Thinstall
Software Evaluation Agreement
(last updated July 2005)
Read this agreement carefully.
YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN
NEGOTIATED AGREEMENT SIGNED BY YOU.
YOU WILL NOT BE GIVEN ACCESS TO THE SOFTWARE UNLESS YOU ACCEPT THE
TERMS OF THIS AGREEMENT.
IF YOU WISH TO USE the Software AS AN EMPLOYEE, CONTRACTOR, OR
AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU
MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO
ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS
AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH
AUTHORIZED PERSONNEL.
IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN LICENSE AGREEMENT WITH
Jitit FOR USE OF THE SOFTWARE, THE TERMS AND CONDITIONS OF SUCH
OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR
CONDITIONS IN THIS AGREEMENT.
This license agreement ("Agreement") is between Jitit, a California
corporation located at 22 Battery Street, Suite 703, San Francisco,
CA 94111 ("Vendor") and the customer (individual or entity) that
has procured the licensed software for use as an end user ("you").
This Agreement covers any computer software program(s) from Vendor
delivered herewith ("Software") and supporting technical
documentation provided with the Software ("Documentation").
1. Definitions.
Effective Date: means the earlier of the date you sign an Order
Form or the date on which the Software is first made available to
you.
Evaluation Period: means a limited evaluation period of thirty (30)
days, beginning on the day that you first receive the Software.
Evaluation Site: means the site from which the Software is being
downloaded or the evaluation site otherwise specified in an Order
Form.
Order Form: means any order on Vendor's standard order form which
is executed by Vendor and you and which references this Agreement.
Each Order Form which references this Agreement shall be deemed a
part of this Agreement.
Software: means the Vendor software product(s) provided in
connection with this Agreement in object code form (or as otherwise
specified in any related Order Form). Unless otherwise noted, the
Software and Documentation are referred to collectively herein as
"Software".
Termination Date: means the earlier of (i) the expiration of the
Evaluation Period or (ii) your breach of any of the terms and
conditions of this Agreement.
2. License.
2.1 Grant of Evaluation License. Subject to the
terms and conditions of this Agreement, Vendor grants you for the
Evaluation Period a non-sublicensable, nonexclusive,
nontransferable license to use the Software internally at the Site
and in accordance with the Documentation solely to test the
Software in a non-production evaluation environment. Any other use
of the Software is expressly prohibited. You will be able to access
the Software only during the Evaluation Period. Unless you enter
into Vendor's standard End User License Agreement and pay the
applicable license fee for the Software (and Vendor issues you a
license key in exchange), the Software will become inoperable and
will automatically expire at the end of the Evaluation Period.
2.2 Copies. You may make as many copies of the
Software as is reasonably necessary for the purpose of evaluating
the Software. You agree to reproduce and include Vendor's copyright
notice on any copies of the Software.
2.3. License Restrictions. You shall not: (a)
modify, translate, adapt, reverse engineer, decompile, disassemble,
or otherwise translate or create derivative works based on the
Software, except solely to the extent expressly permitted by
applicable law and with advance notice of such activity to Vendor;
(b) use the Software to provide any facility management, time
sharing, service bureau, or other similar services to third
parties; (c) rent, lease or sublicense the Software to a third
party; (d) remove any product identification, proprietary,
copyright or other notices contained in the Software; or (e)
disclose or distribute: (i) benchmarks or other comparisons
relating to the Software or (ii) any information relating to the
results of your use of the Software (including relating to
performance, function, or deficiencies of the Software) or
contained in any documentation, report, or questionnaire of
Vendor.
3. Ownership. The Software is the property of, or
is licensed to, Vendor. Vendor (or its third-party licensors)
retains all right, title and interest in and to the Software and
any copies thereof. All improvements, updates, modifications or
enhancements of the Software and any other deliverables shall
remain the property of Vendor (including any changes which
incorporate any of your ideas, feedback or suggestions). All rights
not specifically granted herein shall be reserved to Vendor.
4. Termination of Agreement.
4.1 Termination. This Agreement (and all licenses
granted to you hereunder) shall terminate on the Termination Date.
Upon termination of this Agreement, you shall cease any and all use
of any Software and destroy all copies thereof and so certify to
Vendor in writing.
4.2 Survival. Sections 2.3 (License Restrictions),
3 (Ownership), 4 (Termination of Agreement), 5 (Disclaimer of
Warranties), 6 (Limitation of Remedies and Damages), 7
(Confidential Information), 8 (Export Compliance) and 9 (General)
shall survive any termination or expiration of this Agreement.
5. Disclaimer of Warranties. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ALL SERVICES ARE
PROVIDED TO you "AS IS" AND WITH ALL FAULTS. NEITHER VENDOR NOR ITS
LICENSORS MAKES ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF title, MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, or non-infringement.
6. Limitation of Remedies and Damages.
6.1 Neither you nor Vendor (Including Vendor's
suppliers) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE
OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND
(INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN
ADVANCE. THIS SECTION 6.1 SHALL NOT APPLY TO you WITH RESPECT TO
ANY CLAIM ARISING UNDER THE SECTIONS TITLED "Grant of Evaluation
License," "LICENSE RESTRICTIONS" OR "CONFIDENTIAL INFORMATION".
6.2 The parties agree that the limitations
specified in this Section 6 will survive and apply even if any
limited remedy specified in this Agreement is found to have failed
of its essential purpose.
7. Confidential Information. Any software,
documentation or technical information provided by Vendor (or its
agents) shall be deemed "Vendor Confidential Information" without
any marking or further designation. Except as expressly authorized
herein, you will hold in confidence and not use or disclose any
Vendor Confidential Information. You acknowledge that disclosure of
Vendor Confidential Information would cause substantial harm to
Vendor that could not be remedied by the payment of damages alone
and therefore that upon any such disclosure by you, Vendor shall be
entitled to appropriate equitable relief in addition to whatever
remedies it might have at law.
8. Export Compliance. You acknowledge that the
Software is subject to export restrictions by the United States
government and import restrictions by certain foreign governments.
You shall not, and shall not allow any third-party to, remove or
export from the United States or allow the export or re-export of
any part of the Software or any direct product thereof: (i) into
(or to a national or resident of) any embargoed or
terrorist-supporting country; (ii) to anyone on the U.S. Commerce
Department's Table of Denial Orders or U.S. Treasury Department's
list of Specially Designated Nationals; (iii) to any country to
which such export or re-export is restricted or prohibited, or as
to which the United States government or any agency thereof
requires an export license or other governmental approval at the
time of export or re-export without first obtaining such license or
approval; or (iv) otherwise in violation of any export or import
restrictions, laws or regulations of any United States or foreign
agency or authority. You agree to the foregoing and warrant that
you are not located in, under the control of, or a national or
resident of any such prohibited country or on any such prohibited
party list. The Software is further restricted from being used for
the design or development of nuclear, chemical, or biological
weapons or missile technology, or for terrorist activity, without
the prior permission of the United States government.
9. General.
9.1 Assignment. This Agreement will bind and inure
to the benefit of each party's permitted successors and assigns.
Vendor may assign this Agreement to any affiliate or to any
assignee of all or substantially all of Vendor's assets (whether
pursuant to a merger, change of control or otherwise). You may not
assign or transfer this Agreement, in whole or in part, without
Vendor's written consent. Any attempt to transfer or assign this
Agreement without such written consent will be null and void.
9.2 Severability. If any provision of this
Agreement shall be adjudged by any court of competent jurisdiction
to be unenforceable or invalid, that provision shall be limited to
the minimum extent necessary so that this Agreement shall otherwise
remain in effect.
9.3 Governing Law; Jurisdiction and Venue. This
Agreement shall be governed by the laws of the State of California
and the United States without regard to conflicts of laws
provisions thereof, and without regard to the United Nations
Convention on the International Sale of Goods. Unless waived by
Vendor in its sole discretion, the jurisdiction and venue for
actions related to the subject matter hereof shall be the
California State and United States federal courts located in San
Francisco, California, and both parties hereby submit to the
personal jurisdiction of such courts.
9.4 Attorneys' Fees and Costs. The prevailing
party in any action to enforce this Agreement will be entitled to
recover its attorneys' fees and costs in connection with such
action.
9.5 Notices and Reports. Any notice or report
hereunder shall be in writing. If to Vendor, such notice or report
shall be sent to Jitit, 22 Battery Street, Suite 703, San
Francisco, CA 94111, Attn: Legal. If to you, such notice or report
shall be sent to the address you provided upon placing your order.
Notices and reports shall be deemed given: (i) upon receipt if by
personal delivery; (ii) upon receipt if sent by certified or
registered U.S. mail (return receipt requested); or (iii) one day
after it is sent if by next day delivery by a major commercial
delivery service.
9.6 Amendments; Waivers. No supplement,
modification, or amendment of this Agreement shall be binding,
unless executed in writing by a duly authorized representative of
each party to this Agreement. No waiver will be implied from
conduct or failure to enforce or exercise rights under this
Agreement, nor will any waiver be effective unless in a writing
signed by a duly authorized representative on behalf of the party
claimed to have waived.
9.7 Entire Agreement. This Agreement is the
complete and exclusive statement of the mutual understanding of the
parties and supersedes and cancels all previous written and oral
agreements and communications relating to the subject matter of
this Agreement. No provision of any purchase order or in any other
business form employed by you will supersede the terms and
conditions of this Agreement, and any such document issued by a
party hereto relating to this Agreement shall be for administrative
purposes only and shall have no legal effect. Notwithstanding the
foregoing, if you have entered into a separate written license
agreement signed by Vendor for use of the Software, the terms and
conditions of such other agreement shall prevail over any
conflicting terms or conditions in this Agreement.
9.8 Independent Contractors. The parties to this
Agreement are independent contractors. There is no relationship of
partnership, joint venture, employment, franchise or agency created
hereby between the parties. Neither party will have the power to
bind the other or incur obligations on the other party's behalf
without the other party's prior written consent.
9.9 Force Majeure. Neither party shall be liable
to the other for any delay or failure to perform any obligation
under this Agreement (except for a failure to pay fees) if the
delay or failure is due to unforeseen events, which occur after the
signing of this Agreement and which are beyond the reasonable
control of the parties, such as strikes, blockade, war, terrorism,
riots, natural disasters, refusal of license by the government or
other governmental agencies, in so far as such an event prevents or
delays the affected party from fulfilling its obligations and such
party is not able to prevent or remove the force majeure at
reasonable cost.
9.10 Government End-Users. The Software and
Documentation provided under this Agreement are commercial computer
software programs developed solely at private expense. As defined
in U.S. Federal Acquisition Regulations (FAR) section 2.101 and
U.S. Defense Federal Acquisition Regulations (DFAR) sections
252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as
applicable to you), the Software and Documentation licensed in this
Agreement are deemed to be "commercial items" and "commercial
computer software" and "commercial computer software
documentation." Consistent with FAR section 12.212 and DFAR section
227.7202, (or such other similar provisions as may be applicable to
you), any use, modification, reproduction, release, performance,
display, or disclosure of such commercial software or commercial
software documentation by the U.S. government (or any agency or
contractor thereof) shall be governed solely by the terms of this
Agreement and shall be prohibited except to the extent expressly
permitted by the terms of this Agreement.
9.11 Injunctive Relief. You understand and agree
that, notwithstanding any other provision of this Agreement, your
breach of the provisions of this Agreement will cause Vendor
irreparable damage for which recovery of money damages would be
inadequate, and that Vendor shall therefore be entitled to obtain
timely injunctive relief to protect Vendor's rights under this
Agreement in addition to any and all remedies available at law.
9.12 Third-Party Code. If designated in the
Documentation, the Software may contain or be provided with certain
third-party code (including code which may be made available to you
in source code form). Ownership, use, warranty and modification
rights with respect to any such designated code shall be as
expressly set forth in the Documentation.