This End-User License Agreement (“EULA”) constitutes a binding contract between the Rookout entity identified in Section 14 below (“Rookout”) and You – a legal entity (a company, a partnership, or any other legal entity) or an individual (an employee or authorized agent of an entity; hereinafter the “Customer” or "You"). This EULA shall govern any use of the Explorook software product and other software and documentation bundled therewith (collectively, the "Software").
If You are acting on behalf of an organization to acquire a right to use the Software, then You represent and warrant that You are duly authorized to enter into this agreement on behalf of the organization and that You have the proper authority to legally bind the organization, by this agreement.
Taking any step to set-up, configure or install the Software constitutes Your assent to and acceptance of this end user license agreement. Written approval is not a prerequisite to the validity or enforceability of this agreement and no solicitation of any such written approval by or on behalf of You shall be construed as an inference to the contrary.
This EULA also applies to any update of the Software that You use.
THE VARIOUS COMPONENTS OF THE SOFTWARE ARE PROTECTED BY INTERNATIONAL INTELLECTUAL PROPERTY LAWS AND TREATIES AND ARE PROVIDED TO YOU STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS EULA.
PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS EULA BEFORE PROCEEDING WITH INSTALLATION OR USE OF THE SOFTWARE.
Definitions
“Documentation” means the technical specifications, user-guides and tutorials associated with the Software, as provided by Rookout;
“Marks” means all trademarks, service marks, logos, insignia or any other designation of source or origin, whether registered or not;
"Service" means Rookout proprietary application management software, to which the Software reports, that helps organizations collect, manage, debug and enhance the performance of application in production environment;
“Term” means the term of this EULA as specified in section 9 below.
License grant. Subject to the terms and conditions of this EULA Rookout grants Customer a limited, non-exclusive, worldwide, non-sublicense-able, non-transferrable and revocable license, to install and use the Software for Customer internal business purposes, and solely in conjunction with Your use of the Service, (the "License"). This License is explicitly conditioned on Your having an active subscription to the Service.
Authorized Use of the Software; Restrictions
All rights not specifically granted to Customer herein are exclusively reserved to Rookout.
The Software is available for download and installation through the user interface of the Service. Installation of the Software shall be made by the Customer. In any event, Rookout shall not be responsible or liable for installation of the Software.
You will not, by Yourself or through others:
Attempt to reverse engineer, decompile, disassemble, translate or otherwise seek to develop, copy or expose the Software (including the source code), the underlying ideas thereof, or any part thereof or assist or allow any third party to do the same;
Use, copy, modify, merge, distribute, transfer or sublicense the Software or any part thereof, except as expressly authorized in this EULA or in the Documentation;
Use or license the Software for the benefit of third parties not in accordance with this EULA or the Documentation;
Represent that You possess any proprietary interest in the Software or any part thereof, nor delete, deface or otherwise erase any proprietary notice of Rookout from the Software or any part thereof;
Directly or indirectly, take any action to contest Rookout's intellectual property and proprietary rights or infringe them in any way;
Write or develop any derivative software or any other software program based upon all or any part of the Software (including, without limitations, any user manuals) or any other proprietary or confidential information of Rookout; or
Develop, or create, or permit others to develop or create, a product or service similar to or in competition with the Software;
Attempt to engage in: (i) any form of testing, scanning, scraping, probing, robotic navigating, bulk extracting or hacking of the Software; (ii) Breaching the security of the Software or identifying any security vulnerabilities thereof; (iii) Interfering with, circumventing, manipulating, impairing or disrupting the operation, or the functionality of the Software; (iv) Working around or circumventing any technical limitations in the Software; or (v) Activities which may enable features or functionalities which are otherwise disabled, inaccessible or undocumented in the Software.
Use the Software for any activity that constitutes, or encourages conduct that would constitute, a criminal offense, give rise to civil liability or otherwise violate any applicable law or industry standard, including any applicable laws and regulations governing copyrights, computer hacking, privacy and export control.
Fees. The Software is currently offered for Customers who are subscribed to the Service, without any additional cost, but Rookout reserves the right to charge license fees for the Software at any time subject to Rookout obtaining your consent to those fees.
Data; Compliance.
You acknowledge and agree that we may process information about the Software’s configuration and status ("Software Data"). Such Software Data may (but not necessarily) include identifiable information. You further acknowledge and agree that we will handle and use (by Rookout or using trusted third-party service providers such as cloud service providers) the Software Data and as follows:
To provide the Software to you, conduct administrative and technical activities necessary to maintain and provide the Software and to improve and customize the Software;
To provide you support services related to the Software;
To conduct analysis or generate metrics related to the Software;
For commercial and marketing purposes, publication of case studies and white papers;
You undertake that Your use of the Software shall, at all time, comply with all applicable laws, including export control laws. You may not use the Software for any activity that constitutes, or encourages conduct that would constitute, a criminal offense, give rise to civil liability or otherwise violate any applicable law.
Open Source. The Software may use or include open source software components (“OSS”). To the extent so stipulated by the license that governs each OSS ("OSS License"), each such OSS is subject to its respective OSS License, not this EULA, and is licensed to You directly by its respective licensors, not sublicensed by Rookout. If, and to the extent, an OSS License requires that this EULA shall effectively impose, or incorporate by reference, certain disclaimers, provisions, prohibitions or restrictions, then such disclaimers, provisions, prohibitions or restrictions shall be deemed to be imposed, or incorporated by reference into this EULA, as required, and shall supersede any conflicting provision herein, solely with respect to the corresponding OSS which is governed by such OSS License.
If, and to the extent, an OSS License requires that the source code of its corresponding OSS be made available to You or any other third party, and such source code was not delivered to You with the Software, then Rookout hereby grants a written offer, valid for the period prescribed in such OSS License, to obtain a copy of the source code of the corresponding OSS from Rookout. To take up this offer, contact Rookout at liran@rookout.com.
Support and maintenance
Subject to Rookout’s ordinary terms for support of the Service, You shall be entitled to support and maintenance of the Software as well.
Rookout will have access to Your installed instance of the Software for support purposes, in accordance with your permission for such access through the user interface of the Software.
Intellectual property.
The Software, the Documentation and all ideas underlying the Software, including any revisions, corrections, modifications, enhancements, updates and/or upgrades thereto, are and shall remain Rookout's property and protected under any applicable laws and treaties. All rights, title and interests in and to the Software, including associated intellectual property rights (including but not limited to patents, copyrights, trade secrets, trademarks, etc., all whether registered or not), evidenced by or embodied, attached, connected and/or related to the Software, and any goodwill associated therewith, are and shall remain Rookout's sole property, except for off-the-shelf components that are included therein. The License granted to You hereunder does not convey to You any interest in or to the Software, but only a limited right of use, revocable in accordance with the terms and conditions of this EULA.
Nothing in this EULA constitutes a waiver of Rookout's intellectual property rights under any law. The License for the Software granted, pursuant to this EULA, gives You a limited right to use the Software, but does not constitute a sale of the Software.
Any use of the Software in violation of the limited License granted hereunder or restrictions imposed in this EULA may result in the revocation of the License and may expose You to claims for damages.
Term.
The License granted hereunder shall be in effect for as long as you subscribed to the Service (the "Term"). Notwithstanding the foregoing, in the event of a breach by Customer of any of the provisions of this EULA that has not been cured (to the extent such breach is curable) in such a manner satisfactory to Rookout, within 7 days from the receipt of a written notice, then (i) the License hereunder terminates; and (ii) the Customer must uninstall and remove all copies of the Software in its disposal or control. The foregoing shall be without prejudice to any other remedy Rookout may have under applicable law or agreement.
Upon termination or expiration hereof for any or for no reason, the License granted hereunder shall terminate, and Customer shall not be allowed to further use the Software (including all copies of Documentation) or any part thereof. The provisions of paragraphs 5, 6, 8, 9, 10, 12 , 13 and 14 will survive the termination or expiration of this EULA.
Confidentiality.
You acknowledge that the Software and all elements thereof, including without limitation, its design, structure, capabilities, functionality, payment details and Documentation, constitute Rookout’s confidential information. Accordingly, You must treat all such information as confidential material in a manner no less protective than You use to protect Your own similar assets, but in no event less than reasonable care. Without derogating from the foregoing, You will maintain in strict confidentiality any information regarding the Software's functionality, capabilities, structure, design and all other details related thereto, any of Rookout’s business practices, tutorials and training material, and will not disclose them, or have them disclosed, directly or indirectly to any third party without Rookout’s prior written consent.
Notwithstanding the foregoing, You may disclose confidential information, only if and to the extent such disclosure is required in order to comply with a legal obligation including, orders, subpoenas, decrees or request prescribed by a competent judicial, administrative or regulatory authority, provided that, to the extent legally permitted, You promptly notify Rookout of such legal obligation, to give Rookout an opportunity to challenge the legally required disclosure.
Disclaimers
THE SOFTWARE IS PROVIDED "AS IS". TO THE MAXIMUM EXTENT PERMITTED BY LAW, ROOKOUT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, TRADE USAGE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, EXPECTED RESULT, QUALITY, TITLE, PERFORMANCE, SECURITY OR COMPATIBILITY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SOFTWARE, WHETHER MADE BY ROOKOUT, A REPRESENTATIVE OR OTHERWISE, WHICH IS NOT EXPRESSLY PROVIDED IN THIS EULA, SHALL BE DEEMED TO BE A WARRANTY BY ROOKOUT FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF ROOKOUT WHATSOEVER.
Rookout make no representation or warranty that the Software comply with any third party or regulatory terms, conditions, rules or guidelines regarding software development.
Rookout has no responsibility or liability in respect to Your reliance upon, or use of, the Software, any actions or omission You perform, or any consequences resulting therefrom.
Limitation of liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ROOKOUT AND ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, LICENSORS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF OR ANY THIRD-PARTY SUPPLIERS, WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION, WITH THIS EULA, THE SOFTWARE, EVEN IF ROOKOUT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, LOSS, COSTS, EXPENSES OR PAYMENTS. WITHOUT DEROGATING FROM THE AFORESAID, IN NO EVENT WILL ROOKOUT’S CUMULATIVE LIABILITY HEREUNDER EXCEED THE HIGHER OF: (A) THE AMOUNT YOU PAID TO ROOKOUT (IF ANY) DURING THE SIX MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE DAMAGE, OR, (B) THE LOWEST DAMAGE CAP PERMITTED BY APPLICABLE LAW.
Indemnity. You agree to indemnify and hold harmless Rookout and its respective directors, officers, employees, and subcontractors, upon Rookout’s request and at Your own expense, from, and against, any damages, liabilities, losses, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from or connected to any actual or claimed: (i) breach by the Customer of any provision or representation herein; (ii) use of the Software outside the scope of the license granted in, or contrary to, the provisions of this EULA; (iii) the combination of the Software with any other service or product; or (iv) infringement of any third party rights, including, but not limited to intellectual property rights.
Contracting Entity; Governing law and venue.
If you are established or located in the United States of America, then the following apply:
This EULA is concluded between you and Rookout, Inc., a Delaware Corporation.
Regardless of Your jurisdiction of residence, Customer's jurisdiction of incorporation, the jurisdiction where the Customer engages in business or where You access or use the Software from, this EULA and Your use of the Software will be exclusively governed by and construed in accordance with the laws of the State of New York, excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than Israel. Any dispute, controversy or claim which may arise out of or in connection with this EULA, or the Software, shall be submitted to the sole and exclusive jurisdiction of the state and federal courts in New York County, New York and the U.S. District Court for the Southern District of New York.
If you are established or located elsewhere than the United States of America, then the following apply:
This EULA is concluded between you and Rookout Ltd., an Israeli company.
Regardless of Your jurisdiction of residence, Customer's jurisdiction of incorporation, the jurisdiction where the Customer engages in business or where You access or use the Software from, this EULA and Your use of the Software will be exclusively governed by and construed in accordance with the laws of the State of Israel, excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than Israel. Any dispute, controversy or claim which may arise out of or in connection with this EULA, or the Software, shall be submitted to the sole and exclusive jurisdiction of the competent courts in Tel Aviv, Israel.
Miscellaneous
You may not assign or delegate this EULA or any of Your rights, performance or obligations hereunder, without Rookout’s prior written consent. Any purported assignment without Rookout’s prior written consent is void. Rookout may assign and delegate this EULA in its entirety, including all Rookout’s rights, duties, liabilities, performance and obligations herein, upon notice to You and without obtaining Your specific consent, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of Rookout’s equity or assets. By virtue of such assignment, the assignee assumes Rookout’s stead, including all right, duties, liabilities, performance and obligations, and Rookout shall be irrevocably released from the same.
The relationship between You and Rookout is strictly that of independent contractors, and neither party is an agent, partner, joint venturer or employee of the other.
This EULA constitutes the entire and complete agreement between You and Rookout concerning the subject matter herein. This EULA supersedes all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this EULA is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intent of the parties, and the remaining provisions will remain in full force and effect. This EULA may be modified or amended only in writing, signed by the duly authorized representatives of You and Rookout.
Rookout shall not, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach by You, of any terms or provisions of this EULA. The waiver, by Rookout, of any breach by You, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.