GigaSpaces XAP Software License Agreement - Premium Edition and/or Enterprise Edition

GigaSpaces XAP Software License Agreement

IMPORTANT - READ CAREFULLY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (THIS "AGREEMENT") BEFORE CLICKING ON THE "I ACCEPT" BUTTON. BY CLICKING ON THE "I ACCEPT" BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT WITH GIGASPACES TECHNOLOGIES LTD. ("GIGASPACES"). AFTER CLICKING THE "I ACCEPT" BUTTON YOU WILL HAVE TO INDICATE WHETHER YOU ARE INTERESTED TO RECEIVE, SUBJECT TO THE TERMS HEREUNDER, A LICENSE TO THE GIGASPACES'S XAP PREMIUM EDITION (THE "PREMIUM EDITION") OR ENTERPRISE EDITION (THE "ENTERPRISE EDITION, AND TOGETHER WITH THE PREMIUM EDITION, THE "SOFTWARE"). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT DOWNLOAD, INSTALL OR USE GIGASPACES'S SOFTWARE AND RELATED DOCUMENTATION ("THE DOCUMENTATION"). THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK ON THE "I DECLINE" BUTTON.

FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.

YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE.

1. Grant of License. GIGASPACES grants you, subject to the acceptance of the terms of this Agreement and your compliance with the terms of this Agreement, a limited, personal, revocable, nonexclusive non assignable and nontransferable license to use one (1) copy of the Software in machine-readable object code form only, and the accompanying Documentation, only as authorized in this Agreement. During the Trial Period (as defined below) you may use the Software and the accompanying Documentation only for your internal trial use and evaluation purpose solely in order to determine whether to license the Software from GIGASPACES.

2. Trial Period. The Software and Documentation are available for you, without charge, for a trial period of 90 days ("Trial Period"), solely to allow you to evaluate the Software.  At the end of the Trial Period, the license granted to you under this Agreement shall expire, unless you enter into a commercial use agreement with GIGASPACES for the purchase of a license for the Software.

3. License Restrictions. The Software should be installed in accordance with the instructions of GIGASPACES. Except as expressly and unambiguously permitted by this Agreement you agree that you may not, and may not permit or aid others to: (i) commercially distribute, rent, lease, market, sublicense, resell or otherwise transfer the Software, (ii) translate, reverse engineer, decompile or disassemble all or any portion of the Software, except and only to the extent, that such activity is expressly permitted by applicable law notwithstanding this limitation, (iii) update, modify, reproduce, duplicate, copy, distribute or otherwise disseminate all or any part of the Software provided that nothing herein restricts modifications of the portions of Open Source Software (as defined below) combined with the Software, or reverse engineering for debugging such modifications, (iv) extract source code from the object code of the Software, (v) use the GIGASPACES name, logo or trademarks without prior written consent from GIGASPACES), (vi) publish the results of any comparisons or other benchmarking activities that you will conduct with the Software, either alone or in connection with any other software or hardware without the prior written consent of GIGASPACES, or (vii) publish reviews of the Software without the prior written consent of GIGASPACES. You agree that you may not destroy or otherwise remove any proprietary notices or labels on or embedded within the Software.

4. Updates. This Agreement applies to downloading, installing and using the Software. GIGASPACES may from time to time revise or update its Software. Such updates and revisions will be supplied according to GIGASPACES's then prevailing policies.

5. Proprietary Rights. You acknowledge and agree that the Software and Documentation are a proprietary product of GIGASPACES and/or any of its subsidiaries or affiliates, and also includes proprietary assets and software of third party vendors of GIGASPACES protected under copyright laws and international treaties. You further acknowledge and agree that all right, title, and interest in and to the Software, including associated intellectual property rights, are and shall remain with GIGASPACES and/or its subsidiaries, affiliates and third party vendors. This Agreement does not convey to you an interest in or to the Software, but only a limited right of use, revocable in accordance with the terms of this Agreement.

6. Open Source Licenses. The Software includes open source software and materials that are made available by GIGASPACES and other third parties (“Open Source Software”) under their respective open source licenses (“Open Source Licenses”). The Open Source Licenses and/or certain relevant provisions of such Open Source Licenses are listed in the Software notice.txt file and in the GIGASPACES website (http://docs.gigaspaces.com/release_notes/120third-party.html). You are obligated to comply with the applicable Open Source Licenses related to such Open Source Software set forth in the Software's notice.txt text file. Open Source Software provided under the Open Source Licenses is governed solely by such Open Source Licenses, including without limitation warranty and indemnification, which will prevail over this Agreement.

7. Feedback. Without derogating from the aforesaid, you hereby grant GIGASPACES an irrevocable, free of charge, license under all intellectual property rights (including copyright) to use, for any and all purposes, any feedback, including materials, error corrections, enhancements, modifications, derivatives, suggestions and the like that you may provide GIGASPACES.

8. Term and Termination. The license granted under this Agreement shall expire upon the termination of the Trial Period. Notwithstanding the aforesaid, you may terminate this Agreement  at any time by deletion of all copies of the Software and Documentation from your computer system. GIGASPACES reserves the right to terminate this Agreement and the license granted hereunder at any time and without notice. Unauthorized copying of the Software or otherwise failing to comply with this Agreement will result in automatic immediate termination of this Agreement and will make available to GIGASPACES legal remedies. Upon termination of this Agreement, the license granted herein will terminate and you: (i) will cease any and all rights to use the Software, and (ii) will remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession or under your control. Upon GIGASPACES' request, you must certify the deletion of all copies of the Software and Documentation from your computer system

9. Limited Warranty. The Software and Documentation are licensed "AS IS". GIGASPACES disclaims any and all warranties, whether express or implied, including without limitation, any implied warranties of merchantability, fitness for a particular purpose or non infringement. GIGASPACES does not warrant the functions contained in the Software will meet any requirement or needs you may have, or that the Software will operate error free, or in an uninterrupted fashion, or that the Software is compatible with any particular platform

10. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, GIGASPACES WILL NOT BE LIABLE FOR ANY DIRECT DAMAGES OR FOR ANY SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF GIGASPACES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GIGASPACES WILL NOT BE LIABLE FOR THE LOSS OF, OR DAMAGE TO, YOUR RECORDS OR DATA, OR ANY DAMAGES CLAIMED BY YOU BASED ON A THIRD PARTY CLAIM. WITHOUT DEROGATING FROM THE AFORESAID, TO THE EXTENT THAT GIGASPACES SHALL BE FOUND LIABLE FOR ANY ACTION OR OMISSION, GIGASPACES'S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR USE OF THE SOFTWARE SHALL NOT EXCEED THE LESSER OF (A) THE AMOUNT (IF ANY) PAID BY YOU IN THE 6 MONTHS IMMEDIATELY PRECEDING BRINGING OF A CLAIM AGAINST GIGASPACES OR (II) ,AMOUNT OF US$10 (TEN U.S. DOLLARS). SOME STATES MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

THE SOFTWARE INCLUDES THIRD PARTY SOFTWARE THAT IS SUBJECT TO THEIR RESPECTIVE OPEN SOURCE LICENSES OR PROPRIETARY LICENSES. ANY THIRD PARTY SOFTWARE IS PROVIDED "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL GIGASPACES, THE THIRD PARTY SOFTWARE OWNERS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE THIRD PARTY SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

11. INDEMNITY. You agree that GIGASPACES shall have no liability whatsoever for any use made of the Software by you or any third party. You hereby agree to defend, indemnify and hold harmless GIGASPACES and its affiliates and their respective officers, directors, agents and employees from any and all claims, damages, liabilities, costs, and expenses (including attorney’s fees) arising from claims related to your use of the Software as well as from Your failure to comply with this Agreement.

12. Qualifications and Limitations Basis of Bargain. The limited warranty, exclusive remedies and limited liability provisions set forth herein are fundamental elements of the basis of the agreement between GIGASPACES and you, and you accept and confirm that GIGASPACES would not be able to provide the Software on an economic basis without such limitations.

13. U.S.-Related Special Provisions. You agree that neither the Software nor any direct product thereof is being or will be shipped, transferred or re-exported, directly or indirectly, into any country prohibited by the United States Export Administration Act and the regulations thereunder, or will be used for any purposes prohibited by such Act. The Software was developed at private expense and with no government funds. If any part of the Software is acquired by or on behalf of a unit or agency of the U.S. Government, the Government agrees that the Software and all related documentation are "commercial computer software" or "commercial computer software documentation' and that, absent a written agreement to the contrary, the Government's rights with respect to the Software and the related documentation are limited by the terms of this Agreement, pursuant to FAR 12.212(a) and/or DFARS 227.7202-1(a), as applicable.

14. Governing Law and Jurisdiction. This Agreement shall be construed and governed in accordance with the laws of the State of New York, U.S.A., regardless of its conflict of laws rules, and the competent courts of New York shall have sole and exclusive jurisdiction over any dispute under this Agreement or otherwise related to the Software or its use. If any action is brought by either party to this Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.

15. Miscellaneous. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof. This Agreement represents the entire agreement concerning the Software and Documentation between you or the company on whose behalf you are installing the software and GIGASPACES, and it supersedes any prior proposal, representation, or understanding between the parties. GIGASPACES reserves the right, at its discretion, to modify this Agreement, which modification will be effective 10 days following the posting of the modification to the GIGASPACES website or providing notice to you, whichever occurs first, and will apply to causes of action arising after the effective date of the change. You should continue check GIGASPACES' website for changes. Your continued use of the Software 10 days following the posting of changes to this Agreement or providing notice to you, whichever occurs first, will mean you accept those changes. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without the consent of GIGASPACES and any action or conduct in violation of the foregoing shall be void and without effect. GIGASPACES expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder without your consent. 

 
GigaSpaces XAP Software License Agreement - Premium Edition and/or Enterprise Edition