Start-Up Program License Agreement

Start-Up Program License Agreement

IMPORTANT: YOU SHOULD CAREFULLY READ THIS LEGAL AGREEMENT BEFORE CLICKING "ACCEPT" AND INSTALLING THIS SOFTWARE. BY CLICKING THE "ACCEPT" BUTTON AT THE BOTTOM OF THIS AGREEMENT, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREE THAT YOU WILL BE LEGALLY BOUND BY THEM. IF THESE TERMS AND CONDITIONS ARE NOT ACCEPTABLE TO YOU, DO NOT CLICK THE "ACCEPT" BUTTON OR OTHERWISE ATTEMPT TO DOWNLOAD THIS SOFTWARE.

1. LICENSE TO QUALIFYING CUSTOMERS ONLY

1.1 GigaSpaces Technologies, Inc. ("GigaSpaces") grants Qualifying Customers a license to use the GigaSpaces eXtreme Application Platform ("XAP") or GigaSpaces XAP Enterprise Data Grid Edition software products, and their documentation (collectively, the "Software"), subject to the provisions below.

1.2 "Qualifying Customers" are limited to: (a) businesses with annual gross revenues of less than five million US dollars (US $5,000,000), calculated, as of the date of Acceptance or downloading of the Software, on a trailing twelve month basis, or (b) non-profit organizations that use the Software solely in a non-commercial, open source environment. The term "Qualifying Customers" does not include any governmental entity or quasi-governmental entity of any country, whether federal, state, county, municipal, or local, or any agency, department or branch thereof.

IF YOU OR YOUR BUSINESS ARE NOT A QUALIFYING CUSTOMER, AS DEFINED ABOVE, THIS OFFER IS NOT MADE TO YOU OR YOUR ORGANIZATION, AND YOU ARE NOT AUTHORIZED TO ACCEPT OR DOWNLOAD THIS SOFTWARE.
(Qualifying Customers as defined above are referred to herein below as the "Customer".)

2. PROGRAM LICENSE TERMS

2.1 The terms of this license are granted, and a Software license key will be sent, by GigaSpaces only to Customers that have (a) applied to GigaSpaces to join the program described in this Agreement on the application form provided by GigaSpaces (the "Program"); (b) received written confirmation from GigaSpaces (via email) that such Customers are eligible to enter the Program; and (c) accepted the terms hereof by clicking on the "Accept" button.

2.2 Subject to the terms and conditions of this Agreement, Customer is granted a nonexclusive, non-transferable,

(a) perpetual license to use the Software on a royalty-free basis in either a non-production environment (i.e., for testing, development and/or training purposes) or production environment, on an unlimited number of CPUs for Customer's internal business purposes and not for resale or distribution;

(b) license, throughout the term of this Agreement, to sublicense the Software to End Users (defined below) provided the Software is integrated, embedded or working in conjunction with Customer's software solution that adds value to the Software (such combined solution, hereinafter, the "Solution"). For clarity, Customer's Solution must incorporate the Software as part of a larger, more complete software solution that provides materially different functional characteristics from those of the Software. As used herein, "End-User" means a person or entity who acquires the Solution from Customer under the terms of an End User license agreement pursuant to Section 2.3 for such person or entity's internal business purposes, and not for sale, resale, lease or any other form of distribution to third parties.

(c) license throughout the term of this Agreement to appoint distributors and resellers to distribute the Software as part of the Solution to End Users. All distributors and resellers appointed by Customer must enter into a written agreement with Customer that offers GigaSpaces substantially the same degree of protection with respect to the Software as provided by this Agreement ("Reseller Agreement"). Customer will use best efforts to ensure that such distributors and resellers comply with the terms of their respective Reseller Agreements and will inform GigaSpaces promptly of any known violation, infringement or breach. As between the parties, Customer shall be responsible and liable for the compliance by such entities with such terms.

2.3 The Software distributed to End Users under Section 2.2 above must be pursuant to an End-User license agreement governing such End User's use of the Software as part of the Solution, which agreement shall be consistent with, and no less protective of GigaSpaces' rights in the Software than the terms of this Agreement. Furthermore, such End-User license agreement shall explicitly prohibit the use by End-User of the Software application programming interfaces (APIs).

3. GENERAL LICENSE PROVISIONS

3.1 Customer shall not remove any product identification, copyright notices, or other notices or proprietary restrictions from GigaSpaces.

3.2 Customer shall not cause or permit reverse engineering, disassembly, or decompilation of the Software.

3.3 Customer shall not use the Software, directly or indirectly, to develop software or and/or applications having the same or substantially similar functional characteristics as those contained in the Software. Except to the extent Software sublicensing is expressly permitted herein, Customer shall not compete with GigaSpaces in the sale or license of the Software or associated Software maintenance or consulting services.

3.4 Customer shall not disclose nor allow the use of the Software's application programming interfaces (APIs) to any third party, including without limitation, any End-User of the Solution; provided, that Customer may permit API access to its personnel for the sole purpose of developing the Solution.

3.5 The Software, including its API's, is proprietary and confidential to GigaSpaces and its licensors and is protected by copyright, trade secret and other intellectual property laws.

3.6 Customer acquires only the right to use the Software and does not acquire any rights, express or implied, in software or media other than those specified in this License.

3.7 GigaSpaces, or its licensor, shall at all times retain all rights, title, and interest, including intellectual property rights, in and to the Software.

4. SUPPORT AND MAINTENANCE

4.1 At no additional charge, Customer shall be entitled to post technical support questions on the public discussion forums available on the GigaSpaces web site, to which GigaSpaces will make good faith efforts to respond within such time frame as will be determined by GigaSpaces in its sole discretion.

4.2 Annual Software support and maintenance is available from GigaSpaces, provided Customer first (a) purchases a Software license at a fifty percent (50%) discount off of GigaSpaces' then-current list price license fee for such Software and (b) pays the applicable annual maintenance and support fee as specified in GigaSpaces' then-current price list.

4.3 Customers interested in obtaining more information with respect to GigaSpaces Software support and maintenance program may contact us at: sales@gigaspaces.com

5. GENERAL PROVISIONS

5.1 NO WARRANTIES OF ANY KIND: THE SOFTWARE AND LIMITED TECHNICAL SUPPORT DESCRIBED HEREIN WILL BE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GIGASPACES DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR OPERATE IN AN ENVIRONMENT CREATED BY CUSTOMER OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT SOFTWARE ERRORS WILL BE CORRECTED. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH CUSTOMER.

5.2 LIMITATION OF LIABILITY: NEITHER GIGASPACES NOR ANY OF ITS LICENSORS SHALL BE LIABLE FOR ANY DAMAGES CAUSED BY THE SOFTWARE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, LOSS OF SAVINGS, REVENUE, DATA, INCURRED BY CUSTOMER OR ANY THIRD PARTY, EVEN IF GIGASPACES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5.3 TERMINATION: Customer may terminate this Agreement at any time by uninstalling the Software and deleting all its files. The licenses granted herein will terminate immediately without notice from GigaSpaces as of the date that Customer fails to comply with any material provision of this Agreement. Without limiting the generality of the foregoing, GigaSpaces may terminate this Agreement at any time by providing thirty (30) days prior written notice to Customer. Upon termination of this Agreement, Customer must uninstall the Software and delete all its files, and if so requested by GigaSpaces, Customer shall certify such deletion. In the event of the expiration or termination of this Agreement, those terms which by their nature are intended to survive such expiration or termination will so survive.

5.4 EXPORT LAW ASSURANCE: Customer shall comply fully with all laws and regulations of the United States and other countries ("Export Laws") to assure that neither the Software, nor any direct products thereof are exported, directly or indirectly, in violation of Export Laws, or are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. If the Software has been rightfully obtained by Customer outside of the United States, Customer agrees that it will not re-export the Software or any other technical data received, or the direct product thereof, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which Customer obtained the Software.

5.5 JURISDICTION AND DISPUTES: This Agreement shall be governed by the laws of the State of New York, exclusive of its conflict of laws principles. All disputes hereunder shall be resolved in the applicable state or federal courts of the State of New York. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available. In any litigation arising out of this Agreement or related to use or function of the Software, the successful party shall be entitled to all reasonable costs and attorney's fees incurred in connection with any legal proceedings, including without limitation, mediation, arbitration, court and/or appellate proceedings.

5.6 SEVERABILITY: If for any reason a court of competent jurisdiction finds any provision of this Agreement or portion thereof, to be unenforceable, that provision of the license shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

5.7 COMPLETE AGREEMENT: This License constitutes the entire agreement between the parties with respect to the use of the Software and the related documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of GigaSpaces.
CUSTOMER HEREBY ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.

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