BY CLICKING THE “REQUEST PRODUCT TRIAL” BUTTON AND ACCEPTING THE “OBJECTIVITY LICENSE AND MAINTENANCE TERMS AND CONDITIONS” IN THE REQUEST FOR PRODUCT TRIAL FORM, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THIS “AGREEMENT”) GOVERNING YOUR USE, OR THE USE BY THE PARTY YOU REPRESENT, OF OBJECTIVITY, INC.’S SOFTWARE PRODUCTS (“PRODUCTS”) LISTED ON THIS ON-LINE TRIAL USE REQUEST (THE “TRIAL REQUEST”).
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” WILL REFER TO BOTH YOU AND SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND YOU MAY NOT USE THE SOFTWARE PRODUCTS. THE INFORMATION INCLUDED IN THE TRIAL REQUEST IS INCORPORATED INTO THE FOLLOWING TERMS AND CONDITIONS BY REFERENCE.
License and Maintenance Terms and Conditions
- PRODUCTS LICENSE
1.1 Rights Granted.
(a) Objectivity hereby grants to you a nonexclusive and nontransferable license to use the Products solely for your internal operations by an individual user. You may make one archival and backup copy of the Products, which copy will be subject to the provisions of this Agreement, and all proprietary rights notices must be reproduced in such copies. “Products” means (i) the Objectivity computer products specified in the Trial Request in object code form only and (ii) user documentation. Copying of the user documentation is not permitted except with the prior written consent of Objectivity.
(b) The Products are licensed to you for development purposes only. Deployment licenses must be purchased separately from Objectivity. Objectivity hereby grants to you a non-exclusive license to create applications to be used in conjunction with the Products. This license includes writing, editing, compiling, linking, and debugging code that creates, retrieves, updates or deletes objects using the Products. You have no right to transfer such applications or otherwise allow access to any other individual user unless such individual user has purchased a license from Objectivity. You agree that you will not redistribute any portion of the Products, including without limitation the related documentation provided to you, in any form of printed or electronic communication.
(c) You agree to place the following proprietary rights notice on any applications you develop that use the Products:
All rights reserved
The notice must be applied to all copies of the Products, in some form, either human or machine readable
1.2 No Reverse Engineering; Ownership. You agree not to engage in, cause or permit the reverse engineering, disassembly, decompilation or any similar manipulation of the Products. You acquire only the right to use the Products as specified herein, and all right, title and interest in and to the Products will at all times remain the property of Objectivity or Objectivity’s licensors.
1.3 Additional Restrictions. You agree not to publish, or permit the publication of, the results of any benchmark tests or other comparative or analytical material which refer to the Products as used by you, without Objectivity’s prior written permission.
- TERM AND TERMINATION
2.1 Term. The term of this Agreement will begin on the Effective Date set forth in the Trial Request, and will continue for a period of sixty (60) days, unless otherwise extended by Objectivity, or earlier terminated under the provisions of Section 2.2 below.
2.2 Termination. This Agreement will terminate automatically as follows: (a) if you materially breach this Agreement, (b) if you become insolvent or bankrupt, (c) upon a receiver or other liquidating officer being appointed for all or substantially all of your assets or business, or upon your assignment for the benefit of creditors, or upon all or substantially all or your rights or interest becoming an asset under any bankruptcy, insolvency or reorganization proceeding.
2.3 Destruction or Return of Products Upon Termination. Upon termination of this Agreement pursuant to Section 2.2 above, you will (i) immediately cease using the Products, and (ii) within ten (10) days after such termination either destroy, permanently erase or return to Objectivity the Products, and all copies in all forms, partial and complete, in all types of media and computer memory and storage.
- MAINTENANCE AND SUPPORT SERVICES
Objectivity, at its sole discretion, will respond to email inquiries from you during the term of this Agreement. Responses will be provided to you by email between the hours of 9:00 AM and 5:00 PM Pacific Time, Monday through Friday, except for holidays observed by Objectivity.
- NO WARRANTIES; LIMITATION OF LIABILITY
4.1 No Warranties; Disclaimers.
(a) No Warranties. ALL PRODUCTS DELIVERED BY OBJECTIVITY ARE PROVIDED “AS-IS,” WITHOUT WARRANTY OF ANY KIND. OBJECTIVITY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) Disclaimer for Embedded Programs. Certain Products include some components that are individually made available under separate terms and conditions and subject to disclaimers not applicable to the Products, and therefore not set forth herein (“Open Source Licenses”). Customer can find the Open Source Licenses at http://support.objectivity.com/third-party-software. The Open Source Licenses do not apply to Products themselves.
4.2 Limitation of Liability. EXCEPT FOR ANY BREACH OF THE SCOPE OF THE LICENSES GRANTED OR LICENSE RESTRICTIONS SET FORTH IN SECTION 1, OR FOR BREACHES OF YOUR OBLIGATIONS UNDER SECTION 5.1, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY. OBJECTIVITY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT OF LICENSE AND MAINTENANCE FEES PAID BY YOU UNDER THIS AGREEMENT, IF ANY. SOME STATES AND JURISDICTIONS OUTSIDE OF THE UNITED STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. YOU ACKNOWLEDGE THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT ARE BASED ON, AND THE LICENSE AND MAINTENANCE FEES UNDER THIS AGREEMENT WOULD BE GREATER IN THE ABSENCE OF, THE LIMITATIONS DESCRIBED ABOVE.
- GENERAL TERMS
5.1 Nondisclosure. You agree that the Products and all information related thereto are Objectivity’s confidential information (“Confidential Information”), and agree (a) to hold such Confidential Information in confidence, (b) not to disclose or make it available, in any form, to any third party, and (c) not to use it for any purpose other than as specified in this Agreement. In addition, you agree to take all reasonable steps to ensure that such Confidential Information is not disclosed or distributed by its employees or agents (who will be entitled to have access to same only on a need-to-know basis) in violation of any provision of this Agreement. You agree that any information you provide to obtain the Products may be used by Objectivity for its own business purposes.
5.2 Notice. All notices, including notices of address change, required or permitted to be given hereunder will be in English and in writing and will be deemed to have been received (i) when received if hand delivered, (ii) seven (7) days after being properly mailed, postage prepaid, by first class, certified or registered mail, (iii) two (2) business days after being sent by a major express document courier, or (iv) when received if sent by confirmed email in each case addressed to the address of the party indicated herein.
5.3 Governing Law; Jurisdiction. This Agreement is made in accordance with and will be governed and construed under the laws of the State of California, as applied to agreements executed and performed entirely in California by California residents and in no event will this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. In any legal action relating to this Agreement, each party agrees (a) to the exercise of jurisdiction over it by a state or federal court in Santa Clara County, California; and (b) that if such party brings the action, it will be instituted in one of the courts specified in subsection (a) above.
5.4 Export Administration and U.S. Government Rights.
(a) Export Control. You acknowledge that the laws and regulations of the United States restrict the export and re-export of the Products. You agree that you will not export or re-export the Products in any form without first obtaining the appropriate United States and foreign government approval. Notwithstanding the above, downloading of the Product to Cuba, Iran, Sudan, or Syria is strictly prohibited. You hereby agree to comply with the requirements of the U.S. Foreign Corrupt Practices Act (the “Act”) and will refrain from any payments to third parties which would cause Objectivity or you to violate the Act.
- S. Government End Users. The Products are a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government end users acquire the Products with only those rights set forth herein.
5.5 Entire Agreement; Severability and Waiver. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the Products, the services specified herein, and the licensing and providing of service under this Agreement. Objectivity will not be bound by any additional provisions in any order, release, acceptance or other written correspondence from you unless expressly agreed to in writing. All provisions of the Agreement will be and remain in full force and effect with respect to its subject matter. In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in effect. Any waiver (express or implied) by either party of any breach of this Agreement will not constitute a waiver of any other or subsequent breach.
5.6 Nonassignability and Binding Effect. Except in connection with the sale of all or substantially all of Objectivity’s assets or business (by merger or otherwise), any attempted assignment of the rights or delegation of the obligations under this Agreement will be void without the prior written consent of the nonassigning or nondelegating party. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions will be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto.