Evaluation Agreement – Terms and Conditions
(Available online at http://striim.com/evaluation-agreement/)
Last Updated: December 15, 2015
IMPORTANT: Please read this Evaluation Agreement (“Agreement”) before clicking the “accept” button, installing, configuring and/or using the Striim software product that accompanies or is provided in connection with this Agreement. By clicking the “Accept” button, installing, configuring and/or using the Product, you and the entity that you represent (“Evaluator”) agree to be bound by to this Agreement with Striim. You represent and warrant that you have the authority to bind such entity to these terms. If Evaluator does not unconditionally agree to all of the terms of this Agreement, use of the Product is strictly prohibited.
- Evaluation License and Term. This Agreement governs Evaluator’s use of the Striim’s software product and its associated documentation (“Product”). Subject to this Agreement, Striim grants Evaluator a non-exclusive, non-transferable, non-assignable, non-sub-licensable license to install and run a single copy of the Product on one server controlled by Evaluator solely to internally evaluate the Product, for 60 calendar days after the effective date hereof (the “Term”).
- Delivery of Product. Striim will deliver the Product electronically to Evaluator upon the date Evaluator accepts this Agreement. Evaluator will be responsible for installing the Product on its computers. The Product will be deemed irrevocably accepted upon delivery.
- Feedback. During the Term, Evaluator agrees to provide to Striim feedback regarding the operation, and functionality of the Product (“Feedback”). Such Feedback will include information about, e.g., known or suspected bugs, errors or compatibility problems and user-desired features. Evaluator hereby grants to Striim a perpetual, irrevocable, worldwide, sub-licensable, and royalty-free right to use and otherwise exploit the Feedback in any manner.
- Product Use. Evaluator will not (i) reproduce, modify, distribute, transfer, rent, lease, disclose, or make available to any third party any portion of the Product (or any related documentation) in any form; (ii) publish, translate, sublicense or assign, in whole or in part, any software embedded therein; (iii) reverse engineer, decompile, or disassemble any portion of the Product, or otherwise attempt to decrypt, extract or derive the source code for any part of the software therein; (iv) access the Product in order to build a similar or competitive product or service; or (v) publish or disclose to any third party any performance or benchmark tests or analyses or other non-public information relating to the Product or its use. The software is copyrighted and protected by the laws of the United States and other countries, and international treaties. Evaluator shall not remove any proprietary notices from the Product or its software.
- Third Party Code. Certain items of software code provided with the Product are subject to “open source” or “free software” licenses (“Third Party Code”). The Third Party Code is not subject to the terms and conditions of this Agreement, except for Sections 5, 9, 10 and 11 of this Agreement. Instead, each item of Third Party Code is licensed under the terms of the license that accompanies such Third Party Code. Nothing in this document limits Evaluator’s rights under, or grants Evaluator rights that supersede, the terms and conditions of any applicable license for the Third Party Code, including any rights to copy, modify, or distribute Third Party Code under the applicable license. If required by an applicable license, source code for such software will be made available by Striim or its supplier upon written request.
- Title. Striim and its suppliers retain all right, title and interest in the Product and in all intellectual property rights therein, including without limitation all patent, trademark, trade name and copyright, whether or not registered. No other express or implied rights of any kind are granted or conveyed except for the limited internal license expressly provided above. Evaluator shall not offer, loan, transfer, encumber, sell or otherwise dispose of the Product to any third party.
- Termination. (a) This Agreement will expire at the end of the Term, unless terminated earlier. Either party may terminate this Agreement upon notice to the other party. In addition, this Agreement will terminate immediately upon any breach by Evaluator in which event Evaluator shall return the Product in accordance with Section 8. (b) Upon any such expiration or termination, Sections 3, 4, 5, 6, 7(b), and 8 through 14 will survive.
- Scope of Agreement. This Agreement is the entire agreement between Evaluator and Striim and supersedes in their entirety any and all oral or written agreements previously existing between Evaluator and Striim with respect to the subject matter hereof; provided that, if the parties have entered into a written and pen-signed license agreement regarding the subject matter hereof, that agreement will supersede this Agreement to the extent of any conflict.
- Excluded Uses. Evaluator acknowledges that the Product is not designed or intended for use in life sustaining, nuclear or other applications in which failure of the Product could reasonably be expected to result in personal injury, loss of life or catastrophic property damage (the “Excluded Uses”). Evaluator agrees to indemnify Striim and its suppliers harmless from and against any damages arising from such Excluded Uses.
- Disclaimer of Warranties. Striim provides the Product on an “AS IS” basis. ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF intellectual property, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, are disclaimed.
- Limitation of Liability. STRIIM AND ITS SUPPLIERS shall not be responsible for any loss or damage to Evaluator, or TO ANY third partY, caused by failure of the Product to function OR OTHERWISE ARISING OUT OF THIS AGREEMENT. EVALUATOR SHALL NOT PLACE PRODUCTION DATA ON THE PRODUCT. STRIIM WILL HAVE NO LIABILITY FOR ANY LOSS OF DATA. in no event will STRIIM be liable for any special, consequential, exemplary, incidental, or indirect damages, including lost profits, in connection with the use of the Product or in connection with any other claim arising from this Agreement, even if STRIIM has been advised of the possibility of such damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, STRIIM’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED $100.00 US DOLLARS. STRIIM’S suppliers will have no liability of any kind under or as a result of this Agreement.
- Confidentiality. “Confidential Information” means any Striim information, whether disclosed orally or in written or magnetic media, that is identified as “confidential” or with a similar legend at the time of such disclosure, or that Evaluator knows or should have known is the confidential or proprietary information of Striim. Evaluator shall not use or disclose any Confidential Information except as expressly authorized by this Agreement and shall protect the Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event less than a reasonable level of care. All Product related technical information, evaluation or reports supplied to or prepared by Evaluator are Striim Confidential Information. Evaluator agrees not to permit any third party access to any materials generated by Striim or Evaluator regarding the Product without Striim’s advance written approval.
- Product Diagnostic Reporting. Evaluator acknowledges that the Product will store diagnostic information about the routine operations of the Product (including, without limitation, its data reduction ratios, configuration data, and hardware faults) and will periodically transmit this diagnostic information to Striim. Evaluator agrees that Striim has a perpetual, irrevocable, worldwide, sub-licensable, and royalty-free right to use this diagnostic information in any manner; Evaluator will not interfere with the collection or transmission of such information to Striim. No actual user data of Evaluator is transmitted or provided to Striim.
- General Provisions.
14.1 Governing Law and Venue. This Agreement will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles. Each party hereby expressly consents to the personal jurisdiction and venue in the state and federal courts in Santa Clara County, California for any lawsuit filed there arising from or related to this Agreement.
14.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
14.3 No Assignment. This Agreement, and Evaluator’s rights and obligations herein, may not be assigned, delegated, or transferred by Evaluator without Striim prior written consent, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void.
14.4 Notices. All notices or other communications required under Sections 5, 7, 11 and 14 of this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt. All other notices and communications may be made by email or other applicable method.
14.5 Waiver. Any waiver or failure to enforce any provision of this Agreement once will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.6 Export. The Product and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Evaluator agrees not to export, re-export, or transfer, directly or indirectly, the Product or any U.S. technical data acquired from Striim in violation of the United States export laws or regulations.
14.7 U.S. Government End Users. The Product, its software and related documentation, are “commercial items” as defined in 48 CFR 2.101 and their use is subject to the policies set forth in 48 CFR 12.211, 48 CFR 12.212 and 48 CFR 227.7202, as applicable.
14.8 Modification. This Agreement may only be amended in a writing signed by both parties’ authorized representatives.