Last updated October 18, 2012
These terms of service ("Terms of Service" or "this Agreement") contain the terms and conditions that govern your access to and use of the beta version of the Services to be provided to you by Ravello Systems Inc. ("Ravello") and are an agreement between Ravello and you or the entity on whose behalf you are agreeing to this Agreement (as applicable, the "Customer"). This Agreement takes effect when you click the "I accept" button or check box presented with this Agreement or, if earlier, when you use any of the Services. If you are accepting on behalf of a Customer, you represent and warrant that you have full legal authority to bind Customer to this Agreement.
Ravello may update these Terms of Service from time to time and will notify Customer of such updates either via email or by posting notice of such changes on its website, or other reasonable means. Customer's continued use of the Services after Ravello's provision of a notice of an updated version of the Terms of Service shall constitute Customer's consent to such updated Terms of Service.
1. Terms of Service.
1.1 Permitted Access and Use of Services. Customer may (i) access and use those web services offered by Ravello on its web site at www.ravellosystems.com/ to which you have subscribed (the "Services"), and (ii) use the software provided by Ravello in connection with the Services to allow access and use of the Services, including WSDL's Documentation, sample code, software libraries, command line tools and other related technology (collectively, the "Software"), in accordance with these Terms of Service. When used herein the term Services shall include the Software unless the context otherwise requires. Customer may only use the Services in accordance with this Agreement. Without limitation of the foregoing, the permission granted to Customer’s to access and use of the Services is based on the agreement of Customer to not access or use the Services for the purpose of (i) creating a product or service that would reasonably be regarded as being competitive with the Services, or (ii) monitoring the availability, performance or functionality of the Services, or for any other benchmarking or competitive purposes except with Ravello's prior written consent.
1.2 Beta Program. Customer agrees to participate in the beta program of Ravello. The Services and the related software will be used by Customer for non production use, in order for the parties to test and evaluate them.
1.3 Customer Account. To access the Services Customer must create an account associated with a valid email address (the "Account").Customer is solely responsible for its Account, including for (i) controlling the access to, and use and security of, the Account and Customer's Content,(ii) maintaining the security of the passwords and other measures used to protect access to the Account and (iii) all instructions provided to Ravello through the Account, whether or not authorized by Customer. Except to the extent caused by Ravello's breach of this Agreement, Ravello is not responsible for unauthorized access to the Account. Customer will contact Ravello immediately if it believes an unauthorized third party may be using the Account. "Customer's Content" shall mean any software, data, text, audio, video, images or other content uploaded or accessed by the Customer in connection with the Services, including data or other content of Customer's customers end users or other third parties.
1.5 Third Party Services. Certain components of the Services are comprised of third party services (such services, "Third Party Services), and Ravello may perform its obligations hereunder through third party providers of such Third Party Services (such providers "Third Party Service Providers") provided however that Ravello remains responsible to Customer for Third Party Services to the same extent as such Third Party Service Providers are liable to Ravello for provision of the Third Party Services performed the Third Party Services. Ravello may at any time, in its sole discretion replace its Third Party Service Providers.
1.6 Services Changes. Ravello may change or discontinue any of the Services or change or remove features or functionality of the Services from time to time. Ravello will use commercially reasonable efforts to notify Customer of any material change to or discontinuation of the Services.
1.7 Suspension of Services. Ravello may suspend the provision of Services to Customer and remove any Customer Content transmitted via the Services without liability: (i) if Ravello reasonably believes that any Service is being used in violation of this Agreement or applicable law, (ii) if Ravello reasonably believes that the use of the Services by Customer may pose a security risk to Ravello or any third party, (iii) if requested by a law enforcement or government agency or otherwise in order to comply with applicable law, (iv) if necessary for operation, maintenance or expansion of Ravello's Services, or for other technological purposes, (v) if the Third Party Service is suspended or ceases to be provided for any reason (whether generally or through Ravello), or (vi) if Customer fails to fulfill its payment obligations, as applicable, with respect to the Services. To the extent practicable, Ravello shall use commercially reasonable efforts to notify Customer prior to suspending Services. Information on Ravello's servers may be unavailable to Customer during a suspension of Services.
1.9 Evaluation Information. During the term of this Agreement, from time to time at Ravello's request, Customer will promptly notify Ravello of all problems or alleged problems relating to the Services which come to Customer's attention during the term of this Agreement (collectively "Evaluation Information"). Evaluation Information, all other data or information relating to the functioning and quality of the Services shall be deemed Confidential Information of Ravello and shall be maintained by Customer pursuant to the provisions of Section 8.7 hereof. Ravello shall have the right to use the Evaluation Information, as well as any Suggestions (as defined in Section 8.6 below) provided by Customer in Ravello’s marketing materials or for publicity purposes without the prior written consent of Customer, provided Ravello shall not disclose any confidential information of Customer.
2. No Fees, Evaluation Period
2.1 Ravello will provide the Services to Customer free of charge, for a limited evaluation period. During this period, Ravello may change, discontinue, or deprecate any of the Services or change or remove features or functionality of the Services from time to time by notice to Customer.
3. Term and Termination.
3.1 Term. This Agreement will commence on the Effective Date and will remain in effect until terminated by either party in accordance with the terms hereof.
3.2 Termination for Convenience. Customer may terminate this Agreement for any reason upon providing 3 days’ written notice to Ravello. Ravello may terminate this Agreement for any reason upon providing 7 days written notice to Customer. Section 3.4 below shall govern the effects of termination.
3.3 Termination for Breach and Other Reasons. Ravello may terminate this Agreement immediately and without liability upon providing notice to Customer as follows: (i) if Customer violates any provision of this Agreement; (ii) if Ravello is threatened with a legal claim, including for intellectual property infringement related to the provision of a Service; (iii) if any act or omission by Customer results in a suspension described in Section 1.7; (iv) if Ravello’s relationship with a Third Party Services Provider or any other third party that provides software or other technology Ravello uses to provide the Services expires, terminates or requires Ravello to change the way Ravello provides the Software or other technology as part of the Services; (v) if Ravello believes providing the Services could create a substantial economic or technical burden or material security risk; (vi) in order to comply with the law or requests of governmental entities; or (vii) if Ravello determines that the use of the Services by Customer or Ravello's provision of any of the Services has become impractical or unfeasible for any legal or regulatory reason.
3.4 Effect of Termination. If the Agreement expires or is terminated, then: (i) the rights granted by one party to the other will cease at the end of the then-current month;; (ii) Ravello will provide Customer access to, and the ability to export Customer Content for at least 7days; (iii) Customer will cease using and delete the Software from its computers and systems and delete any Customer Content; (iv) following 15 days after the termination date, Ravello will delete Customer's Content and Customer's access to the Service; and (v) the provisions addressed in Section 12.4 shall survive any termination.
4. Acceptable Use.
4.1 Customer shall use the Services in compliance with all applicable laws, ordinances, rules and regulations, shall not violate or attempt to violate Ravello's system or network security, and shall not misuse the Services in any way. Customer shall not, and shall not permit any of its customers end users, Customer's employees or any other person on Customer's behalf, to, engage in, solicit, or promote any activity that is illegal, violates the rights of others, or could subject Ravello to liability to third parties
4.2 It is clarified that Ravello does not monitor in any way the Customer Content, and it is Customer's sole responsibility to monitor the content uploaded by it or on its behalf, pursuant to the provisions of this section 4. In the event there is concern regarding any violation of abovementioned terms by Customer, Ravello is authorized, in its sole discretion, to monitor Customer's compliance, to immediately terminate or suspend the provision of Services to Customer or to block the transmission of email or other content which in Ravello's opinion violates any law or regulation or otherwise impose any liability on Ravello.
4.3 If, in connection with the Services, Customer makes use of any software that is not provided by Ravello, then Customer represents and warrants that it has a written license agreement which permits Customer to use such software in conjunction with the Services. In addition, Ravello shall have no responsibility for any problems caused to the Services as a result of Customer’s use of any such software.
5. Warranties of Customer.
Customer represents and warrants to Ravello that (i) the information Customer has provided for the purpose of establishing the Account is complete and accurate, (ii) it has the requisite power and authority to enter into this Agreement, and to perform all of its obligations hereunder, and (iii) in case of a Customer that is an individual, Customer affirms that he/she is an adult. Customer shall update its Account information to maintain the accuracy of such information during the term of this Agreement.
7. Disclaimers of Warranties and Limitation of Liability.
7.1 Disclaimer of Warranties. THE SERVICES ARE PROVIDED TO CUSTOMER FOR NON PRODUCTION TRIAL PURPOSES ONLY. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS" AND ON AN AS AVAILABLE BASIS. RAVELLO AND ITS AFFILIATES AND VENDORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES, ANY THIRD PARTY SERVICES, OR ANY SEPARATE PRODUCTS, INCLUDING ANY WARRANTY THAT THE SERVICES OR ANY THIRD PARTY SERVICES OR ANY SEPARATE PRODUCTS WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING CUSTOMER'S CONTENT OR ANY THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, RAVELLO AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER'S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY. FURTHER, CUSTOMER ACKNOWLEDGES THAT THE SERVICES DO NOT INCLUDE ANY DATA BACKUP SERVICES.THE SERVICES ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USES SUCH AS OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL, OR LIFE SUPPORT SYSTEMS, WHERE THE USE OR FAILURE OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY OR ENVIROMENTAL DAMAGE. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE STILL UNDER DEVELOPMENT, HAVE NOT BEEN FULLY TESTED, ARE NOT FULLY FUNCTIONAL AND DO NOT INCLUDE ANY DATA BACKUP
7.2 Limitation of Liability. IN NO EVENT SHALL RAVELLO OR ANY OF ITS AFFILIATES, OR ANY OF THEIR EMPLOYEES, OFFICERS, AGENTS OR SUPPLIERS, BE LIABLE FOR ANYDIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (COLLECTIVELY "DAMAGES"), HOWEVER CAUSED AND UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.SUCH DAMAGES SHALL INCLUDE BUT NOT BE LIMITED TO:(A) CUSTOMER'S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMER'S USE OF OR ACCESS TO THE SERVICES, (II) RAVELLO'S DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY THE CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER'S USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF CUSTOMER'S CONTENT OR OTHER CONTENT.
.CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOY MIGHT HAVE ADDITIONAL RIGHTS.
8. Proprietary Rights and Confidentiality.
8.1 Customer Content. As between Ravello and Customer, Customer or its licensors own all right, title and interest in and to the Customer Content.
8.2 Services. As between Ravello and Customer, Ravello or its Licensors own and reserve all rights, title and interest in and to the Services, Ravello's trademarks and service marks and all modifications to any of the forgoing and all related intellectual property rights, including, without limitation, all content accessible from the website (other than Customer Content).
8.3 License. Ravello grants Customer a limited, revocable, non-exclusive, non-sublicenseable, non-transferable license to do the following during the Term: (i) access and use the Services solely in accordance with and subject to the terms and conditions of this Agreement, and (ii) use the Software provided by Ravello, and properly subscribed for by Customer, as part of the Services solely in connection with Customer's permitted use of the Services.
8.4 License Restrictions. Customer will not and will not allow third parties under its control; to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of the Service, the Software or any component thereof (subject to Section 8.5 below); (b) use the Service or Software to create a substantially similar product or service; (c) create multiple Accounts to simulate or act as a single Account or otherwise access the Service in a manner intended to avoid incurring fees; or (d) remove, alter or obscure any proprietary notices contained on or within the Services or the Software During and after the Term, Customer will not assert, nor will it authorize, assist or encourage any third party to assert against Ravello, any of its affiliates, customers, vendors, business partners or licensors, any patent infringement or other intellectual property infringement claim regarding any of the Services that Customer used.
8.5 Open Source Components. The Services and the Software make use of certain free and open source programs, which are licensed under separate license agreements specified in http://www.ravellosystems.com/opensource. It is Customer's responsibility to review and adhere to all such open source licenses. ALL SUCH OPEN SOURCE SOFTWARE IS DISTRIBUTED WITHOUT ANY WARRANTY, AND WITHOUT EVEN THE IMPLIED WARRANTY OF MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. To the limited extent the open source software licenses contradict the terms of this Agreement, then such licenses govern Customer's agreement with Ravello for the use of the specific open source component(s) of the Services made available under such licenses.
8.6 Suggestions. Should Customer provide Ravello with any ideas (collectively, "Suggestions") pertaining to the Services, including, without limitation, bug fixes and improvements, Ravello will own all right, title and interest in and to the Suggestions and will be free to use the Suggestions without any liability or payment to Customer. Customer hereby irrevocably assigns to Ravello all right, title and interest in and to Suggestions and agrees to provide Ravello reasonable assistance, but at Ravello’s cost, required in order to document, perfect and maintain Ravello's rights in the Suggestions.
8.7 Confidentiality. Customer agrees not to use any Confidential Information of Ravello except in connection with Customer’s authorized use of the Services. “Confidential Information” means all non-public information disclosed by Ravello to Customer in connection with the Services, and includes, without limitation, all non-public aspects of the Services and the Software.
9. Customer Content.
9.1 Use of Customer Content. Customer consents to the use by Ravello and its Third Party Service Providers of Customer Content to the extent necessary to provide the Services; provided that Ravello may also disclose Customer Content (i) to Ravello's subcontractors in connection with the provision of the Services, and (ii) in response to requests from law enforcement officials, government agencies or as required in connection with legal proceedings. Ravello may transfer Customer Content and other information collected from Customer to a third party in connection with a merger or sale of Ravello's business or assets, in which case the resulting transferee will be permitted to obtain and use such information subject to the terms of this Agreement. Customer grants Ravello the right to use Customer's name, mark and logo on Ravello's website and in Ravello's promotional materials solely to identify Customer as a customer of Ravello.
9.2 Data Security. Without limiting Section 7 hereof [Disclaimer of Warranties] or Customer's obligation in Section 9.3 below, Ravello will use reasonable efforts to implement reasonable measures intended to help Customer to secure Customer Content against accidental or unlawful loss, access or disclosure.
9.3 Other Security and Backup. Customer is responsible for properly configuring and using the Services and taking its own steps to maintain appropriate security, protection and backup of Customer's Content, which may include the use of encryption technology to protect the data from unauthorized access and routine archiving of the Customer's Content. If Ravello is notified that any Customer Content is hacked or otherwise accessed by a third party without authorization, Ravello may take the Customer Content offline until the intrusion is resolved.
10. Government Purposes.
The Services and the Software were developed solely at private expense and consist of commercial computer software and related documentation within the meaning of the applicable federal acquisition regulations and any supplements thereto, and if the Customer is an agency, department, employee or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Service, including technical data or manuals, is governed by FARS 12.212 and DFARS 227.7202-3 and the terms and conditions contained in this Agreement.
11. Compliance with Laws and Export Matters.
The use of the Services by Customer is subject to Customer’s compliance with all applicable laws and regulations, including, without limitation, all export control laws and regulations of the United States.
12.1 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with California Law without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The Parties hereby expressly reject any application to this Agreement of (a) the United Nations Convention on Contracts for the International Sale of Goods; and (b) the 1974 Convention on the Limitation Period in the International Sale of Goods, as amended by that certain Protocol, done at Vienna on April 11, 1980. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the competent courts located in San Francisco County, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing will prohibit Ravello from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or enforce its intellectual property rights or to otherwise protect its interests in the Services.
12.2 Non-Waiver. A party's failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of this Agreement. A party's waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
12.3 Construction. The headings in this Agreement are not part of this Agreement but are solely for the convenience of the parties. As used herein, the words "include" and "including" and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words "without limitation." All references in this Agreement to "Sections" refer to sections herein.
12.4 Survival. The terms of the following sections shall survive any expiration or termination of this Agreement: Sections 2 [No Fees], 3 [Term and Termination], 6 [Indemnification], 7 [Disclaimers of Warranties and Limitation of Liability], 8 [Proprietary Rights and Confidentiality] (other than Section 8.3 thereof), and 12 [Miscellaneous].
12.5 Force Majeure. Neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond that party's reasonable control, including significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
12.6 Severability. If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, in whole or in part, such decision shall not affect the validity or enforceability of any or all of the remaining portions thereof. Any such invalid, illegal or unenforceable provision or portion thereof shall be changed and interpreted so as to best accomplish the objectives of such provision or portion thereof within the limits of applicable law or applicable court decision.
12.7 Assignment. Neither party may assign this Agreement or any of its rights and obligation to a third party without the written consent of the other party but only if: (i) the assignee agrees in writing to be bound by the terms of this Agreement; and (ii) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void. Notwithstanding the aforesaid, Ravello may assign this Agreement without the consent of Customer to a successor in connection with a merger, acquisition, change of control, reorganization (in whole or in part), or the sale of all or substantially all of its stock or assets.
12.8 Notices. Ravello may provide notice of changes to these Terms of Service to Customer either via e-mail or by posting a notice of such changes on Ravello's web site. Customer may provide notice to Ravello by courier, mail, facsimile or e-mail, provided that receipt of such notice was verified by written e-mail or other means from Ravello to Customer.
12.9 Entire Agreement. This Agreement, along with the policies and other terms of Ravello referenced herein, is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any other agreement, understanding or communication, written or oral regarding such subject matter.