TERMS OF SERVICE
IMPORTANT! PLEASE READ IMPORTANT! PLEASE READ THIS AGREEMENT CAREFULLY BEFORE UPLOADING OR DOWNLOADING ANY MATERIAL OR USING ANY OF THE SERVICES PROVIDED BY RPATH. BY CHECKING “ACCEPT”, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CHECK “ACCEPT”.
This Agreement is entered into as of the date you check “ACCEPT” ("Effective Date") by and between rPath, Inc. (“rPath”) and you, hereinafter referred to as “you” or “your”.
DEFINITIONS
“Web Site” means the rpath.com and rpath.org domains.
“Content” means all information and materials, regardless of format.
“Private rPath Repository” means a software database that is hosted on the Website into which users may upload their Content as provided in Section 4.
“Public rPath Repository” is the software database that is hosted on the Web Site which contains software and other Content contributed by rPath and other users of the Service and rBuilder Online, all of which is accessible and usable by other users of the Service and rBuilder Online.
“Service” means the processes and functionality provided by rBuilder Online, the Public rPath Repository, the Private rPath Prepository and the Web Site.
1. RIGHT OF USE
rPath grants to you the rights herein, provided that you accept, without modification, the terms and conditions set forth in this Agreement and that you are in compliance with the terms and conditions of this Agreement.
rPath grants to you a personal, non-exclusive, world-wide and non-transferable license to rBuilder Online as a tool to build software using only Content from the Public rPath Repository or the Private rPath Respository (to the extent you are granted access to it by other users). Any use of rBuilder Online with Content from any source other than the Public rPath Repository or the Private rPath Repository is a material breach of this Agreement. Portions of rBuilder Online may be downloaded, stored and executed on your systems. You own the media and the hardware on which rBuilder Online is stored and executed but rPath retains ownership of the rBuilder Online software itself.
rPath also grants to you the right to use the Services to upload software into the Public rPath Repository or the Private rPath Repository, to download software from the Public rPath Repository and if allowed by the contributor of such software from the Private Public rPath Repository, and to access Content on the Web Site in conjunction with the Services.
You agree not to resell any of the Services.
2. REGISTRATION OBLIGATIONS
You must provide true, accurate, current and complete information in the registration process on the Web Site (collectively, the “Registration Information”) and must maintain and promptly update the Registration Information as necessary. rPath reserves the right to terminate this Agreement and to prohibit any and all current or future use by you of the Services, if rPath has reasonable grounds to suspect that your Registration Information is untrue, inaccurate, not current or incomplete. You grant to rPath the right to use your Registration Information in connection with Content that you upload, post, email, transmit or store using the Services.
For more information on how rPath uses your personal information, consult the privacy policy at: http://www.rpath.com/rbuilder/legal?page=privacy
You will receive a User ID and password (collectively, the “User ID”) upon completing the registration process on the Web Site. You are solely responsible for the use of your User ID, whether or not such use is authorized by you, and for maintaining the confidentiality of your User ID. You shall immediately notify rPath of any unauthorized use of your User ID. rPath shall not be liable for any loss or damage arising from your failure to comply with this Section.
3. CONTENT
Whether publicly posted or privately transmitted, all Content on the Web Site and all Content contained in the Public rPath Repository or the Private rPath Repository that originated from users of the Services is the sole responsibility of the person from which such Content originated. You are responsible for all Content that you upload, post, email, transmit or store using the Services. You shall not upload, post, email, transmit or store Content or conduct or participate in any activities using the Services which, in the judgment of rPath, are likely to be prohibited by law in any applicable jurisdiction, including laws governing the encryption of software, the export of technology, the transmission of obscenity or the permissible uses of intellectual property.
The purpose of the Services is to provide a repository of software and corresponding tools to facilitate the sharing and development of software (the “Purpose”). rPath will not pre-screen or review Content, but rPath reserves the right to refuse or delete any Content, of which it becomes aware, that it reasonably deems not to fulfill the Purpose. In addition, rPath shall have the right, but not the obligation, in its sole discretion to refuse or delete any Content that it reasonably considers to violate the terms and conditions of this Agreement or be otherwise illegal.
rPath, in its sole and absolute discretion, may preserve Content and may also disclose Content if required to do so by law or judicial or governmental mandate or as reasonably determined useful by rPath to protect the rights, property or personal safety of rPath, users of the Services, or the public. rPath does not control the Content posted via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will rPath be liable in any way for any Content, including, but not limited to, liability for any errors or omissions in any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Services.
By using the Services, you may be exposed to Content that is offensive, indecent or objectionable. You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
4. PRIVATE RPATH REPOSITORY
The sole purpose of the Private rPath Repository is to provide a mechanism to use rBuilder Online and the Service to launch your proprietary Content into an appliance using any of rPath's form factors including but not limited to EC2, ESX, Xen and Hyper V. Notwithstanding the terms of this Agreement, you are permitted to control and designate who may see, access or use your proprietary Content that is uploaded into the Private rPath Repository. All other terms and conditions of this Agreement shall be in full force and effect.
5. LICENSES
You agree that any software that you upload to any Public rPath Repository or Private rPath Repository shall conform to the applicable license agreements to such software.
6. IDEA SUBMISSIONS
For any software uploaded to the Public rPath Repository, you agree to grant to rPath a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any ideas or suggestions that you submit via the Services or transmit to rPath, including, without limitation, ideas or suggestions contained therein for new or improved builds and services. You agree that you shall have no recourse against rPath for any alleged or actual infringement or misappropriation of any proprietary right in your submitted materials or other information.
7. COPYRIGHT AND TRADEMARKS
The Contents of the Services are protected by international copyright and trademark laws. The owner of the copyrights and trademarks are rPath, its affiliates or other third party licensors. Publications, builds, content or services referenced herein or in the Services are the exclusive trademarks or servicemarks of rPath. Other build and company names mentioned in the Services are the trademarks of their respective owners.
8. CHANGES TO THIS AGREEMENT
rPath reserves the right, at its sole discretion, to change, modify, add or remove portions of this Agreement periodically. Such modifications shall be effective immediately upon posting of the modified Agreement to the Web Site. Your continued use of the Services following the posting of changes to this Agreement will mean that you accept those changes.
rPath reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services, or any part thereof. rPath shall not be liable to you or any other third party for any such modification, suspension or discontinuance except as expressly provided herein.
9. CONFIDENTIALITY
You agree to maintain the confidentiality of any information provided to you by rPath that is marked or otherwise identified as confidential or proprietary (“rPath Proprietary Information”). Nothing in this Agreement shall be construed to convey any title or ownership rights to the rPath Proprietary Information to you.
The provisions of this section shall remain in full force and effect despite termination of this Agreement for whatever reason.
10. NO UNLAWFUL OR PROHIBITED USE
By using the Services, you warrant to rPath that you will not use the Services, or any of the Content obtained from the Services, for any purpose that is unlawful or prohibited by this Agreement. If you violate any of the terms and conditions of this Agreement, your permission to use the Services automatically terminates.
11. TERM AND TERMINATION
This Agreement shall continue in force perpetually unless terminated by rPath. Cause for termination shall include, but not be limited to, (a) breaches of any material provision of this Agreement, (b) a request for termination by you, (c) discontinuance or modification of the Services or any part thereof, (d) extended periods of inactivity, and/or (e) automatic termination as set forth herein. Upon termination for any reason, your rights to access, use and/or possess the Services shall immediately cease. You shall immediately stop using the Services and shall destroy all copies of the rBuilder Online software possessed by you.
12. INDEMNIFICATION
You agree to defend, indemnify and hold rPath harmless against any losses, expenses, costs or damages; including rPath reasonable attorneys' fees, experts' fees and other reasonable costs of litigation; arising from, incurred as a result of, or in any manner related to (1) your breach of the terms of this Agreement, (2) your unauthorized or unlawful use of the Services, and (3) the unauthorized or unlawful use of the Services by any other person using your UserID.
13. WARRANTIES
THE CONTENT AND SERVICES ARE PROVIDED TO YOU ON AN “AS IS,” AS AVAILABLE BASIS. RPATH PROVIDES THE CONTENT AND SERVICES WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF QUALITY OR PERFORMANCE. NO ORAL OR WRITTEN ADVICE OR INFORMATION GIVEN BY RPATH, ITS EMPLOYEES, LICENSEES OR THE LIKE WILL CREATE A WARRANTY OR GUARANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
RPATH DOES NOT GUARANTEE CONTINUOUS UNINTERRUPTED OR SECURE ACCESS TO THE WEB SITE OR SERVICES. OPERATION OF THE WEB SITE OR SERVICES MAY BE SUBJECT TO INTERFERENCE FROM NUMEROUS ACTORS OUTSIDE OUR CONTROL. FURTHER, SCHEDULED AND PREVENTIVE MAINTENANCE AS WELL AS REQUIRED AND EMERGENCY MAINTENANCE WORK MAY TEMPORARILY INTERRUPT SERVICES OR ACCESS TO THE WEB SITE.
14. LIMITATIONS OF LIABILITY
You understand that rPath cannot and does not guarantee or warrant that Content available via the Services will be free from infection by viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Services for the reconstruction of any lost data.
YOU AGREE AND ACKNOWLEDGE THAT YOUR USE OF THE CONTENT AND SERVICES IS ENTIRELY AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RPATH BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN TORT OR IN CONTRACT, INCLUDING LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF RPATH HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. RPATH'S LIABILITY HEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID BY YOU FOR THE SPECIFIC CONTENT OR SERVICES WHICH GAVE RISE TO SUCH DAMAGES.
15. MISCELLANEOUS
You may not assign this Agreement or any license granted or created hereunder. rPath may assign this Agreement to a successor as the result of an acquisition, merger or other such change of control either in whole or in part of rPath's business.
The parties are independent contractors and nothing in this Agreement shall be deemed to make either party an agent, employee, partner or joint venturer of the other party. Neither party shall have the authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
The failure of rPath to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by rPath of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. rPath will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of rPath as reflected in the original provision.
Definitions set forth in any part of this Agreement shall apply to all parts of this Agreement.
The obligations of the parties under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation, or expiration of this Agreement.
Neither party shall be considered in default in performance of its obligations hereunder if performance of such obligations is prevented or delayed by force majeure or any cause beyond its reasonable control.
This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto.
This Agreement shall be governed by and interpreted in accordance with the laws of the United States and State of North Carolina, excluding its choice of law rules.
