PLEASE READ THIS EVALUATION LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SOFTWARE ("SOFTWARE") OFFERED BY SPACECURVE, INC. ("SPACECURVE"). BY DOWNLOADING AND/OR USING THE SOFTWARE IN ANY MANNER AND/OR BY CLICKING "I AGREE", YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ("LICENSEE") DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU HAVE NO RIGHT TO USE THE SOFTWARE. USE OF THE SOFTWARE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS.
Subject to Licensee's compliance with all of the terms of this Agreement, payment of all fees, and any applicable user/use limitations, SpaceCurve grants to Licensee a nonsublicensable, nontransferable, nonexclusive license to download, install and use (in object code only) the Software solely for Licensee's internal testing purposes during the term of this Agreement. SpaceCurve shall at all times retain all title to and ownership of the Software and all copies thereof. Licensee agrees to use the Software only as set forth in this Agreement and only for evaluation, testing or training.
Licensee shall not (and shall not allow any third party to) (a) reproduce or modify the Software, (b) provide, rent, sell, lease, disclose, use for time sharing or service bureau purposes, or otherwise transfer or distribute the Software or any part thereof or use it for the benefit of a third party, (c) reverse assemble, reverse compile or reverse engineer the Software, or otherwise attempt to discover any Software source code or underlying Proprietary Information (as that term is defined below) (except to the limited extent that applicable law prohibits reverse engineering restrictions), (d) without the express prior written consent of SpaceCurve, disclose to any third party the results of any benchmarking or comparative study or analysis involving the Software, or (e) possess or use the Software, or allow the transfer, transmission, export, or re-export of the Software or a 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. Licensee shall maintain the copyright notice and any other notices that appear on the Software on any copies (including backup copies) and any media. SpaceCurve may audit your use of the Software.
SpaceCurve reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on its website, and/or by notifying Licensee via email or postal mail. Licensee shall be responsible for reviewing and becoming familiar with any such modifications. Licensee's use of the Software following such notification constitutes Licensee's acceptance of the terms and conditions of this Agreement as modified.
LICENSEE ACKNOWLEDGES THAT THE SOFTWARE MAY INCLUDE FEATURES TO PREVENT USE AFTER TERMINATION OR EXPIRY OF THE APPLICABLE EVALUATION PERIOD. LICENSEE ALSO ACKNOWLEDGES AND AGREES THAT ANY SUBSEQUENT LICENSE PERIODS FOLLOWING THE EVALUATION PERIOD SHALL BE SUBJECT TO PAYMENTS OF APPLICABLE LICENSE FEES AND THE TERMS OF SPACECURVE'S STANDARD END USER LICENSE AGREEMENT UNLESS OTHERWISE AGREED IN WRITING BETWEEN THE PARTIES.
Licensee may, at its discretion, provide feedback to SpaceCurve with respect to its testing of the Software ("Feedback"). Feedback may include, without limitation, errors or difficulties discovered in the Software and the characteristic conditions and symptoms of the errors and difficulties. If Licensee provides any such Feedback to SpaceCurve, Licensee hereby assigns to SpaceCurve all rights, title and interest (including patent rights, copyrights, trade secret rights and all other rights of any sort throughout the world) in and to such Feedback. Licensee agrees to further assist SpaceCurve, at SpaceCurve's expense, to evidence, perfect, obtain, maintain, enforce or defend the foregoing.
Unless expressly agreed between you and SpaceCurve in a separate agreement, SpaceCurve will not provide technical support, phone support or updates to you for the Software provided under this Agreement.
The Software is provided "AS IS" and may not be functional on any machine or in any environment. SPACECURVE FOR ITSELF AND ITS LICENSORS DISCLAIMS ALL WARRANTIES RELATING TO THE SOFTWARE AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION SUPPORT AND/OR MAINTENANCE SERVICES), EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO ALL LICENSEES.
ANY LIABILITY OF SPACECURVE AND ITS LICENSORS WITH RESPECT TO THE SOFTWARE OR THE PERFORMANCE THEREOF AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION SUPPORT AND/OR MAINTENANCE SERVICES) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, AND THE LICENSEE'S SOLE AND EXCLUSIVE REMEDY, WILL BE LIMITED TO PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN SPACECURVE'S OPINION, IMPRACTICAL, TO REFUND OF AN APPROPRIATE PORTION THE REMAINING UNAMORTIZED LICENSE FEE, IF ANY, PAID BY LICENSEE. SPACECURVE SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE GREATER OF (I) THE FEES PAID TO SPACECURVE HEREUNDER, IF ANY, BY THE LICENSEE WITH RESPECT TO THE SOFTWARE DURING THE SIX MONTH PERIOD PRIOR TO THE CAUSE OF ACTION, OR (II) $100, OR (B) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (C) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF REVENUES AND LOSS OF PROFITS. SPACECURVE SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF SPACECURVE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO ALL LICENSEES.
If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement.
The Software is not designed, manufactured, or intended for use in hazardous environments requiring fail-safe performance where the failure of the Software could lead directly to death, personal injury, or significant physical or environmental damage ("High Risk Activities"). Use of the Software in High Risk Activities is not authorized.
To the extent any part of the Software provided to you by SpaceCurve in binary form is licensed under an open source license that gives you the right to receive the source code for that binary, you can obtain a copy of the applicable source code by contacting SpaceCurve at info@spacecurve.com.
This Agreement may be terminated by SpaceCurve immediately upon notice of any breach by Licensee of the provisions of this Agreement, and in any case will terminate ninety (90) days after the earlier of Licensee's first use or download of the Software or acceptance of this Agreement (such ninety (90) day period, the "Evaluation Period"). Upon termination, the license granted hereunder will terminate and Licensee shall immediately destroy any and all documents, notes and other materials regarding the Software (including any physical copies made thereof), and all other proprietary information and all copies and extracts of the foregoing; otherwise, the other terms of this Agreement will remain in effect.
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. This Agreement shall become effective upon Licensee's acceptance by clicking the "I accept," "Place your order" or "Submit" button (as applicable), or upon download and/or use of the Software by the Licensee, and it shall be governed by and construed in accordance with the laws of the State of Washington without regard to the conflicts of laws provisions therein. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in King County, Washington. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys' fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Although fully assignable and transferable by SpaceCurve, neither the rights nor the obligations arising under this Agreement are assignable or transferable by Licensee, and any such attempted assignment or transfer shall be void and without effect.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.