Evaluation Agreement


TERMS AND CONDITIONS

THIS EVALUATION AGREEMENT (THIS "AGREEMENT") APPLIES TO THE DOWNLOAD AND EVALUATION SOFTWARE OF THE APCERA PLATFORM ENTERPRISE EDITION, INCLUDING ANY UPDATES, UPGRADES, BUG FIXES THAT ARE MADE AVAILABLE OR ACCESSIBLE TO YOU, THE "SOFTWARE".

BY CLICKING SUBMIT, DOWNLOADING, ORDERING, OR IN ANY WAY USING THE SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (B) YOU UNCONDITIONALLY CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS LICENSE AGREEMENT WITH APCERA; (C) YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; DOWNLOADING, INSTALLING AND USING THE SOFTWARE IS STRICTLY PROHIBITED. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY (OR OTHER ENTITY), YOU REPRESENT THAT YOU ARE AN EMPLOYEE, CONSULTANT OR AGENT OF SUCH COMPANY (OR OTHER ENTITY), AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).

FOR THE PURPOSE OF THIS AGREEMENT, YOU AND, IF APPLICABLE, ANY OTHER EMPLOYEES, CONSULTANTS OR AGENTS OF YOUR COMPANY (OR OTHER ENTITY) CONSTITUTES "YOU" OR "YOUR".

THIS AGREEMENT CONSTITUTES A LEGALLY ENFORCEABLE AGREEMENT BY AND BETWEEN YOU AND APCERA, INC. ("APCERA").

EVALUATION LICENSE TERMS

Subject to the terms and conditions of this Agreement, Apcera hereby grants You a limited, personal, non-sublicensable, non-transferable, non-exclusive, revocable license to use the Software in a non-production environment solely for Your internal business purposes (and only in accordance with all Apcera-provided documentation and instructions). Notwithstanding the foregoing, You acknowledge that certain portions of the Software are licensed to You, under open source licenses (please see: https://github.com/apcera/open-source-licenses).

LICENSE RESTRICTIONS

Except as expressly and unambiguously permitted by this Agreement, You shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify or distribute the Software; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited); (iii) rent, lease or use the Software for timesharing or service bureau purposes, or otherwise use the Software for the benefit of any third party; or (iv) use the Software to help develop any other product or service. You shall maintain and not remove or obscure any proprietary (including, copyright) notices on the Software. As between the parties, title, ownership rights and intellectual property rights in and to the Software, and any copies, portions or derivatives thereof, shall remain with Apcera and its suppliers. The Software is protected by the copyright laws of the United States and international copyright treaties. You acknowledge that the Software is licensed, not sold, to You. This Agreement does not give You any rights not expressly granted herein.

TERM

This Agreement will terminate after 30 days unless terminated earlier by either party on two (2) days written notice, for any or no reason. Upon termination, the license granted above shall automatically terminate. All other provisions, which by their nature should survive termination, shall survive.

SUPPORT

Support is not available for evaluation Software.

INDEMNITY

You agree that Apcera shall have no liability whatsoever for any use You make of the Software. You shall indemnify and hold harmless Apcera from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from (i) Your use of the Software, (ii) access to any part of the Software (including, without limitation, any interface) by any third party You give access to, as well as (iii) Your failure to comply with any term of this Agreement.

WARRANTY

THE SOFTWARE IS PROVIDED “AS IS” AND APCERA AND ITS LICENSORS DISCLAIM ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, RELATING TO THE SOFTWARE, THE DOCUMENTATION OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SOFTWARE WILL BE ERROR FREE.   

LIMITATION OF LIABILITY

APCERA’S LIABILITY UNDER THIS AGREEMENT IN RESPECT OF ANY ONE OR MORE EVENTS OR SERIES OF EVENTS (WHETHER CONNECTED OR UNCONNECTED) OCCURRING SHALL BE LIMITED TO $1,000.00 USD. NEITHER APCERA NOR ITS LICENSORS SHALL IN ANY EVENT BE LIABLE UNDER THIS AGREEMENT FOR LOSS OF PRODUCTION, LOSS OF DATA, LOSS OF BUSINESS OR PROFIT OR ANY SPECIAL INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN EVEN IF APCERA OR ITS LICENSORS WERE ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

GENERAL PROVISIONS

Entire Agreement. This agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. Any modifications, amendments or waivers shall only be effective if agreed to by the parties in writing.

Governing Law and Dispute Resolution. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California will be the jurisdiction in which any suits should be filed if they relate to this Agreement.

Assignment. You may not assign, delegate or transfer (by sale, merger, operation of law or otherwise) this agreement or any right, title, interest or obligation hereunder without the prior written consent of Apcera. Any attempted or purported assignment, delegation or transfer in violation of the foregoing will be null and void and without effect. Apcera may assign this agreement without Customer’s prior written consent.

EXPORT CONTROL

You represent and warrant that You are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods. You hereby acknowledge and agree that unless prior authorization is obtained from the U.S. Department of Commerce, or other competent government authorities in the case of non-U.S. export laws and/or regulations, You shall not export, re-export, or release, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the Export Administration Regulations of the U.S. Department of Commerce (“EAR”)), or any controlled products restricted by other applicable national laws and/or regulations, received from Apcera, or export, directly or indirectly, any direct product of such technology, software, or software source code (as defined in Party 734 of the EAR) to any destination or country to which the export, re-export or release of the technology, software, software source code, or direct product is prohibited by the EAR or non-U.S. laws and/or regulations. You further agree to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product, technical data, software or software source code acquired from Apcera under this Agreement or any direct product of such technical data, software or software source code. Accordingly, You shall not sell, export, re-export, transfer, divert or otherwise dispose of any such product, technical data, or software source code, directly or indirectly to any person, firm, entity, country or countries prohibited by U.S. or applicable non-U.S. law. Further, You shall give notice of the need to comply with such laws and regulations to any person, firm or entity which it has reason to believe is obtaining any such product, technical data, software or software source code from Customer with the intention of exportation. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations under this Agreement. If government approvals cannot be obtained, Apcera may terminate, cancel or otherwise be excused from performing any obligations it may have under this Agreement.

PRIVACY

From time to time, Apcera may collect and process technical and related information, about Your use of the Software which may include Internet protocol addresses, hardware identification, operating system, application software and other non-personally identifiable usage information which may be used to facilitate the provision of updates, the development of aggregate, de-indentified usage data relating to the Software, and to improve Apcera’s products or services.

CONTACT US

If you have any questions about this agreement, please contact us at legal@apcera.com.

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