This Ksplice Uptrack Subscription Agreement (the “Agreement”) is between Oracle America, Inc. (“Oracle”) and all subscribers to the Service (“you” or “Customer”). The Effective Date of this Agreement is the earlier of the date that the Customer accepts the Agreement or the date that the Customer uses the Service.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING OR SUBSCRIBING TO THE SERVICE. BY USING OR SUBSCRIBING TO THE SERVICE, YOU SIGNIFY YOUR ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN 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 PLEASE DO NOT ACCESS, USE OR SUBSCRIBE TO THE SERVICE.
“System” is defined as the computer on which the Ksplice Uptrack Subscription program is installed. Where computers/blades are clustered, each computer/blade within the cluster shall be defined as a system.
The Ksplice Uptrack service is a solution for managing updates to a System (the “Service”).
Any software (“Software”) that is made available to you to download from the Service is the copyrighted work of Oracle and/or third parties. Your use of the Software is governed by the terms of the Agreement. You will not install any Software unless you first agree to the terms of the Agreement. Upon acceptance of the terms of the Agreement, you have the limited right to receive the Service solely for your business operations and subject to the terms of this Agreement. The Service is effective upon the date of your order. Some Oracle software related to the Service provided in this Agreement is available in source code form under the terms of the GNU General Public License and other open source licenses (collectively, “Open Source Licenses”), as specified with the software. Nothing in this Agreement will be construed to limit any rights granted under the Open Source Licenses.
Provided you are a current subscriber to the Service, if a third party makes a claim against you that any covered programs furnished by Oracle (“material” or “materials”), and used by you for your business operations infringes its intellectual property rights, Oracle, at its sole cost and expense, will defend you against the claim and indemnify you from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by Oracle, if you do the following:
If Oracle believes or it is determined that any of the material may have violated a third party’s intellectual property rights, Oracle may choose to either modify the material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, then Oracle may, upon 30 days notice to you terminate your right to receive indemnification for your further use of the materials specified; and refund any unused, prepaid service fees , you have paid for the covered programs. Notwithstanding the above, Oracle will not defend or indemnify you in connection with claims, damages, liabilities, costs or expenses arising out of, or caused by, or related to: (a) your distribution of the material; (b) your alteration of the material; (c) your use of a version of the material which has been superseded, if the infringement claim could have been avoided by using the current version of the material; (d) your use of the material outside the scope of use identified in the user documentation (e) your use of the material when you were not a subscriber to the service; (f) any information, design, specification, instruction, software, data, or material not furnished by Oracle (g) the combination of any material with any products or service not provided by Oracle; (h) your claim, lawsuit, or action against a third party (i) any Open Source Licenses and software. This section provides your exclusive remedy for any infringement claims or damages, liabilities, costs or expenses.
You may be assigned one or more Access IDs in order to use the Service. It is your duty to keep these Access IDs confidential. You must notify Oracle immediately upon discovering any unauthorized use of your Access IDs. You may not use one subscription for the Service for more than one system concurrently. Any unauthorized use of the Service will be deemed to be a material breach of this Agreement. You agree not to attempt to gain unauthorized access to the Service. You will not tamper with, disable, or alter any mechanism or information used to measure your usage of the service or calculate your bill.
If you have purchased a subscription to the Service, then you agree to the following: all fees are stated, and must be paid in, United States Dollars. All fees payable to Oracle are due within 30 days from invoice date and are exclusive of any foreign, federal, state or local sales, excise, use or similar taxes. Customer agrees to pay all such taxes, when applicable, regardless of whether such taxes appear on an original invoice or are later levied (excluding any taxes levied solely on the income of Oracle). Oracle is not responsible for Customer’s credit card or debit card fees or expenses.
You may cancel your subscription to the Service at any time. To cancel your account, please contact Oracle Customer Service at email@example.com.
Should you want to cancel prepaid service, Oracle provides refunds for all full months unused. Oracle does not provide refunds for the current month in use. Notification of cancellation must be received prior to your cycle date, with the cycle date being the day of the month of your Effective Date, in order to avoid charges in full for the next month. It is your responsibility to secure email confirmation from Oracle that your account has been cancelled. If you have not yet received email confirmation of your account cancellation, then the account remains active, and you will continue to be invoiced.
If you have a balance due at the time of cancellation, this balance must be paid in full. Oracle may terminate this Agreement or use of the Service at any time without prior notice, if Oracle in its sole discretion determines that there has been a violation of this Agreement, applicable policies or failure to pay charges when due. Oracle may terminate this Agreement or use of the Service at any time by providing notice of termination to you in any reasonable manner.
We value your privacy and will take all reasonable steps to protect your personal information. In order to provide the Service and to improve the Service, the Software may contact Oracle with information about your computer’s operating system, including without limitation the version number of the Linux kernel that you are running. The Software may also report to Oracle any errors encountered in the operating system kernel, to alert us in case one of our updates causes problems.
We will not share your personal information (including email address) with any third party, except as we, in our sole discretion, believe necessary to (a) comply with the law, (b) enforce terms of service, (c) detect, prevent, or otherwise address fraud, security, or technical issues, or (d) protect against harm to the rights, property, or safety of Oracle or others. We may also share with third parties aggregated information that does not identify you. We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure
A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
The Service, the Software, and all content, materials, and information are provided on an “as is” and “as available” basis. Your use of the Service and the Software is at your own risk. Oracle makes no warranties or representations, express or implied, as to the functionality or usefulness of the Service, the Software, or any content. Oracle disclaims all warranties, express or implied, including without limitation warranties of merchantability and fitness for a particular purpose. Oracle disclaims liability for any direct, indirect, incidental, consequential, special, exemplary, punitive or other damages, or lost profits, that may result, directly or indirectly, from your use of the Service, the Software, or any content, including without limitation any damage to computer systems, hardware or software, loss of data, or any other performance failures, or any errors, bugs, viruses or other defects that result from or are associated with use of the Service, the Software, or any content.
Oracle makes no warranty that (i) the Service or the Software will be uninterrupted, timely, secure, or error-free, (ii) the results that may be obtained from the use of the Service or the Software will be accurate or reliable, (iii) the quality of any Service, software, or content, information, or other materials purchased or obtained by you through the Service or Software will meet your expectations, (iv) any errors in the Service or the Software will be corrected, or that the Service, the Software, their content, and any servers on which the Service, the Software, and content are available are free of viruses or other harmful components.
Any material (including content) downloaded or obtained through the use of the Service or the Software is done at your own risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any material.
Information created by third parties that you may access on or through the Service or the Software or through links is not adopted or endorsed by Oracle and remains the responsibility of the third party.
To the maximum extent permitted by applicable law, IN NO EVENT WILL ORACLE BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN TORT OR IN CONTRACT, INCLUDING LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF (A) THE SERVICE, THE SOFTWARE PROGRAMS (B) ANY INTERRUPTION OF USE OF THE SERVICE OR THE SOFTWARE PROGRAMS OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF DATA, EVEN IF ORACLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORACLE’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT THAT CUSTOMER PAID TO ORACLE FOR THE SERVICE FOR ONE YEAR.
The trademarks, logos, and service marks (“Marks”) displayed on the Service and the Software are the property of Oracle or other third parties. You are not permitted to use these Marks without the prior written consent of Oracle or such third party which may own the Mark. You are not permitted to distribute the Software utilizing Oracle’s trademarks. You are not permitted to distribute the Software utilizing Oracle trademarks.
Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the service deliverables. You agree that such export control laws govern your use of any Service deliverables provided under this agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, program and/or materials resulting from the Service (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either of us may cancel the unperformed Service upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Service provided
This Agreement and all claims relating to the relationship between the parties are governed by the laws of the United States and of the State of New York, without regard to choice of law provisions.
If one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions.
If you have a dispute with Oracle or if you wish to provide a notice under the Protection in Event of Infringement section of this agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Oracle America, Inc., Attn: Ksplice, One Main Street, Seventh Floor, Cambridge, MA, 02142.
Oracle reserves the right to amend or modify this Agreement at any time and in any manner by providing reasonable notice to the Customer. Customer agrees that reasonable notice may be provided by posting on Oracle’s web site, email, or other written notice.
This Agreement constitutes the whole legal agreement between you and Oracle, and completely replaces any prior agreements between you and Oracle in relation to the Service.
Last Updated September 28, 2011.