PUBLISHER AGREEMENT:

RIGHTSCALE COMPONENT LIBRARY

NOTE: IF YOU ARE ACTING ON BEHALF OF A COMPANY OR OTHER ORGANIZATION THAT HAS A SEPARATE SIGNED AGREEMENT WITH RIGHTSCALE, INC. RELATING TO THE PUBLICATION OF COMPONENTS THEN THE TERMS OF THAT SEPARATE AGREEMENT SHALL SUPERSEDE THE TERMS OF THIS AGREEMENT.**

By clicking the “Agree” button below, You agree on behalf of Your organization to the legally binding terms and conditions below (the Agreement) governing Your publication of a Component in the RightScale Component Library. This Agreement is effective between You and Us as of the date of Your acceptance.

If You are entering into this Agreement on behalf of a company or other organization, You must have the authority to bind Your company or organization to this Agreement. We may reject this Agreement if We determine, in Our sole discretion, that You do not have the appropriate authority. In any case, if You are entering into this Agreement on behalf of a company or other organization, You represent that You have the authority to bind it to this Agreement, and the terms You and Your will refer to that company or organization. If You do not have that authority, or if You do not agree with these terms and conditions, You must select the “Decline” button and may not publish applications to a RightScale Component Library.

  1. DEFINITIONS
    “Component” shall mean a ServerTemplate, RightScript, MultiCloud Image, or other technology or documentation that You are enabled to publish to the RightScale Component Library.
    RightScale Component Library means Our online directory of downloadable Components. Among other things, a RightScale Component Library allows Users the opportunity to publish Components that may be reviewed, accessed, copied, installed, and/or used by Users.
    RightScale Platform means the RightScale Cloud Management Platform as made available at my.rightscale.com.
    Our User Data means electronic data or information submitted by Users in connection with their use of the RightScale Platform, the RightScale Component Library, and any Component listed in or accessible through the RightScale Component Library.
    We, Us or Our means RightScale, Inc.
    You or Your means the person accepting this Agreement or, if that person is accepting this Agreement on behalf of a company or other organization, that company or organization.
    Component Usage Data means information stored in our systems relating to User access to and use of Your Component. “User” means an individual or entity registered to use the RightScale Platform.

  2. PERMISSION TO LIST YOUR COMPONENT IN THE RIGHTSCALE COMPONENT LIBRARY
    Subject to the terms of this Agreement, We permit You to publish Your Component in the RightScale Component Library upon successful completion of the publication procedures described below. We reserve the right, in Our sole discretion and for any reason at any time, to revoke this permission and refuse to list Your Application on, or to remove Your Application and/or related listing(s) from, the RightScale Component Library.

  3. PUBLISHER OBLIGATIONS, REPRESENTATIONS AND WARRANTIES
    3.1 Your Responsibilities. You acknowledge that You are solely responsible, and that We have no responsibility or liability of any kind, for the content, development, operation, or maintenance of Your Component. For example, You will be solely responsible for:
    a. the technical operation of Your Component and the related RightScale Component Library listings;
    b. creating and displaying information and content on, through or within Your RightScale Component Library listings;
    c. the accuracy and appropriateness of Your RightScale Component Library listings and the materials available on, through or within Your RightScale Component Library listings;
    d. ensuring that Your Component, Your RightScale Component Library listings, and content and other materials contained in or available through Your listings do not violate or infringe the rights of any third party (including, for example, patents, copyrights, trademarks, privacy, or other personal or proprietary rights); and
    e. ensuring that Your RightScale Component Library listings and content and other materials contained in or available through Your listings are not offensive, profane, obscene, libelous or otherwise illegal.
    3.2 Your Representations, Warranties and Covenants. You represent, warrant and covenant that:
    a. Your Component, Your RightScale Component Library listings, and content and other materials contained in or available through Your listings, and the use thereof by Us and any Users do not and will not violate, misappropriate or infringe the rights of any person or entity including any contract rights or any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person or entity;
    b. You will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control and import control laws, and maintain all licenses, permits and other permissions or authorizations necessary to publish and distribute your Component in and through the RightScale Component Library;
    c. Your Component and any related RightScale Component Library listings will not be illegal in any jurisdiction; and
    d. Neither Your Component nor Your RightScale Component Library listings will contain any virus, worm, Trojan horse, adware, spyware or other malicious code.
  4. PUBLICATION PROCESS
    4.1 Overview. While this Agreement is in effect, it will govern the listing of all of Your Components submitted to or distributed through the RightScale Component Library. Before Your Application can be submitted to the RightScale Component Library, You are responsible for evaluating and testing Your Component as to its technology, functionality, performance, and security. We reserve the right to conduct any type of review of Your Component at any time. We may adopt and change our review standards and processes in our sole discretion. All submissions of Your Components for listing on the RightScale Component Library must be made through our online submission process.
    4.2 Security Review. We may conduct a security review of Your Component, which may include a qualitative assessment involving a questionnaire for You to complete, an interview with You, and security testing, which We may conduct ourselves or through a third party. You agree to cooperate reasonably in any such review and/or testing at Your own expense.
    4.3 Component ID. When Your Component is listed on the RightScale Component Library, We will provide You a unique Component ID, which will be assigned to and may be used only by You and only in connection with that particular Component.
    1. REVIEWS OF RIGHTSCALE COMPONENT LIBRARY COMPONENT BY YOU
      The RightScale Component Library allows You to post reviews of any Component listed in the RightScale Component Library Component. Any review by You of a Component shall be made in good faith after reasonable evaluation of the full Component. If You post a review of Your Component, You shall disclose Your identity and the fact that the Component being reviewed is Your Component. If You post a review of a competitor's Component, You shall disclose Your identity and the fact that You publish a competitive Component. At your election, you can disable the User review functionality with respect to your Component. However, reviews of Your Component cannot be deleted once a review has been posted.
  5. USER SUPPORT
    6.1 Contact Email Address. You will provide to Us a current email address to which We may direct inquiries from Users regarding Your Component. You will ensure that the email address and other required information associated with Your RightScale account will remain accurate and up-to-date.
    6.2 Your Responsibility. At the time of publishing a Component to the RightScale Component Library you may decide whether or not to provide User support for the Component you are publishing. If You agree to provide User support in connection with your Component then You agree that You are solely responsible for providing all such support for Your Component, and for providing to Users of Your Component the level and type of support that you have offered them as well as all information necessary for their use of Your Component. You may remove a Component from the RightScale Component Library at any time, and this shall serve to relieve you of all User support obligations with respect to that Component other than any binding support obligations You entered into with Users prior to removal of the applicable Component.
    6.3 RightScale Responsibility. RightScale may decide in its sole discretion whether and when to provide User support for a given Component. You cannot and must not state or suggest that RightScale will provider User support for your Component.
  6. TERM AND TERMINATION
    7.1 Term of Agreement. The term of this Agreement shall commence on the date You accept it, and continue until none of Your Components is listed any longer on the RightScale Component Library.
    7.2 Termination Without Cause. Either You or We may terminate this Agreement with or without cause upon 30 days' written notice.
    7.3 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if (a) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, (b) the other party is acquired by or becomes the terminating party's competitor, (c) the party breaches its User data obligations under this Agreement or infringes or misappropriates the terminating party's intellectual property rights, or (d) it makes a good faith determination, based on one or more User complaints, that the other party's actions or statements creates a risk of harm to the terminating party's reputation or User relationships.
    7.4 Survival. The parties' rights and obligations under the following sections of this Agreement will survive any termination or expiration of this Agreement: 1, 7.4, 9 - 15. Termination of this Agreement will not derogate from any rights You may have under any other agreements with Us, including but not limited to any subscription agreement, development agreement, marketing agreement, reseller agreement, or alliance agreement.
  7. LICENSES
    8.1 Our License to You. We hereby grant You a nonexclusive, worldwide, fully paid-up, royalty-free license under Our intellectual property rights, to access the RightScale Component Library to publish and maintain Your Components.
    8.2 Your License to Us for Your Components. You grant to Us a nonexclusive, worldwide, fully paid-up, royalty-free license, for as long as Your Components are listed on the RightScale Component Library, to (a) market Your Components and (b) to the extent You request Us to list Your Component in a RightScale Component Library, to permit others to access, download, and install Your Components through the RightScale Component Library and the RightScale Platform. You represent and warrant that You own or possess all intellectual property and other rights necessary to grant Us this license.
    8.3 Licensing Your Components to Users. You may offer Your Components via the RightScale Component Library under the license terms you designate in the RightScale Component Library. To offer Your Components under Your own license terms, You shall submit such license terms to Us through the online process described in Our online RightScale Component Library publisher process, which We shall make available to You. You may update such license terms from time to time using the same process. If You do not submit Your license terms to Us through such online process, Your Components will be offered under the default RightScale Component Library license terms that are then in effect. Your Component license terms shall not make any representations about, or purport to bind, Us.
    8.4 Trademark License. You hereby grant Us a nonexclusive, worldwide, fully paid-up, royalty-free license, for the term of this Agreement, to use Your name, Your Component name(s) and associated logos (collectively, Marks) solely to enable Us to exercise our rights and perform our obligations under this Agreement. Any use of Marks shall be in accordance with the Your reasonable trademark usage policies that you provide to Us in writing.
    1. INTELLECTUAL PROPERTY OWNERSHIP
      9.1 Technology. Subject to the limited licenses set forth above, nothing in this Agreement transfers or assigns to Us any of Your intellectual property rights in Your Components or Your other technology. Nothing in this Agreement transfers or assigns to You any of Our intellectual property rights in the RightScale Component Library, the RightScale Platform, or any of Our other technology.
      9.2 Trademarks. Our Marks, including but not limited to RightScale, RightScript, ServerTemplate and other of Our marks used on Our websites are Our trademarks or service marks and may not be used in any manner except as expressly permitted herein or with Our prior written consent. Your Marks are Your trademarks or service marks and may not be used in any manner except as expressly permitted herein or with Your prior written consent. You shall not include RightScale or RightScript or “ServerTemplate” in any of Your trademarks or service marks or product, service or company names. You may include for RightScale in the names of Your Components while they are listed on the RightScale Component Library. You shall not bid on or purchase any keyword which is Our trademark (including without limitation RightScale or RightScript or ServerTemplate) in any keyword advertising service (such as, for example, Google AdWords).
      9.3 Competitive Components. Subject to Our and Your respective rights and obligations under this Agreement, We acknowledge that You and/or other parties may develop and publish applications that are similar to or otherwise compete with Our Components, and You acknowledge that We and/or other parties may develop and publish applications that are similar to or otherwise compete with Your Components.
  8. USER DATA; COMPONENT USAGE DATA
    10.1 User Data. As between You and Us, We own and retain all rights, title, and interest in and to Our User Data, including but not limited to compilations or analysis thereof.
    10.2 Your Component Usage Data. To the extent You receive access to Component Usage Data, You represent and warrant that You shall maintain and handle all such Component Usage Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security, in strict compliance with the terms under which it was provided to You, and in strict compliance with Your published privacy policy and all applicable privacy laws and regulations.
  9. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
    11.1 NO WARRANTY. We make no warranty or guarantee regarding:
    a. any benefits or services that We provide to You as a publisher of Components in a RightScale Component Library. In particular, We do not warrant or guarantee that those services and benefits will increase Your market share and/or sales;
    b. any third-party applications or content in a RightScale Component Library, even if We reviewed, certified or moderated those applications or content;
    c. the RightScale Platform and the RightScale Component Library, including but not limited to their performance, functionality, quality or availability.
    11.2 DISCLAIMER. WE HEREBY DISCLAIM ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
    11.3 LIMITATION OF LIABILITY
    EXCEPT FOR LIABILITY ARISING UNDER A PARTY'S INDEMNIFICATION OBLIGATIONS BELOW, (A) NEITHER YOU NOR WE SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE RIGHTSCALE COMPONENT LIBRARY, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF $100,000.
  10. RISK OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
    You also acknowledge the risk that the license terms presented in connection with a User accessing your Component may not be binding in all cases or for all Users. You also acknowledge the risk that Users who access Your Components through the RightScale Component Library may use Your Component in a manner that is not authorized by the license terms provided in connection with the Component or may develop and/or distribute applications or products that infringe or misappropriate Your intellectual property rights in Your Components. Nothing in this Agreement restricts You from pursuing claims against such Users. However, in that event, You agree that Our provision of the RightScale Component Library does not constitute contributory infringement, aiding or abetting of any such infringement or misappropriation, or any other theory of vicarious or indirect liability.

  11. INDEMNITY
    You shall indemnify and hold Us and Our subsidiaries, affiliates, officers, agents, and employees harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorney fees and costs), arising out of a claim or demand (i) alleging that any of Your Components, or content submitted by You and published on the RightScale Component Library, infringes, misappropriates or violates any rights of a third party; (ii) arising out of an alleged breach by You of a representation or warranty made by You in this Agreement.
  12. NOTICES
    Notices under this Agreement must be in writing and are deemed to have been given upon (a) personal delivery, (b) the third business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by reputable overnight courier. Notices to Us must be addressed to RightScale, Inc., Attention: Component Library Team, 402 E. Gutierrez Street, Santa Barbara, CA 93101. Notices to You will be addressed to Your contact designated by You in the RightScale online registration process, as that information may have been updated by You through Our RightScale Platform and/or the website located at www.rightscale.com.
  13. GENERAL
    This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between You and Us. This Agreement shall be governed by and construed in accordance with the laws of the State of California (excluding rules regarding conflicts of law) and the United States of America. Nothing on any purchase order or preprinted form You provide Us shall add to or vary the terms of this Agreement. If any provision of this Agreement is held by a court to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect its intentions, with all other provisions remaining in full force and effect. A party's failure to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless agreed to by that party in writing. This Agreement comprises the entire agreement between You and Us and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between You and Us regarding the subject matter contained herein. There are no third-party beneficiaries to this Agreement. Neither You nor We may assign any rights or obligations under this Agreement without the prior written consent of the other (not to be unreasonably withheld), provided We may assign this Agreement without consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Our stock or assets.