PLEASE READ THIS EVALUATION LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SOFTWARE AND SERVICES OFFERED BY AEROSPIKE, INC. (“AEROSPIKE”). BY DOWNLOADING THE AEROSPIKE SOFTWARE ON A TRIAL OR EVALUATION BASIS (AN “EVALUATION”), YOU OR THE ENTITY THAT YOU REPRESENT (“LICENSEE”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE MASTER LICENSE AGREEMENT CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS. PROVISION OF THE PRODUCT IS CONDITIONED ON, AND LICENSEE’S INSTALLATION OR USE OF THE PRODUCT SHALL CONSTITUTE, LICENSEE’S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS.
- Grant of License and Restrictions. Subject to the terms hereof and any applicable user/use limitations, Aerospike grants Licensee a personal, nonsublicensable, nonexclusive, limited right to use the licensed product downloaded for an Evaluation in object code form only (the “Product”) subject to any of the limitations herein and only in accordance with Aerospike’s applicable user documentation. Licensee may possess only the number of copies of the Product that you download for an Evaluation (an “Evaluation Product”), may be used only during the Evaluation Term (defined below) and only for purposes of internal evaluation, and not for any production use. Aerospike retains ownership of all Products and rights therein and Licensee will maintain the copyright notice and any other notices that appear on the Product on any copies and any media. Licensee will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Product (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, any Product (except as expressly and specifically authorized by Aerospike), (iii) possess or use any Product, or allow the transfer, transmission, export, or re-export of any Product or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency, (iv) disclose to any third party any benchmarking or comparative study involving any Product, (v) modify any Product, or (vi) run any production instance of an enterprise edition version of a Product with any community edition version of a Product. Prior to disposing of any media or apparatus containing any part of the Product, Licensee shall completely destroy any Product contained therein. All the limitations and restrictions on Products in this Agreement also apply to documentation.
- Support and Maintenance. Aerospike will use reasonable commercial efforts to provide the support and maintenance services for the Evaluation Product as and to the extent described in Aerospike’s then-current Support and Maintenance Terms. Licensee shall not use any Support Services for any unsupported application, including, without limitation, any open source or community edition of any Aerospike product, without paying Aerospike’s then-current enterprise subscription fees. Aerospike shall be entitled to invoice Licensee (and Licensee shall pay) Aerospike’s then-current enterprise subscription fees for every instance of any Aerospike product (including, without limitation, any open source or community edition thereof) in connection with which Licensee uses (or otherwise benefits from) any Support Services.
- Indemnification. Aerospike shall defend, indemnify and hold Licensee harmless from liability to third parties resulting from infringement by a Product of any United States patent or any copyright or misappropriation of any trade secret, provided Aerospike is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Aerospike will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to a Product or portions or components thereof to the extent (i) not created by Aerospike, (ii) made in whole or in part in accordance to Licensee specifications, (iii) that are modified after delivery by Aerospike, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Licensee’s use of such Product is not strictly in accordance herewith. Licensee will indemnify Aerospike from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Aerospike’s indemnity obligation by the preceding sentence.
- Embedded Reporting/Compliance Routine; Data Access and Use; Feedback. Licensee acknowledges that Products (excluding the Enterprise Edition of the Product) may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Products and/or the systems on which they are installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith), and provide e-mail and other reports to Aerospike; this includes, without limitation, information on usage that Aerospike uses for billing purposes. Aerospike will be entitled to inspect the installation and configuration of such Products and systems from time to time on reasonable notice. Provided it does not identify Licensee, Aerospike will be free to use for development, diagnostic and corrective purposes any data and information it so collects relating to diagnosis, problems, systems, performance, use or functionality, and may allow others to do so. Notwithstanding anything else, Licensee agrees that Aerospike may freely exploit and make available any and all feedback, suggestions, ideas, enhancement requests, recommendations or other information provided by Licensee any other party relating to the Products.
- No Warranty. ALL PRODUCTS AND SERVICES (INCLUDING, WITHOUT LIMITATION, EVALUATION PRODUCTS) ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND FROM ANYONE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, AEROSPIKE DOES NOT WARRANT RESULTS OF USE OR THAT THE PRODUCTS ARE BUG FREE OR THAT THE PRODUCT’S USE WILL BE UNINTERRUPTED.
- Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE HEREIN OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, NEITHER AEROSPIKE NOR ANY LICENSOR SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER HEREOF OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY DOLLAR AMOUNTS OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE PRODUCT IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE PRODUCT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). USE OF THE PRODUCT IN HIGH RISK ACTIVITIES IS NOT AUTHORIZED. THE PARTIES AGREE THAT THIS SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT AEROSPIKE WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.
- Confidentiality. Licensee understands that Company has disclosed or may disclose information relating to Company’s technology or business, including, without limitation, the Products and any other software, documentation, updates, modifications, or new releases thereof and the existence, terms and conditions of this Agreement (hereinafter collectively referred to as “Proprietary Information”). Licensee agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that Licensee takes with its own proprietary information, but in no event will Licensee apply less than reasonable precautions to protect such Proprietary Information. Nothing in this Agreement will prevent Licensee from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that Licensee gives Company reasonable prior notice of such disclosure to contest such order.
- Miscellaneous. Neither this Agreement nor the licenses granted hereunder are assignable or transferable (and any attempt to do so shall be void); provided that either party may assign and transfer the foregoing to a successor to substantially all of (i) in the case of Aerospike, Aerospike’s Product business or assets or, (ii) in the case of Licensee, Licensee’s business for which Products are licensed (but if the authorized use is not limited, the assignee is not licensed to expand use beyond Licensee’s bona fide pre-assignment use plus reasonably expected growth assuming the assignment and related transactions had not occurred). The provisions hereof are for the benefit of the parties only and not for any other person or entity. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be deemed to have been made in, and shall be construed pursuant to 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 or the Uniform Computer Information Transactions Act. 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 hereof and any waivers or amendments shall be effective only if made in a writing executed by authorized representatives of both parties; however, any pre-printed or standard terms of any Licensee purchase order, confirmation, or similar form, even if signed by the parties after the effective date hereof, shall have no force or effect. The substantially prevailing party in any action to enforce this agreement will be entitled to recover its attorney’s fees and costs in connection with such action.