CoreOS, Inc.
THIS PILOT PROGRAM AGREEMENT (THIS “AGREEMENT”) APPLIES TO THE CONFIGURATION SERVICES PROVIDED BY COREOS, INC. (“COREOS”).
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.
BY REGISTERING FOR THE PILOT PROGRAM OR CLICKING SUBMIT, YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (B) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (C) YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, COREOS IS UNWILLING TO ALLOW YOU TO PARTICIPATE IN THE PILOT PROGRAM.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY (OR OTHER ENTITY), YOU REPRESENT THAT YOU ARE AN EMPLOYEE, CONSULTANT OR AGENT OF SUCH COMPANY (OR OTHER ENTITY), AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).
THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE EARLIER OF THE DATE YOU REGISTERED FOR THE PILOT PROGRAM OR CLICKED SUBMIT.
FOR THE PURPOSE OF THIS AGREEMENT, YOU AND, IF APPLICABLE, SUCH COMPANY (OR OTHER ENTITY) CONSTITUTES “CUSTOMER” OR “YOU”.
THIS AGREEMENT CONSTITUTES A LEGALLY ENFORCEABLE AGREEMENT BY AND BETWEEN YOU AND COREOS.
In order to participate in the pilot program, Customer must register with CoreOS via the Site. By registering, Customer agrees to: (a) provide accurate, current and complete information about Customer, as may be prompted by the registration forms via the Site (“Registration Data”); (b) maintain the security of its identification; (c) maintain and promptly update the Registration Data, and any other information Customer provides to CoreOS, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data, and any other information Customer provides to CoreOS.
Please see CoreOS’ privacy policy at http://coreos.com/legal/privacy for information about how CoreOS collects, uses and discloses information about those who participate in the pilot program.
As a participant in the pilot program, CoreOS will evaluate the CoreOS software on Customer hardware configuration. Additionally, CoreOS will evaluate a piece of Customer application stack to run on CoreOS and Customer hardware configuration, with the goal of completing the configuration within the 90 day period commencing upon the Effective Date.
In order to perform the configuration services, you grant CoreOS the right and license to use, reproduce and modify the files you have uploaded via the CoreOS website (“Site”) for the pilot program.
CoreOS grants you a non-exclusive, worldwide right and license to use, reproduce and modify the technology resulting from the configuration services (the “Configuration Technology”) in accordance with the terms and conditions of Apache License, Version 2.0.
As between the parties and subject to the grants: (a) CoreOS owns all right, title and interest in and to the Site and the Configuration Technology (including, any and all Intellectual Property Rights (as defined below) embodied therein or related thereto); and (b) Customer owns all right, title and interest in and to the files it uploads via the Site for the configuration pilot (the “Customer Property”).
Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth herein. For the purpose of this Agreement, “Intellectual Property Rights” means all patent rights, copyrights, moral rights, trademark rights, trade secret rights and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
You will upload the Customer Property via the Site so that CoreOS can perform the Configuration Services.
You represent and warrant that: (a) you have all requisite ownership, rights and licenses to grant the rights and licenses set forth in this Agreement, with respect to the Customer Property submitted via the Site under your account; (b) none of the Customer Property infringes, violates or misappropriates any Intellectual Property Rights, rights to privacy, rights to publicity or any other third party rights; and (c) the Customer Property does not contain any material or information that violates any applicable law or constitutes harmful code.
The fees for the pilot program are set forth in the Site.
In order to participate in the pilot program, you must pay the fees.
Customer hereby: (a) authorizes CoreOS (or its authorized payment processor) to charge the credit/debit card number Customer provided via the Site; and (b) represents and warrants that Customer is authorized to use and have fees charged to the credit/debit card number Customer provided via the Site.
“Confidential Information” means all information disclosed (whether in oral, written or other tangible or intangible form) by CoreOS to Customer, concerning or related to this Agreement or CoreOS (whether before, on or after the Effective Date) that Customer knows or should know, given the facts and circumstances surrounding the disclosure of the information by CoreOS, is confidential information of CoreOS. Confidential Information includes, but is not limited to, the Software, the components of business plans, know-how, customer information, strategies, benchmark and other testing results and other similar information. Customer will maintain, during the term of this Agreement and thereafter, in confidence, all Confidential Information, and will not use such Confidential Information except as expressly permitted in this Agreement. Customer will use the same degree of care in protecting Confidential Information as Customer uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by Customer solely for the purpose of carrying out Customer’s obligations under this Agreement. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback, including the results of any benchmark or other testing, provided by Customer to CoreOS with respect to the Configuration Services, Configuration Technology or CoreOS (collectively, “Feedback”) will constitute Confidential Information. Further, CoreOS will be free to use, disclose, reproduce, license and otherwise distribute and exploit any Feedback as CoreOS sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise. Customer acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to CoreOS, which injury could not be adequately compensated by the payment of monetary damages. In addition to any other legal and equitable remedies that may be available, CoreOS will be entitled to seek and obtain injunctive relief against any breach or threatened breach by Customer of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to: (a) show any actual damage or irreparable harm; (b) prove the inadequacy of its legal remedies; or (c) post any bond or other security. You consent to CoreOS’ use of your marks on the Site and publicly-available printed materials, identifying Customer as a customer of CoreOS and describing Customer’s participation in the pilot program.
COREOS DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS, IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); OR (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE.
IN NO EVENT WILL COREOS’S TOTAL LIABILITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE AMOUNT PAID BY CUSTOMER TO COREOS UNDER THIS AGREEMENT. IN NO EVENT WILL COREOS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Unless terminated as provided in this Agreement, the term of this Agreement will commence on the Effective Date and continue until the completion of the configuration.
Either party may terminate this Agreement for cause if the other party breaches this Agreement and does not remedy such failure within 10 days after its receipt of written notice of such breach.
Upon any expiration or termination of this Agreement: (a) all rights and licenses granted to Customer under this Agreement will immediately terminate; and (b) each party will promptly destroy all copies of Confidential Information of the other party.
Notwithstanding any terms to the contrary in this Agreement: (a) CoreOS is not obligated to issue any refunds to Customer; and (b) this sentence and the following sections will survive any termination of this Agreement: Grants (solely the grant with respect to the Configuration Technology), Ownership and Reservation of Rights, Nondisclosure and Publicity, Indemnification, Disclaimer, Limitation of Liability and General Provisions.
Entire Agreement. This agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom.
Governing Law and Dispute Resolution. This agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California will be the jurisdiction in which any suits should be filed if they relate to this Agreement. Prior to the filing or initiation of any action or proceeding relating to this agreement, the parties must participate in good faith mediation in San Francisco County, California. If a party initiates any proceeding regarding this agreement, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of this Agreement.
Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
Assignment. Customer must not assign, delegate or transfer (by sale, merger, operation of law or otherwise) this agreement or any right, title, interest or obligation hereunder without the prior written consent of CoreOS. Any attempted or purported assignment, delegation or transfer in violation of the foregoing will be null and void and without effect. CoreOS may assign this agreement without Customer’s prior written consent. This agreement will be binding and inure to the benefit of such assignees, transferees and other successors-in-interest of the parties, in the event of an assignment or other transfer made consistent with the provisions of this Agreement.
Electronic Communications. CoreOS may choose to electronically deliver all communications with Customer, which may include email to the email address Customer provides to CoreOS. CoreOS’ electronic communications to Customer may transmit or convey information about action taken on Customer’s request, portions of Customer’s request that may be incomplete or require additional explanation, any notices required under applicable law and any other notices. Customer agrees to do business electronically with CoreOS, and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email.
Severability. If any provision of this agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of this agreement will nonetheless remain in full force and effect, so long as the economic and legal substance of the transactions contemplated by this agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this agreement, so as to effect the original intent of the parties as closely as possible in an acceptable manner, to the end that the transactions contemplated hereby are fulfilled.
If you have any questions about this agreement, please contact us at legal@coreos.com.
