End User License Agreement (EULA)

In this End User License Agreement ('Agreement'), ‘us’ ‘we’ or ‘our’ means Factor House Pty Ltd ACN 635 807 251 and our related bodies corporate and 'you' means the individual or organization, identified as the Licensee by a License Certificate. 

This Agreement governs your use of the Products and any Product Support. By (a) checking a box indicating your acceptance, or (b) installing or using the Software, you agree to be bound by this Agreement

1. DEFINITIONS

Documentation means the user guides and manuals for Software provided by us to you to assist your use of our Products.

Order Form means an online shopping cart or any subsequent order form, or purchase order for Products that have been accepted by us.

License Certificate means the evidence provided to you by us of your license to use our Products.

Cluster Credits means the total number of Apache Kafka clusters or Apache Flink clusters permitted for concurrent use with our Products by your License Certificate.

Product means the Software, Documentation and Product Support provided by us under this Agreement.

Product Support means the services provided by us directly related to the installation of the Software. 

Software means the tool specified in the Licence Certificate being either: 

(a) "Kpow", the tool that helps your team deliver and monitor applications built with Apache Kafka; and/or 

(b) "Flex", the tool that helps your team deliver and monitor applications built with Apache Flink, 

in each case including any enhancements, modifications, updates, upgrades or improvements to the relevant tool as made available from time to time.

Marketplace means the AWS Marketplace or any other online marketplace through which the Software can be purchased.

2. PRODUCTS AND LICENSE

2.1 License Certificate

A License Certificate allows you to use our Products with as many concurrent Apache Kafka clusters or Apache Flink clusters as described within the License Certificate as Cluster Credits for the License Term.

Where we issue you a License Certificate, we grant you a revocable, non-exclusive, non-transferable, non-sublicensable (except as expressly permitted by the below paragraphs of this clause) license to install and use the Software for your internal business purposes only, including the internal business purposes of any subsidiaries that you control either directly or indirectly (Software License).  

Your right to sub-license your Software License is strictly limited to: 

a) contractors performing services for your internal business purposes including the internal business purposes of any subsidiaries that you control either directly or indirectly; and 

b) any subsidiaries that you control either directly or indirectly, and is to be solely for the purpose of using the Product(s) for the internal business purposes of your business and/or those subsidiaries.

Your use of the Products is subject to all restrictions described in the License Certificate. If you use the Products in excess of the specified restrictions, you agree to report such additional usage to us within 5 business days by sending us an email at customers@factorhouse.io.  We will then send you an invoice for the additional fees (Additional Fees) due for periods when you exceeded the scope of your Software License.

Additional Fees are calculated based on the per-cluster price of the Software License times the number of additional clusters required to cover your additional use of the Software exceeding the scope of your License Certificate.

Payment of an invoice for Additional Fees is due within 30 days from the invoice date and is to be paid in the manner set out in the invoice.

2.2 Trial License 

Unless otherwise agreed in writing between you and us, where you have been granted access to the Products for trial purposes only and no Order Form has been executed, your use of the Products is subject to a revocable, limited, non-exclusive, non-transferable, non-sublicensable (except as expressly permitted by the below paragraphs of this clause) license to use the Products solely during the Trial Term (30 days from the date we first make the Product(s) available to you) for the sole purpose of assessing whether to obtain a Software License for your internal business purposes (Trial License). Your use of the Product(s) is subject to all restrictions described in the License Certificate that you are issued when we first make the Product(s) available to you. This Agreement will apply from the date we first make the Product(s) available to you. 

Your right to sub-license your Trial License is strictly limited to: 

a) contractors performing services for you for the sole purpose of assisting you to assess whether to obtain a Software License for your internal business purposes including the internal business purposes of any subsidiaries that you control either directly or indirectly; and 

b) any subsidiaries that you control either directly or indirectly for the sole purpose of assisting you to assess whether to obtain a Software License for your internal business purposes and/or your subsidiaries internal business purposes.

Unless otherwise agreed, access to the Product(s) subject to a Trial License will automatically cease at 12.00 UTC on the thirtieth day from the date we first make the Product(s) available to you. 

2.3 Community License

Unless otherwise agreed in writing between you and us, where you have been granted access to the Products under a Community License and no Order Form has been executed, your use of the Products is subject to a revocable, limited, non-exclusive, non-transferable, non-sublicensable (except as expressly permitted by this Agreement) license to use the Products for your internal business purposes only (Community License).

Your use of the Product(s) under a Community License is subject to the following restrictions:

a) Kpow with up to three non-production Apache Kafka clusters; and/or  

b) Flex with up to three non-production Apache Flink clusters.

c) You must not use the Products beyond the cluster limitation specified above.

Access to the Product(s) subject to a Community License will automatically cease at 12.00 UTC 12 months from the date we first make the Product(s) available to you.

2.3.1 Your use of the Products under a Community License remains subject to all other restrictions and obligations set out in this Agreement, including clause 2.4 (End User Obligations).

2.3.2 We reserve the right to modify, suspend, or discontinue the availability of Community Licenses at any time without liability to you.

2.4 License Term

Each Software License is granted from the date you receive a License Certificate pursuant to which the Software is provided to you until either the Explicit License Expiry date (pursuant to clause 2.3.1 below), or the Marketplace Subscription License Expiry date (pursuant to clause 2.3.2 below).

Your access to the Software will automatically cease at 12.00 UTC on the expiry date as determined under clause 2.3.1 or 2.3.2 below.

2.4.1 Explicit License Expiry

Where your License Certificate specifies an explicit date of expiry, your Software License is granted until that date. 

2.4.2 Marketplace Subscription License Expiry

Where your License Certificate Type specifies a Marketplace Subscription to our Products and your License Certificate specifies a period of time, your Software License is granted from the date of your latest Marketplace Subscription payment until the time period specified in the License Certificate has passed.  Where the License Certificate exists only as a Marketplace Subscription to our Products, your Software License is granted for the dates explicitly listed within your Marketplace Subscription.

2.5 End User Obligations

You:

2.5.1 must not use the Products beyond the License Term;

2.5.2 must not cause or permit the making of copies, adaptations, reverse engineering, disassembly, merging with other software, modification or re-compilation of the whole or any part of the Products;

2.5.3 must not distribute, sell, sublicense, rent, lease, or use the Products (or any portion thereof) outside the scope of this Agreement;

2.5.4 must not remove any copyright notices or other proprietary notices or restrictions from any of the Products;

2.5.5 must not knowingly disclose results of any benchmark or other performance tests on the Products to any third party without our prior written consent;

2.5.6 must not upload any computer virus, worm or similar disabling code to the Products;

2.5.7 must supervise and control the use of the Products in accordance with the terms of this Agreement and ensure that the Products are protected from misuse, damage, destruction or any form of unauthorised use;

2.5.8 may only use the Documentation in connection with the operation of the Software;

2.5.9 must ensure your officers, employees, contractors and other agents (including of your subsidiaries) who have authorised access to the Products are made aware of and comply with the terms of this Agreement.  You are liable for any breach of these terms committed by your, or any of your subsidiaries, officers, employees, contractors or other agents.

2.6 Ownership

The Products constitute proprietary works of ours and our licensors, protected by copyright and other intellectual property rights. Except for the licence rights granted in this Agreement, as between you and us, we retain all rights, title, and interest, including all intellectual property rights, in the Products, including any modifications to, enhancements, updates or new releases of the Products. The terms 'purchase' and 'sale' in reference to the Products notwithstanding, it is expressly agreed by the parties that title to the Products does not pass to you, and your rights with respect to the Products will only be that of a licensee and will be determined by this Agreement and your License Certificate.

2.7 No Transfers

You may not transfer, sell or otherwise distribute the Products to any third party. You may not permit access or use of the Products by any third party, except for your employees and contractors performing services for your benefit. You may transfer the Products to another location within your organization.

2.8 Support for Commercial Licenses

We provide support in relation to Factor House Commercial Products as set out below.  It is important to note that we do not offer support for third party products that we integrate with.

2.8.1 Support inclusions: 

We will provide you with: 

a) Product updates: When product updates are available and applicable for your service, we will provide access to these updates for you 

b) Email support: When you need product support or feature requests, you can contact us on the email: support@factorhouse.io.  For security specific support enquiries, you can contact us on the email: security@factorhouse.io. 

c) Support Documents: We provide support documents for Factor House Products (including in relation to installation and configuration) which are accessible at docs.factorhouse.io.

d) Support Window: Our standard support service operates between 8.00 am until 8.00 pm (AEST Time-Zone), Monday to Friday. You can submit a support ticket via GitHub or email within this window. Your ticket will be assigned a Priority Category as set out in (b) below, and will be responded to according the Initial Response Times set out in (c) below: 

e) Priority Categories:  One of the following priority categories is assigned when you submit a support ticket via GitHub: 

f) Priority 1 (P1): Critical. This category is assigned where there is a complete loss of service or a significant feature with no workaround to Production systems.

g) Priority 2 (P2): Degraded. This category is assigned where there are critical issues in non-production environments or intermittent issues and reduced quality of service where a workaround may exist.

h) Priority 3 (P3): General. This category is assigned for product questions, feature requests, and general enquiries.

i) Initial Response Time: We review the priority category assigned to your support ticket and will provide a response accordingly: 

j) P1 Critical: Our timeframe for responding is within 1 Business Day from the end of the Business Day that you submit the support ticket. 

k) P2 Degraded: Our timeframe for responding is within 2 Business Days from the end of the Business Day that you submit the support ticket. 

l) P3 General: Our timeframe for responding is within 3 Business Days from the end of the Business Day that you submit the support ticket. 

2.8.2 Exclusions

Support applies to Factor House commercial products only; we do not offer support for ANY third-party product (i.e. Apache Kafka or Apache Flink). 

Other than as set out above, we are not required to provide additional support for the Software, whether by providing advice, training, error correction, modifications, updates, new releases or enhancements or otherwise.

2.9 Support for Community Licenses

We do not provide Commercial Product Support or SLAs for Products accessed under a Community License.

Community License users may access self-service support resources including:

2.9.1 Documentation: Product documentation, installation guides, and configuration resources available at docs.factorhouse.io; and

2.9.2 Community Support: Access to community-based support channels, including our public Slack community, where available.

Any assistance provided through community channels is provided on an “as is” basis and without any service level commitments, response times, or guarantees.

We are not obligated to provide any support, maintenance, updates, or assistance for Products used under a Community License.

3. LICENSE FEES, PAYMENT, AND COMPLIANCE

3.1 Payment Terms 

You agree to pay the fees chargeable for your Software License(s) and, where applicable, Product Support (Fees) in accordance with clause 3.1.1, 3.1.2 or 3.1.3 below. 

Except where an invoice is issued (see section 3.1.1 below) or where an alternate written agreement between the parties has been made, no License Certificate will be issued without full advance payment of the Fees or until a Purchase Order is received. 

All Fees are non-cancellable and non-refundable, except as expressly provided in this Agreement. You shall be responsible for any taxes, duties, or withholdings.

3.1.1 Invoices

Where an invoice is issued by us you must pay all Fees due within 30 days from the invoice date in the manner set out in the invoice.

A License Certificate will usually be issued within 5 business days from the date the invoice is paid in full, or from the date a Purchase Order is received.

3.1.3 Marketplace Purchases  

Where you purchase your Software License(s) via a Marketplace, you must pay the Fees chargeable for your Software License(s) and, where applicable, Product Support in accordance with the payment terms of the Marketplace through which you purchased the Software License(s).

3.2 Fee Changes

We reserve the right to introduce or change any Fees from time to time by giving you no less than 30 days written notice. Written notice of any change in Fees will be sent to the email address used to send the License Certificate, and any other email address notified to us from time to time.  It is important that you notify us of any change in your email address by emailing us at customers@factorhouse.io. 

Any new or changed Fees will not be applied during the License Term. New or changed Fees will be applied at the renewal of your Software License after you have been given such notice, should you choose to renew your Software License.

3.3 Compliance

We have the right, with reasonable notice to you, to audit your use of the Products no more than once each calendar year to assure compliance with the terms of this Agreement.

The right to audit is subject to the following conditions:

3.5.1 We shall give you at least 14 days written notice prior to any audit.

3.5.2 Any audits will be carried out during normal business hours and shall not unreasonably disrupt your business.

3.5.3 Where required, we (or those acting on our behalf) shall enter into a confidentiality agreement.

3.5.4 No records or copies thereof shall be taken from the premises.

4. CONFIDENTIAL INFORMATION

4.1. Confidential Information
4.1.1 Confidential information in relation to a party means information in any form or media given by or acquired from the party, directly or indirectly, whether before, on, or after the parties enter into this Agreement, including, without limitation, information regarding:

a) algorithms, business plans, data, lists, design documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets; or 

b) any other information that:

i) is by its nature confidential;

ii) is marked or designated or confirmed by a party as confidential or proprietary at the time of its disclosure; or

iii) the other party knows or ought to know is confidential; 

4.1.2 Information disclosed orally shall be considered Confidential Information only if such information is confirmed by the disclosing party in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information of a third party that is in the possession of one of the parties and is disclosed to the other party under this Agreement.

4.1.3 Our Confidential Information includes, without limitation, any Products and any information relating to the Products or any Product Support including, without limitation, specifications, pricing and the terms of this Agreement. 

4.2  Excluded Information
Confidential Information does not include information that is or was:

4.2.1 lawfully available to the public through no act or omission of the receiving party;

4.2.2 in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party;

4.2.3 lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

4.2.4 developed by the receiving party entirely independent of, and without access to, the disclosing party's Confidential Information.

4.3 Use and Disclosure of Confidential Information

4.3.1 A party (the Recipient) which acquires Confidential Information of another party (the Discloser) must not:

a) use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or

b) disclose any of the Confidential Information except in accordance with clause 4.4 or ‎4.5.

4.4 Disclosures to personnel and advisers

4.4.1 The Recipient may disclose Confidential Information to an officer, employee, agent, contractor, or legal, financial or other professional adviser if:

a) the disclosure is necessary to enable the Recipient to perform its obligations or to exercise its rights under this Agreement; and

b) prior to disclosure, the Recipient informs the person of the Recipient's obligations in relation to the Confidential Information under this Agreement and obtains an undertaking from the person to comply with those obligations.

4.4.2 The Recipient must ensure that any person to whom Confidential Information is disclosed under clause ‎4.4.1(a) keeps the Confidential Information confidential and does not use it for any purpose other than as permitted under clause ‎4.4.1 and will be liable to the extent of any non-compliance by those it has disclosed the Confidential Information to.

4.5 Disclosures required by law

4.5.1 Subject to clause ‎4.5.2 below, the Recipient may disclose Confidential Information that the Recipient is required to disclose:

a) by law or by order of any court or tribunal of competent jurisdiction; or

b) by any Government Agency, stock exchange or other regulatory body.

4.5.2 If the Recipient is required to make a disclosure under clause ‎4.5.1, the Recipient must:

a) to the extent possible, notify the Discloser immediately it anticipates that it may be required to disclose any of the Confidential Information;

b) consult with and follow any reasonable directions from the Discloser to minimise disclosure; and

c) if disclosure cannot be avoided:

d) only disclose Confidential Information to the extent necessary to comply; and

e) use reasonable efforts to ensure that any Confidential Information disclosed is kept confidential.

4.6 Rights to Confidential Information 

Clause 4 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.

5. LIABILITY

5.1 Warranties

Except as required of us under the Consumer Guarantees (as set out in the Australian Consumer Law (embodied in Schedule 2 to the Competition and Consumer Act 2010 (Cth)), we provide no other warranty, guarantee or assurance, express or implied, to you in relation to the goods or services supplied to you, and you agree and acknowledge that it is fair and reasonable, in all the circumstances, for us to do so. 

5.2 Liability

5.2.1 If the goods or services supplied by us to you are not of a kind ordinarily acquired for personal, domestic or household use or consumption, except in the case of a failure by us to comply with a Consumer Guarantee, our liability for failure to comply with a Consumer Guarantee under sections 51, 52 or 53 of the ACL, our liability for failure to comply with a Consumer Guarantee to you is limited to: 

a) in the case of goods supplied to you, the replacement of the goods or the supply of equivalent goods, or the repair of the goods and;

b) in the case of services supplied to you, the supply of the services again or the payment of the cost of having the services supplied again.

5.2.2 Except for our breach of any applicable Consumer Guarantee (see clause 5.2), your breach of the End User Obligations in clause 2, or either party's breach of its confidentiality obligations in clause 4, to the fullest extent permitted by law:

a) in no event shall either party or its licensors (including their directors, officers, employees, representatives, agents, and suppliers) be liable for any indirect, incidental, special or consequential damages, including without limitation procurement of substitute products or services or loss of profits, revenue, data or data use, even if we and/or our licensors have been advised of the possibility of such damages unless caused by that party's recklessness, fraud or wilful misconduct; and

b) the aggregate, cumulative liability of a party (including its directors, officers, employees, representatives, agents, and suppliers) for any direct losses under this agreement shall be limited to the fees paid or payable by you to us during the twelve-month period prior to the event giving rise to any claim unless the loss is caused by recklessness, fraud or wilful misconduct of that party in which case this provision will not apply.

6. TERMINATION

6.1 Termination for Breach

Either party may terminate this Agreement (including all related Order Forms) by written notice effective immediately if the other party:

6.1.1 Fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach;

6.1.2 The other party commits, or is the subject of, any liquidation, provisional liquidation, administration, bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days)). 

6.1.3 Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

6.2 Effect in Termination

Immediately on termination of this Agreement, you shall cease all use of the Products and any of our Confidential Information. Within 10 business days following the termination date you shall return to us or destroy (and certify to us in writing as to such destruction) all copies of the Software, Documentation and any other materials embodying the Products.

6.3 Survival

Clauses 2.5, 4, 5, 6 and 7 of this Agreement shall survive any termination of this Agreement.

7. GENERAL

7.1 Authorisation

Each party represents and warrants that the person executing this Agreement on behalf of such party, or clicking "I agree" in the case of an online Product purchase, Product trial or Marketplace subscription, is authorized to enter into this Agreement on behalf of such party.

7.2 Operation of this Agreement

7.2.1 This Agreement contains the entire written agreement between the parties about its subject matter. Any previous written agreements, negotiations and undertakings relating to that subject matter is replaced by this Agreement and has no further effect. 

7.2.2 Any right that a person may have under this Agreement is in addition to, and does not replace or limit, any other right that the person may have.

7.2.3 Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable, unless this would materially change the intended effect of this Agreement. 

7.3 Assignment

This Agreement is personal to you originally licensed and may not be assigned except where we have given our consent in writing or to a successor in the event of a merger, acquisition, or sale of all or substantially all of the assets of such party or an applicable business unit.  Any other purported assignment shall be void.

7.4 Force Majeure

Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.

7.5 Amendments and Counterparts

We reserve the right to change these terms from time to time. Notice of any such changes will be provided to you in writing 30 days before such changes take effect. Upon receiving a Notice of changes from us under this clause, you will have the option to terminate the Software License(s) you hold under this Agreement within 30 days by providing Notice in writing to us. We agree to refund you for fees paid for the Software License(s), from the date of termination to the date of the Software License(s) Expiry, if you terminate the Software License(s) under this clause. No supplement, modification, or amendment of this Agreement shall otherwise be binding unless executed in writing by a duly authorized representative of each party.

No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.

7.6 Governing Law and Jurisdiction

The law of Victoria, Australia, governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and of Australia.

7.7 Notices

A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing. In addition to any other method of service provided by law, the Notice may be sent by email to the email address of the addressee.  The email address for us for Notices is customers@factorhouse.io.  Your email address will be the one on your License Certificate as updated by Notice to us from time to time. 

7.8 No Agency Relationship

Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.

7.9 Open Source Notice

We may distribute third party open source software programs with the Software either incorporated into the Software or provided separately. These third-party programs are subject to their own additional license terms, none of which require notice, attribution, payment, disclosure, or license back of any of your information.

7.10 Data Collection and Privacy

We may collect and process technical and related information about your use of the Software which may include non-personally identifiable analytics and usage information to facilitate the provision of updates, support, invoicing, or to improve our products or services. Such information will be subject to our Privacy Policy located at https://factorhouse.io/privacy.

7.11 Publicity

You agree that we may use your name and logo in our customer list and may publish information identifying you as a user of our Products in advertisements, news releases, and releases to professional and trade publications. You will have the right to approve each such release prior to its placement but you agree not to unreasonably withhold its approval. This clause only applies if you are an organization and does not apply if you are an individual.