EVALUATION LICENSE AGREEMENT
THIS EVALUATION LICENSE AGREEMENT IS AN AGREEMENT BETWEEN THE ENTITY RECEIVING THE ACCOMPANYING SOFTWARE AND DOCUMENTATION (“CUSTOMER”) AND AXWAY SOFTWARE, HAVING ITS REGISTERED ADDRESS AT PAE LES GLAISINS 74940 ANNECY –LE-VIEUX LISTED IN ANNECY UNDER NUMBER B 433 977 980 (OR, BASED ON WHERE CUSTOMER ACQUIRED THE LICENSES, ONE OF ITS AFFILI-ATES) (“AXWAY”).
THIS AGREEMENT (THIS “AGREEMENT”), GOVERNS THE ACCESS AND USE OF THE SOFTWARE AND DOCUMENTATION THAT ACCOMPANY THIS AGREEMENT.
CLICK-THROUGH AGREEMENT. BY ACCESSING AND USING THE SOFTWAREOR DOCUMENTATION AC-COMPANYING THIS AGREEMENT AND/OR CLICKING ON THE “I ACCEPT” BUTTON OF ANY ELECTRONIC VERSION OF THIS AGREEMENT, YOU (AS THE INDIVIDUAL SIGNING OR CLICKING ON THIS AGREE-MENT) AS THE CUSTOMER REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED ON BEHALF OF CUSTOMER TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER, AND CUSTOMER CON-SENTS TO AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUS-TOMER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “I DO NOT ACCEPT” BUTTON. IF THIS IS AN ELECTRONIC VERSION OF THIS AGREEMENT, DO NOT IN-STALL, COPY OR USE THE SOFTWARE OR DOCUMENTATION, AND IMMEDIATELY RETURN THE SOFT-WAREAND DOCUMENTATION TO AXWAY.
1. SCOPE OF RIGHTS
1.1. License Grant
During a period of 30 days from the date acceptance of this Agreement (“Evaluation Period”), Axway hereby grants to Customer a non exclusive, nontransferable, nonassignable license to access and use the API Manage-ment software on the cloud (collectively, the “Software”) for the sole pur-pose of testing and evaluating the Software only, without the further right to download, sublicense, distribute, transfer or transmit the Software. All li-censes granted are for access and use of the Software in the cloud, and under no circumstances shall Customer be entitled to source code hereunder. Cus-tomer may not access and use the Software in a production environment or for production purposes.
Except as expressly permitted in this Agreement, no express or implied license or right of any kind is granted to Customer and Customer shall not (i) make any additional copies of the right of access and use of the Software; (ii) reverse assemble, decompile, or otherwise translate, or use, copy, modify, or distribute the Software by any means; (iii) remove any copies of the Soft-ware from the cloud; (iv) charge, or allow others to charge, any third party for access and use of the Software; or (v) use the Software in a production environment or for the operation of a service bureau or otherwise directly or indirectly use the Software to generate revenue or otherwise commercially exploit the Software.
2. TERM AND TERMINATION
This Agreement and the right to access and use the Software shall terminate at the end of the Evaluation Period, provided that the Agreement may be terminated by Axway immediately upon written notice to the Customer in the event of a material breach by the Customer of any terms and conditions of this Agreement or for convenience at any time during the Evaluation Period. Upon the expiration or termination of this Agreement, all rights and licenses granted to Customer hereunder shall terminate immediately and Customer shall (i) cease all access and use of the Software; (ii) return to Ax-way any Confidential Information of Axway freight prepaid to Axway at the address specified in the signature line below (unless otherwise specified by Axway); and (iii) delete all copies of the access key and all Software embed-ded within any computer or merged within any other programs or stored on any storage media under Customer’s control. Upon Axway’s request, Cus-tomer shall also provide Axway with a signed written statement certifying that it has returned all Axway property to Axway. In the event Customer elects to license the Software, Axway may or may not require the return of such materials, but, in any event, shall require the Customer to execute an agreement specifying terms and conditions related to Customer’s continued use of the Software. Upon termination of this Agreement, the provisions of this Agreement concerning the ongoing interests of the parties shall contin-ue and survive in full force and effect, including without limitation Sections 2, 3, 4, 5 and 6.
3. DISCLAIMER OF WARRANTY
Customer acknowledges and agrees that the Software is provided “as is” and that Customer’s use of the Software on a trial basis may cause or result in data loss, operational interruptions and increased system downtime. Cus-tomer acknowledges the possibility of these problems and agrees not to hold Axway liable or responsible for any problems resulting from the use of the Software. AXWAY DOES NOT MAKE ANY EXPRESS OR IMPLIED WAR-RANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER, ANY OF ITS AFFILIATES, OR ANY OTHER PARTY WITH RESPECT TO THE SOFT-WARE, THE DOCUMENTATION, OR ANY SERVICES PROVIDED HEREUN-DER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MER-CHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE IS EXPRESSLY EXCLUDED AND DISCLAIMED. Axway does not represent that the Software will satisfy Customer’s requirements, that the Software is without defect or error, or that the Software will operate with any hardware or software not specified in the documentation.
4. PROPRIETARY RIGHTS AND CONFIDENTIALITY
Axway, its affiliates and/or its licensors are the owners of all intellectual property rights, including without limitation patent, trademark, copyright, and trade secret rights, in the Software, and the techniques and ideas embod-ied and expressed in the foregoing, including the structure, sequence, and organization of the Software (the “Program Concepts”). Customer acknowl-edges that, except for the limited license granted hereunder, Customer has no rights in or to the Software, the Program Concepts or any copies thereof.
The Customer will hold in confidence and, without the consent of Axway, will not use, reproduce, distribute, transmit, or disclose, directly or indirectly, the Confidential Information (as defined below) of Axway. Customer may only disclose the Confidential Information to its employeeswith a need to know the information for evaluation of the Software as per-mitted under this Agreement and who are under a written obligation to be bound to the nondisclosure terms of this Agreement. Without limiting the foregoing, the Customer agrees that it will exercise at least the same standard of care in protecting the confidentiality of Axway’s Confidential Information as it does with its own Confidential Information of a similar nature. The obligations under this section with regard to the Confidential Information that constitutes trade secrets of Axway remain in effect for as long as such information shall remain a trade secret under applicable law and, with regard to all other Confidential Information, shall remain in effect during the term of this Agreement and for three (3) years thereafter. As used herein, “Confi-dential Information” means (i) information of a party in all forms which derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, as well as (ii) other information that is provided to or obtained by one party and that is valuable to the other party and not generally known by the public. The in-formation allowing Customer to access and use the Software in the cloud shall be considered Confidential Information.
5. LIMITATION OF DAMAGES
IN NO EVENT SHALL AXWAY, ITS EMPLOYEES, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, RESELLERS, PARENT, AFFILIATES OR SUBSIDIAR-IES BE LIABLE FOR ANY DIRECT DAMAGES, LOSS OF DATA OR INCI-DENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLI-GENCE, OR OTHERWISE, EVEN IF AXWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. GENERAL PROVISIONS
This Agreement shall be governed and interpreted in accordance with the laws of France. Except as necessary in order to obtain injunctive relief, Cus-tomer consents to submit to the exclusive jurisdiction of the courts of Paris. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
This Agreement, including the exhibits attached hereto, supersedes in full all prior discussions and agreements, oral and written, between the parties and constitutes the entire understanding of the parties relating to the subject matter hereof.
No amendment or modification of this Agreement shall be valid or binding upon the parties unless it is in writing and signed by the duly authorized officers of the parties.
Customer may not assign, sublicense, or otherwise transfer this Agreement or the license granted to Customer herein, or any of its rights or obligations under this Agreement, to any party without the prior written consent of Axway, which consent shall not be unreasonably withheld.
This Agreement shall be binding upon and inure to the benefit of the par-ties, their legal representatives, permitted transferees, successors and assigns as permitted by this Agreement.
No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder.
No consent to a breach of any express or implied term of this Agreement shall constitute a consent to any prior or subsequent breach.
If any provision hereof is declared invalid by a court of competent jurisdic-tion, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but which together shall constitute the same instrument. Each party agrees to be bound by its own telecopied or facsimi-led signature, and agrees that it accepts the telecopied or facsimiled signature of the other party hereto.
Software Usage Data.
Insofar as personal data are generated during the use and access to the Soft-ware, the Customer shall be responsible for ensuring that such personal data has been collected, processed and used lawfully. Insofar as the Customer makes personal data available, then the Customer shall ensure that this data has been lawfully collected, processed and used for the purpose intended, and that it may be forwarded to Axway. Axway shall collect process and use the personal data of the Customer’s consultants and employees only to the extent necessary for the provision of the right for Customer to use and access the Software. Axway shall not be obliged to assess whether the col-lection, processing or use of the data is lawful and/or compliant with the applicable laws. The Customer shall indemnify Axway against any third-party claims, which are based on an assertion that the collection, processing or use of personal data in accordance with the Services was unlawful and/or non compliant with the applicable laws. The aforementioned indemnity shall also cover the costs of legal defense.
The Customer is informed that the data, included personal data, provided to Axway may be stored in and/or accessed from a location in the EU or in the US. By agreeing to these terms Customer hereby grants consent to Axway to transfer the personal data within the EU or the US.
In connection with the right granted hereunder, Axway collects and receives data with regard to usage of the Software in the cloud by Customer and may use such data for the following purpose (not limited to) (i) using such data for Axway’s internal business purposes, (ii) disclosing such data to third parties in connection with the operation of the Software, (iii) disclosing such data as required by law or legal process, (iv) using and disclosing such data when it is not specifically identifiable to Customer, and (v) monitoring Customer’s compliance with the terms of this Agreement.