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Concertio Inc.

End User License Agreement

Last Updated on August 6, 2019

This End User License Agreement (“EULA” or “Agreement”) specifies the terms and conditions of the use of the Concertio Optimizer tools (as defined below) and constitute a binding agreement between you (“You” or the “Licensee”) and Concertio Inc., having its principal place of business at 149 5th Ave., 9th Floor, New York, NY 10010 (“We”, “Us”, “Concertio” or the “Licensor”). You and Concertio are each sometimes referred to in this Agreement as a “Party” or, together, the “Parties”. By Installing or otherwise using Concertio Optimizer, You agree to the terms and conditions of the Agreement, as updated from time to time at Licensor’s sole discretion and confirm that you have electronically executed the Agreement per the U.S. E-SIGN Act of 2000.

1 Definitions

1.1 “Concertio Optimizer” – Optimizer Studio and/or Optimizer Runtime (including updates and upgrades), together with their respective documentation.

1.2 “Licensed User” – unless defined otherwise, an individual person who is identified by Licensee to Licensor in writing, and updated, if and when appropriate, at most once a month.

1.3 “Licensed Device” – unless defined otherwise, an individual computing device that is identified by Licensee to Licensor in writing, and updated, if and when appropriate, at most once a month.

1.4 “Licensed Instance” – One simultaneously running worker process of a Concertio Optimizer tool.

1.5 “Licensed Optimized Device” – An individual computing device configured using the optimization results generated from the use by Licensee of the Concertio Optimizer.

1.6 “Licensed Purpose” – Unless defined otherwise, Licensed Purpose includes the optimization of server deployments, and excludes the optimization of hardware products.

1.7 “Organizational Team” – Unless defined otherwise, employees or contractors of Licensee reporting to the same direct manager.

2 The License

2.1 License Grant. Subject to compliance with the terms and conditions of this Agreement and payment of the License Fees as specified in an applicable Quote, We hereby grant You, under all of Concertio’s intellectual property rights embodied in the Concertio Optimizer, a non-exclusive, non-transferable, non-sublicensable, non-revocable, worldwide, royalty-free license, to use Concertio Optimizer, internally within Licensee’s premises, by the number of Licensed Users as indicated in the Quote, on a number of Licensed Devices as indicated in the Quote, up to a number of Licensed Instances as indicated in the Quote, to optimize up to a number of Licensed Optimized Devices as indicated in the quote, solely for the Licensed Purpose, for the Licensed Period specified in the Quote unless earlier terminated according to the terms of this Agreement (the “License”). For the purposes of this Agreement, “Quote” shall mean a price quote for distinct licenses of Concertio Optimizer issued by Us to You (in the form attached hereto as Exhibit A) and agreed to by both Parties and attached hereto as Exhibit C1, C2, C3, etc.

2.2 Restrictions. The License is hereby granted to You solely for use of Concertio Optimizer. In no event shall You reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of Concertio Optimizer (except to the extent that applicable law prohibits reverse engineering restrictions); modify, translate, or create derivative works based on Concertio Optimizer; or copy (except for archival or back-up purposes), sublicense, resell, rent, lease, distribute, loan, assign (except as set forth in Section 6.8), or otherwise transfer rights to Concertio Optimizer. You shall not remove, deface or obscure any copyright, trademark or other proprietary notice contained on or in Concertio Optimizer. You shall not take any action prohibited herein, or by applicable law, by itself or through an agent, nor enable a third party to take any such action.

2.3 Copyright. Concertio Optimizer is licensed, not sold. You acknowledge that no title to the intellectual property in Concertio Optimizer is transferred to You. You further acknowledge that title and full ownership rights to Concertio Optimizer will remain the exclusive property of Concertio and/or its suppliers, and You will not acquire any rights to Concertio Optimizer, except as expressly set forth above. All title and copyrights in and to Concertio Optimizer (including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into Concertio Optimizer), the accompanying printed materials, and any copies of Concertio Optimizer, are owned by Concertio or its suppliers. Concertio Optimizer is protected by copyright laws and international treaty provisions.

2.4 Licensee Ownership. You will own all right and title to (1) any plug-in (including, without limitation, such plug-ins known as “knobs” in the Optimizer Tool documentation) or other script, rule or extension developed by or for You (each, a “Plug-In”) by a party other than Concertio for use by You of the Concertio Optimizer as licensed herein and (2) to Optimizer output of Concertio Optimizer used to optimize Your products. Unless You have paid Concertio for such work, or unless otherwise agreed in writing by the Parties, Concertio will own all right and title to Plug-Ins it develops or creates on your behalf; otherwise You will own all right and title to such Plug-Ins developed by Concertio for You.

2.5 Use of marks. Unless otherwise agreed by the parties, Concertio may use your name, trademarks, and service marks, on its website solely for the purpose of identifying You as one of Concertio’s customers.

3 Warranty and Liability

3.1 Warranty. Concertio represents and warrants that it is the owner or a licensee of all intellectual property rights embodied in Concertio Optimizer, that Licensor has sufficient rights to grant the licenses under this Agreement, that Concertio Optimizer does not contain open source software other that as set forth in Exhibit B, and that the Concertio Optimizer, to the best of Concertio’s knowledge, does not infringe any intellectual property rights of third parties. Except for the warranties above, Concertio and its suppliers disclaim and make no express or implied warranties and specifically disclaim the warranties of merchantability, fitness for a particular purpose, all to the extent permitted by applicable law. The entire risk as to the quality and performance of Concertio Optimizer is with You. Neither Concertio nor its suppliers warrant that the functions contained in Concertio Optimizer will meet Your requirements or that the operation of Concertio Optimizer will be uninterrupted or error-free. Unless set forth in writing, Concertio is not obligated to provide any updates to Concertio Optimizer.

3.2 Limitation of Liability. In no event will either Party be liable under this Agreement for any direct damages, or any indirect, incidental, consequential, or special damages, irrespective of whether those damages were foreseeable or a party had advance notice of the possibility of those damages. Without limitation, this Section excludes liability for any damages arising from loss of profits, loss of use, injury to goodwill, or loss of business. Each Party’s maximum aggregate liability to the other for breach or default under this Agreement shall not exceed the aggregate amount You have paid Concertio under this Agreement or any applicable Quote.

4 Support

4.1 Product Support. Product support for Concertio Optimizer is provided by Concertio Inc. by email to: support@concertio.com and any other manner that may be agreed by the parties in writing (email suffices).

5 Term

5.1 Extensions and Cancellations. Unless otherwise set forth in writing in a Quote, the license to Concertio Optimizer will automatically renew at the end of the Licensed Period set forth in such Quote. In case of automatic renewal, the Licensed Period of a specific license will be extended for the same duration (unless otherwise set forth in writing) as the previous Licensed Period (“Extension”), unless a party sent to the other party a written notice (email suffices) at least 60 days prior to the end of the Licensed Period of such Quote that it does not wish to extend the Licensed Period. The price for such Extension will be the lesser of (a) the same price as for the previous Licensed Period (or pro-rated based on the price of the previous Licensed Period if the Extension is of a different duration) plus adjustments for inflation; or (b) the same price as advertised on Concertio’s website for a similar tier of Concertio Optimizer in use by Licensee. Licenses to Concertio Optimizer which were duly approved via a written Quote and signed by both Parties are non-cancellable and non-refundable. In addition to any other remedies it may have, Concertio may terminate this EULA in the event You fail to make a payment or otherwise breach a material term of this Agreement and do not cure such breach within thirty (30) days of receiving written notice from Concertio.

6 Payments

6.1 Payment. You will pay Concertio undisputed amounts within 30 days of receipt of the properly completed invoice for the applicable license of Concertio Optimizer (and such invoices will mention this Agreement and the details of the relevant Quote).

7 General

7.1 Entire Agreement/Counterparts. This Agreement, and any amendments to this Agreement, contain the complete and exclusive agreement and understanding between the parties concerning the subject matter of this Agreement, and supersede all prior and contemporaneous agreements, understandings, and communications, oral or written, between the parties relating to the same subject matter. This Agreement may be executed in any number of counterparts and each counterpart will constitute an original, but all counterparts when taken together will constitute one and the same agreement.

7.2 Amendments and Waivers. No amendment, modification, or waiver to this Agreement will be effective unless specified in writing and signed by authorized representatives of each party (or in the case of waivers, by the party agreeing to the waiver). A party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver.

7.3 Severability. The parties intend that if a court holds that any provision or part of this Agreement is invalid or unenforceable under applicable law, the court will modify the provision or part to the minimum extent necessary to make it valid and enforceable, or if it cannot be made valid and enforceable, the court will sever and delete the provision or part from this Agreement. Any change to or deletion of any invalid or unenforceable provision will not affect the validity or enforceability of the remainder of this Agreement, which will continue in full force and effect.

7.4 Governing Law and Jurisdiction. All disputes arising out of or related to this Agreement, whether based on contract, tort, or any other legal or equitable theory, will in all respects be governed by, and construed and interpreted under, the laws of the United States of America and the State of New York, without reference to conflict of laws principles. All disputes arising out of or related to this Agreement, whether based on contract, tort, or any other legal or equitable theory, will be subject to the exclusive jurisdiction of the state or federal courts located in New York County, New York. Each party submits to the personal jurisdiction of those courts and waives all objections to that jurisdiction and venue for those disputes

7.5 Notices. All notices and consents required or permitted to be given under this Agreement must be in writing and may be delivered by mail, nationally recognized overnight air courier or e-mail.

7.6 Assignment. Except as set forth below, neither party may assign any rights or delegate any duties under this Agreement, in whole or in part, whether by contract, operation of law or otherwise, without the prior written consent of the other party. Any attempt to assign any rights, duties, or obligations without the other party’s written consent will be a material breach of this Agreement and will be null and void. Notwithstanding the above, each party may assign or delegate its rights and obligations under this Agreement in the event of a merger or a change of control of 50% or more of its shares or assets. This Agreement will bind and inure to the benefit of the respective parties and their permitted successors and assigns.

Exhibit A - License Quote Sample Form

Description:

License Effective Date:

Licensed Period:

License Expiration Date:

This Order Form (“Order Form”) is entered into and effective as of the date of the Customer's agreement to its terms below, between Concertio Inc. with its principal place of business at 149 5th Ave., 9th Floor, New York, NY 10010 (“Company”) and ............. with its principal place of business at .................. (“Customer”). This Order Form is governed by the terms and conditions set forth at https://concertio.com/docs/license, or such other website address made publicly available (the "MSA") (collectively, the Order Form and MSA shall form the "Agreement").

Capitalized terms used in this Order Form shall have the meaning assigned to them in the Agreement, unless otherwise defined herein. In the event of any conflict or discrepancy between the Agreement and this Order Form, the Agreement shall prevail.

Tool License details
Licensed Product Example: Optimizer Studio Pro
Licensed Users Example: 2 in the same Organizational Team
Licensed Devices Example: 2 in the same Organizational Team
Licensed Instances Example: 2
Licensed Optimized Devices Example: 100
Licensed Purpose Example: As defined in the Agreement
Organization Team Example: XYZ Team
License Fees / Auto-renewal
Licensed Period Automatic Renewal License Fees
Period 1 Yes / No $0
Period 2 Yes / No $1,200
Period 3 Yes / No $25,000

Exhibit B - Concertio Optimizer Open Source Licenses and Notices

Concertio Optimizer uses the following open-source software, either by compilation or as linked libraries:

Software License type
Pistache Apache license v2
libxgboost Apache license v2
libyaml-cpp MIT license
libarmadillo Apache license v2
spdlog MIT license
libpcm BSD 3-clause license
JSON for modern C++ MIT license

This list may be updated from time to time. Disclosure of the open source software and their license types used by Concertio Optimizer will be made available in a textual license disclosure file embedded with the Concertio Optimizer packages.