Starfish ETL, LLC
Software Product: StarfishETL
END-USER LICENSE AGREEMENT (“EULA”)
IMPORTANT – READ CAREFULLY
THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “LICENSEE”) AND STARFISH ETL, LLC (“STARFISHETL”), FOR THE SOFTWARE PRODUCT IDENTIFIED ABOVE WHICH INCLUDES COMPUTER SOFTWARE AND ASSOCIATED MEDIA AND DOCUMENTATION (COLLECTIVELY “LICENSED SOFTWARE”).
1. Protection/Ownership. The Licensed Software may include software owned by third parties (collectively "Third-Party Owners"). The Third-Party Owners are third-party beneficiaries of this EULA and You agree to be bound to them under all the terms and conditions of this EULA, unless and to the extent that a separate license agreement for such software governs. The Licensed Software is protected by copyright and other intellectual property laws. StarfishETL or a Third Party Owner retain ownership of the Licensed Software and the copies of the Licensed Software provided herewith. The Licensed Software is licensed to Licensee for use subject to the terms set forth in this EULA.
2. Grant of License. StarfishETL hereby grants to Licensee and Licensee fully accepts, upon delivery, a nonexclusive, nontransferable right to use only the executable version (no source code) of the Licensed Software for its own internal business purposes for the term specified below. Installation of the Licensed Software may entail completion of a serialization procedure in which You will be required to enter a serialization code(s) provided to You as a part of the Licensed Software. You agree not to disclose the serialization code(s) provided to You to any third party other than an authorized StarfishETL reseller (“Reseller”).
3. Scope of License. You are allowed to install the Licensed Software on as many systems as required, but You may only use it to import data into, or export data from, the licensed vendor system.
4. Transfer. To the maximum extent permitted by applicable law, Licensee may not resell or otherwise transfer for value the Licensed Software. Notwithstanding the foregoing, Licensee may assign all of its licensed rights and duties under this EULA to a third-party that: (a) directly or indirectly controls Licensee; (b) is controlled by or under common control with Licensee; or (c) purchases all or substantially all of Licensee’s assets; provided, however, that (i) Licensee gives written notice to StarfishETL of the transfer or assignment; (ii) the permitted third-party assignee agrees to be bound by all the terms herein and completes and returns a registration card or other requested transfer documentation to StarfishETL; and (iii) in no circumstance shall any transfer or assignment, unless specifically agreed upon in writing, (y) release Licensee from any prior outstanding obligation under this EULA, or (z) allow Licensee or Licensee’s transferee or assignee, collectively, to utilize more licenses than the number of licenses authorized under this EULA. If You transfer the Licensed Software, You must simultaneously transfer possession of all associated media and documentation, and remove all Licensed Software from Your computers.
5. Restrictions. You agree not to copy the Licensed Software except for backup and disaster recovery purposes, or as described in the documentation comprising the Licensed Software. If You make backup copies of the Licensed Software, the original copy of the Licensed Software and all backup copies that You make may not leave your control and are owned by StarfishETL or a Third Party Owner. You agree that this is a license only and that no title passes to You. You agree not to challenge StarfishETL’s rights in or otherwise attempt to assert any rights in the Licensed Software, except those provided under this EULA. You agree not to disclose, modify, decompile, translate, disassemble or reverse engineer the Licensed Software. You agree not to distribute, rent or lease the Licensed Software. You agree not to use the Licensed Software as part of a commercial hosting service or application service provider. You agree not to use the Licensed Software except as expressly permitted under this EULA. You acknowledge that the Licensed Software contains information deemed confidential or otherwise proprietary to StarfishETL or a Third Party Owner, and You agree to handle the Licensed Software with at least the same degree of care employed with respect to Your own confidential or proprietary information.
6. Links to Other Software. Use of the Licensed Software may provide links, integrations or “publishing” access to separate third-party software. StarfishETL provides such links, integrations or “publishing” access as a benefit only and such access does not change the license rights of the separate third-party software. You must determine if Your use of the separate third-party software as accessed through the Licensed Software is in compliance with the respective third-party software end-user license agreement.
7. Warranty/Remedy/Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY AND REMEDY SET FORTH BELOW ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, ORAL OR WRITTEN, EXPRESSED OR IMPLIED. Except as provided for in this EULA, no Starfish ETL reseller, dealer, agent or employee is authorized to modify or add to the following warranties and remedies.
StarfishETL warrants that for a period of sixty (60) days following delivery in the case of StarfishETL for migration and for a period of ninety (90) days following delivery in the case of all other Starfish software products (i) the media on which the Licensed Software is furnished shall be free from defects in materials and workmanship under normal use; and (ii) the Licensed Software will perform substantially in accordance with StarfishETL’s user documentation accompanying the Licensed Software. StarfishETL does not warrant that the Licensed Software will meet Your requirements or that the operation of the Licensed Software will be uninterrupted or error free or that all defects will be corrected. This Limited Warranty is void if failure of the Licensed Software has resulted from accident, abuse, modification, or misapplication of the Licensed Software.
If You believe there is a defect in the Licensed Software such that it does not meet the Limited Warranty provided above, You must notify StarfishETL in writing within the applicable warranty period. StarfishETL’s entire liability and Your exclusive remedy with regard to the Limited Warranty, shall be, at StarfishETL’s sole discretion, either repair or replacement of the Licensed Software or a refund of the amount paid by You for the Licensed Software (provided in that case that You also return the Licensed Software). Any repaired or replacement Licensed Software shall be warranted for the remainder of the original warranty period.
To the maximum extent permitted by applicable law, except as provided above, STARFISHETL MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED WITH RESPECT TO THE LICENSED SOFTWARE, ITS QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
UNLESS BOTH EXPRESSLY REPRESENTED AND AGREED IN WRITING, THE LICENSED SOFTWARE IS NOT DESIGNED, OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, TRANSPORTATION SYSTEMS, NUCLEAR SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE LICENSED SOFTWARE COULD CREATE A SITUATION WHERE SUBSTANTIAL PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH MAY OCCUR. STARFISH ETL AND ANY Third-Party Owners RECOMMEND AGAINST, AND DISCLAIM ANY LIABILITY FOR, USE OF THE LICENSED SOFTWARE IN ANY SUCH APPLICATION.
You understand and acknowledge that StarfishETL will not be liable for network-related problems attributable to the operation of the Licensed Software and that network configuration changes may affect the system's performance.
To the maximum extent permitted by applicable law, and except for liability arising under paragraph 10 below, StarfishETL’s entire liability under this EULA shall be limited to the amount paid by You for the Licensed Software.
IN NO EVENT WILL STARFISH ETL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, even if advised of the possibility of such damages. In particular, and without limitation, StarfishETL shall have no liability for any data stored or processed with the Licensed Software, including the costs of recovering such data.
8. Shut Down of Cloud Services. Starfish has the right to shut down the cloud services related to the Licensed Software or specific customer services related to the Licensed Software in connection with scheduled maintenance, unscheduled issue resolution, or other purposes related to repairing a customer problem.
9. Indemnification. StarfishETL represents that it has the right to grant to Licensee the license to use the Licensed Software as set forth in this EULA without violating any rights of any third party and that there is no actual or threatened suit by any third party based on an alleged violation of such right by StarfishETL StarfishETL will defend, indemnify and hold Licensee harmless from any third party claim that the Licensed Software infringes any copyright, trademark or trade secret owned or controlled by the third party; provided, however, that (i) StarfishETL shall be notified promptly in writing by Licensee of any such claim; (ii) StarfishETL shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; (iii) Licensee shall cooperate with StarfishETL, at StarfishETL’s expense, in a reasonable way to facilitate the settlement or defense of such claim; (iv) such claim does not arise from Licensee’s modifications not authorized by StarfishETL; and (v) should the Licensed Software become, or in StarfishETL’s opinion likely to become, subject to such claim of infringement, then Licensee shall permit StarfishETL, at StarfishETL’s option and expense, either (a) to procure for Licensee the right to continue using the Licensed Software, or (b) to replace or modify the Licensed Software so that it becomes noninfringing and performs in a substantially similar manner to the original product, or (c) upon failure of (a) or (b), despite the reasonable efforts of StarfishETL, to terminate this EULA and return the license fee paid by Licensee for the Licensed Software.
10. Support. StarfishETL provides technical support for the Licensed Software under the terms specified at the StarfishETL technical support webpage https://support.starfishetl.com/portal/en/home .
11. United States Government Restricted Rights. THIS SECTION APPLIES ONLY TO LICENSING OR USE BY THE FEDERAL GOVERNMENT OF THE UNITED STATES. The Licensed Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the federal government is subject to restricted rights as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at 252.227-7014 for DOD contracts and at FAR (48 CFR 52.227-19) for civilian agency contracts or other comparable agency clauses.
12. Term. The Licensed Software is valid for 60 days from purchase in the case of StarfishETL for migration or for one year for all other StarfishETL software products (collectively the “Expiration Date”) and will be extended for additional 30-day terms for StarfishETL for migration and in one year terms for all other StarfishETL software so long as the renewal fee is paid prior to the then current Expiration Date. If the license granted pursuant to this EULA is renewed, this EULA and all of its terms and conditions remain in full force and effect.
13. Termination. Your right to use the Licensed Software continues until this EULA is terminated pursuant to its terms. You may terminate this EULA at any time by destroying all of Your copies of the Licensed Software. This EULA will automatically terminate if You fail to comply with the material terms of this EULA or if the Expiration Date is passed. Upon any termination, You agree to remove all Licensed Software from Your computers, destroy all copies of the Licensed Software, and, upon request from Technology Advisors Inc., certify in writing Your compliance herewith.
14. Severability. If any of the terms, or portions thereof, of this EULA are invalid or unenforceable under any applicable statute or rule of law, the court shall reform the contract to include an enforceable term as close to the intent of the original term as possible; all other terms shall remain unchanged.
15. Whole Agreement. This EULA and any applicable StarfishETL order form or maintenance and support agreement or like document constitutes the entire agreement between You and StarfishETL relating to the subject matter hereof, and any additions to, or modifications of, this EULA shall be binding upon the parties only if the same shall be in writing and duly executed by You and by a duly authorized representative of Starfish ETL. THE TERMS AND CONDITIONS OF ANY CORRESPONDING PURCHASE ORDER OR OTHER ORDER CONFIRMATION FORM RELATING TO THE LICENSED SOFTWARE ARE ONLY BINDING ON STARFISH ETL IF SUCH TERMS AND CONDITIONS ARE AGREED TO IN WRITING IN ACCORDANCE WITH THE PRIOR SENTENCE AND IN A DOCUMENT OTHER THAN THE PURCHASE ORDER OR OTHER ORDER CONFIRMATION FORM.
16. Waiver. The waiver or failure of StarfishETL to exercise in any respect any right provided for in this EULA shall not be deemed a waiver of any further or future right under this EULA.
17. Assignability. This EULA shall inure to the benefit of, and is freely assignable to, StarfishETL’s successors and assignees of rights in the Licensed Software.
18. Resellers. If Licensee acquired the Licensed Software through a Reseller, Licensee acknowledges that (i) payment and delivery terms for the Licensed Software must be established separately and independently between the Licensee and the Reseller; (ii) this EULA constitutes the entire agreement between the Licensee and StarfishETL regarding the license rights for the Licensed Software as described above and is controlling; (iii) the terms and conditions of any purchase order or any other agreement between the Licensee and the Reseller are not binding on StarfishETL; (iv) the Reseller is not StarfishETL’s agent and is not authorized to alter, amend or modify the terms of this EULA or to otherwise grant any license or other rights relating in any way to the Licensed Software; and (v) Licensee’s nonpayment of any amount due to a Reseller or any other relevant third party relating to its licensed rights under this EULA shall constitute a basis for Starfish ETL’s termination of this EULA. Licensee further acknowledges that StarfishETL makes no representation or warranty with regard to any services provided by any Reseller, or any actions or failures to act by any Reseller.
19. Jurisdiction. This EULA and all disputes and causes of action arising from or related to this Agreement will be exclusively governed by and construed in accordance with the laws of the State of Illinois (exclusive of its conflicts of law principles). This Agreement shall be deemed made in Cook County, Illinois, and Licensee and StarfishETL agree that any suit, action or proceeding brought by either party against the other in connection with or arising from this EULA shall be brought solely in the state or federal courts situated in Cook County, Illinois, and each party expressly consents to the jurisdiction and venue of each such court.