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 FOR DEMONSTRATION AND EVALUATION PURPOSES ONLY IN AMAZON’S MARKETPLACE (THE “AWS THINGSPAN DEMO”).
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 MAY NOT USE THE SOFTWARE PRODUCTS. THE INFORMATION INCLUDED IN THE AWS THINGSPAN DEMO IS INCORPORATED INTO THE FOLLOWING TERMS AND CONDITIONS BY REFERENCE.
Demonstration and Evaluation License and Maintenance Terms and Conditions
- PRODUCTS LICENSE
1.1 Rights Granted.
(a) Objectivity, Inc. (“Objectivity”) hereby grants to you a nonexclusive and nontransferable license to use the Products solely for your internal operations by an individual user. “Products” means (i) the Objectivity computer products specified in the AWS ThingSpan Demo 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 demonstration purposes only. Deployment and development licenses must be purchased separately from Objectivity. You have no right to transfer such applications or otherwise allow access to any other individual user.. 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) All rights, title and interests (including, but not limited to, copyright, trade secret and other intellectual property right) in and to the content accessed through the Products are the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement grants no rights to such content, and Objectivity disclaims any responsibility arising out of or related to your access and use of the content and intellectual property thereto furthered by use of the Product.
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.
2.1 Term. The term of this Agreement will begin immediately upon usage of the AWS ThingSpan Demo, and will continue throughout your usage of the AWS ThingSpan Demo.
- 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 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.
5.3 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, accessing the Product from 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.
5.4 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.
5.5 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.