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Private Cloud License Agreement

Last Updated: Feb 28, 2024

This End User License Agreement (this “Agreement”) is a legal agreement between you, the individual or entity that has agreed to pay for the rights granted herein ("End User"), and Sedaro Corporation, a Delaware corporation (“Sedaro”). This Agreement governs End User’s possession and use of the Software and the Documentation (each as defined below).  If you are accessing or using the Software on behalf of your company, you represent that you are authorized to enter into the Agreement on behalf of your company.

 

PLEASE REVIEW THE TERMS OF THIS AGREEMENT CAREFULLY. ONCE ACCEPTED, THIS WILL BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND SEDARO.  IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE OR DOCUMENTATION.

 

1. SOFTWARE LICENSE.

1.1 LICENSE GRANT. Subject to the terms and conditions of this Agreement and/or the order form, work order or other agreement mutually executed by the parties referencing this Agreement (“Order Form”), Sedaro hereby grants to End User a non-exclusive, non-transferable, non-sublicensable right and license to use the Sedaro software product(s) designated in the Order Form and/or accompanied by this Agreement in object code form (the “Software”) and Documentation for internal business purposes only and during the term set forth in such Order Form, subject to any usage limitations or other restrictions set forth herein or in the Order Form. This Agreement supersedes any other agreement between Sedaro and End User with respect to the Software.

 

1.2 RESTRICTIONS ON USE. Except as expressly authorized by Sedaro, End User will not, directly or indirectly:

a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any commercial use of, outsource, use on a timeshare or service bureau, or use in an application service provider or managed service provider environment, the Software; b) copy the Software onto any public or distributed network, except for an internal and secure cloud computing environment; c) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover or permit the discovery of any source code or other operational mechanisms of the Software; d) modify, adapt, translate or create derivative works, nor allow any of those actions to occur, based on all or any part of the Software; e) modify any proprietary rights notices which appear in the Software or components thereof; f) use any Software in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Section 1.1; g) disclose to the public the results of any internal performance testing or benchmarking studies of or about the Software, without first (x) sending the results and related study(ies) to Sedaro, and (y) obtaining Sedaro’s written approval of the assumptions, methodologies and other parameters of the testing or study; or h) ship, transfer, or export the Software or any component thereof or use the Software in any manner, prohibited by law, including without limitation to, sell, distribute, export or download Software: (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (iv) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority. End User agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.

 

1.3 UNAUTHORIZED USE. End User shall notify Sedaro immediately of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Software. End User is responsible for use of the Software by any and all employees, contractors, or other users that it allows to access the Software.'

1.4 FEEDBACK. End User may provide suggestions, feedback and other information to Sedaro regarding possible improvements in the operation, functionality or use of the Software (“Feedback”). End User agrees that Sedaro shall have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

 

2. FEES; PAYMENT.

2.1 FEES.  End User will be billed for those amounts and at those prices and payment terms set forth in the applicable Order Form.  End User shall pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt thereof, unless a specific date for payment is set forth in the Order Form, in which case payment will be due on the date specified.  Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.

2.2 LATE PAYMENT.  Sedaro may suspend access to the Software immediately upon notice if End User fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Sedaro has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Sedaro. 

2.3 TAXES.  All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”).  End User will be solely responsible for payment of all Taxes, except for those taxes based on the income of Sedaro.  End User will not withhold any taxes from any amounts due to Sedaro.

 

3. CONFIDENTIALITY

3.1 SCOPE AND RESTRICTIONS. "Confidential Information" means all information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party") that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its employees, consultants, agents and professional advisers who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and, to the extent within its control, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 3 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the Receiving Party without use or reference to the Confidential Information.

 

3.2 EQUITABLE RELIEF. The Receiving Party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.

 

4. PROPRIETARY RIGHTS. Sedaro and/or its licensors, as the case may be, own and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Software, and all improvements, enhancements and derivatives thereof. Other than the limited license set forth in Section 1.1 above, no right is granted to End User herein. Third party components included in the Software may be subject to the applicable third party terms and conditions.

 

5. TERM; TERMINATION.

 

5.1 TERM. This Agreement will be in effect as of the effective date of the applicable Order Form and as set forth therein.  Except as set forth in such Order Form, the subscription term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial subscription term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current subscription term.

 

5.2 TERMINATION.  Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect.  Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

 

5.3 EFFECT OF TERMINATION.  Upon expiration or termination of this Agreement or any Order Form for any reason, End User shall cease any further use of the applicable Software and destroy any copies of such Software or Documentation within End User’s possession and control, and each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.  Upon termination of this Agreement, all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the restrictions on use and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.

 

6.WARRANTIES; LIMITATION OF LIABILITY.

 

6.1 LIMITED WARRANTY. Unless otherwise agreed upon by the parties, Sedaro warrants that, during the first ninety (90) days following the date the Software is made available to End User (the “Warranty Period”), the Software will, in all material respects, conform to the functionality described in the technical documentation for the Software made available by Sedaro (“Documentation”). Sedaro’s sole and exclusive liability, and End User's sole and exclusive remedy, for a breach of this warranty shall be that Sedaro shall be required to use commercially reasonable efforts to make the Software conform in all material respects to the Documentation, and if Sedaro is unable to restore such material functionality within thirty (30) days from the date of written notice of said non-compliance, as End User’s sole and exclusive remedy, End User shall be entitled to terminate this Agreement upon written notice and receive a refund of the license fees which have been paid for such Software. The foregoing warranty shall be subject to the following conditions: (A) the Warranty claim is made in writing, with sufficient detail, within the Warranty Period; (B) Sedaro determines that the defect is not due to any misuse, abuse, neglect, negligence, or unauthorized repair or modification of the Software; and (C) the failure or error is reproducible by Sedaro. Any fix, patch, or workaround provided as part of the foregoing remedy will not re-commence the Warranty Period and are warranted for the remainder of the Warranty Period, as then in effect.

 

6.2 WARRANTY DISCLAIMER. EXCEPT AS EXPLICITLY PROVIDED HEREIN, THE SOFTWARE AND ALL RELATED SERVICES ARE PROVIDED “AS IS” AND SEDARO EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE OR SECURE ACCESS TO OR OPERATION OF THE SOFTWARE OR ANY RELATED SERVICES.

 

6.3 LIMITATION OF LIABILITY.  UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SEDARO BE LIABLE TO END USER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY END USER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.

 

7. FORCE MAJEURE. Except for payment obligations, neither party hereto will be liable for defaults or delays (except for payment obligations) due to Acts of God, or the public enemy, acts or demands of any government or governmental agency, fires,  floods, accidents, or other unforeseeable causes beyond its control and not due to its fault or negligence.

 

8. U.S.  GOVERNMENT  RIGHTS. As defined  in 48 C.F.R. §2.101, DFAR §252.227-7014(a)(1)  and DFAR

§252.227-7014(a)(5) or otherwise, all Software and Documentation provided in connection with this Agreement are “commercial items,” “commercial computer                                                        software” and/or “commercial computer software documentation.” consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this  Agreement.

 

9. MISCELLANEOUS. This Agreement shall be governed by and construed under the laws of the State of Delaware. The United Nations Convention on Contracts for the International Sale of Goods is hereby disclaimed. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect. This Agreement (including all Order Forms and exhibits hereto) represents the entire agreement between the parties and supersede any previous or contemporaneous oral or written agreements or communications regarding the subject matter of this Agreement. Any modification to this Agreement must be in writing and signed by a duly authorized agent of both parties. This Agreement shall control over additional or different terms of any purchase order, confirmation, invoice or similar document, even if accepted in writing by both parties, and waivers and amendments to this Agreement shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver to this Agreement. The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement. This Agreement may not be assigned by either party without the prior written approval of the other, except that either party may assign this Agreement to a successor to all or substantially all of the business or assets to which this Agreement relates, and Sedaro may assign this Agreement to any of its affiliates; and any purported assignment in violation of this section shall be void.

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