Evaluation License Agreement
THIS IS A BINDING AGREEMENT (“AGREEMENT”) FOR THE ACCOMPANYING RAIMA INC. (“RAIMA”) SOFTWARE PRODUCT(S) AND ACCOMPANYING DOCUMENTATION, INCLUDING ON-LINE, READ-ME OR HELP FILES, IF ANY (COLLECTIVELY, THE “PRODUCT”). BY DOWNLOADING OR INSTALLING THE PRODUCT, YOU AGREE ON BEHALF OF YOURSELF AND YOUR EMPLOYER, IF ANY, TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT INSTALL, DOWNLOAD OR USE THE PRODUCT AND SHOULD CLICK “DO NOT ACCEPT.”
BY ACCEPTING THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU HAVE BEEN SO AUTHORIZED BY YOUR EMPLOYER, IF ANY, HAVE READ AND UNDERSTOOD THIS AGREEMENT, AND HAVE SOUGHT OR WAIVED THE RIGHT TO SEEK LEGAL COUNSEL PRIOR TO ACCEPTING THIS AGREEMENT.
Hereinafter “You” shall mean you and your employer, if any.
1. Limited License: Subject to the terms and conditions of this Agreement, Raima grants You a nonexclusive, nontransferable, non-assignable, non-sublicensable, limited right and license to install, download and execute the object code only of the Product for internal use and development purposes only, provided that such internal use and development will be restricted to support the development of Your Application(s) (as defined below) and that the Product will not be used or disclosed for production, sale or distribution to third parties. You may (i) install the Product on one (1) computer only, (ii) make one (1) copy of the Product for back-up and archival purposes, provided that all Raima proprietary and other legal notices are reproduced in such copy and (iii) physically transfer the Product from one computer to another, provided that the Product is installed on only one (1) computer at a time and retains all proprietary and legal notices.
2. Licensed Application(s): The Application(s) may not be a database management system product, a database query product, or a database revision product, in each case that could be used to commercially compete with any Raima product.
3. Restrictions: You may not reproduce, market, sell or distribute the executable components of the Product, with or without modifications, to any third parties, either alone or as an embedded component of the Application(s), without first executing a separate written royalty or fee bearing license agreement with Raima upon mutually agreeable terms and conditions. You may not, and You agree that you will prohibit Your employees, contractors and agents from: (i) selling, transferring, assigning or distributing the Product; (ii) modifying the Product; (iii) reverse engineering, disassembling, or decompiling the Product, or otherwise attempting to discover the source code thereof; (iv) sublicensing the Product or using the Product for commercial time-sharing or service bureau use, or otherwise renting or leasing the Product; (v) removing, obscuring or altering any copyright, trademark or other proprietary or legal notices on or in the Product; and (vi) disclosing the results of any performance or benchmark tests run on the Product without Raima’s prior written consent. You may obtain and modify the source code of the Product only by executing a separate internal development agreement with Raima.
4. No Technical Support: Raima is not obligated under this Agreement to provide any technical support, phone support, updates or upgrades to You for the Product. Technical support for the Product may be available from Raima under a separate support agreement.
5. Updates and Duplicate Copies: If the Product is identified by Raima as an “Update,” You will promptly replace all existing copies of the prior version of the Product being updated with such Update and destroy all copies so replaced.
6. DISCLAIMER OF WARRANTY. RAIMA AND ITS THIRD PARTY SUPPLIERS,IF ANY, PROVIDE THE PRODUCT “AS IS” WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO RAIMA THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. RAIMA WILL NOT BE LIABLE OR IN ANY WAY RESPONSIBLE FOR THE COMMERCIAL SUCCESS OR FAILURE OF THE APPLICATION(S), OR OF ANY ENHANCEMENT THEREOF. RAIMA MAKES NO WARRANTIES CONCERNING ANY THIRD PARTY PRODUCT. Should the Product prove defective, You, and not Raima, assume the entire cost of any service and repair. This disclaimer of warranty constitutes an essential part of this agreement.
7. LIMITATION OF REMEDIES. IN NO EVENT WILL RAIMA OR ITS THIRD PARTY SUPPLIERS, IF ANY, BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES OR OTHER RELIEF ARISING OUT OF YOUR USE OR INABILITY TO USE THE PRODUCT INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LEGAL FEES, ARISING OUT OF SUCH USE OR INABILITY TO USE THE PRODUCT, EVEN IF RAIMA, ITS THIRD PARTY SUPPLIERS OR AN AUTHORIZED LICENSOR, DEALER, DISTRIBUTOR OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
8. Indemnity: You agrees to defend, indemnify and hold Raima and its directors, officers, shareholders, employees and agents harmless from and against any and all penalties, damages, costs, judgments and any other expenses including, but not limited to, reasonable attorneys’ fees, in-house counsel costs and appellate fees incurred in connection with Your sale, distribution or use of the Product.
9. Proprietary Rights: Your rights in the Product are limited to those specifically granted in this Agreement. Raima and Raima’s third party suppliers, as is the case, shall at all times own all of the intellectual and other proprietary rights associated with the Product, and retain sole right, title, and interest therein.
10. Term and Termination: This Agreement will continue in full force and effect unless and until sooner terminated pursuant to the terms hereof. This Agreement will automatically terminate if You breach any material obligation under this Agreement. Either Raima or You may terminate this Agreement upon written notice to the other party effective upon receipt of such notice. Upon termination of this Agreement: (i) all rights and licenses granted to You herein will automatically and immediately terminate and You will immediately cease using the Product; and (ii) You will promptly destroy any copies of the Product, including back-up copies.
11. Disputes: This Agreement will be governed by the laws of the State of Washington, without reference to conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any dispute arising out of or related to this Agreement will be subject to the exclusive jurisdiction and venue of the Washington State courts of King County, Washington (or, in case of federal jurisdiction, the United States District Court located in the State of Washington).
12. Export Restrictions: You agree to observe and obey all export regulations and rules relating to the export of the Product.
13. U.S. Government End Users. The Product is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire only those rights in the Product that are provided by this Agreement
14. Entire Agreement: This Agreement sets forth the entire agreement between Raima and You with respect to the subject matter hereof and supersedes all prior agreements, understandings and representations between the parties concerning the subject matter hereof
15. Miscellaneous: The terms of this Agreement may not be amended or modified, and no Addendum may be executed, except in a writing executed by an authorized representative of each party. In the event that any provision of this Agreement is held to be invalid or is waived, all other provisions of this Agreement will be deemed severable and enforced. You may not assign, transfer, or delegate any of Your rights or obligations under this Agreement, whether by merger, acquisition, operation of law or otherwise, without the prior written consent of Raima.
–Revised: June, 2010