IMPORTANT: READ THIS NOTICE BEFORE USING THE SOFTWARE

Thank you for selecting the Software offered by Sclera, Inc. (referred to as “Sclera,” “we,” “our,” or “us”). This Software is licensed, not sold.

Please review these license terms (“Agreement”) thoroughly. This Agreement is a legal agreement between you and Sclera. By clicking “I AGREE,” indicating acceptance electronically, or in any other way installing, accessing, copying or using the Software, you agree to these terms. If you are not authorized to enter into this agreement, or if you do not agree to all of the terms of this Agreement, then do not indicate acceptance of the Agreement and do not install, access, copy or use the Software.

1. Agreement

This Agreement describes the terms governing your use of the Software including products, components and modules (collectively, the “Software”) and gives you certain rights and responsibilities depending on the software license you selected, purchased or subscribed to, as more fully described herein. The Agreement includes by reference:

  1. Sclera’s Privacy Policy available on the website or provided to you in writing for the Software you selected;
  2. Additional Terms and Conditions for the Software that you have selected, including any licenses, terms of service or other terms of use from third parties offered in connection with the Software; and
  3. Any terms provided separately to you for the Software, including for example, web or email product or program terms, ordering, activation, pricing and payment terms, where applicable.

2. Definitions

“Sclera” means Sclera, Inc., a Delaware corporation, 340 S Lemon Ave. #1728, Walnut, California 91789, U.S.A.

“You” means any person or entity that uses the software and any person or entity that uses the software on another person’s or entity’s behalf. You agree that this agreement is equivalent to any written negotiated agreement signed by you. If you agree to these terms on behalf of a business or a government agency, department or instrumentality, you represent and warrant that you have authority to bind that business to this agreement, and your agreement to these terms will be treated as the agreement of the business. In that event, “You” and “Your” refer herein to that business.

“Effective Date” means the date when the licensee (i.e., You) agrees to the terms and conditions of this Agreement, as detailed in the preamble to this Agreement.

“Free Sclera Software” means Software licensed for free from Sclera.

“Software” means the Sclera products, components and modules identified in the Purchase Order or Sclera Order Form, Free Sclera Software, and Evaluation Software which have a valid license, and any applicable Enhancements thereof or thereto. The term “Software” also includes any Error corrections, patches, workarounds, Updates and Upgrades provided by Sclera to You.

“Error” means a failure of the unmodified Software to operate as described in the Documentation.

“Update” means a revision of the Software to correct one or more Errors.

“Upgrade” means a revision of the Software to improve the existing functionality of the Software. “Upgrade” does not include (a) any separately priced product or module offered by Sclera that is not included in an Order Form under this Agreement (i.e., Sclera products that have not been purchased by You); (b) any new, separately priced Sclera product or module released during the term of this Agreement; and (c) any product or module that provides substantial new functionality not included in the Software previously licensed to You.

“Workaround” means a modification or patch for a particular version of the Software, which may be of a temporary or interim nature, to help avoid an Error.

“Documentation” means any administration guides, installation and user guides, and release notes that are normally provided by Sclera to end users of the Software.

3. License Grant and Restrictions

3.1 The Software is protected by copyright, trade secret, and other intellectual property laws. You are only granted certain limited rights to install and use the Software. Sclera reserves all other rights in the Software not granted to you in writing herein.

3.2 As long as you meet all applicable payment obligations and comply with this Agreement, Sclera grants you a perpetual, worldwide, nonexclusive, nontransferable, revocable license to use the Software for the period of use provided in the ordering and activation terms, as set forth in this Agreement, on an unlimited number of Production or non-Production Systems, to support Your internal operations, including, without limitation, for back-up, disaster recovery, test, development and QA purposes. You may copy the Documentation, provided that You do not remove any of Sclera’s proprietary notices.

3.3 You acknowledge and agree that the Software is licensed, not sold. You agree not to use the Software in a manner that violates any applicable law, regulation or this Agreement. For example, unless authorized by Sclera, you may NOT:

  1. Attempt unauthorized access to any other Sclera systems that are not part of the Software;
  2. Permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, hosting service, or other arrangement; or
  3. Upload, host, use or access the Software via a timesharing, service bureau, virtualization, application hosting or other remote access arrangement.

3.4 You may NOT sublicense, rent, lease, assign, or distribute copies of the Software or documentation to others. You may authorize the use of the Software on Your behalf by a third party outsource service provider, upon obtaining Sclera’s prior written consent, which Sclera may withhold in its reasonable discretion. The Software contains trade secrets. You may NOT decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human readable form. YOU MAY NOT MODIFY, ADAPT, TRANSLATE OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE.

3.5 If you violate any of these terms, this Agreement and your license to use the Software may be terminated by Sclera in its sole discretion.

4. Payment

For Software licensed on a payment or subscription basis, the following terms apply, unless Sclera notifies you otherwise in writing:

  1. In consideration of the rights and services granted under this Agreement, you shall pay to Sclera the fees specified in the Order Form.
  2. Sclera reserves the right to modify the applicable recurrent fees. The modified prices shall be applicable to all such recurrent fees that are due by the Licensor after the entry into force of the modified recommended retail price.
  3. All fees are to be paid upfront at the beginning of each relevant period. You shall pay any amount due in respect of applicable taxes, including without limitation value added tax, on such sum.
  4. Except where provided otherwise, all payments shall be made by electronic means through the Sclera website (http://www.scleradb.com). All payments shall be processed by the third party company Stripe (http://stripe.com) or any other replacing payment services provider of Sclera’s choice. SCLERA HAS NO CONTROL ON THE PAYMENT PROCESS AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
  5. Unless provided otherwise in the Order Form, all sums due under this Agreement shall be paid in US Dollars (USD). You shall bear the exchange rate risk in its entirety.
  6. Sclera shall have the right, in case of delayed payment of any sums due to Sclera by You, to charge, without notice, (i) a penalty of 10% of the amount of the invoice and (ii) late interest at the rate of 10% per year, calculated per day of delay.

5. Trial Versions And Beta Features

5.1 If you registered for a trial use of the Software (“Trial Period”), you must decide to purchase a Software license within the Trial Period in order to retain any data or information (“Content”) that you have entered into the Software or created within the Software during the Trial Period. If you do not purchase a Software license by the end of the Trial Period, your Content will no longer be available to you. To be very clear, after using the Software during the trial period, if you decide not to purchase the license to the Software, you will not be able to access or retrieve any of the content you added or created with the software during the trial.

5.2 If you registered for a Beta version of the Software, you acknowledge that Beta version software products are software products that are still under development and testing. If you download a Beta version software product then you acknowledge that the software product is delivered on an “AS IS” basis and that your use of the software product shall be at your sole risk. Sclera makes no express or implied representations or warranties whatsoever regarding applications portability between subsequent Beta versions and the final version.

6. Professional Services Not Covered

Installation, integration, consulting, training and professional services are not included in this Agreement. They may be purchased under a separate agreement from Sclera or a third party.

7. Sclera Ownership Of Software

You acknowledge that Sclera owns and will retain all right, title, and interest in and to Software and all copies, modifications, and derivative works of the Software by whomever produced, including all intellectual property rights in these works.

8. United States Government Users

If a user or licensee of the Software, Deliverables or Tools is an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, or any related documentation of any kind, including technical data or manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation 227.7202 for military agencies. The Software is commercial computer software and the related documentation is commercial computer software documentation. The use of the Software and related documentation is further restricted in accordance with the terms of this Agreement, and any modification hereto.

9. Export Law Assurances

The Software and related technical data may be subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You must comply with all such regulations and obtain all necessary licenses to export, re- export, or import the Software and related technical data.

10. Limited Warranty

10.1 Sclera warrants for a period of thirty (30) days from the Effective Date that the Software will materially conform to Sclera’s then current Documentation. This warranty covers only problems reported to Sclera during this warranty period. In the event of an uncured material breach of this Limited Warranty by Sclera during the term of this warranty period, Your exclusive remedy is that Sclera will, at its option, repair or replace the Software, or refund all or a portion of the fees paid by You hereunder.

10.2 EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, SCLERA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO THE SOFTWARE, OR TO SCLERA’S SERVICES. SCLERA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. SCLERA AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE, OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE OR DOCUMENTATION IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THESE DISCLAIMERS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

10.3 Exclusion of Certain Damages: EXCEPT FOR BREACHES OF CONFIDENTIALITY PROVISIONS AND LICENSE RESTRICTIONS, IN NO EVENT WILL EITHER SCLERA OR YOU BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR RELIANCE DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE LICENSED SOFTWARE, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, OR COULD REASONABLY HAVE PREVENTED, SUCH DAMAGES.

10.4 Limitation of Damages: EXCEPT FOR BREACHES OF CONFIDENTIALITY PROVISIONS AND LICENSE RESTRICTIONS, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE LICENSED SOFTWARE (OTHER THAN FOR PAYMENT OF LICENSE FEES AND MAINTENANCE FEES), WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO SCLERA BY YOU UNDER THIS AGREEMENT IN THE PREVIOUS TWELVE (12) MONTHS. YOU AGREE THAT SCLERA’S SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. THIS LIMITATION OF DAMAGES SHALL BE GIVEN FULL EFFECT EVEN IN THE EVENT THAT THE WARRANTIES PROVIDED IN THIS AGREEMENT ARE DEEMED BY AN ARBITRATOR OR COURT OF COMPETENT JURISDICTION TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. This Section does not limit either party’s liability for bodily injury, gross negligence or willful misconduct.

10.5 Liability For Open Source Materials: THE SOFTWARE MAY CONTAIN “OPEN SOURCE” MATERIALS (E.G., ANY SOFTWARE SUBJECT TO OPEN SOURCE, COPYLEFT, GNU GENERAL PUBLIC LICENSE, LIBRARY GENERAL PUBLIC LICENSE, LESSER GENERAL PUBLIC LICENSE, MOZILLA LICENSE, BERKELEY SOFTWARE DISTRIBUTION LICENSE, OPEN SOURCE INITIATIVE LICENSE, MIT, APACHE OR PUBLIC DOMAIN LICENSES, OR SIMILAR LICENSE). SCLERA MAKES NO WARRANTIES, AND SHALL HAVE NO LIABILITY, DIRECT OR INDIRECT, WHATSOEVER WITH RESPECT TO OPEN SOURCE MATERIALS CONTAINED IN THE SOFTWARE.

10.6 SOME STATES AND COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.

10.7 You agree to indemnify and hold Sclera and its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of your use of the Software or breach of this Agreement (collectively referred to as “Claims”). Sclera reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by Sclera in the defense of any Claims.

11. Confidentiality

11.1 Neither party will use any Confidential Information of the other party except as expressly permitted in this Agreement or as expressly authorized in writing by the other party.

11.2 “Confidential Information” means all non-public information disclosed in tangible, visual or verbal form by either party to the other, but does not include any information that the receiving party can demonstrate by its written records (1) was rightfully known to it without obligation of confidentiality prior to its disclosure hereunder by the disclosing party; (2) is or becomes publicly known through no wrongful act of the receiving party; (3) has been rightfully received without obligation of confidentiality from a third party authorized to make such a disclosure; or (4) is independently developed by the receiving party without reference to confidential information disclosed hereunder.

11.3 Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect is own Confidential Information of like nature, but in no circumstances less than a commercially reasonable standard of care.

11.4 Neither party may disclose the other party’s Confidential Information to any person or entity other than to trained employees and contractors subject to confidentiality obligations and who need access to such Confidential Information solely for the purpose of fulfilling that party’s obligations or exercising that party’s rights hereunder.

The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (1) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party prior to such disclosure; and (2) on a confidential basis to its legal and financial advisors. In addition, each party may disclose the terms and conditions of this Agreement: (i) as required under applicable securities regulations; and (ii) on a confidential basis to private investors in or acquirers of such party.

12. Publicity

12.1 You agree that Sclera may publish a brief description highlighting your deployment of the Software, identify you as a Sclera customer on any of Sclera’s websites, client lists, press releases, and/or other marketing materials.

13. Changes To This Agreement Or The Software

13.1 Sclera may change this Agreement from time to time, and the changes will be effective when posted on our website for the Software or when we notify you by other means. Please review the Agreement periodically on the website for changes.

13.2 Sclera may also change or discontinue the Software, in whole or in part, including but not limited to, any feature or aspect of the Software, Internet based services, pricing, technical support options, and other product-related policies. Your continued use of the Software after Sclera posts or otherwise notifies you of any changes, indicates your agreement to the changes.

14. Termination

14.1 Either party may immediately terminate this Agreement and the licenses granted hereunder if the other party (1) becomes insolvent and becomes unwilling or unable to meet its obligations under this Agreement, (2) files a petition in bankruptcy, (3) is subject to the filing of an involuntary petition for bankruptcy which is not rescinded within a period of forty-five (45) days, (4) fails to cure a material breach of any material term or condition of this Agreement within thirty (30) days of receipt of written notice specifying such breach, or (5) materially breaches its obligations of confidentiality hereunder.

14.2 Upon termination due to material breach of the Agreement by You, the license granted above terminates and You will cease using the Software, return to Sclera or destroy all copies of the Software, and provide Sclera with written confirmation of Your compliance.

14.3 Termination will not relieve You or Sclera from any liability arising from any breach of this Agreement. Neither party will be liable to the other for damages of any sort solely as a result of terminating this Agreement in accordance with its terms. Termination of this Agreement will be in addition to and not constitute a waiver of any other right of either party.

15. General

15.1 All federal, state and local laws and regulations apply. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that these terms and conditions shall otherwise remain in full force and effect and enforceable to the fullest extent permitted by applicable law.

15.2 This Agreement will be governed by the laws of the State of California, U.S.A., except for that body of law dealing with conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Each party may identify the other in its customer (or vendor) lists in online and print marketing materials.

Acknowledgement

BY USING THIS SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

Should you have any questions concerning this License, contact Sclera at the address shown above, or at contact@scleradb.com.


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