USER LICENSE AGREEMENT FOR EARLY ACCESS INVITATION-ONLY
CLOUDBERRIE VERSION 1.0
1. THE PARTIES
This User License Agreement (“ULA”) is an agreement between you (either an individual or a single entity), hereinafter the “User”, and Cloudberrie AS, hereinafter the “Company”, a company duly incorporated and validly existing under the laws of Norway with company registration number 918 033 572, each a “Party” and collectively the “Parties”.
This ULA sets out the terms and conditions regarding right to use the Early Access version of the Company's software solution Cloudberrie, hereinafter the “Early Access Version”.
You accept the terms and conditions of this ULA upon the date of your electronic sign-up on Cloudberrie's website (the “Effective Date”). This ULA constitutes a legally enforceable agreement between you and the Company.
2. LICENSE GRANT, TERM, RESTRICTIONS AND ACCEPTABLE USE
2.1 License Grant and Term
The license herein is granted on an "invite-only" basis and is free of charge for the User from the Effective Date until the termination of the license for whichever reason and at the latest 1 September 2022 (the “Term”).
The User shall have a non-exclusive, non-sublicensable, and non-transferrable user right to the Early Access Version covered by the ULA, during the Term.
You accept that during the Term, the Company has a right to send you emails with updates on the Early Access Version and other Cloudberrie-related information such as surveys etc.
By the end of the Term, if the User decides not to sign up for a new and payable license agreement for the next Cloudberrie version (“General Availability 1.0”) with the Company, the User will no longer have access to the Early Access Version, any other Cloudberrie technology nor any projects the User may have created using the Early Access Version.
If the User decides to sign up for a payable license for the General Availability 1.0 Beta version with the Company, the cost of that license will start at $499 per month payable annually in advance for the standard license. The standard license gives user access to applicable Cloudberrie features, 1 floating license, 3 live VR projects with the possibility of 10 simultaneous users within project environments.
The User's license of the Early Access Version shall be restricted to the User's own use only (which for the sake of clarity shall not include access or use by any other than the legal entity identified as the User). The User may share any virtual reality environments that the User has built based on the Early Access Version to third parties such as its customers. The User shall not, directly or indirectly, sublicense or transfer the rights granted to it under this ULA.
There can only be one (1) person logged in on the User's account at any given time. For further details, reference is made to the applicable Cloudberrie user guide.
Except as explicitly stated in this ULA, this ULA shall not grant the User any right or license to the Early Access Version, or any other intellectual property rights (“IPR”) or property of the Company, and no license or other rights shall be created by implication or otherwise. In particular, but without limiting the generality of the foregoing, no right or license in or access to the source code to the Early Access Version, is granted hereunder.
The User shall not itself and shall not permit any others to: a) modify, alter, adapt, translate, reverse-engineer, decompile, disassemble or attempt to discover the source code, underlying ideas, algorithms, file formats or programming interfaces of the Early Access Version, or any other Company technology in any way; or b) reproduce or prepare any derivative works of the Early Access Version, or any other Company technology, or distribute, sell, or resell the Early Access Version in any manner or for any purpose.
The User shall not, directly or indirectly, use such information disclosed by the Company, or gained by the User from the Company technology to design, specify, develop, integrate, market, license, distribute, or host any Company technology that are competitive with any of the Company technology, or disclose any such information to any third party.
2.3 Acceptable Use
The User shall be responsible for its conduct and its data (“User Data”). The User shall comply with the following requirements when using the Early Access Version: a) The User shall use the Early Access Version in compliance with, and only as permitted by, all applicable laws, regulations, requirements, or orders, which are issued by any governmental body with legal authority to exercise legislative, judicial, regulatory, or administrative functions (“Applicable Laws”). b) The User shall be responsible for safeguarding the User’s password and any other credentials used to access its account. Credentials shall not be shared with third parties. The User shall be responsible for any activity occurring on the User’s account. c) The User shall not misuse the Early Access Version by interfering with their normal use or attempting to access them using a method other than through the interfaces and instructions that is provided to the User. d) The User shall not circumvent or attempt to circumvent any limitations that the Company imposes on the User’s account. e) The User shall not publish, demonstrate, or otherwise expose any images or videos of either the software interface or the virtual reality environments, or any other aspects of the Early Access Version, including such that the User creates when using the Early Access Version, without prior written permission from the Company. f) Unless authorized by the Company in writing, the User shall not probe, scan, or test the vulnerability of Early Access Version or any other Company Technology or hardware or system, network, or component used for providing the Invitation Only Early Access Version. g) The User shall not engage in abusive or excessive usage of the Early Access Version, which shall include usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Early Access Version for other users. The Company shall endeavour to notify the User of any abusive or excessive usage to provide the User with an opportunity to reduce such usage to a level acceptable to the Company. h) With regard to any cloud platform on which the Early Access Version run, use of the Early Access Version shall also be subject to the cloud platform service provider’s most current acceptable use policy.
3. CHANGES AND UPDATES
The Company shall be entitled to make any changes and updates to the Early Access Version from time to time. The Company shall not be liable if such changes and updates affect any Cloudberrie-related projects which the User has developed, is developing and/or is using, including in relation to the Early Access Version.
4. IPR, IMPROVEMENTS, AND USER DATA
4.1 Ownership of the Early Access Version
Each of the Company and its third-party licensors (which for the avoidance of doubt exclude the User) is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Early Access Version.
4.2 Background IPR
Each Party is and shall remain the sole and exclusive owner of all right, title, and interest in and to its own Background IPR and this ULA does not affect such ownership. No rights to the other Party’s Background IPR are acquired under this ULA, unless expressly stated. For the avoidance of doubt and without limiting the generality of the foregoing, the Early Access Version and Improvements shall be considered the Company’s Background IPR.
The Company shall be the sole and exclusive owner of all Improvements and any and all IPR related thereto. The Company shall have the right to use and commercialize any Improvements at its discretion without any restrictions whatsoever.
4.4 Retained ownership to User Data
The User shall retain ownership to User Data. The Company shall not use User Data for any purpose other than for the delivery of the Early Access Version or as otherwise explicitly permitted herein, and the Company shall, upon the User’s request, delete or destroy all copies of User Data stored on any computer or other device or which are otherwise in the Company’s possession or control, except to the extent the Company is required to retain such User Data by Applicable Laws. Further details are provided in the the Company’s governance and IT-security policies available on the Company’s website.
4.5 Handling User Data
The Company shall maintain technical safety measures for protection of the security and confidentiality of User Data, including measures to prevent access to or disclosure of User Data, except as expressly permitted by the User in accordance with this ULA and with Applicable Laws. Further details are provided by the Company’s governance and IT-security policies available on the Company’s website.
4.6 Limited license to use User Data
In order for the Company to continue the development of Early Access Version, and other new software technologies related to Cloudberrie and the Company, the User hereby grants to the Company a limited, fully paid, royalty free, sublicensable license to use User Data, for the duration of the Term. The Company shall only use User Data for the purpose set out in this Section 4.6, and not use any User Data for any other purpose.
If applicable, the User shall provide any required consents or license from its own customers or personnel, in order for the Company to use the license to use User Data for the purpose set herein.
If the User decides to sign a new and payable license agreement for the Beta version with the Company upon the termination of the ULA, any User Data under this ULA may be used by the Company under such new and payable license agreement for the Beta version, for software maintenance purposes.
4.7 Personal Data
The User shall be responsible for maintaining, protecting, and making backups if backups are deemed necessary by the User.
All Confidential Information exchanged or otherwise transferred between the Company and the User shall be treated as confidential and shall not be disclosed by the receiving Party to any third party, or used by the receiving Party for any other purpose than for which it is disclosed, without the written consent of the disclosing Party, unless such Confidential Information:
a) is already known by rightful means to the receiving Party at the time the information was received; b) is or becomes part of the public domain other than through a fault of the receiving Party; c) is received from a third party without an obligation of confidentiality of which the receiving Party was or should have been aware; d) is required by Applicable Laws, governmental, or other public authority regulation or decision, or ordered by a court of law.
Where the circumstances set out in Section 5 (d) apply, the receiving Party shall disclose only that portion of the Confidential Information which it is legally required to disclose. The receiving Party shall exercise its best efforts to obtain reasonable assurances that confidential treatment shall be accorded such Confidential Information.
Without prejudice to the foregoing, (i) the receiving Party may disclose Confidential Information to a third party to the extent necessary for the performance of the Early Access Version, provided that the receiving Party shall procure that such third party shall be bound by such confidentiality obligations at least as onerous as set out in this Section 5, and (ii) subject to prior written approval by the User, the Company shall be entitled to name the User as a user of the Early Access Version for reference purposes in its marketing efforts, and may strictly for the purpose thereof reproduce the User’s tradenames and logos.
Electronically stored information shall be inaccessible to unauthorized personnel.
This obligation to observe confidentiality shall continue for five (5) years after the expiry or termination of this ULA.
6. NO WARRANTIES, LIABILITIES, OR REMEDIES OFFERED BY THE COMPANY
The Early Access Version is provided “as is” and on an “as available” basis, without warranties of any kind from the Company, either express or implied. To the fullest extent possible pursuant to applicable law, the Company disclaims all warranties express, implied or statutory, including, but not limited to, implied warranties of merchantability, satisfactory quality or workmanlike effort, fitness for a particular purpose, reliability or availability, accuracy, lack of viruses, quiet enjoyment, non-infringement of third-party rights or other violation of rights. No advice or information, whether oral or written, obtained by you from the Company shall be deemed to alter this disclaimer by the Company of warranty regarding the Early Access Version, or to create any warranty of any sort from the Company.
The Early Access Version may be based upon, or contain elements of, third-party applications, open-source code or other source code licensed from the Company’s third party licensors and subcontractors. The Company shall not be liable towards the User for any such third-party applications open-source code or other source code. You, the User, expressly acknowledge and agree that use of such third-party applications, open-source code or other source code is at your sole risk.
The Early Access Version runs on a cloud platform provided by a third-party cloud platform service provider (AWS, cf.https://aws.amazon.com/legal/). The Company shall not be liable towards the User for any such cloud platform provided by a third-party cloud platform service provider. You, the User, expressly acknowledge and agree that use of such cloud platform provided by a third-party cloud platform service provider is at your sole risk.
If the User despite the preceding has any basis for claiming damages from the Company, then the aggregate liability for damages shall not exceed $1,000. For the avoidance of doubt, this limitation of liability shall be cumulative and not per incident. This applies regardless of cause, whether through the negligence and/or breach of duty (statutory or otherwise) of the Company or anyone the Company is responsible for, or otherwise, that arises out of or in connection with the Early Access Version and/or this ULA.
7. THE USER’S LIABILITY TOWARD THE COMPANY FOR BREACH
The User shall be responsible and liable for its own actions. The Company shall have the right to hold the User liable for any breach of this ULA.
8. NO CONSEQUENTIAL LOSSES
In no event shall the Company be liable towards the User under or in connection with this ULA or the subject matter contemplated hereunder, including, without limitation, the Early Access Version, whether in tort, contract, or otherwise for: a) special, indirect, consequential, exemplary, incidental, or punitive damages or losses; or b) loss of production, lost earnings or revenues of any kind, loss of anticipated cost savings, loss or corruption of User Data and consequences hereof, loss related to third party claims, or loss of profit or anticipated profit, in each case whether indirect or not.
Both the Company and User can terminate the ULA for convenience without notice at any time during the Term set out in Section 2.1.
User can terminate the ULA for convenience upon written notice at any time during the Term set out in Section 2.1. The User’s account will be deleted by the Company within three (3) months after User’s termination of the ULA.
User’s rights under this ULA will terminate automatically without notice from the Company if User fails to comply with any of the terms and conditions of this ULA.
Upon termination of this ULA, for whichever reason, User must cease all use of the Early Access Version and destroy all copies, full or partial, of the Early Access Version.
10. COMPLIANCE WITH APPLICABLE LAWS
The User shall comply with any Applicable Laws of any authority having jurisdiction in general and in connection with this ULA.
11. GOVERNING LAW
This ULA shall be exclusively governed by and construed in accordance with the laws of Norway.
12. DISPUTE RESOLUTION
If at any time a dispute, controversy, or claim arising out of or in connection with this ULA, its interpretation, construction or performance, or the breach or enforcement thereof, or any claims or disputes that in any way concern the conduct of any Party in connection with this ULA or otherwise (whether in contract, in tort, or based on statute or regulation) shall arise, then any Party shall give notice to the other Party in writing of the existence of such dispute, controversy, or claim, specifying its nature and the point of issue. The Parties shall have thirty (30) days from the date of such notice, or such later period as may be agreed, to resolve such dispute, controversy, or claim amicably.
Disputes, controversies, or claims among the Parties that remain unresolved at the expiration of the period specified in the previous paragraph may be referred by either Party to and shall finally and exclusively be settled by arbitration.
The arbitration shall be exclusively conducted in accordance with the Arbitration Rules of the Oslo Chamber of Commerce (the “OCC Rules”), which are deemed to be incorporated by reference herein. The number of arbitrators shall be determined in accordance with the OCC Rules. The seat, or legal place, of arbitration shall be in Oslo, Norway, and the language of the arbitration shall be English.
The arbitral proceedings and the arbitral award shall be kept strictly confidential. This confidentiality obligation shall coverall information disclosed in the course of such arbitral proceedings. This obligation to observe confidentiality shall continue ten (10) years after the termination of this ULA, or ten (10) years after the case is finally settled by an arbitral award, whichever is the latest. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings.
13. ASSIGNMENT PROHIBITION
The User shall not assign this ULA. The User shall not, directly or indirectly, sublicense or transfer the rights granted to it under this ULA.
14. UPDATES TO THE ULA
The Company shall be entitled to update this ULA to reflect changes in Applicable Laws, modifications to the Early Access Version, or for any other legitimate and reasonable reason.