END USER LICENSE AGREEMENT BETWEEN 27 SOFTWARE AND FREE TRIAL CUSTOMER
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
The software which is the subject of this Free Trial License Agreement is known as “DXterity8” (the “Product”). The Product and all accompanying documentation is licensed and not sold. The Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. 27 Software owns intellectual property rights in the Product. The Licensee’s (“the Customer’s”) license to download, use, copy, or change the Product is subject to these rights and to all the terms and conditions of this Software Free Trial License Agreement.
CUSTOMER MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT BEFORE CUSTOMER WILL BE ALLOWED TO DOWNLOAD THE SOFTWARE PRODUCT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MUST EXIT THE SIGN-UP PAGE AND IS THEREBY PROHIBITED FROM INSTALLING, USING OR COPYING THE SOFTWARE PRODUCT.
BY SELECTING THE “SIGN UP” OPTION AND DOWNLOADING THE SOFTWARE PRODUCT OR BY INSTALLING, USING, OR COPYING THE SOFTWARE PRODUCT, CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
A. “Hosted Environment” means a hardware/software system combination under the control of 27 Software (the “Licensor”), on which the Product, or any portion thereof, is run.
B. “Services” means collectively, the hosting and the support services as described in Section 4 of this Agreement.
C. “Users” means individuals who have signed up for a 14-day Free Trial. All Users are subject to the Confidentiality provisions of Section 8 of this Agreement.
3. LICENSE GRANT
A. License. This Agreement entitles the Customer (“Licensee”) to install one downloadable version of the Product. The Customer shall not install the thick client on more than one computer. In addition, the Customer may not make an archival copy of the Product.
Subject to the Customer’s compliance with the terms of this Agreement during the Free Trial Term, 27 Software hereby grants to the Customer a limited, non-exclusive, non-transferable, non-assignable, right and license to use the Product and the generated code for the approved number of Users (see above) via remote access to the Hosted Environment through the Internet (including any related Product documentation supplied therewith) solely for the Customer’s own internal purposes, and in accordance with all applicable documentation provided by 27 Software. Such right and license is not for distribution, transfer, sale or use for the benefit of any third party.
B. License Restrictions.
1. The Customer (including its directors, officers, employees, agents, affiliates, parent, subsidiaries, consultants, advisors and other representatives, including legal counsel, accountants and financial advisors) shall not cause or permit the reverse engineering, disassembly, or de-compilation of the Product, or otherwise attempt to derive the source code for the Product. The Customer shall not frame or mirror any content forming part of the Product, other than on the Customer’s own intranets or otherwise for its own internal business purposes; or access the Product in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Product. The Customer shall not sell, rent, redistribute, assign, sublicense or grant a security interest in or otherwise transfer any right in the Product. The Customer may not modify the Product or create any derivative work of the Product or its accompanying documentation. Derivative works include, but are not limited to, translations. The Customer may not alter any files or libraries in any portion of the Product. The Customer may not copy any part of the Product except to the extent that licensed use inherently demands the creation of a temporary copy stored in computer memory and not permanently affixed on a storage medium. 27 Software and/or its suppliers, as applicable, shall retain ownership in all proprietary and intellectual property rights (including, without limitation, copyrights, trade secrets, and patent rights) to the Product and Services and in all tradenames, trademarks, and service marks associated or displayed with the Product or Service.
2. The License is also subject to the terms and conditions of the licensing agreements of any open source software utilized by 27 Software in creating the Product, including, without limitation, APACHE, MIT, GPPL-GNU or other software code holding institutions. The software may include third party JDBC driver files. These drivers and corresponding end user licenses are set forth in the jdbc directory of the DbVisualizer distribution. By accepting this EULA Customer agrees to applicable license terms for third party software in the distribution. Such licensing agreements are accessible to Customer on-line.
C. Minimum Operating Requirements. The Product must be used on equipment that meets or exceeds 27 Software’s recommended specifications. Such specifications are available by request from Customer Support Services.
C. Standard Customer Support Services. 27 Software, or its designee(s), shall provide telephone and email support between 8:00 a.m. and 5:00 p.m. (Eastern Time Zone) Monday-Friday, except on holidays recognized by 27 Software or its designee(s), telephone (980) 949-0014, or Customer Support via email: firstname.lastname@example.org.
5. FEES, PAYMENT TERMS and expenses
A. Invoicing & Payment. There are no fees due for this Free Trial.
6. TERM AND TERMINATION
7. CUSTOMER RESPONSIBILITIES
A. Definition of Confidential Information. For purposes of this Section, both 27 Software and the Customer are a “Party” as defined below. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Discloser”) disclosed to the other Party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, but not limited to: the terms and conditions of this Agreement; the Product; business and marketing plans; technology and technical information; product designs; and business processes. Confidential Information) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) was independently developed by the Recipient without breach of any obligation owed to the disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Discloser.
B. Confidentiality. The Customer (including its directors, officers, employees, agents, affiliates, parent, subsidiaries, consultants, advisors and other representatives, including legal counsel, accountants and financial advisors) shall not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, except with the Discloser’s express, prior written permission.
C. Protection. The Customer agrees to protect the confidentiality of the Confidential Information of the other 27 Software in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
D. Compelled Disclosure. If the Customer is compelled by law to disclose Confidential Information of 27 Software, it shall provide 27 Software with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at 27 Software’s cost, if 27 Software wishes to contest the disclosure.
F. Separate Mutual Non-Disclosure Agreement. In the event that the Parties to this Agreement have entered into a separate and more detailed Mutual Nondisclosure Agreement, then the terms and conditions of that agreement shall supersede those contained in this Agreement.
9. proprietary rights
A. Reservation of Rights. Subject to the limited rights expressly granted hereunder as well as the Restrictions enumerated Under Section 3 of this Agreement, 27 Software reserves all rights, title and interest in and to the Product, including all related intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.
B. Suggestions. 27 Software shall have a royalty-free worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Product any suggestions, enhancement requests, recommendation or other feedback provided by the Customer or its Users relating to the operation of the Product.
10. WARRANTIES & Disclaimers
A. Warranties. Each Party represents and warrants that it has the legal power to enter into this Agreement.
B. Product Warranty. Upon the proper installation of the Product with the Customer, 27 Software represents and warrants that, throughout the Free Trial period, (i) it will provide the Product in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Product shall perform materially in accordance with the User Guide; (iii) the Product will not contain or transmit to the Customer any Malicious Code (except for any Malicious Code contained in User-uploaded attachments or otherwise originating from Users); (iv) it owns or otherwise has sufficient rights in the Product to grant to the Customer the rights to use the Product granted herein; and (v) the Product does not infringe any intellectual property rights of any third party.
C. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, 27 Software MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 27 Software makes no warranty that the product will meet the Customer’s requirements or operate under the Customer’s specific conditions of use, or that operation of the Product will be secure, error free, or free from interruption. THE CUSTOMER MUST DETERMINE WHETHER THE PRODUCT SUFFICIENTLY MEETS ITS REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. THE CUSTOMER BEARS SOLE RESPONSIBILITY AND ALL LAIBILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE PRODUCT TO MEET THE CUSTOMER’S REQUREMENTS. 27 Software WILL NOT, UNDER ANY CIRCUMSTANCESS BE RESPONSIBLE FOR OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
UNDER NO CIRCUMSTANCES SHALL 27 Software, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO THE CUSTOMER OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE PRODUCT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY OR THE NEGLIGENCE OF 27 Software OR ANY OTHER PARTY, EVEN IF 27 Software IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS 27 Software’s ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.
D. Indemnification by the Customer of 27 Software, its directors, officers, employees and agents (collectively, “27 Software Indemnified Parties”).
Intellectual Property Indemnification. The Customer shall to the fullest extent permitted by law, indemnify, hold harmless, and at the option of the Customer, decide in its sole discretion, defend or pay for the defense of the 27 Software Indemnified Parties from and against any and all liability, claims, suits, causes of action, liens, demands, losses, damages (including fines, penalties, incidental and consequential damages), settlements, judgments, costs and expenses (including reasonable attorneys’ fees and any other costs of defense) of every kind, nature, or description arising out of or in connection with, caused by, resulting from, or occurring during the course of the performance of this Agreement, whether directly or indirectly, where such liability is i) founded upon or grows out of, directly or indirectly, the acts, errors, omissions, undertakings, representations or warranties of the Customer, its officers, employees or agents, or any other person or party for which the Customer is legally liable; and ii) is attributable in any manner and to any extent to any claimed infringement of any copyright, patent, intellectual property right, or other intangible property right by a third party. The Customer shall not be required to defend, indemnify, or hold harmless the 27 Software Indemnified Parties when the claimed infringement occurs in or due to the content of any materials provided to the Customer by 27 Software.
11. Limitation of liability.
A. Limitation of Liability. The Customer’s remedy for a breach of this Agreement or of any warranty included in this Agreement is the correction or replacement of the Product. Selection of whether to correct or replace shall be solely at the discretion of 27 Software. 27 Software reserves the right to substitute a functionally equivalent copy of the Product as a replacement. If 27 Software is unable to provide a replacement or substitute Product or corrections to the Product, the Customer’s sole alternate remedy shall be a refund of the purchase price for the Product. Any claim must be made within the applicable warranty period. All warranties cover only defects arising under normal use and do not include malfunctions or failure resulting from misuse, abuse, neglect, alternation, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, or damage determined by 27 Software to have been caused by the Customer. All limited warranties on the Product are granted only to the Customer and are non-transferable.
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
12. GENERAL TERMS
A. Counterparts. This Agreement may be executed in any number of counterparts or duplicate originals.
B. Entire Agreement. This Agreement is the complete agreement of the parties, and this Agreement supersedes all prior agreements concerning the subject matter hereof.
C. Mediation. 27 Software and the Customer each recognize that litigation is an expensive, resource-consuming process for resolving business disputes. Therefore, 27 Software and the Customer agree that if any controversy or dispute arises out of or relates to the Agreement, or any breach of the Agreement, they will attempt in good faith to settle the dispute expeditiously through mediation within sixty (60) days. 27 Software and the Customer shall attempt to mutually agree as to the provider of neutral services, and the parties shall share the costs of such mediation equally. In the event the parties cannot mutually agree to a neutral mediator or the deadline described in this Section is not met, unless an extended time frame is consented to by both parties in writing, either Party may commence litigation or any other legal proceeding that is appropriate.
D. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without giving any effect to the choice of law principles thereunder. All disputes under this Agreement that are not resolved pursuant to the Mediation provisions contained in Section 12(D) herein, shall be resolved by litigation initiated and concluded in the appropriate North Carolina Federal District Court, or the Iredell County District or Superior Court, and the Parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any otherwise available jurisdictional or venue defenses.
E. Independent Contractors. The parties are independent contractors. This Agreement shall not constitute either Party as the employee, legal representative or agent of the other. Neither Party may bind the other in any way.
F. Force Majeure. Neither Party shall be liable or deemed in default for any delay or failure in performance of an order or any part of this Agreement to the extent that such delay or failure is due to causes beyond its reasonable control, including but not limited to: accident, fire, industry-wide strike, embargo, act of the government, war, terrorist acts or national emergency requirement, act of God, act of the public enemy or any other cause beyond the reasonable control of the Customer or 27 Software. If any of the forgoing condition occurs, the Party delayed or unable to perform shall use commercially reasonable efforts to give notice to the other Party.
G. Publicity and Advertising. Notwithstanding anything contained herein or in any other agreement to the contrary, 27 Software shall have the right to reference the Customer and the nature of the Services provided hereunder in 27 Software business development and marketing efforts, including without limitation its web site. The Customer agrees to allow 27 Software to issue a press release upon execution of this Agreement, and to use the Customer’s name in any listing of customers of 27 Software.
H. Waiver and Estoppels. Either Party’s failure at any time to enforce any of the provisions of this Agreement or any right with respect thereto, or to exercise any option herein provided, will in no way be construed to be a waiver of such provisions, rights, or options or in any way to affect the validity or enforcement of this Agreement. All waivers must be in writing to be effective. The exercise or failure to exercise by 27 Software of any right or options under the term or covenants herein shall not preclude or prejudice the exercising thereafter of the same or any other right under this Agreement or under applicable law.
I. Severability. If any provision or portion of a provision of this Agreement is invalid or unenforceable under applicable statute or rule of law (including, without limitation, if any remedy failed its essential purpose), it is only to that extent to be deemed omitted, and such unenforceability shall not affect the validity or enforceability of any other provision of this Agreement. This Agreement shall then be construed as if such unenforceable provision(s) had never been contained herein.