THESE SOFTWARE EVALUATION TERMS AND CONDITIONS (THIS "Agreement") CONSTITUTE A BINDING CONTRACT BETWEEN THE ENTITY IDENTIFIED IN THE REGISTRATION PAGE ("Customer") AND Parallel Machines Inc. , A DELAWARE COMPANY WITH A PLACE OF BUSINESS AT 1290 OAKMEAD PKWY, SUITE 301 SUNNYVALE, CA 94085 AND/OR ITS AFFILIATES ("PM"), AND GOVERNS THE CUSTOMER'S USE OF THE SOFTWARE (DEFINED BELOW) ON AN INTERNAL EVALUATION BASIS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT. BY CLICKING "I AGREE" BELOW, OR BY OTHERWISE ACCESS OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THIS AGREEMENT (THE DATE OF SUCH OCCURRENCE BEING THE "Effective Date"). IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE ANY PART OF THE SOFTWARE. BY ACCPTING THIS AGREEMENT AND/OR ACCESSING OR USING THE SOFTWARE, YOU AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE.
1. DEFINITIONS AND INTERPRETATION.
"Evaluation Period" means the evaluation period identified in the Software registration process, commencing upon the Effective Date. "Software" means PM's proprietary MCenter software product (in object code version only), as well as any related documentation made available by PM to Customer hereunder.
2. LICENSE
Subject to the terms and conditions of this Agreement, PM grants Customer a limited, non-exclusive, non-assignable, non-transferable, and non-sublicensable license, during the Term (defined below), to access and use (and, if applicable, install) the Software, for the sole purpose of Customer's internal evaluation of the Software (the "Evaluation License"). As a condition to the Evaluation License, Customer shall comply with the access and usage restrictions set forth in Schedule A hereto ("Usage Restrictions"). For the avoidance of doubt, the Software and any copies of the Software (or its components) are only licensed under this Agreement. Customer is granted no other right in or to the Software, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise. The Evaluation License is subject to whatever functionality, environment, or other restrictions or limitations imposed by PM from time to time during the Evaluation Period.
Customer shall use its best efforts to provide PM with detailed Feedback (defined below), and to cooperate with PM in further exploring and refining such Feedback. Customer warrants that Feedback will not infringe any third party's intellectual property (or other proprietary) rights or any applicable law. "Feedback" means ideas, suggestions, or similar feedback about performance of the Software and/or for improving the Software.
3. TERM AND TERMINATION
This Agreement commences on the Effective Date and will remain in full force and effect until expiration of the Evaluation Period, unless the Evaluation Period is mutually extended by way of written agreement of the parties or via the Customer's administrator account for the Software (the "Term"). Notwithstanding the foregoing: (a) PM may terminate this Agreement immediately upon written notice (email acceptable) to Customer if Customer breaches any provision of this Agreement; and (b) either party may terminate this Agreement for convenience upon seven (7) days' prior written notice (email acceptable) to the other party.
Upon the earlier of expiration or termination of this Agreement: (A) the Evaluation License will automatically terminate, and Customer shall immediately cease all access to and use of the Software; and (B) Customer shall (unless directed otherwise by PM in writing) promptly uninstall and permanently delete all copies of all Software components and other proprietary materials installed on Customer's systems (or otherwise in its custody or control). Expiration or termination of this Agreement (as applicable) shall not affect any right or liability accrued by either party as of the effective date of expiration or termination. Any provision in this Agreement that is stated (or by its nature ought) to survive expiration or termination, shall survive, as will Sections 5 (Term and Termination) through 10 (General) inclusive.
4. CUSTOMER DATA LICENSE
Customer alone shall be responsible and liable for the maintenance and backup of all Customer Data. “Customer Data” means any Customer content, data, code, algorithms or other information that is uploaded to, stored on, or otherwise processed by the Software or PM. Customer hereby grants PM a worldwide, non-exclusive, royalty-free, fully-paid, sublicensable license, during the Evaluation Period, to copy, reproduce, modify, alter, adapt, arrange, translate, create derivative works of, and otherwise use Customer Data to perform PM’s obligations under this Agreement, as well as to make available to Customer, and generally improve, the Software (the “Customer Data License”). Customer hereby represents and warrants that: (a) Customer Data will not infringe, misappropriate or violate any third party’s intellectual property rights, moral rights, privacy or other personal rights, or any applicable law or regulation; and (b) Customer has, and will maintain during and after any termination of this Agreement, all licenses, consents, permissions and approvals required to use and upload the Customer Data and grant the Customer Data License.
5. OWNERSHIP
Customer hereby acknowledges that the Software is or may be protected by laws, treaties, and conventions governing intellectual property rights. Any rights not expressly granted herein are hereby reserved by PM and its licensors and suppliers. As between the parties: (a) PM is and shall remain the sole and exclusive owner of all intellectual property (and other proprietary) rights in and to the Software; and (b) PM shall be the sole and exclusive owner of all intellectual property (and other proprietary) rights in and to any Feedback, as well as any derivative works of, or improvements to, the Software and any Feedback (regardless of authorship or inventorship). To the extent any intellectual property (or other proprietary) rights in and to any such Feedback, derivative works, or improvements do not automatically vest in PM, Customer hereby assigns (and agrees to procure the assignment of) such intellectual property (and other proprietary) rights to PM. For the avoidance of doubt, Customer shall not disclose to any third party, or otherwise publish, any Feedback or other Software-related results of the evaluation hereunder.
6. CONFIDENTIALITY
Each of PM and Customer (the "Recipient") may have access under this Agreement to certain non-public or proprietary information or materials of the other party (the "Discloser"), whether in tangible or intangible form ("Confidential Information"). Without derogating from any other obligation in this Agreement, Customer will treat the Software as PM's Confidential Information. Confidential Information will not include information or material which Recipient can demonstrate: (a) was in the public domain at the time of disclosure by Discloser to Recipient hereunder; (b) became part of the public domain after disclosure by Discloser to Recipient hereunder, through no fault of Recipient; (c) was in the Recipient's possession at the time of disclosure by the Discloser hereunder, and was not subject to prior continuing obligations of confidentiality by Recipient to Discloser; (d) was rightfully disclosed to the Recipient by a third party having the lawful right to do so; and/or (e) was independently and rightfully developed by the Recipient without (direct or indirect) use of, or reliance upon, Discloser's Confidential Information. Recipient shall safeguard the Discloser's Confidential Information and use it solely for the purpose of Recipient performing its obligations and/or exercising its rights under this Agreement. Recipient shall not disclose or make available the Discloser's Confidential Information to any third party, except to its employees that have a need to know such information and that are bound by obligations at least as protective as provided herein. Recipient will promptly notify Discloser in writing in the event of any actual or suspected unauthorized use or disclosure of the Discloser's Confidential Information. Each party acknowledges that in the event of a breach or threatened breach of this Section (Confidentiality) by the other party, the non-breaching party may suffer irreparable harm or damage for which monetary damages will be inadequate, and will, therefore, be entitled to injunctive relief and specific performance to enforce the obligations under this Section (Confidentiality) without the need to post a bond.
7. DISCLAIMER OF WARRANTIES
THE SOFTWARE, ALL SERVICES (SUCH AS HOSTING SERVICES), AS WELL AS ANY OTHER ITEMS PROVIDED OR MADE AVAILABLE BY PM, ARE PROVIDED AND MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF SERVICE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY PM AND ITS LICENSORS AND SUPPLIERS. NO REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION IS MADE THAT CUSTOMER'S USE OF THE SOFTWARE OR SAID OTHER ITEMS WILL MEET CUSTOMER'S REQUIRMENTS OR EXPECTATIONS, OR WILL BE INTERRUPTED, SECURE OR ERROR-FREE.
8. LIMITATION OF LIABILITY
8.1. IN NO EVENT WILL PM OR ANY OF ITS AFFILIATES, LICENSORS OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES. THE COMBINED AGGREGATE LIABILITY OF PM AND ALL ITS AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (1) TEN U.S. DOLLARS (US$ 10); OR (2) THE AMOUNTS (IF ANY) ACTUALLY PAID BY CUSTOMER TO PM UNDER THIS AGREEMENT FOR THE EVALATION LICENSE.
8.2. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (A) EVEN IF PM OR ONE OF ITS AFFILIATES HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE AND STRICT LIABILITY).
9. THIRD PARTY SOFTWARE
The Software may include third party software libraries and modules that are subject to open source licenses and notices ("Third Party Software" and "Third Party Software Terms", respectively), and to the extent of any conflict between this Agreement and any Third Party Software Terms, the latter shall control. Any representations, warranties, guarantees, conditions, or indemnities made by Company in this Agreement concerning the Software are made by Company and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software. Notwithstanding anything in this Agreement to the contrary, Company does not make any representation, warranty, guarantee, or condition, and does not undertake any defense or indemnification, with respect to any Third Party Software.
10. GENERAL
10.1. For Customers located in North America, this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any conflicts of laws rules, and any dispute hereunder shall be subject to the exclusive jurisdiction of the courts located in New York County, NY. For Customers located outside of North America, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflicts of laws rules, and any dispute hereunder shall be subject to the exclusive jurisdiction of the courts located in New York County, NY. Notwithstanding anything in this Agreement to the contrary, PM may seek equitable relief in any court worldwide that has competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
10.2. This Agreement (and its Schedules) represents the entire agreement of the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the parties with respect to such subject matter. In entering into this Agreement, neither party is relying on any representation not expressly specified in this Agreement. This Agreement may only be amended in writing signed by each party. This Agreement may be accepted by Customer electronically, and such electronic acceptance shall have the same force and effect as an original signature.
10.3. Section headings herein are for convenience only.
10.4. PM may assign this Agreement (or any of its rights and obligations) without restriction or obligation. Customer may not assign this Agreement (or any of its rights and obligations) without PM's prior express written consent. Any prohibited assignment shall be null and void.
10.5. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
10.6. Except as stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies. No failure or delay on the part of any party hereto in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, and shall be valid only in the specific instance in which given.
10.7. The relationship of the parties is solely that of independent contractors. PM shall not be responsible for any failure to perform any obligation because of any cause beyond its reasonable control (such as problems relating to the hosting of the Software).
Customer shall not (and shall not encourage or permit any third party to) do any of the following, in whole or in part:
(a) copy, "frame" or "mirror" the Software, or otherwise create Internet "links" to them, on any other server or wireless or Internet-based device;
(b) sell, assign, transfer, lease, rent, sublicense, distribute, publicly perform, display or communicate, offer as part of a time-sharing, outsourcing or service bureau environment, or otherwise make available, the Software;
(c) modify, alter, adapt, arrange, or translate the Software;
(d) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Software;
(e) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Software;
(f) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software;
(g) make a derivative work of the Software, or use them to develop any service or product that is the same as (or substantially similar to) them;
(h) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software;
(i) use the Software to infringe, misappropriate, or violate any third party's Intellectual Property Rights, or any applicable Law (such as those regarding anti-spamming), or to otherwise engage in any fraudulent activity;
(j) employ any hardware, software, device, or technique to pool connections or reduce the number of devices or users that directly access or use the Software (sometimes referred to as 'virtualisation', 'multiplexing' or 'pooling') in order to circumvent any restrictions on scope of authorized use;
(k) forge or manipulate identifiers in order to disguise the origin of any Customer Data inputted or uploaded to, or transmitted through, the Software; or
(l) take any action that imposes or may impose (as determined in Company's reasonable discretion) an (m) unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Software, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.