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EVALUATION LICENSE AGREEMENT
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Agreement version 2.0
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This Evaluation License Agreement ("Agreement") is a legal agreement between
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Digia USA, Inc. ("Digia"), with its registered office at 32 W. Loockerman
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Street, Suite 201, City of Dover, County of Kent, Delaware 19904, U.S.A. and you
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(either an individual or a legal entity) ("Licensee") for the Licensed Software
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(as defined below).
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1. DEFINITIONS
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"Affiliate" of a Party shall mean an entity (i) which is directly or indirectly
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controlling such Party; (ii) which is under the same direct or indirect
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ownership or control as such Party; or (iii) which is directly or indirectly
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owned or controlled by such Party. For these purposes, an entity shall be
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treated as being controlled by another if that other entity has fifty percent
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(50 %) or more of the votes in such entity, is able to direct its affairs and/or
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to control the composition of its board of directors or equivalent body.
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"Term" shall mean the period of time thirty (30) days from the later of (a) the
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Effective Date; or (b) the date the Licensed Software was initially delivered to
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Licensee by Digia. If no specific Effective Date is set forth in the Agreement,
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the Effective Date shall be deemed to be the date the Licensed Software was
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initially delivered to Licensee.
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"Licensed Software" shall mean the computer software, "online" or electronic
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documentation, associated media and printed materials, including the source
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code, example programs and the documentation delivered by Digia to Licensee in
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conjunction with this Agreement. "Party or Parties" shall mean Licensee and/or
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Digia.
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2. OWNERSHIP
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The Licensed Software is protected by copyright laws and international copyright
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treaties, as well as other intellectual property laws and treaties. The
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Licensed Software is licensed, not sold.
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If Licensee provides any findings, proposals, suggestions or other feedback
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("Feedback") to Digia regarding the Licensed Software, Digia shall own all
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right, title and interest including the intellectual property rights in and to
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such Feedback, excluding however any existing patent rights of Licensee. To the
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extent Licensee owns or controls any patents for such Feedback Licensee hereby
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grants to Digia and its Affiliates, a worldwide, perpetual, non-transferable,
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sublicensable, royalty-free license to (i) use, copy and modify Feedback and to
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create derivative works thereof, (ii) to make (and have made), use, import,
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sell, offer for sale, lease, dispose, offer for disposal or otherwise exploit
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any products or services of Digia containing Feedback, and (iii) sublicense all
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the foregoing rights to third party licensees and customers of Digia and/or its
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Affiliates.
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3. VALIDITY OF THE AGREEMENT
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By installing, copying, or otherwise using the Licensed Software, Licensee
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agrees to be bound by the terms of this Agreement. If Licensee does not agree
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to the terms of this Agreement, Licensee may not install, copy, or otherwise use
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the Licensed Software. Upon Licensee's acceptance of the terms and conditions
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of this Agreement, Digia grants Licensee the right to use the Licensed Software
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in the manner provided below.
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4. LICENSES
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4.1. Using and Copying
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Digia grants to Licensee a non-exclusive, non-transferable, time-limited license
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to use and copy the Licensed Software for sole purpose of evaluating the
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Licensed Software during the Term.
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Licensee may install copies of the Licensed Software on an unlimited number of
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computers provided that (a) if an individual, only such individual; or (b) if a
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legal entity only its employees; use the Licensed Software for the authorized
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purposes.
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4.2 No Distribution or Modifications
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Licensee may not disclose, modify, sell, market, commercialise, distribute,
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loan, rent, lease, or license the Licensed Software or any copy of it or use the
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Licensed Software for any purpose that is not expressly granted in this Section
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4. Licensee may not alter or remove any details of ownership, copyright,
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trademark or other property right connected with the Licensed Software.
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Licensee may not distribute any software statically or dynamically linked with
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the Licensed Software.
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4.3 No Technical Support
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Digia has no obligation to furnish Licensee with any technical support
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whatsoever. Any such support is subject to separate agreement between the
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Parties.
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5. THIRD PARTY SOFTWARE
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The Licensed Software may provide links to third party libraries or code
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(collectively "Third Party Software") to implement various functions. Third
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Party Software does not comprise part of the Licensed Software. In some cases,
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access to Third Party Software may be included along with the Licensed Software
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delivery as a convenience for development and testing only. Such source code
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and libraries may be listed in the ".../src/3rdparty" source tree delivered with
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the Licensed Software or documented in the Licensed Software where the Third
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Party Software is used, as may be amended from time to time, do not comprise the
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Licensed Software. Licensee acknowledges (1) that some part of Third Party
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Software may require additional licensing of copyright and patents from the
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owners of such, and (2) that distribution of any of the Licensed Software
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referencing any portion of a Third Party Software may require appropriate
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licensing from such third parties.
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6. LIMITED WARRANTY AND WARRANTY DISCLAIMER
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The Licensed Software is licensed to Licensee "as is". To the maximum extent
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permitted by applicable law, Digia on behalf of itself and its suppliers,
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disclaims all warranties and conditions, either express or implied, including,
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but not limited to, implied warranties of merchantability, fitness for a
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particular purpose, title and non-infringement with regard to the Licensed
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Software.
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7. LIMITATION OF LIABILITY
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If, Digia's warranty disclaimer notwithstanding, Digia is held liable to
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Licensee, whether in contract, tort or any other legal theory, based on the
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Licensed Software, Digia's entire liability to Licensee and Licensee's exclusive
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remedy shall be, at Digia's option, either (A) return of the price Licensee paid
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for the Licensed Software, or (B) repair or replacement of the Licensed
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Software, provided Licensee returns to Digia all copies of the Licensed Software
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as originally delivered to Licensee. Digia shall not under any circumstances be
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liable to Licensee based on failure of the Licensed Software if the failure
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resulted from accident, abuse or misapplication, nor shall Digia under any
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circumstances be liable for special damages, punitive or exemplary damages,
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damages for loss of profits or interruption of business or for loss or
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corruption of data. Any award of damages from Digia to Licensee shall not
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exceed the total amount Licensee has paid to Digia in connection with this
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Agreement.
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8. CONFIDENTIALITY
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Each party acknowledges that during the Term of this Agreement it shall have
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access to information about the other party's business, business methods,
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business plans, customers, business relations, technology, and other
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information, including the terms of this Agreement, that is confidential and of
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great value to the other party, and the value of which would be significantly
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reduced if disclosed to third parties (the "Confidential Information").
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Accordingly, when a party (the "Receiving Party") receives Confidential
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Information from another party (the "Disclosing Party"), the Receiving Party
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shall, and shall obligate its employees and agents and employees and agents of
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its Affiliates to: (i) maintain the Confidential Information in strict
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confidence; (ii) not disclose the Confidential Information to a third party
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without the Disclosing Party's prior written approval; and (iii) not, directly
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or indirectly, use the Confidential Information for any purpose other than for
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exercising its rights and fulfilling its responsibilities pursuant to this
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Agreement. Each party shall take reasonable measures to protect the
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Confidential Information of the other party, which measures shall not be less
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than the measures taken by such party to protect its own confidential and
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proprietary information.
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"Confidential Information" shall not include information that (a) is or becomes
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generally known to the public through no act or omission of the Receiving Party;
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(b) was in the Receiving Party's lawful possession prior to the disclosure
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hereunder and was not subject to limitations on disclosure or use; (c) is
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developed by the Receiving Party without access to the Confidential Information
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of the Disclosing Party or by persons who have not had access to the
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Confidential Information of the Disclosing Party as proven by the written
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records of the Receiving Party; (d) is lawfully disclosed to the Receiving Party
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without restrictions, by a third party not under an obligation of
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confidentiality; or (e) the Receiving Party is legally compelled to disclose the
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information, in which case the Receiving Party shall assert the privileged and
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confidential nature of the information and cooperate fully with the Disclosing
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Party to protect against and prevent disclosure of any Confidential Information
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and to limit the scope of disclosure and the dissemination of disclosed
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Confidential Information by all legally available means.
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The obligations of the Receiving Party under this Section shall continue during
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the Initial Term and for a period of five (5) years after expiration or
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termination of this Agreement. To the extent that the terms of the
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Non-Disclosure Agreement between Digia and Licensee conflict with the terms of
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this Section 8, this Section 8 shall be controlling over the terms of the
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Non-Disclosure Agreement.
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9. GENERAL PROVISIONS
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9.1 No Assignment
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Licensee shall not be entitled to assign or transfer all or any of its rights,
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benefits and obligations under this Agreement without the prior written consent
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of Digia, which shall not be unreasonably withheld. For the avoidance of doubt,
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Digia's right to assign or transfer the Agreement, in whole or in part, shall be
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unrestricted.
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9.2 Termination
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Digia may terminate the Agreement at any time immediately upon written notice by
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Digia to Licensee if Licensee breaches this Agreement.
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Upon termination of this Agreement, Licensee shall return to Digia all copies of
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Licensed Software that were supplied by Digia. All other copies of Licensed
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Software in the possession or control of Licensee must be erased or destroyed.
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An officer of Licensee must promptly deliver to Digia a written confirmation
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that this has occurred.
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9.3 Surviving Sections
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Any terms and conditions that by their nature or otherwise reasonably should
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survive a cancellation or termination of this Agreement shall also be deemed to
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survive. Such terms and conditions include, but are not limited to the
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following Sections: 2, 5, 6, 7, 8, 9.2, 9.3, 9.4, 9.5, 9.6, 9.7, and 9.8 of this
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Agreement.
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9.4 Entire Agreement
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This Agreement constitutes the complete agreement between the parties and
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supersedes all prior or contemporaneous discussions, representations, and
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proposals, written or oral, with respect to the subject matters discussed
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herein, with the exception of the non-disclosure agreement executed by the
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parties in connection with this Agreement ("Non-Disclosure Agreement"), if any,
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shall be subject to Section 8. No modification of this Agreement shall be
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effective unless contained in a writing executed by an authorized representative
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of each party. No term or condition contained in Licensee's purchase order
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shall apply unless expressly accepted by Digia in writing. If any provision of
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the Agreement is found void or unenforceable, the remainder shall remain valid
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and enforceable according to its terms. If any remedy provided is determined to
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have failed for its essential purpose, all limitations of liability and
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exclusions of damages set forth in this Agreement shall remain in effect.
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9.5. Notices
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Any notice given by one party to the other shall be deemed properly given and
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deemed received if specifically acknowledged by the receiving party in writing
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or when successfully delivered to the recipient by hand, fax, or special courier
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during normal business hours on a business day to the addresses specified below.
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Each communication and document made or delivered by one party to the other
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party pursuant to this Agreement shall be in the English language or accompanied
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by a translation thereof.
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Notices to Digia shall be given to:
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Digia USA Inc
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Suite 203
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2880 Zanker Road
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San Jose
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CA 95134
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U.S.A
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Fax. + 1 408 433 9360
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9.6 Export Control
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Licensee acknowledges that the Licensed Software may be subject to export
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control restrictions of various countries. Licensee shall fully comply with all
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applicable export license restrictions and requirements as well as with all laws
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and regulations relating to the importation of the Licensed Software and shall
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procure all necessary governmental authorizations, including without limitation,
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all necessary licenses, approvals, permissions or consents, where necessary for
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the re-exportation of the Licensed Software.,
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9.7 Governing Law and Legal Venue
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This Agreement shall be governed by and construed in accordance with the federal
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laws of the United States of America and the internal laws of the State of New
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York without given effect to any choice of law rule that would result in the
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application of the laws of any other jurisdiction. The United Nations
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Convention on Contracts for the International Sale of Goods (CISG) shall not
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apply. Each Party (a) hereby irrevocably submits itself to and consents to the
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jurisdiction of the United States District Court for the Southern District of
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New York (or if such court lacks jurisdiction, the state courts of the State of
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New York) for the purposes of any action, claim, suit or proceeding between the
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Parties in connection with any controversy, claim, or dispute arising out of or
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relating to this Agreement; and (b) hereby waives, and agrees not to assert by
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way of motion, as a defence or otherwise, in any such action, claim, suit or
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proceeding, any claim that is not personally subject to the jurisdiction of such
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court(s), that the action, claim, suit or proceeding is brought in an
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inconvenient forum or that the venue of the action, claim, suit or proceeding is
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improper. Notwithstanding the foregoing, nothing in this Section 9.6 is
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intended to, or shall be deemed to, constitute a submission or consent to, or
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selection of, jurisdiction, forum or venue for any action for patent
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infringement, whether or not such action relates to this Agreement.
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9.8 No Implied License
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There are no implied licenses or other implied rights granted under this
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Agreement, and all rights, save for those expressly granted hereunder, shall
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remain with Digia and its licensors. In addition, no licenses or immunities are
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granted to the combination of the Licensed Software with any other software or
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hardware not delivered by Digia under this Agreement.
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9.9 Government End Users
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A "U.S. Government End User" shall mean any agency or entity of the government
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of the United States. The following shall apply if Licensee is a U.S.
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Government End User. The Licensed Software is a "commercial item," as that
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term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial
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computer software" and "commercial computer software documentation," as such
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terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R.
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12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S.
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Government End Users acquire the Licensed Software with only those rights set
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forth herein. The Licensed Software (including related documentation) is
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provided to U.S. Government End Users: (a) only as a commercial end item; and
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(b) only pursuant to this Agreement.
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EVALUATION LICENSE AGREEMENT
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DIGIA USA INC. | SUITE 203 | 2880 ZANKER ROAD | SAN JOSE | CA 95134 | U.S.A. |
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FAX + 1 408 433 9360
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PLACE OF REGISTERED OFFICE: DELAWARE | WWW.DIGIA.COM
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