Evaluation Software Terms of Agreement
ATTENTION: THIS IS A LICENSE, NOT A SALE. THIS SOFTWARE IS PROVIDED UNDER THE FOLLOWING AGREEMENT THAT SPECIFIES WHAT YOU MAY DO WITH THE SOFTWARE AND CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES. IF YOU OBTAINED THIS SOFTWARE IN THE UNITED STATES, "APPZERO" SHALL MEAN APPZERO SOFTWARE, INC. IF YOU OBTAINED THIS SOFTWARE OUTSIDE OF THE UNITED STATES, "APPZERO" SHALL MEAN APPZERO SOFTWARE CORP. "AFFILIATES" OF APPZERO SHALL MEAN ALL CORPORATIONS OR OTHER ENTITIES CONTROLLED DIRECTLY OR INDIRECTLY BY APPZERO CORP.
AppZero Evaluation License
IMPORTANT: BEFORE DOWNLOADING, INSTALLING, OR USING THIS SOFTWARE, PLEASE CAREFULLY READ THIS AGREEMENT WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LIMITED EVALUATION LICENSE FOR THE SOFTWARE. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT PLEASE DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND PROMPTLY DESTROY THE SOFTWARE. IF YOU DOWNLOAD, INSTALL, OR USE THE SOFTWARE, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. THIS SOFTWARE IS ALSO PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS. IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
1.0 GENERAL TERMS
1.1 In addition to the other terms defined in this Agreement the following terms shall have the following meanings:
(i) "Affiliate" of a party means any corporation or other legal entity that such party directly or indirectly controls, is controlled by, or is under common control with. The term "control" means the possession, direct or indirect, of the power to direct or cause the direction of management and policies, whether through the ownership of voting shares or by contract;
(ii) "Customer" or "You" means the business entity to which a license is granted by AppZero for the use of the Software;
(iii) "Effective Date" means the date on which Customer first downloaded the Software;
(iv) "Evaluation Period" means the remainder of the calendar month in which Customer first downloaded the Software and the immediately following calendar month;
(v) "Free Software" means software programs that are distributed to Customer and licensed under the GNU General Public License or other free software licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code for such programs;
(vi) "Software" means the AppZero binary and/or bytecode software program and any third-party content included with that program, excluding the Third-Party Software that (a) is made available to Customer for download after acceptance of this Agreement, (b) is packaged with this Agreement, or (c) embeds this Agreement, and which binary and/or bytecode software program includes any printed, online, or electronic user manuals, documentation or release notes;
(vii) "Related Documentation" means user manuals and documentation for the Software, in hard copy or electronic format. Unless otherwise stated, the word "Software" includes "Related Documentation"; and
(viii) "Third-Party Software" means third-party software embedded in or distributed with the Software, which AppZero redistributes pursuant to such third parties' distribution and/or license agreements and/or permissions.
2.0 SOFTWARE LICENSE
2.1 Evaluation License Grant.
Subject to all of the terms and conditions of this Agreement, AppZero grants to Customer a limited, royalty-free, non-exclusive, non-transferable license to use the Software for the Evaluation Period solely for the purpose of testing and evaluating the Software to determine if Customer wishes to obtain a commercial license for the Software.
2.2 Third-Party Software License Rights.
If a separate license agreement pertaining to an item of Third-Party Software is: delivered to Customer with the Software, included in the Software download package, or referenced in any material that is provided with the Software, then such separate license agreement shall govern Customer's use of that item or version of Third-Party Software. Customer's rights in respect to any Third-Party Software, third-party data, third-party software or other third-party content provided with the Software shall be limited to those rights necessary to operate the Software as permitted by this Agreement. No other rights in the Software or Third-Party Software are granted to Customer.
2.3 Restrictions.
Customer may not remove or alter any copyright, trademark and/or proprietary notices marked on any part of the Software or Related Documentation and must reproduce all such notices on all authorized copies of the Software and Related Documentation. Customer shall not sublicense, distribute or otherwise make the Software available to any third party (including, without limitation, any contractor, franchisee, agent or dealer) without first obtaining the written agreement of (a) AppZero to that use, and (b) such third party to comply with this Agreement. Customer further agrees not to (i) rent, lease, sell, sublicense, assign, or otherwise transfer the Software to anyone else; (ii) directly or indirectly use the Software or any information about the Software in the development of any software that is competitive with the Software, or (iii) use the Software to provide any services to anyone or use the Software to operate or as a part of a time-sharing service, outsourcing service, service bureau, application service provider or managed service provider offering. Customer further agrees not to use the Software in a business production mode or a non-lab environment.
3.0 TECHNICAL SUPPORT
3.1 AppZero may provide an updated version of the Software to Customer during the Evaluation Period, but is not obligated to do so and is also not obligated to correct any errors or omissions in the Software. Although AppZero may from time to time provide technical support, Customer understands and agrees that AppZero has not, and does not thereby commit to any level of effort or availability.
4.0 CONFIDENTIAL INFORMATION
4.1 "Confidential Information" shall mean any information which is confidential in nature or that is treated as being confidential by AppZero and that is furnished or provided by or on behalf of AppZero to Customer, whether such information is or has been conveyed verbally or in written or other tangible form, and whether such information is acquired directly or indirectly such as in the course of discussions or other investigations by Customer, including, but not limited to technology, algorithms, trade secrets, discoveries, ideas, concepts, inventions (whether patentable or not), know-how, designs, specifications, product plans, and any other data, in oral, written, graphic, electronic or any other form or medium that has not been provided or is otherwise not readily available to the general public. Confidential Information shall also include descriptions of the existence or progress of the above-described information, the Software and any information with respect to technical support or pricing that AppZero may provide to Customer from time to time. Confidential Information disclosed in tangible or electronic form may be identified with a legend as being confidential, but in no event shall the absence of such a mark or legend preclude disclosed information which would be considered confidential by a party exercising reasonable business judgment from being treated as Confidential Information by Customer. Customer shall not disclose the Confidential Information to any third party without the prior written consent of AppZero, nor will Customer make use of any of Confidential Information except in the exercise of rights or performance of obligations under this Agreement. Customer shall use at least the same degree of care to avoid disclosure of Confidential Information as it uses with respect to its own confidential information, but in no event shall less than reasonable care be used.
4.2 Confidential Information does not include information: (a) generally available to or known to the public through no fault of Customer, (b) previously known to Customer without any obligation of confidentiality, (c) independently developed by Customer outside the scope of this Agreement without any use of or reference to the Confidential Information and which such independent development can be established by evidence that would be acceptable to a court of competent jurisdiction, or (d) lawfully disclosed to Customer by a third party under no obligation of confidentiality. Customer shall only disclose the Confidential Information to (i) its employees who have a need to know such information for the purpose of performance under this Agreement and exercising the rights granted under this Agreement and who have entered into a non-disclosure agreement at least as protective of the Confidential Information as this Agreement, or (ii) to the extent required by applicable law or pursuant to a valid court order or as required by a judicial court or tribunal of competent jurisdiction, provided that Customer shall give AppZero reasonable notice prior to such disclosure and shall assist with obtaining and comply with any applicable protective order or equivalent.
5.0 WARRANTY
5.1 TO THE GREATEST EXTENT PERMITTED BY LAW, THE SOFTWARE AND TECHNICAL SUPPORT PROVIDED BY APPZERO HEREUNDER ARE PROVIDED ON AN "AS IS" BASIS AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT OR IN CONNECTION WITH THIS AGREEMENT BY APPZERO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS). APPZERO INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. APPZERO INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS DO NOT REPRESENT OR WARRANT THAT THE SOFTWARE SHALL MEET ANY OR ALL OF CUSTOMER'S PARTICULAR REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE SOFTWARE CAN BE FOUND OR CORRECTED.
5.2 In certain jurisdictions some or all of the provisions in this Section may not be effective or the applicable law may mandate a more extensive warranty in which case the applicable law will prevail over this Agreement.
6.0 LIMITATION OF LIABILITY
6.1 TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL APPZERO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, LEGAL EXPENSES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOST OR DAMAGED DATA, LOSS OF COMPUTER TIME, COST OF SUBSTITUTE GOODS OR SERVICES, OR FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF APPZERO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, OR SUCH LOSSES OR DAMAGES ARE FORESEEABLE.
6.2 THE ENTIRE LIABILITY OF APPZERO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) AND CUSTOMER'S EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE AND TECHNICAL SUPPORT AND ANY OTHER PRODUCTS OR SERVICES SUPPLIED BY APPZERO OR ANY OF ITS AFFILIATES OR DISTRIBUTORS IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES FOR ANY CAUSE AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE, WILL BE LIMITED IN THE AGGREGATE TO THE AMOUNTS PAID BY CUSTOMER TO APPZERO UNDER THIS AGREEMENT FOR THE SOFTWARE, TECHNICAL SUPPORT OR SERVICES GIVING RISE TO THE CLAIM.
7.0 PROPRIETARY RIGHTS
Customer acknowledges and agrees that the Software contains confidential and proprietary information and trade secrets belonging to AppZero and its licensors. Customer acknowledges and agrees that title in and rights to the Software remains exclusively with AppZero and its licensors. Customer's rights to the Software are strictly limited to those granted in this Agreement. Customer shall not decompile, disassemble or otherwise reverse engineer the Software. If the foregoing provision is prohibited by applicable law, Customer will provide AppZero with advance written notification of (a) its intention to decompile, disassemble or otherwise reverse engineer the Software, and (b) the nature of the work involved. AppZero will be given the right of first refusal to perform such work at its prevailing rates and prices.
8.0 TERM AND TERMINATION
8.1 The term of this Agreement will begin upon the Effective Date and shall continue for the Evaluation Period unless earlier terminated as provided for in this Agreement.
8.2 AppZero may terminate this Agreement in the event of any breach by Customer if such breach has not been cured within five (5) days of notice to Customer and either party may terminate this Agreement without cause by providing fifteen (15) days written notice to the other.
8.3 Customer's rights to use the Software will immediately terminate upon termination or expiration of this Agreement. Within five (5) days of termination or expiration of this Agreement, Customer shall purge all Software and all copies thereof from all computer systems and storage devices on which it was stored, and certify such to AppZero. Customer shall be responsible for the Software from the time of delivery to Customer until such Software is returned to AppZero and Customer shall indemnify and hold AppZero harmless from and against any and all claims, demands, costs and liabilities (including all reasonable legal and attorney fees and expenses) of any kind whatsoever, arising directly or indirectly out of Customer's use of the Software or failure to destroy the Software as required herein. If Customer fails to destroy the Software as required, Customer agrees it is liable to pay to AppZero the full cost of such Software upon invoice by AppZero. The Software may contain automatic shutdown features which make it inoperable after the end of the Evaluation Period.
8.4 Customer acknowledges and agrees that it would be difficult to compute the monetary loss to AppZero arising from a breach or threatened breach of this Agreement by Customer and that, accordingly, AppZero shall be entitled to specific performance, injunctive or other equitable relief in addition to or instead of monetary damages in the event of a breach or threatened breach of this Agreement by Customer. Sections 1, 4, 5, 6, 7, 8.3, 8.4, 9 and 10 of this Agreement shall survive the expiration or termination of this Agreement.
9.0 AUDIT RIGHTS
Customer shall keep accurate records of the number of copies of the Software made and distributed, the number of end users of the Software and their location. AppZero may enter Customer's premises during business hours on five (5) business days notice for the purpose of examining, or having examined (at AppZero's own expense), Customer's relevant books, records and computers to verify Customer's fulfillment of its obligations under this Agreement. If the results of the audit reveal an underpayment by Customer, Customer shall reimburse AppZero for the costs of the audit.
10.0 GENERAL
10.1 All notices pursuant to this Agreement will be in writing and given by hand delivery, registered mail or certified mail (postage prepaid) to the other party. Customer will promptly give written notice of any change in its address or addressee. Notices will be deemed to be received on delivery or on the fifth (5th) business day after mailing, as the case may be.
10.2 No delay or failure in exercising any right under this Agreement, or any partial or single exercise of any right, will constitute a waiver of that right or any other rights under this Agreement. No consent to a breach of any express or implied term set out in this Agreement constitutes consent to any subsequent breach, whether of the same or any other provision.
10.3 If any provision of this Agreement is, or becomes, unenforceable, it will be severed from this Agreement and the remainder of this Agreement will remain in full force and effect.
10.4 Customer may not assign this Agreement whether voluntarily, by operation of law, or otherwise without AppZero's prior written consent. AppZero may assign this Agreement at any time without notice. This Agreement is binding upon and will inure to the benefit of both parties, and their respective successors and permitted assigns.
10.5 If Customer obtained the Software in the United States, this Agreement shall be governed by the laws of the State of New York. If Customer obtained the Software outside of the United States, this Agreement shall be governed by the laws of the Province of Ontario, Canada. No choice of laws rules of any jurisdiction shall apply to this Agreement. If Customer obtained the Software in the United States, Customer consents and agrees that the courts of the State of New Jersey shall have jurisdiction over any legal action or proceeding brought by Customer arising out of or relating to this Agreement, and Customer consents to the jurisdiction of such courts for any such action or proceeding. If Customer obtained the Software outside of the United States, Customer consents and agrees that the courts of the Province of Ontario, in Ottawa, Canada, shall have jurisdiction over any legal action or proceeding brought by Customer arising out of or relating to this Agreement and Customer consents to the jurisdiction of such courts for any such action or proceeding. Customer waives all rights that Customer may have or that may hereafter arise to contest such jurisdiction of such courts. The parties waive any right to a jury trial with respect to any action brought in connection with this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The Uniform Computer Information Act does not apply to this Agreement.
10.6 The Software and related information are subject to export and import restrictions. By downloading, installing, or using the Software, Customer is representing and warranting that Customer is not located in, under the control of, nor is a national or resident of, any country to which the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer is also representing and warranting that Customer is not an individual to whom the export of the Software or related information would be prohibited by the laws and/or regulations of the United States or Canada. Customer shall comply with the export laws and regulations of the United States and Canada that are applicable to the Software and related information and Customer shall comply with any local laws in Customer's jurisdiction that may impact Customer's right to export, import, or use the Software or related information, and Customer represents and warrants that Customer has complied with any such applicable laws or regulations. The Software shall not be used for any purposes prohibited by export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Software or related information.
10.7 This Agreement is the entire understanding and agreement between Customer and AppZero with respect to the subject matter hereof, and it supersedes all prior negotiations, commitments and understandings, verbal or written, any purchase order issued by Customer. This Agreement may only be amended or otherwise modified by written agreement signed by the authorized signatories of both parties.
10.8 The Software is not fault-tolerant and is not designed, manufactured or intended for use in or in conjunction with on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, or direct life support machines. AppZero, its Affiliates, licensors, suppliers, subcontractors and distributors specifically disclaim any express or implied representations, warranties or conditions for such uses.
10.9 The Software may be aggregated and distributed with Free Software for which the applicable Free Software license may also require that Free Software source code be made available to those receiving only executable versions of such Free Software. If the source code for any such Free Software is not provided with the Software, then upon request within three (3) years of acquisition of the Software, and for a fee that shall not exceed AppZero's costs associated with physical or electronic distribution of such source code, AppZero will provide or make a copy of such Free Software source code available to Customer. Since any Free Software provided with the Software is being distributed as Third-Party Software, the restrictions in this Agreement do not apply to such Free Software and in particular do not constrain any broader rights granted in any licenses for such Free Software.
April 23, 2009
