BY ACCESSING, DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE AVATIER SOFTWARE AND DOCUMENTATION THAT ACCOMPANY THIS AGREEMENT (THE "SOFTWARE"), YOU ARE AGREEING TO ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS, DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.
This Software Evaluation License Agreement (“Agreement”) is entered into between You and Avatier Corporation, a California corporation (“Avatier”), with its principal place of business at 4733 Chabot Drive, Suite 201, Pleasanton, CA 94588. Avatier and You agree that the following terms and conditions will apply to the licenses and services provided under this Agreement and Orders placed thereunder.
INTERNAL EVALUATION USE ONLY: Your use of the Software is limited to internal evaluation purposes only. Deployment in a production capacity or external exposure of works which use the Software is not permitted under the terms of this Agreement. You must acquire a production license for the Software from Avatier in order to deploy such works. Contact your Avatier sales representative for more information.
Subject to all the terms of this Agreement, Avatier hereby grants to you a one-time, royalty-free, non-exclusive, non-transferable, non-sublicensable license to copy and use the Software solely for internal business purposes (whether for evaluation or production use) for a period of THIRTY (30) DAYS from your first access, download, installation, or use of the Software ("Evaluation Period"). You may access, download, install, and copy the Software on a reasonable number of development systems within your company.
You agree that you shall not:
(i) reverse compile, reverse engineer, disassemble, reformat, or otherwise attempt to read or make readable the object code or source code (or the underlying ideas, algorithms, structure or organization) of the Software, in whole or in part;
(ii) modify the Software or create any derivative work based on the Software;
(iii) rent, lease, sell, sublicense, grant a security interest in, or otherwise transfer any rights in the Software;
(iv) remove or alter any marks or proprietary notices or labels contained in the Software;
(v) use the Software in any manner that violates any intellectual property or privacy rights of any third party;
(vi) use the Software in any manner that violates any applicable international, federal, state or local law or regulation; or,
(vii) disclose or provide access to the Software to any third party or provide feedback on the Software to any third party without the prior written permission of Avatier.
Avatier and its suppliers retain all right, title and interest in and to the Software, including, without limitation, all copyrights, trademarks, patents, trade secrets, proprietary and other intellectual property rights contained in or associated with the Software, all copies thereof, and all enhancements or modifications thereto.
The Software is provided "AS IS" and without any warranty of any kind. AVATIER DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE. The Software is provided gratuitously and, therefore, Avatier shall not be liable or obligated to you or any other party with respect to any subject matter of this Agreement for any direct, indirect, incidental, special, punitive or consequential damages under any theory of liability whether in tort, contract, negligence, strict liability or otherwise even if advised of the possibility of such damages.
The license granted hereunder shall terminate at the earliest of (i) the end of the specified Evaluation Period, if any; (ii) immediately upon your failure to comply with all of the terms and limitations described herein; or (iii) immediately upon written notice of termination by Avatier, with or without cause. Upon termination for any reason, you shall destroy all copies of the Software. Sections 2, 3, 4, 5, and 6 shall survive any termination or expiration of this Agreement or the license granted hereunder.
The export and re-export of Avatier Software products may be controlled by the local and international export control laws and such software may not be exported or re-exported to any country which has been barred from receiving such goods. In addition, Avatier software may not be distributed to persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
By downloading or using an Avatier Software product you are certifying that you are not a national of any country to which the United States or your country of origin embargoes goods and that you are not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
(a) This Agreement is the entire agreement between you and Avatier concerning this subject matter. This Agreement may not be amended except in writing signed by an authorized representative of Avatier. (b) Neither this Agreement nor any of your rights or obligations hereunder may be assigned by you in whole or in part without Avatier's prior written consent. (c) This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without giving effect to its choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is expressly disclaimed. (d) The prevailing party in any action or proceeding to enforce the provisions of this Agreement shall be entitled to recover all reasonable attorneys' fees and expenses incurred in connection therewith. (e) In the event of a breach of this Agreement, monetary damages may not be a sufficient remedy, and Avatier shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief (without posting of a bond) as may be deemed proper by a court of competent jurisdiction. (f) If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision shall be limited or eliminated to the minimum extent necessary so that the remaining provisions remain in full force and effect. (g) The failure of Avatier to require your performance of any provision herein shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by Avatier of a breach of any provision herein be taken or held to be a waiver of the provision itself.