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CALPONT CORPORATION
BY CHECKING THE "I AGREE TO THE TERMS LISTED ABOVE" CHECKBOX, DOWNLOADING OR INSTALLING INFINIDB ENTERPRISE EDITION, YOU AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST CLICK THE BUTTON THAT INDICATES THAT YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT AND YOU MAY NOT DOWNLOAD, INSTALL, OR USE INFINIDB ENTERPRISE EDITION.
CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT ("AGREEMENT") FOR THE LICENSE OF THE SOFTWARE (DEFINED BELOW) YOU ARE ABOUT TO DOWNLOAD OR INSTALL, INCLUDING THE ACCOMPANYING DOCUMENTATION (THE "DOCUMENTATION"). "CALPONT" MEANS CALPONT CORPORATION. "CUSTOMER" MEANS THE INDIVIDUAL PERSON INSTALLING OR USING THE SOFTWARE ON HIS OR HER OWN BEHALF; OR, IF THE SOFTWARE IS BEING DOWNLOADED OR INSTALLED ON BEHALF OF AN ORGANIZATION, SUCH AS AN EMPLOYER, "CUSTOMER" MEANS THE ORGANIZATION FOR WHICH THE SOFTWARE IS DOWNLOADED OR INSTALLED, AND THE PERSON INSTALLING OR USING THE SOFTWARE REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO DO SO ON CUSTOMER'S BEHALF. "EFFECTIVE DATE" MEANS THE FIRST DATE YOU CLICK THE ACCEPTANCE BUTTON OR DOWNLOAD OR INSTALL THE SOFTWARE.
INFINIDB™ ENTERPRISE EDITION EVALUATION LICENSE AGREEMENT
In consideration of the mutual covenants herein, the parties hereby agree as follows:
1. DEFINITIONS.
(a) "Confidential Information" means, with respect to each party, information that is held in confidence by such party, including information that is designated as confidential or that, by its nature, should be considered confidential, including the terms of this Agreement, information relating to the Software, related documentation, the Feedback, and all other information provided by Calpont that is clearly marked or identified as confidential or disclosed under circumstances that would lead a reasonable person to believe such information is confidential.
(b) "Documentation" means the printed or online written reference material furnished to Customer in conjunction with the Software, including, without limitation, instructions, evaluation testing guidelines, and end user guides.
(c) "Evaluation Period" means the period of time defined in Section 4.
(d) "Intellectual Property Rights" means any and all existing and future worldwide intellectual property rights, including, without limitation, patents, copyrights, trademarks, trade secrets, moral rights and other proprietary rights, and all registrations, applications, renewals, extensions, and combinations of the foregoing.
(e) "Software" means Calpont's InfiniDB Enterprise Edition (or any successor name designated by Calpont), in object code form, excluding any Open Source Software (as defined in Section 2.3) provided with such software. The Software may be pre-release or "beta" software. The "Software" includes Updates.
(f) "Updates" shall mean a modification, error correction, bug fix, new version, or other update to or for the Software, as provided in Calpont's sole discretion.
2. INTELLECTUAL PROPERTY.
(a) License Grant. During the Evaluation Period (as defined in Section 4 below) and subject to Customer's compliance with the terms and conditions of this Agreement, Calpont grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to install and use the Software, in object code form only, and the related Documentation, solely to test and evaluate the Software and in accordance with the Documentation.
(b) Limitations. Customer agrees that it will not, and will not permit, assist, or encourage any third party to: (a) sell, sublicense, lease, rent, loan, lend, transmit, network or otherwise distribute or transfer the Software in any manner to any third party; (b) copy, modify, create derivative works of or translate the Software or Documentation; (c) reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; or (d) remove, obscure or alter Calpont's copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Software. Customer acknowledges and agrees that the Software and Documentation will not be used, and are not licensed for use, in connection with any of Customer's time-critical or mission-critical functions.
(c) Ownership. The Software, Documentation, and all other materials provided by Calpont hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all Intellectual Property Rights in each of the foregoing, are the exclusive property of Calpont and its suppliers. All rights in and to the Software and Documentation not expressly granted to Customer in this Agreement are reserved by Calpont and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Software, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.
(d) Open Source Software. Certain items of software may be provided to Customer with the Software and are subject to "open source" or "free software" licenses ("Open Source Software"). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 2(a) and 2(b). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer's rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Calpont makes such Open Source Software, and Calpont's modifications to that Open Source Software, available by written request at the notice address specified above.
(e) Evaluation Feedback. Customer may provide performance data and feedback to Calpont concerning, among other things, the functionality and performance of the Software, the Documentation and any Updates from time to time (all performance data, reports, comments and suggestions provided by Customer constitute, collectively, the "Feedback"). If Customer provides Feedback to Calpont, Calpont shall have the unrestricted right to use the Feedback at its sole discretion, including to improve or enhance its products. Calpont shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback in any manner.
(f) Software Key and Time-out. Customer acknowledges that the Software may require a software key to enable its use and may include time-out functionality that will render the Software inoperable after a specified time.
3. SUPPORT. Calpont will not provide technical support and maintenance for Software provided for evaluation use.
4. TERM AND TERMINATION. This Agreement and Customer's rights with respect to the Software will commence on the Effective Date and will terminate thirty (30) days from the Effective Date, unless earlier terminated by either party (the "Evaluation Period"). Either party may terminate this Agreement at any time for any reason or no reason by providing the other party five (5) days advance written notice thereof. Upon any expiration or termination of this Agreement, the rights and licenses granted to Customer under this Agreement shall immediately terminate, and Customer shall (a) not access or attempt to access the Software, and (b) return to Calpont (or, at Calpont's request, destroy), the Documentation and all other tangible items in Customer's possession or control that contain Confidential Information. Upon Calpont's request Customer will certify in a writing signed by an executive officer of Customer that Customer has fully complied with this requirement. The rights and obligations of the parties set forth in Sections 2(b) 2(c), 2(e), and 5-8 shall survive termination or expiration of this Agreement for any reason.
5. CONFIDENTIAL INFORMATION. Each party will (a) hold the other party's Confidential Information in strict confidence, (b) limit access to the other party's Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not use the other party's Confidential Information for any purpose except to perform its obligations or exercise its rights under this Agreement. Notwithstanding anything else to the contrary in this Agreement, the receiving party will not be in violation of this Section 5 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party provides the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (w) is or becomes a part of the public domain through no act or omission of the receiving party, (x) was in the receiving party's lawful possession prior to the disclosure, as shown by the receiving party's competent written records, (y) is independently developed by the receiving party without reference to the disclosing party's Confidential Information, as shown by the receiving party's competent written records, or (z) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
6. WARRANTY DISCLAIMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE IS FOR LIMITED EVALUATION PURPOSES ONLY, MAY NOT REPRESENT FINAL PRODUCT FROM CALPONT, AND MAY CONTAIN BUGS, VIRUSES, ERRORS AND OTHER PROBLEMS THAT COULD CAUSE SOFTWARE FAILURES AND OTHER DAMAGES. CUSTOMER'S USE OF THE SOFTWARE IS ENTIRELY AT ITS OWN RISK. THE SOFTWARE, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CALPONT, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, AND ANY UPDATES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE. If the Software is pre-release software: Customer acknowledges that it is in Calpont's sole discretion whether to make generally available a commercial release based on the Software; Calpont has no express or implied obligation to Customer to announce or introduce such a commercial release, and Calpont may not introduce a commercial product similar or compatible with the Software. Accordingly, Customer acknowledges that any research or development that Customer performs regarding the Software or any product associated with the Software is done entirely at Customer's own risk.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CALPONT NOR ITS SUPPLIERS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA) ARISING FROM OR RELATING TO THE SOFTWARE OR THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF CALPONT AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF CALPONT ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). CUSTOMER ACKNOWLEDGES THAT THE TERMS HEREIN REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT CALPONT WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
8. OTHER PROVISIONS.
(a) Governing Law. This Agreement, and all disputes arising out of or related thereto, shall be governed by and construed under the laws of the State of Texas without reference to any conflict of laws principles that would require the application of the laws of a different state. All such disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of Dallas, Texas, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
(b) Assignment. Customer shall not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of Calpont. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Any attempted assignment or transfer in violation of the limitation set forth in this section will be void.
(c) General. This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Any notice required or permitted under this Agreement will be in writing and will be deemed effective upon receipt, when sent by confirmed email or when mailed by first class, registered or certified mail, postage prepaid, to the other party's address as specified in this Agreement or such other address as may be otherwise specified in writing. No waiver or modification of this Agreement shall be valid unless in writing signed by each party. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof. In the event that 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 full force and effect. Customer shall comply with all laws, regulations, rules, ordinances and orders applicable to its use of the Software. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
Copyright Calpont Corporation 2010. All rights reserved.
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