BRIGHT WOLF ZIPLINE EULA, v1.0


YOUR USE OF THE SOFTWARE CONSTITUTES AN ACKNOWLEDGEMENT THAT YOU HAVE READ THIS END USER LICENSE AGREEMENT ("EULA"), UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

PREAMBLE:

This EULA is entered into by and between Bright Wolf, LLC ("Bright Wolf"), a North Carolina limited liability company, with offices at 400 W. Main St, Suite 701, Durham, NC 27701, and you individually, if you are agreeing to it in your own capacity, or if you are authorized to enter into this EULA on behalf of your employer, company or other organization, then the entity for whose benefit you act ("Subscriber" or "you"). Bright Wolf and Subscriber (or you) are sometimes referred to herein individually as a "Party" and collectively as the "Parties."     

This EULA is effective on the date  ("Effective Date") that you first obtain access to the Software on the Amazon Web Services Marketplace ("Amazon WSM").

NOW, THEREFORE, in consideration of the mutual agreements and covenants herein contained and intending to be legally bound thereby, the Parties agree as follows:

1. ACCESS TO SOFTWARE FUNCTIONALITY

The Software shall be available to Subscriber on the Amazon WSM only, and not by means of the delivery to Subscriber of a copy of the Software in binary, object code, executable or other form. Subscriber shall have no right to make any copies of anything made available to it by Bright Wolf via the Amazon WSM under this EULA.  

2. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

The Software is not sold to Subscriber, nor is Subscriber provided with a copy of the Software or Documentation in binary, executable or object form or otherwise. Instead, Subscriber receives the subscription and right to use the Software and Documentation as stated in Section 1 of this EULA.  Subscriber acknowledges and agrees that Bright Wolf and its third party licensors own and retain full ownership rights in the Software and in all patents, copyright, trade secrets, trademarks, and any and all other proprietary rights ("the Intellectual Property Rights") that Bright Wolf owns or has the right to license and/or use.

No rights or licenses are granted to Subscriber, directly or indirectly, whether impliedly, under any theory of estoppel, or otherwise, under any Intellectual Property Rights (including, but not limited to, patents), whether or not the exercise of any right herein granted necessarily employs an invention of any existing or later issued patent, of Bright Wolf or of any third party except those expressly set forth in Sections 1, or the rights provided for in Section 4 of this EULA, and no rights or licenses are granted to use any Bright Wolf patents.   

3. CONFIDENTIAL INFORMATION

The Software and any other information provided to Subscriber by Bright Wolf for use with the Software ("Confidential Information") constitute and contain Bright Wolf's confidential and proprietary information, and Subscriber shall not disclose Confidential Information to any third party or use it for any purpose other than the Permitted Use.  Notwithstanding the preceding sentence, Subscriber is not required to maintain the confidentiality of any portions of the Confidential Information (a) previously known to Subscriber free of any obligations to keep confidential; (b) generally known to the public, provided that such public knowledge was not the result of any act attributable to Subscriber; (c) which Bright Wolf otherwise explicitly agrees in writing need not be kept confidential.  Subscriber may disclose Confidential Information which is requested pursuant to a judicial or governmental request, requirement or order under law, provided that Subscriber provides Bright Wolf with sufficient prior notice and reasonable assistance to contest such request, requirement or order and to seek protective measures.  

Subscriber may grant access to the Confidential Information only to Subscriber's employees, consultants and contractors who have a need to know to the extent required for the Permitted Use, who agree in writing to be bound to terms at least as restrictive as those stated in this EULA and who Subscriber causes to comply with the provisions of this EULA.  Subscriber will promptly report to Bright Wolf any actual or suspected violation of this Section 3 and shall take all reasonable steps requested by Bright Wolf to prevent or remedy any such violation.  

4. Open Source Software

The Software includes "Open Source Software", which means any software and its updates and upgrades, which are not subject to this EULA but, if at all, to separate open source software terms and conditions. Such (open source) software includes software licensed under Apache, Eclipse, MIT, and BSD.

Subscriber acknowledges and accepts that Bright Wolf is, if and to the extent applicable, making available a right to use Open Source Software on an "as is" basis under the respective Open Source Software license terms. Bright Wolf shall not be liable for, and will not defend, indemnify, or hold Subscriber harmless for any claims arising out of or related to Open Source Software. This includes, but is not restricted to, any and all claims for direct, indirect, incidental, special, exemplary, punitive or consequential damages in connection with Open Source Software or its components (whether included in the Software or not). This includes claims for or in connection with the title in, the non-infringement of or interferences caused by Open Source Software. 


5. RESTRICTIONS ON USE AND TRANSFER OF RIGHTS TO SOFTWARE

Subscriber shall not, and shall not permit other persons or entities, including any of its affiliated companies, to: (i) directly or indirectly, by electronic or other means, use, reproduce, publish, distribute, rent, lease, sell, proport to sublicense, assign or otherwise transfer any elements of the Software or make may any part of the Software accessible on a network external to Subscriber or Subscriber's organization; (ii) reverse-engineer, decompile, disassemble, merge, modify, create derivative works of, or translate the Software or use any part of the Software for any purpose other than the Permitted Use; (iii) sublicense, timeshare, or rent, act as a software or service provider, or make any application development use of the Software; or (iv) remove or obscure any copyright, trademark or other proprietary notices or legends from any portion of the Software. Subscriber acknowledges that the Software cannot be decompiled or reverse engineered. 

Subscriber acknowledges and understands that the Software is intended for standard commercial uses only. Subscriber may not use the Software in or for hazardous environments requiring fail-safe controls, including without limitation, the design, construction, maintenance or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, and life support or weapons systems. Bright Wolf has no knowledge of and assumes no risk for the possible consequences of using the Software in any such hazardous environments. If Subscriber chooses to use the Software in any such hazardous environments without fail-safe controls, then it shall do so entirely at its own risk. Subscriber agrees to defend, indemnify, and hold Bright Wolf harmless from any and all claims for loss, cost, damage, expense or liability that may arise out of or in connection with the use of Software or the Documentation in such hazardous environments.

6. TERM

This EULA and the rights granted to Subscriber hereunder shall become effective on the Effective Date.  

This EULA will terminate automatically and without provision of notice by Bright Wolf if (i) Subscriber fails to comply with any of the terms or conditions of this EULA, including any attempt to make or to transfer any copy of the Software to another party or any attempt to modify the Software, (ii) Subscriber ceases doing business, is dissolved, makes an assignment for the benefit of creditors of all or substantially all of Subscriber's assets or voluntarily or involuntarily enters bankruptcy, or (iii) Subscriber fails to make full payment for any subscription period.  

Upon expiration or termination of the EULA for any reason, Subscriber agrees that Subscriber will cease all use of the Software and all Confidential Information.
 
7. LIMITED WARRANTY

Bright Wolf represents and warrants to Subscriber that it either owns or has an enforceable right from its licensors to grant a right to use the Software under the terms and conditions stated in this EULA.

Bright Wolf believes that the Software is correct and accurate, but Bright Wolf shall not be held to any liability whatsoever for errors or omissions therein.

Neither the execution of this EULA nor anything in this EULA or in the Software, or other Confidential Information shall be construed as an obligation upon Bright Wolf to furnish any person, including Subscriber, any assistance of any kind whatsoever, or any information other than the Software, or to revise, supplement, or elaborate upon the Software.

EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 7, THE SOFTWARE OR OTHER INFORMATION TO WHICH ACCESS IS FURNISHED UNDER THE EULA IS PROVIDED "AS IS" WITH ALL FAULTS, LATENT AND PATENT, AND WITHOUT ANY WARRANTY OF ANY TYPE. BRIGHT WOLF MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED.  BY WAY OF EXAMPLE, BUT NOT OF LIMITATION, BRIGHT WOLF MAKES NO REPRESENTATIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE USE OF THE SOFTWARE, OR OTHER INFORMATION FURNISHED UNDER THE EULA WILL NOT INFRINGE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY AND IT SHALL BE THE SOLE RESPONSIBILITY OF SUBSCRIBER TO MAKE SUCH DETERMINATION AS IS NECESSARY WITH RESPECT TO THE ACQUISITION OF RIGHT TO USE UNDER PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. 

8. LIMITATION OF LIABILITY

BRIGHT WOLF SHALL NOT BE HELD TO ANY LIABILITY WITH RESPECT TO ANY CLAIM BY SUBSCRIBER OR ANY OTHER THIRD PARTY ON ACCOUNT OF, OR ARISING FROM, THE USE OF OR INABILITY TO USE THE SOFTWARE OR OTHER INFORMATION FURNISHED UNDER THE EULA.

Except for any breach by Subscriber of Sections 3 or 5, neither Bright Wolf nor Subscriber shall be liable for incidental, indirect, special, exemplary, or consequential loss or damages of any nature, or for lost profits, savings or revenues of any kind, however caused under this EULA, whether or not the applicable Party has been advised of the possibility of such damages.  This provision will survive failure of an exclusive remedy.

TO THE EXTENT THAT ANY EXCLUSION OF DAMAGES ABOVE IS NOT VALID, SUBSCRIBER AGREES THAT IN NO EVENT WILL BRIGHT WOLF'S AND ITS AFFILIATES' TOTAL LIABILITY UNDER OR RELATED TO THIS EULA EXCEED THE AMOUNT ALREADY PAID BY SUBSCRIBER FOR USE OF THE SOFTWARE.

THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION ARE ESSENTIAL AND THAT SUBSCRIBER WOULD NOT BE PERMITTED TO USE THE SOFTWARE ABSENT THE TERMS OF THIS SECTION.  THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS TOU MAY BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  

BRIGHT WOLF SHALL NOT BE HELD TO ANY LIABILITY WITH RESPECT TO ANY CLAIM BY SUBSCRIBER OR ANY OTHER THIRD PARTY ON ACCOUNT OF, OR ARISING FROM, ANY USE CASES, WORKFLOWS, SOFTWARE SIMULATORS, CODE SAMPLES, DESIGN KITS, APPLICATIONS OR SIMILAR CONFIGURED OR CREATED BY USER THROUGH THE USE OF THE SOFTWARE AND DOCUMENTATION INCLUDING BUT NOT LIMITED TO INFRINGEMENT. 

9. EXPORT 

The Parties acknowledge that the Software and Confidential Information may be subject to the export laws and regulations of the United States, the European Union and/or other countries (cumulatively, "Export Laws").  Subscriber shall not use the Software and Confidential Information (even if incorporated into other items) in violation of the Export Laws.  If requested by Bright Wolf, Subscriber shall sign written assurances and other export-related documents as may be required for Bright Wolf to comply with the Export Laws.

10. PRIVACY  

Nothing herein will be deemed to grant Subscriber any right to use the Software or Confidential Information in any manner that violates any law or regulation relating to privacy of information.  Subscriber shall indemnify and hold harmless Bright Wolf, its affiliates and their respective authorized resellers and distributors against all liability for claims of any party relating to the use of the Software in violation of any privacy-related law or regulation.

11. GENERAL

Except as specifically provided for herein, the waiver from time to time by a Party of any of its rights or its failure to exercise any remedy will not operate or be construed as a continuing waiver of the same or of any other of such Party's rights or remedies provided in this EULA.

If any term, covenant or condition of this EULA or the application thereof to any Party or circumstances is, to any extent, held to be invalid or unenforceable, then the remainder of this EULA, or the application of such term, covenant or condition to parties or circumstances other than those as to which it is held invalid or unenforceable, will not be affected thereby and each term, covenant or condition of this EULA shall be valid and be enforced to the fullest extent permitted by law.

Neither Bright Wolf nor Subscriber shall be liable for any loss, damage, delay, or failure of performance resulting directly or indirectly from any cause which is beyond its reasonable control, including, but not limited to, acts of God, riots, civil disturbances, wars, states of belligerency or acts of the public enemy, strikes, work stoppages, or the laws, regulations, acts, or failure to act of any governmental authority.  If performance under this EULA is prevented for a continuous period of two (2) months or longer by any of the foregoing causes, either Party may terminate this EULA by giving written notice to the other Party.

Except as specifically provided for herein, the waiver from time to time by a Party of any of its rights or its failure to exercise any remedy will not operate or be construed as a continuing waiver of the same or of any other of such Party's rights or remedies provided in this EULA.

This EULA takes precedence over any conflicting terms or legends which may appear in or on the Software or Confidential Information.

Section headings contained in this EULA are inserted for convenience of reference only, will not be deemed to be a part of this EULA for any purpose, and will not in any way define or affect the meaning, construction or scope of any of the provisions hereof.

Bright Wolf, at its sole discretion, may from time to time publish a revised and/or new version of this EULA which will govern all uses of the Software after the posting of such revised or new version of this EULA.

12. ENTIRE AGREEMENT 

This EULA sets forth the entire agreement and understanding between the Parties as to the subject matter hereof and merges all prior discussions between them.  Neither of the Parties shall be bound by any warranties, understandings or representations with respect to such subject matter other than as expressly provided herein, in prior written agreements, or in a writing signed with or subsequent to the execution hereof by an authorized representative of the Party to be bound thereby.