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Red Hat OpenStack Services Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING RED HAT SERVICES OR SOFTWARE. IN ORDER TO USE RED HAT SERVICES OR SOFTWARE, YOU MUST AGREE TO THE TERMS OF THIS AGREEMENT. BY USING RED HAT SOFTWARE OR SERVICES, YOU AGREE THAT YOUR USE IS GOVERNED BY THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE RED HAT SERVICES OR SOFTWARE. YOU CONFIRM THAT YOU ARE AT LEAST 18 YEARS OLD.
- Framework. This Services Agreement, which includes Appendix A and other documents incorporated by reference (the Agreement") is between Red Hat, Inc. ("Red Hat") and the user of Red Hat software and services who accepts the terms of this Agreement ("You"). This Agreement is effective ("Effective Date") on the earlier of the date that You sign or accept this Agreement or the date that You first use Red Hat's software or services. This Agreement establishes a framework that will enable You to receive services, which in some cases may include access to software and related materials (the "Software"), from Red Hat (the "Red Hat Services"). The Red Hat Services offered under this Services Agreement include free services ("Free Services"). Appendix A sets forth additional terms applicable to specific Services, including the difference between the Paid Services and Free Services. As further described below, you agree to comply with the Acceptable Use Policy, which is incorporated by reference into this Agreement, the most recent version of which can be reviewed at http://openshift.redhat.com/app/legal.Please read Appendix A and the Acceptable Use Policy so You are aware of the terms that govern Your use of Services.
- General Conditions of Use.
2.1 Your Account. In order to access the Services, You will be required to create an account ("Your Account"). You may create only one account per email address and You must verify that the email address You have provided is valid and will remain valid during the term of the Agreement. You may not use a user name that impersonates someone else, is intended to disguise Your identity, is or may be illegal, or may infringe copyright, trademark, privacy, publicity or other proprietary rights, is vulgar or offensive or may cause confusion as to source, affiliation or endorsement. You agree not to share Your password or Your Account information with third parties. You must maintain the confidentiality of Your password and are solely responsible for any activities and/or actions that occur with respect to Your Account whether by You or a third party user ("Your User".)
2.2 Your Use. You agree to use the Services in accordance with all applicable laws and regulations, the Acceptable Use Policy and this Agreement, and further agree that You will not induce or solicit Your Users or other third parties to commit unlawful acts in connection with the Services. In addition, You agree not to interfere with Red Hat’s ability to provide any of the Services to any other user or with another user's ability to receive the Services.
2.3 Third Party Use. If You provide Your User(s) with access to Content and/or the Services, You are responsible for any third party that you enable or authorize to have access to the Services and You will be deemed to have taken any action that You permit, facilitate or assist Your User in taking relating to this Agreement, Content or use of the Services. You must ensure that Your Users comply with the terms of this Agreement, including the Acceptable Use Policy, and You agree that if You become aware of any violation by one of Your Users, You will terminate that User's access immediately. You will also implement an Acceptable Use Policy that is consistent with the Red Hat Acceptable Use Policy.
2.4 Failure to Comply. You will immediately notify Red Hat if you suspect someone has breached the Acceptable Use Policy or has obtained unauthorized access to Your Account and/or the Services. If Red Hat has reason to believe that You or Your Users have breached this Agreement, the Acceptable Use Policy or Appendix A, Red Hat or its designated agent may inspect Your use of the Services, including Your Account, Content and records, to verify Your compliance with this Agreement. Red Hat reserves the right but has no obligation to suspend or terminate Your access to the Services if Red Hat, in its sole discretion, believes Your Content violates the terms of the this Agreement or the Acceptable Use Policy. Red Hat shall have no liability with respect to such suspension or termination.
- Content and Data.
3.1 Content. "Content" means any content or data, including but not limited to applications whether developed in connection with the Services or otherwise, software code, documentation, materials, information, text files, images and/or trademarks associated with Your Account or use of the Services and not provided by Red Hat. You are solely responsible for the use and deployment of Content in connection with the Services and in compliance with this Agreement and the Acceptable Use Policy. You represent and warrant that You own all rights in, or have received a valid license to use, Content, with rights or license sufficient to enable Your use of the applicable Services and such that any use by You, Your Users and Red Hat does not infringe the intellectual property rights of any third party. You further represent and warrant that any use of Content by You, Your Users and Red Hat in connection the applicable Services is lawful. With regard to Content, You are solely responsible for compliance with the Acceptable Use Policy, this Agreement and all applicable laws and agree to remove immediately any Content that violates the Acceptable Use Policy, the Agreement or any applicable law. You are responsible for maintaining licenses and adhering to all license terms applicable to any Content used by You, Your User(s), or Red Hat. Red Hat shall not be responsible under any circumstances for any claims, damages or other actions relating to Content, or Your or Your User's actions while using the Services. You must immediately respond to any notice You receive claiming that Content violates a third party's rights, including notices under the Digital Millennium Copyright Act and to take corrective action, including but not limited to promptly removing any such Content. You agree to implement a policy to respond to any and all such requests that You may receive. You are prohibited from using the Service to store any electronic health records, financial records, credit card information, confidential information or any other regulated information and/or data ("Sensitive Information"). Red Hat is not acting as a "Business Associate," as that term is defined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the Services are not intended to be HIPAA compliant.
3.2 Your Comments and Feedback. While using the Services, You may be asked to provide comments or feedback on the Services ("Feedback"). Red Hat may use any such Feedback for any purpose, including implementing the Feedback into future versions of the Services or other offerings without attribution or compensation.
3.3 Your License Grant to Red Hat. You hereby grant to Red Hat a non-exclusive, non-transferable, royalty free license to use Your trademarks, trade names and logos in connection with publicizing the Services and communicating with analysts, customers or the press about the Services. Your further grant to Red Hat, and any third party service provider on whose services Red Hat may depend to provide the Services, a perpetual, worldwide, non-exclusive, non-transferable, royalty-free license to make, use, reproduce, prepare derivative works, distribute, perform and display Content for the purpose of providing the Services. Except as set forth in this Section, Red Hat obtains no rights in Content under this Agreement.
3.4 Backing up Content. You are solely responsible for backing up Content and otherwise using measures, as You deem necessary, to ensure that Content is not lost. Upon expiration of this Agreement or if Red Hat terminates the Services, You may lose any of Content that You do not have a copy of that is located outside of the Services. Red Hat and/or any of its service providers are not responsible to You, Your Users or any third party if Content is lost or deleted.
- Data Privacy and Security.
4.1 Data Transfer. You acknowledge and agree that to provide the Services it may be necessary for Content or other information to be transferred between Red Hat, its affiliates, and/or subcontractors, which may be located worldwide.
4.3 Legal Process. Red Hat may provide information, including Content and information concerning Your Account, as required by law (such as responding to a subpoena, warrant, audit, or agency action, or to prevent fraud) or to establish or exercise its legal rights or defend against legal claims. Red Hat shall not be liable for any use or disclosure of such information to such third parties.
- Changes and Updates to Terms. Red Hat may modify this Agreement (including Appendix A and the Acceptable Use Policy) at any time by posting a revised version at http://openshift.redhat.com/app/legal, by otherwise notifying You in accordance with Section 17 below, and/or otherwise requiring you to accept the new revised terms, in each case in order for you to continue using Services. The modified terms will become effective (i) upon posting, (ii) if we notify You by email, as stated in the email message, or (iii) otherwise upon Your acceptance. By continuing to use the Services after the effective date of any modifications to this Agreement, You agree to be bound by the modified terms. It is Your responsibility to review the Agreement and Acceptable Use Policy to be aware of the most recent terms. Red Hat last modified this Agreement on the date listed at the bottom of this Agreement.
- Changes to the Services and Service Levels
6.1 Changes Red Hat intends to periodically update, improve and/or discontinue certain functionality associated with the Services and Your user experience. As a result, the Services may be substantially modified. Red Hat reserves the right at any time to change and/or discontinue any or all of the Services (including the underlying platforms and application programming interfaces ("APIs") and/or application binary interfaces ("ABIs") which may inhibit Your ability to use existing applications. Red Hat will use reasonable efforts to provide notice of material changes to Services on the applicable Services website.
6.2 Service Levels. Services are generally provided through internet connectivity and third party service providers that Red Hat does not control and may be subject to delays, outages or other problems; Red Hat is not responsible for any such delays or outages.
- Intellectual Property
8.1 Trademarks. The Red Hat and third party trademarks, logos, trade names and service marks ("Marks") displayed as part of Services(s) are the property of Red Hat or other third parties. You are not permitted to use these Marks without the prior written consent of Red Hat or the third party trademark owner. Please consult with and abide by the Red Hat Trademark Guidelines and Policies at www.redhat.com/about/corporate/trademark/, which govern any permitted use of Red Hat Marks.
8.2 Rights in Services. You agree that Red Hat and its licensors own all legal rights and interests, including intellectual property rights, in the Services. As part of the Services, You may receive access to certain Software. Your use of the Software is subject to the applicable license set forth in Appendix A. Red Hat grants to You a non-transferable, non-exclusive, limited, revocable license to use the Services as contemplated under this Agreement. You only acquire the right to use the Services and do not acquire any rights of ownership in the Services. You may use any documented APIs disclosed in the documentation for the Services solely for the purpose of integrating Content with the Services and for no other purpose; you may not use any APIs to create products or services that compete with any of the Services, including the Software. You shall not (i) sublicense, sell, rent, distribute, assign or otherwise transfer the Services; (ii) reverse engineer, decompile or disassemble the Services except to the extent such conduct is permitted under applicable law notwithstanding this restriction; (iii) remove or modify any of the copyright, trademark or other proprietary notices contained in the Services; (iv) modify or create derivative works of the Services, or (v) use the Services to create products or services that compete with any of the Services. Red Hat reserves all rights to the Services not expressly granted herein. To the extent there is any conflict between this Section and Appendix A, Appendix A will control.
8.3 Open Source Assurance. The Services and Software are not provided with any protection or other coverage under the Red Hat Open Source Assurance Program.
- Continuing Business. Nothing in this Agreement will preclude or limit Red Hat 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.
- Linking. The Services may contain links to external sources, websites or content that are not owned, created or managed by Red Hat. Red Hat does not have control over such sites or content and has not reviewed them. The inclusion of any link to a website does not imply endorsement by Red Hat of the website or their sponsoring entities, products or services. You agree that Red Hat is not responsible or liable for any loss or expenses that may result due to Your use of (or reliance on) the external site or content.
- Limited Liability and Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT AND IRRESPECTIVE OF THE THEORY OF LIABILITY, WHETHER ARISING ON ACCOUNT OF PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS AND REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE), STATUTE OR OTHERWISE, IN NO EVENT WILL RED HAT, ITS AFFILIATES OR ITS LICENSORS BE LIABLE TO YOU, YOUR AFFILIATES OR YOUR USERS FOR ANY DIRECT OR INDIRECT DAMAGES OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH TERMINATION OF YOUR ACCOUNT, ANY MALFUNCTIONS, OUTAGES, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF RED HAT, ITS AFFILIATES AND/OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR THESE DAMAGES WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNTS RECEIVED BY RED HAT DURING TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, WITH RESPECT TO THE PARTICULAR ITEMS (WHETHER SOFTWARE, SERVICES OR OTHERWISE) GIVING RISE TO LIABILITY. EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. TO THE EXTENT THAT LIABILITY FOR CERTAIN DAMAGES MAY NOT BE LAWFULLY EXCLUDED OR LIMITED AS PROVIDED ABOVE, THE TERMS OF THIS SECTION 11 WILL BE ENFORCED TO THE EXTENT PERMITTED BY APPLICABLE LAW.
- No Warranties. You understand and agree that the Software and Services may contain bugs, errors and/or inadequacies. FOR ALL CIRCUMSTANCES AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND SOFTWARE ARE PROVIDED BY RED HAT "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. RED HAT DOES NOT GUARANTEE OR WARRANT THAT THE USE OF SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, COMPLY WITH REGULATORY REQUIREMENTS, BE ERROR FREE OR THAT RED HAT WILL CORRECT ALL SOFTWARE OR SERVICE ERRORS. Without limiting the generality of the foregoing disclaimer, the Software and Services are not specifically designed, manufactured or intended for use in (a) the planning, construction, maintenance, control, or direct operation of nuclear facilities, (b) aircraft navigation, control or communication systems, weapons systems, or (c) direct life support systems. You agree that You are solely responsible for the results obtained from the use of the Software and Services.
- Indemnification. You agree to indemnify and hold harmless Red Hat, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees and associated litigation expenses) arising out of or relating to: (a) Your use or Your User's use of the Services and Software; (b) Your breach of this Agreement or the Acceptable Use Policy, or violation of applicable law by You and/or Your Users; (c) Content or the combination of Content with other applications, content or processes, (d) any claim or allegation that Content infringes or misappropriates the intellectual property rights of any third party; (e) Red Hat’s response to any third party subpoena, warrant, audit, agency action or other legal order or process concerning Content, Your Account and/or use by You and/or Your Users of the Services and Software or (f) any dispute between You and a Service Provider (defined in Appendix A) or You and Your User. Red Hat will provide You with written notice of any claim, suit or action, but its failure to do so does not relieve Your of Your obligations under this paragraph.
- Export Control. Red Hat may supply You with software, services and/or technical data that is subject to export control restrictions under the laws of the United States or other countries (the "Export Control Laws"). You agree to comply with all applicable Export Control Laws and agree not to use Services or Software if You or Your Users are barred from receiving them under any of the Export Control Laws (for example, if they are located in a jurisdiction that is subject to United States sanctions regulations, which currently includes Cuba, Iran, North Korea, Sudan and Syria and which are subject to change as posted by the United States government). Red Hat will not be responsible for Your compliance with the Export Control Laws. If (a) You breach this Section 14, the export control provisions of a Software license agreement or any provision referencing these sections or (b) it would be a violation of any of the Export Control Laws for Red Hat to provide You with access to any of the Services, Red Hat may terminate this Agreement immediately without liability to You. You agree that You will not use the Services in connection with any nuclear, chemical or biological weapons or missile technology, unless authorized by the relevant government agency by regulation or specific license.
- Term and Termination. The Services will commence on the Effective Date. Either Party may terminate the Free Services at any time. Without limiting other rights that Red Hat may have, Red Hat may suspend or terminate Your Services and Your Account immediately if You have breached this Agreement, the Acceptable Use Policy or applicable law. Following termination or expiration of this Agreement, You will no longer be able to access or use the Services, , or any Content stored in connection with the Services. If this Agreement expires or is terminated for any reason, the following sections will survive such termination or expiration: Sections 3.3, 4.3, 7 and 11-20 and any post-termination requirements set forth in Appendix A.
- Governing Law/Consent to Jurisdiction. The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the United States and of the State of New York without giving effect to the conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts of competent jurisdiction located in Raleigh, North Carolina, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue. In the event the Uniform Computer Information Transactions Act (UCITA) or any similar federal or state laws or regulations are enacted, it will not apply to this Agreement, and the governing law will remain as if such law or regulation had not been enacted.
- Notices. Red Hat may provide a notice to You under this Agreement by: (i) posting the notice on the Services website; or (ii) sending a message to the email address associated with Your Account. Notices provided by posting on the Services website will be effective upon posting and notices provided by email will be effective when Red Hat sends the email. It is Your responsibility to keep Your email address current and to update Your profile with Red Hat if it changes. You will be deemed to have received any email sent to the email address associated with Your Account following transmission by Red Hat, whether or not You actually receive the email. To give notice to Red Hat under this Agreement, You must contact Red Hat either by (1) overnight courier to Red Hat, Inc. at Attention: General Counsel, 100 East Davie Street, Raleigh, North Carolina 27601 or (2) facsimile at (919) 754-3704. Red Hat may update its contact information by posting a notice on the Red Hat website. Notices provided by overnight courier or facsimile transmission will be effective one business day after they are sent. Notices must be in English.
- Publicity and Benchmarking. You may not misrepresent your relationship with Red Hat nor suggest or publish that Red Hat or any of its affiliates or licensors endorses, sponsors, contributes to or provides support for Content or You. You may not publish the results of any benchmarking studies that you conduct in connection with the Services unless You obtain Red Hat's prior written approval.
- Miscellaneous. This Agreement is binding on the parties to this Agreement, and nothing in this Agreement grants any other person or entity any right, benefit or remedy of any nature whatsoever. Nothing in this Agreement will be construed to create an employment or agency relationship between You and Red Hat (or any Red Hat personnel). All headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation. If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement. The delay or failure of either party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced. This Agreement, including the Acceptable Use Policy, represents the final, complete and exclusive statement of the agreement between the parties with respect to its subject matter, notwithstanding any prior written agreements or prior and contemporaneous oral agreements with respect to the subject matter of the Agreement. Neither party may assign this Agreement without the prior written consent of the other party; provided, however, that Red Hat may assign this Agreement without such consent to an affiliate or to any third party in connection with the sale of all or substantially all of its business or assets to which this Agreement relates.
- Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.