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Version Date: JUNE 12, 2024
BY ACCESSING OR USING ANY SOFTWARE, YOU REPRESENT AND WARRANT THAT YOU MEET THE STARTUP CRITERIA AND THAT YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY SOFTWARE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU. IF YOU ARE USING ANY SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO.
1. THIS AGREEMENT
1.1. This Hopsworks Startup Software License Agreement (“Agreement”) is entered into by and between Hopsworks AB (“Hopsworks”) and the entity or person (“Subscriber” or “you”) accessing the Hopsworks Kubernetes Software. This Agreement consists of the terms, conditions, attachments, addenda and exhibits referenced herein. The “Effective Date” is the date of Subscriber’s initial access to any Software through any online provisioning, registration or order process. For avoidance of doubt, Subscriber shall be responsible for the provisioning, security and management of the cloud infrastructure that the Hopsworks Kubernetes Software is hosted on. All charges for the cloud infrastructure shall be separately paid by Subscriber to the cloud infrastructure provider.
1.2. Hopsworks may modify this Agreement. Hopsworks will use reasonable efforts to notify Subscriber of the changes via Subscriber’s account, email or other means. Subscriber may be required to click to accept or otherwise agree to the modified Agreement, and in any event continued use of any Software after the updated version of this Agreement goes into effect will constitute Subscriber’s acceptance of such updated version.
2. USE OF SOFTWARE
2.1. Access.
In accordance with the terms and conditions of this Agreement, and the Documentation, and provided that Subscriber meets the Startup Criteria, Hopsworks will make the Software available to Subscriber during the term (the “Subscription Term”) for up to the capacity or other metrics set forth herein, solely for internal use by Subscriber and its Users (i) for Subscriber’s business purposes; and/or (ii) to provide Subscriber-offered product(s) or service(s) used in connection with the Software. Subscriber may permit its Contractors and Affiliates to serve as Users provided that any use of the Software is solely for the benefit of Subscriber. “Documentation” means Hopsworks’ documentation and usage guides for the applicable Software made available at https://docs.hopsworks.ai/latest/ or through the Software, as updated from time to time. “User(s)” means persons granted access to the Software by or on behalf of Subscriber, including its and Affiliates’ employees and Contractors. “Affiliate” shall mean an entity that directly or indirectly controls, is controlled by, or is under common control with such party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity. "Contractor" shall mean the independent contractors and consultants permitted by Subscriber to serve as Users of the Software. Subscriber shall be responsible for each User’s compliance with this Agreement.
2.2. Term, Usage Limits, and Term Extension.
Unless terminated earlier in accordance with Section 6.2 (Termination for Cause), the term of this Agreement will commence on the Effective Date and will continue for one (1) year, unless extended in writing by a Hopsworks VP of Sales (e-mail will suffice for such extension). Usage is limited to 7 containers, 128gb and 16 cpu cores per container, and up to 3 projects (collectively “Usage Limits”).
2.3. Compliance Reporting.
Subscriber must accurately record and provide information to Hopsworks about Software use/installation to verify compliance with the Usage Limits upon request from Hopsworks.
2.4. No Support.
Subscriber is not entitled to customer support, and any customer support is at the sole discretion of Hopsworks.
2.5. Client Software.
To the extent use of a Software requires Subscriber to install any desktop client software included in the applicable Software (e.g. Hopsworks Desktop) that is made available to Subscriber by Hopsworks for installation on end user computers (the “Client Software”), Hopsworks grants to Subscriber a limited, non-transferable, non-sublicensable, non-exclusive license during the Subscription Term to use the object code form of the Client Software internally in connection with Subscriber’s and its Affiliates use of the Software, subject to the terms and conditions of this Agreement and the Documentation.
2.6. Compliance with Applicable Laws.
Hopsworks will provide the Software subject to its obligations under laws and government regulations applicable to Hopsworks’ provision of the Software to its Subscribers generally, and subject to Subscriber’s use of the Software in accordance with this Agreement.
2.7. General Restrictions.
Subscriber will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available any Software to a third party or in a service bureau or outsourcing offering; (b) use any Software to provide, or incorporate any Software into, any graph database service for the benefit of a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to any Software, except to the extent expressly permitted by applicable law (and only upon advance written notice to Hopsworks); pr (d) remove or obscure any proprietary or other notices contained in any Software.
2.8. Experimental Software Terms.
Note that the Software may be provided with identified experimental features including such products, features, services, software, regions or cloud providers that may be labeled “beta” or “experimental” which are not part of the Software and which are not covered by maintenance and the warranty. Such features are offered "AS IS" and may never become part of the Software. Hopsworks makes no representations or certifications with respect to experimental features.
3. SUBSCRIBER DATA
3.1. Rights in Subscriber Data.
Subscriber or its licensors retain all right, title and interest (including intellectual property rights) in and to any data or data files that are uploaded by or on behalf of Subscriber to the Software for storage in a data repository (the “Subscriber Data”) and any modifications made thereto in the course of the operation of the Software.
4. INTELLECTUAL PROPERTY
4.1. Hopsworks Technology.
Subscriber agrees that Hopsworks or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software, all Documentation and Client Software, and any and all related and underlying technology and documentation; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated (collectively, “Hopsworks Technology”). Except for the express limited rights set forth in this Agreement, no right, title or interest in any Hopsworks Technology is granted to Subscriber. Notwithstanding anything to the contrary herein, Hopsworks may freely use and incorporate into Hopsworks’ products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Subscriber or by any users of the Software relating to Hopsworks’ products or services (“Feedback”).
5. CONFIDENTIALITY
Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. “Confidential Information” shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Subscriber Data will be deemed Confidential Information of Subscriber without any marking or further designation. All Hopsworks Technology and the terms and conditions of this Agreement will be deemed Confidential Information of Hopsworks without any marking or further designation. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
6. TERM AND TERMINATION
6.1. Term.
This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms.
6.2. Termination for Cause.
Either party may terminate this Agreement if the other party fails to cure any material breach of this Agreement within thirty (30) days after written notice. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
6.3. Effect of Termination.
Upon termination of this Agreement, Subscriber shall cease use of and access to the Software (including any related Hopsworks Technology) and delete all copies of the Software, Client Software, Documentation, any Software passwords or access codes, and any other Hopsworks Confidential Information in its possession.
6.4. Survival.
The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 4 (Intellectual Property), 5 (Confidentiality), 6 (Term and Termination), 7,2(Warranty Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), and 10 (General Terms).
7. WARRANTY
7.1. Mutual Warranty.
Each party warrants that it has validly entered into this Agreement and has the legal power to do so.
7.2. WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES, SOFTWARE, AND SUPPORT ARE PROVIDED “AS IS” AND HOPSWORKS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. HOPSWORKS DOES NOT WARRANT THAT THE USE OF ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES HOPSWORKS WARRANT THAT IT WILL REVIEW THE SUBSCRIBER DATA FOR ACCURACY.
8. INDEMNIFICATION
8.1. By Subscriber.
Subscriber will defend Hopsworks against any claim by a third party arising from or relating to any Subscriber Data, Subscriber Materials or any Subscriber-offered product or service used in connection with the Software and will indemnify and hold harmless Hopsworks from and against any damages and costs awarded against Hopsworks or agreed in settlement by Subscriber (including reasonable attorneys’ fees) resulting from such claim.
8.2. Procedures.
For claims under this Section 8, Hopsworks will: (i) promptly notify Subscriber in writing of the claim, (ii) allow Subscriber the right to control the investigation, defense and settlement (if applicable) of such claim at indemnifying party’s sole expense, and (iii) upon request of Subscriber, provide all necessary cooperation at Subscriber’s expense. Failure by Hopsworks to notify Subscriber of a claim under this Section 8 shall not relieve Subscriber of its obligations under this Section 8, however Subscriber shall not be liable for any litigation expenses Hopsworks incurred prior to when notice is given or for damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to Subscriber in accordance with this Section 8. Subscriber may not settle a claim that would bind Hopsworks to any obligation (except payment covered by Subscriber or ceasing to use infringing materials) or require any admission of fault by Hopsworks, without Hopsworks’ prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section 8 will not apply if Hopsworks settles or makes any admission with respect to a claim without Subscriber’s prior written consent.
9. LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (A) NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) HOPSWORKS AGGREGATE LIABILITY TO SUBSCRIBER SHALL NOT EXCEED USD$1,000.
10. GENERAL TERMS
Subscriber may not assign or transfer this Agreement, or the licenses granted hereunder without the prior written consent of Hopsworks; any attempt to do so shall be void. This Agreement shall be binding on and inure to the benefit of the successors and permitted assigns of the Parties. The Agreement shall be governed by the laws of the State of California, excluding its conflicts of law rules, and the Parties’ consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California, without regard to the United Nations Convention on the International Sale of Goods. Any notice, report, approval or consent required or permitted hereunder shall be in writing. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement is adjudged by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. Any waivers or amendments shall be effective only if made in writing and signed by both Parties. The Parties are independent contractors, and nothing herein shall be construed to create any agency, partnership or other form of joint enterprise between the Parties. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes all previous written or oral agreements or communication relating to the subject matter of this Agreement.