOFTWARE. This Red Kubes End User Agreement is between the User and Red Kubes and addresses relevant considerations that apply to Red Kubes Products, open source software, and our subscription business model.

1. The Mechanics of the Agreement​

  1. Ordering. The Agreement applies to Red Kubes Products for which you acquire the right to access or use, including Subscriptions, access to Red Kubes Online Properties and other Red Kubes offerings.
  2. Structure. The Agreement consists of two components: (1) the General Terms and (2) the Product Appendices applicable to Your Products. Certain terms are defined in the General Terms or in the Definitions section at the end of the General Terms.

2. License​

  1. Software License. Subject to your ongoing compliance with all the terms and conditions of this Agreement, Red Kubes hereby grants you a non-exclusive, non-sublicensable, non-transferrable, worldwide, revocable license to download and use the Software, specifically the Community Edition, for your own internal business operation only.
  2. License Restrictions. You will not: (a) copy or use the Software in any manner except as expressly permitted in this Agreement; (b) reverse engineer, disassemble, or decompile the Software (except to the extent such restrictions are prohibited by law); (c) alter, modify, enhance or prepare any derivative work from or of the Software; (d) alter or remove any proprietary notices in the Software; or (e) export the Software in violation any export laws or regulations. If you do not comply with the license terms or the foregoing restrictions, Red Kubes may terminate or suspend your license to the Software until you come into compliance with such terms and restrictions. The Software may contain disabling codes that prevent use of the Software outside of the authorized scope and may contain functionality such that the Software reports to Red Kubes certain general metric information about your use of the Software.
  3. Third Party Components and Third Party Software. The Software may include third party software components provided under separate license terms (“Third Party Components”), including open source software from the Otomi Project. Nothing in this Agreement limits your rights to obtain and use the Third Party Components under the separate license terms that are applicable to each Third Party Component. However the Software is made available to you only pursuant to this Agreement. In addition, Red Kubes may in its sole discretion, make available other third party software (“Third Party Software”) embedded in, or otherwise provided with, the Software. Third Party Software is expressly excluded from the defined term “Software” as used throughout this Agreement. Your use of the Third Party Software is subject to the applicable third party license terms as set forth here, and such Third Party Software is not licensed to you under the terms of this Agreement. If you do not agree to abide by the applicable license terms for the Third Party Software, then you may not access or use the Software or the Third Party Software. You are solely and exclusively responsible for determining if you are permitted to use the Third Party Software and you should address any questions in this regard directly to the relevant Third Party Software licensor.

3. Term​

  1. Agreement Term. The Agreement begins on the Effective Date and continues until it is terminated as set forth below.

4. Fees and Payment​

  1. The Software is made available to you under this Agreement free of charge.

5. Termination​

  1. Termination. This Agreement will remain in effect until terminated. You may terminate this Agreement at any time, for any reason or no reason, by ceasing all use of the Software and deleting all copies in your possession or control. Red Kubes may terminate this Agreement at any time, for any reason or no reason, upon notice by any method, including without limitation a post to the web page from which you downloaded the Software or an email sent to an email address you provided when you downloaded the Software.
  2. Effect of Termination; Survival. The termination of this Agreement will not terminate or suspend other provisions of the Agreement.

6. Representations and Warranties​

  1. Red Kubes represents and warrants that (a) it has the authority to enter into this Agreement, and (b) to its knowledge, the Software does not, at the time of delivery to you, include malicious mechanisms or code for the purpose of damaging or corrupting the Software.. User represents and warrants that (a) it has the authority to enter into this Agreement, and (b) its use of Red Kubes Products will comply with all applicable laws, and it will not use the Red Kubes Products for any illegal activity.
  2. To the maximum extent permitted by applicable law and except as expressly provided in section 6.1, the Red Kubes Products are provided ‘ as is’ and without any representations or warranties express or implied, and Red Kubes disclaims all such representations and warranties, including the implied warranties of merchantability, non-infringement, and fitness for a particular purpose, and any warranties implied by the course of dealing of usage of trade. Red Kubes and its suppliers do not represent or warrant that the Red Kubes Products will be uninterrupted, secure, error free, accurate or complete or comply with regulatory requirements, or that Red Kubes will correct all errors. In the event of a breach of the warranties set forts in section 6.1., your exclusive remedy, and Red Kubes’ entire liability, will be the re-performance of re-delivery of the deficient Red Kubes Product, or if Red Kubes cannot substantially correct a breach in a commercially reasonable manner, termination of the relevant Red Kubes Product. .
  3. The Red Kubes Products have not been tested in all situations under which they may be used. Red Kubes will not be liable for the results obtained through use of the Red Kubes Products and you are solely responsible for determining appropriate uses for the Red Kubes Products and for all results of such use. In particular, Red Kubes Products are not specifically designed, manufactured or intended for use in (a) the design, planning, construction, maintenance, control, or direct operation of nuclear facilities, (b) aircraft control, navigation, or communication systems (c) weapons systems, (d) direct life support systems (e) or other similar hazardous environments.

7. Confidentiality​

  1. Recipient (a) may not disclose Confidential Information of a Discloser to any third party unless Discloser approves the disclosure in writing or the disclosure is otherwise permitted under this Section 7; (b) will use the same degree of care to protect Confidential Information of Discloser as it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care; and (c) may disclose Confidential Information of the Discloser only to its employees, Affiliates, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation (or other professional obligation) to keep such information confidential using standards of confidentiality no less restrictive than those required by this Section 7. These obligations will continue for a period of two (2) years following initial disclosure of the particular Confidential Information. A Recipient may disclose Confidential Information if it is required to do so by applicable law, regulation or court order but, where legally permissible, will provide advance notice to the Discloser to enable the Discloser to seek a protective order or other similar protection if feasible. “Recipient” is the party receiving Confidential Information under this Agreement. “Discloser” is a party disclosing Confidential Information under this Agreement
  2. Information is not Confidential Information, if: (a) the information is or becomes publicly available other than as a result of the Recipient’s breach of this Agreement, (b) the Recipient, at the time of disclosure, knows or possesses the information without obligation of confidentiality or thereafter obtains the information from a third party not under an obligation of confidentiality; (c) the Recipient independently develops the information without use of the Discloser’s Confidential Information, (d) the information is generally known or easily developed by someone with ordinary skills in the business of the Recipient, or (e) the information is licensed under an Open Source License (as defined by the Open Source Initiative (https://opensource.org/)). 7.3 Confidential Information that is disclosed prior to termination of this Agreement will remain subject to this Agreement for the period set forth above. Upon written request of the Discloser, the Recipient will promptly return or destroy all Confidential Information, except for Confidential Information stored in routine back-up media not accessible during the ordinary course of business.

8. End User Information, Feedback, Reservation of Rights, & Review​

  1. End User Information. If you provide End User Information in connection with your use of or access to Red Kubes Products, you agree that, subject to Section 7, Red Kubes, its Affiliates, and Suppliers may use such End User Information in connection with providing the Red Kubes Products. You agree that your provision (and Red Kubes’ use) of End User Information under this Agreement does not require any additional consents or licenses, will be in compliance with applicable law, and will not violate any intellectual property, proprietary, privacy, or other right of any third party. As between Red Kubes and you, you retain all other rights in and to End User Information.
  2. Feedback. You may be asked to voluntarily provide Red Kubes with Feedback in connection with Red Kubes Products, but have no obligation to do so. If you choose to do so, Red Kubes may use Feedback for any purpose, including incorporating the Feedback into, or using the Feedback to develop and improve Red Kubes Products and other Red Kubes offerings without attribution or compensation. You grant Red Kubes a perpetual and irrevocable license to use all Feedback for any purpose. You agree to provide Feedback to Red Kubes only in compliance with applicable laws and you represent that you have the authority to provide the Feedback and that Feedback will not include proprietary information of a third party.
  3. Reservation of Rights. Red Kubes grants to you only those rights expressly granted in the Agreement with respect to the Red Kubes Products and reserves all other rights in and to the Red Kubes Products (including all intellectual property rights). Red Kubes may collect and use for any purpose aggregate anonymous benchmark data about your use of the Red Kubes Products. Nothing in this Agreement will limit Red Kubes from providing software, materials, or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those that might be delivered to you. The terms of Section 7 will not prohibit or restrict either party's right to develop, use or market products or services similar to or competitive with the other party; provided, however, that neither party is relieved of its obligations under this Agreement.

9. Review​

While this Agreement is in effect and for one year thereafter, Red Kubes or its designee, acting in accordance with Section 7, may inspect your facilities and records to verify your compliance with this Agreement. You agree to (a) respond promptly to requests for information, documents and/or records, (b) grant appropriate access for on-site visits in order to verify your compliance, and (c) reasonably cooperate in connection with any such verification. Red Kubes will provide at least ten (10) days prior written notice for any on-site visits, and will conduct onsite visits during regular business hours in a manner that reasonably minimizes interference with your business. If Red Kubes notifies you of any noncompliance, then you will resolve the non-compliance within fifteen (15) days from the date of notice.

10. Limitations​

  1. Disclaimer of damages. To the maximum extent permitted by applicable law, neither party, not its Affiliates, will be liable for any incidental, consequential, special, indirect, exemplary or punitive damages, of for any damages for lost or damaged data, lost profits, lost savings of business or service interruption, even if such party was advised of the possibility of such damages, and regardless of the failure of essential purpose of any limited remedy.
  2. Limitations of liability. To the maximum extent permitted by applicable law, Red Kubes’ and its Affiliates’ total and aggregate liability with respect to any claim relating to or arising out of this Agreement will not exceed ten euros with respect to the particular Red Kubes Product given rise to liability under the most applicable ordering document during the twelve (12) months immediately preceding the first event giving rise to such claim. This limitation applies regardless of the nature of the claim, whether contract, tort (including negligence), statute or other legal theory.
  3. No exclusion or limitation of liability. Notwithstanding any other provision of this Agreement and / or any offer, Red Kubes does not exclude or limit liability for (a) personal injury or death to the extent that such injury or death results from the negligence or willful default of Red Kubes, its agents, Affiliates, or subcontractors; (b) any fraudulent misrepresentation upon which the claiming party can be shown to have relied; or (c) any other liability which is not permissible at law to exclude or limit.

11. Governing Law and Claims.​

The Agreement, and any claim, controversy or dispute related to the Agreement, are governed by and construed in accordance with the Dutch law without giving effect to any conflicts of laws provisions. To the extent permissible, the United Nations Convention on Contracts for the International Sale of Goods will not apply, even if adopted as part of the Dutch law. Any claim, suit, action or proceeding arising out of or relating to this Agreement or its subject matter will be brought exclusively in the courts of the Netherlands and each party irrevocably submits to the exclusive jurisdiction and venue. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the party first became aware, or reasonably should have been aware, of the basis for the claim.

12. Miscellaneous​

  1. Notices. Notices must be in English, in writing, and will be deemed given upon receipt, after being sent using a method that provides for positive confirmation of delivery to the address(es) or email address provided by you, including through an automated receipt or by electronic log. Any notice from you to Red Kubes must include a copy sent to: Red Kubes’ email address info@redkubes.com.
  2. Assignment. Either party may upon written notice: (a) assign this Agreement to an Affiliate if the Affiliate is able to satisfy the assigning party’s obligations under the Agreement and the assignment will not affect the non-assigning party’s obligations under the Agreement; and (b) assign this Agreement to a successor or acquirer pursuant to a merger or sale of all or substantially all of such party’s assets. Any other assignment will be deemed void and ineffective without the prior written consent of the other party. Subject to the foregoing, this Agreement will be binding upon and will insure to the benefit of the parties and their respective successors and permitted assigns.
  3. Waiver. A waiver by a party under this Agreement is only valid if in writing and signed by an authorized representative of such party. A delay or failure of a party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights.
  4. Independent Contractors. The parties are independent contractors and nothing in this Agreement creates an employment, partnership or agency relationship between the parties or any Affiliate. Each party is solely responsible for supervision, control and payment of its personnel.
  5. Third Party Beneficiaries. This Agreement is binding on the parties to this Agreement and, other than as expressly provided in the Agreement, nothing in this Agreement grants any other person or entity any right, benefit or remedy.
  6. Force Majeure. Neither party is responsible for nonperformance or delay in performance of its obligations due to causes beyond its reasonable control.
  7. Complete Agreement and Order of Precedence. The Agreement represents the complete agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and proposals, whether written or oral, with respect to such subject matter. Any terms contained in any other documentation that you deliver to Red Kubes, are void and will not become part of the Agreement or otherwise bind the parties. If there is a conflict between the General Terms and the Product Appendices, the General Terms will control unless otherwise expressly provided in the Product Appendices.
  8. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same document. The parties may exchange signature pages by email or electronic signature process and such signatures will be effective to bind the parties to the Agreement.
  9. Severable. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will remain in effect to the greatest extent permitted by law.

13. Definitions​

  1. “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
  2. “Business Partner” means a cloud provider, distributor, reseller, OEM or other third party authorized to resell or distribute Red Kubes Products.
  3. “Business Partner order” means an order for a Red Kubes Product placed through a Business Partner.
  4. “End User” or “you” means the person or entity acquiring the right to use or access the Red Kubes Products and which is a party to this Agreement.
  5. “End User Information” means any data, information, software or other materials that you provide to Red Kubes under the Agreement.
  6. “Confidential Information” means information disclosed by the Discloser to the Recipient during the term of the Agreement that (i) is marked confidential; (ii) if disclosed orally, is clearly described as confidential at the time of disclosure and is subsequently set forth in writing, marked confidential, and sent to the Recipient within thirty (30) days following the oral disclosure; or (iii) is of a nature that the Recipient knows is confidential to the Discloser or should reasonably be expected to know is confidential.
  7. “Effective Date” means earliest of (a) the date of the last signature on this Agreement, (b) your online acceptance of the Agreement, and (c) when you first receive access to a Red Kubes Product.
  8. “Feedback” means any ideas, suggestions, proposals or other feedback you may provide regarding Red Kubes Products.
  9. “General Terms” means the terms contained in Sections 1 – 13 of this document.
  10. “Product Appendices” means (a) the Red Kubes Product Appendices that are incorporated into an applicable statement of work.
  11. “Red Kubes Products” means Software, Services, Subscriptions and other Red Kubes branded offerings made available by Red Kubes.
  12. “Software” means Red Kubes branded software that is included in Red Kubes Product offerings.
  13. “Subscription” means a time bound Red Kubes Services offering, other than Professional Services.
  14. “Supplier” means a third party that provides service(s) to Red Kubes in order for Red Kubes to offer Services to its customers and/or Business Partners.
  15. “Your Products” means the Red Kubes Products that you have purchased, licensed, or otherwise acquired the right to access or use.