TRIAL LICENCE FOR SOLACE SOFTWARE
THIS TRIAL LICENCE AGREEMENT and any documents expressly referred to in this agreement (the “Agreement”) between SOLACE CORPORATION (“SOLACE”) and the end user licensee that accepts this Agreement (“You” or the “Licensee”) (together the “Parties”, and each a “Party”), is made on the Effective Date (as defined below).
BY ACCEPTING THE TERMS OF THIS AGREEMENT, EITHER BY: A) ACCEPTING THE AGREEMENT ONLINE, OR B) INSTALLING OR USING THE SOFTWARE AFTER BEING MADE AWARE OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND YOU HAVE THE AUTHORITY TO AGREE TO, AND ARE CONFIRMING THAT YOU ARE AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF, AFTER READING THIS AGREEMENT, YOU DO NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHALL NOT INSTALL OR USE THE SOFTWARE.
- 1 DEFINITIONS
“Documentation” means the documentation made accessible by SOLACE via a URL provided to Licensee.
“Products” means the Software and Documentation.
“Software” means the SOLACE software product(s) accessed and used by Licensee for trial purposes under this Agreement.
- 2 LICENSE GRANT
- 2.1 General License to Software
- Provided Licensee complies with this Agreement, SOLACE hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable license to install and use the Software in object code form (i) during the term stated below, (ii) solely for the Licensee’s internal business purposes, (iii) in a development environment, and (iv) solely for the purpose of quality assurance, testing and staging. The Software may not be used in a live production environment under this Agreement.
- SOLACE shall make the Software and Documentation available for download in electronic form.
- Licensee will not: (a) copy the Software or any portion thereof; (b) modify, reverse engineer, disassemble, decompile, or translate the Software, or otherwise attempt to derive the source code version of the Software, except if and only to the extent expressly permitted or prohibited by applicable law, and provided that Licensee first approaches SOLACE and seeks permission in writing; (c) transfer, distribute, sub-license, rent, lease, loan the Products or any part thereof to any third party; (d) use the Software in violation of applicable laws; (e) use the Software to develop services or products for sale or include any components of the Software in any product; (f) use any portion of the Software to develop a competitive service, product or technology; (g) make the Software available to the public in any manner; (h) use the Software in a production environment; (i) remove any product identification, proprietary, copyright or other notices contained in the Software; (j) publicly disseminate performance information or analysis (including without limitation, benchmarks) from any source relating to the Software, or (k) circumvent any user limits or other license timing or use restrictions that are built into the Software.
- 2.1 General License to Software
- 3 OWNERSHIP
- 3.1 Except for the licenses expressly granted in this Agreement, nothing in this Agreement or the provision of the Products conveys or otherwise provides to Licensee title, interest or any intellectual property rights in or to: (a) the Products, or (b) know-how, ideas, or any other subject matter protectable under laws applicable to intellectual property rights of any jurisdiction. As between Licensee and SOLACE, SOLACE and its affiliates and licensors are the sole and exclusive owners of the Products, including all intellectual property rights
- 3.2 Licensee will not display or make any use of SOLACE’s or its affiliates’ names, marks or logos without the prior written approval of SOLACE.
- 4 Support
- 4.1 Solace shall have no support or maintenance obligations with respect to the Software licensed to Licensee under this Agreement.
- 5 Fees
- 5.1 No payment is due from Licensee for the use of the Software under this Agreement.
- 6 CONFIDENTIAL INFORMATION
Any Software, Documentation or technical information provided by SOLACE (or its agents) shall be deemed “SOLACE confidential information” without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any SOLACE confidential information. You acknowledge that disclosure of SOLACE confidential information would cause substantial harm to SOLACE that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, SOLACE shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
- 7 PRIVACY
- 8 DISCLAIMER OF WARRANTIES
THE SOFTWARE AND DOCUMENTATION THAT MAY BE PROVIDED BY SOLACE UNDER THIS AGREEMENT, IS PROVIDED ‘AS-IS’ AND ‘AS AVAILABLE’ WITHOUT WARRANTY OF ANY KIND AND SOLACE DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
- 9 LIMITATION OF REMEDIES AND DAMAGES
IN NO EVENT SHALL SOLACE 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), ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE SOFTWARE, 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. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SOLACE’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY SOLACE’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED $1,000. The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
- 10 TERM AND TERMINATION.
- 10.1 This Agreement will be effective from the Effective Date and will continue for ninety (90) calendar days thereafter and is not subject to renewal or extension.
- 10.2 Termination. SOLACE may terminate this Agreement (a) if Licensee breaches any term of this Agreement; and (b) if Licensee becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- 10.3 Effects of Termination. Upon expiry or termination of this Agreement, (a) the license and other rights granted to Licensee in this Agreement will terminate; and (b) Licensee will cease all use of the Software and Documentation and will permanently delete or destroy, or otherwise purge, all copies (electronic or otherwise) of the applicable Products.
- 10.4 Neither the expiration nor the earlier termination of this Agreement will release either of the Parties from any obligation or liability that accrued prior to such expiration or termination. The provisions of this Agreement requiring performance or fulfilment after the expiration or earlier termination of this Agreement, including 2.1, 3, 4, 5, 6, 7, 8 and 9, and such other provisions as are necessary for the interpretation thereof and any other provisions hereof, the nature and intent of which is to survive termination or expiration of this Agreement, will survive the expiration or earlier termination of this Agreement.
- 11 EXPORT COMPLIANCE ASSURANCES
- All Products obtained from SOLACE are subject to the export control and economic sanctions laws and regulations of Canada, including the Exports and Import Permits Act, S.C. 1985, c. E-19, Area Control List, Export Control List, and the United States, including the Export Administration Regulations (“EAR”, 15 CFR 730 et seq., http://www.bis.doc.gov/) administered by the Department of Commerce, Bureau of Industry and Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq., http://www.treas.gov/offices/enforcement/ofac/) administered by the Department of Treasury, Office of Foreign Assets Control (“OFAC”), each as may be amended and updated from time to time.
- Licensee will not, and will ensure that Licensee will not directly or indirectly export, re-export, transfer or release (collectively, “export”) any Products to any destination, person, entity or end use prohibited or restricted under Canadian or US law, or the laws of the jurisdiction in which Licensee is resident or in which Licensee uses the Products, without prior government or regulatory authorization to the extent required by applicable laws and regulations.
- The US government maintains embargoes and sanctions against the countries listed in Country Groups E:1/2 of the EAR (Supplement 1 to part 740), including, as at the Effective Date, Cuba, Iran, North Korea, Sudan and Syria, as amended from time to time. Licensee will not directly or indirectly employ any Product received from SOLACE in missile technology, sensitive nuclear or chemical biological weapons activities, or in any manner knowingly transfer any Product to any party for any such end use. Licensee will not export Products listed in Supplement 2 to part 744 of the EAR for military end-uses, as defined in part 744.21, to the People’s Republic of China. Licensee will not transfer any Product to any party listed on any of the denied parties lists or specially designated nationals lists maintained under said regulations without appropriate US government authorization to the extent required by regulation. Licensee acknowledge that other countries may have trade laws pertaining to import, use, export or distribution of Products, and that compliance with same is Licensee responsibility.
- Licensee may not use the Products if Licensee is barred from receiving the Products under the laws of Canada, the United States or any other country including the country in which Licensee are resident or in which Licensee use the Products.
- 12 GENERAL
- 12.1 U.S. Government Users. If Licensee are acting on behalf of an agency or instrumentality of the U.S. federal government, the Product, as applicable, are “commercial computer software” and “commercial computer software documentation” developed exclusively at private expense by SOLACE. Pursuant to Federal Acquisition Regulation 12.212 or Defense Federal Acquisition Regulation Supplement 227.7202 and their successors, as applicable, use, reproduction and disclosure of the Products is governed by the terms of this Agreement.
- 12.2 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, including without limitation as set forth in additional licenses applicable to such third party code and open source code, which shall take precedence over this Agreement.
- 12.3 Amendments, Waivers. This Agreement may be modified only by a written amendment agreed to by both Licensee and SOLACE. To be effective, any waiver by a Party of any of its rights or any other Party’s obligations under this Agreement must be made in a writing signed by the Party to be charged with the waiver.
- 12.4 Governing Law and Jurisdiction. This Agreement is governed and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without giving effect to its conflict of laws provisions. Any Claim arising out of or related to this Agreement must be brought exclusively in a federal or provincial court located in Ottawa, Canada, and Licensee hereby consents to the jurisdiction and venue of such courts.