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Nexaweb Technologies,
Inc.
Evaluation License Agreement
This Evaluation License Agreement ("Agreement") is
made by and
between Nexaweb Technologies, Inc. ("Nexaweb") and
You, effective
as of the date of the first installation of the
Software by You.
BY ACCESSING, USING, OR INSTALLING ALL OR ANY PART
OF THE SOFTWARE,
AS DEFINED BELOW, YOU EXPRESSLY AGREE TO AND CONSENT
TO BE BOUND
BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT
AGREE TO
ANY PART OF THIS AGREEMENT OR DO NOT WISH TO BE
BOUND BY THIS
AGREEMENT, YOU MAY NOT ACCESS, USE OR INSTALL ALL OR
ANY PART
OF THE SOFTWARE FOR ANY PURPOSE.
1. DEFINITIONS. "Software" means the object code
form of the
software product(s) provided herewith, and their
associated Documentation.
"Documentation" means all written and electronic
information
generally made available by Nexaweb to its customers
relating
to the operation and functionality of the Software,
including
user manuals, installation guides, and any "read me"
or "help"
files.
2. GRANT OF LICENCE. Nexaweb hereby grants You a
limited, nonexclusive,
nontransferable license to install and use the
Software on any
computer and make unlimited copies solely for
evaluation and
trial purposes. Except as expressly permitted by
this Agreement,
you may not (i) upload the Software to a bulletin
board system
or web site; (ii) distribute the Software
commercially or otherwise;
(iii) reverse engineer, decompile, disassemble,
modify, or make
any other attempt to access the source code of the
Software,
except and only to the extent that such activity is
expressly
permitted by applicable law; or (iv) rent, lease,
sell or otherwise
attempt to make any commercial gain through use or
distribution
of the Software.
3. TERM; TERMINATION. The Term of this Agreement
shall commence
as of the date of first installation of the Software
by You and
continue for a period of sixty (60) days, whereupon
it shall
automatically terminate. Nexaweb may earlier
terminate this Agreement
at any time. Immediately upon termination,
expiration or cancellation
of this Agreement for any reason, Your right to the
Software
hereunder shall cease, the license granted hereunder
shall terminate,
and You shall immediately discontinue any and all
use of the
Software. Upon termination, expiration or
cancellation of this
Agreement for any reason, within ten (10) days
thereafter You
shall either return to Nexaweb at Your expense, or
destroy, all
copies of the Software in Your possession or
control. All provisions
of this Agreement which by their nature are intended
to survive
the expiration or termination of this Agreement
shall survive
and remain in full force and effect, including but
not limited
to the restrictions and obligations set forth in
sections 3,
4, 5, 6, 7, 8 and 9 hereof.
4. DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED
"AS IS" WITHOUT
WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
FITNESS
FOR A PARTICULAR PURPOSE OR NONINFRINGEMEMENT OF
INTELLECTUAL
PROPERTY RIGHTS. NEXAWEB DOES NOT (A) WARRANT THAT
THE SOFTWARE
WILL BE BUG-FREE OR FREE FROM PROGRAM ERRORS, (B)
MAKE ANY REPRESENTATIONS
REGARDING THE SOFTWARE OR (C) MAKE ANY WARRANTY
REGARDING THE
USE OR INSTALLATION, OR THE RESULTS OF THE USE, OF
THE SOFTWARE.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INSTALLATION AND
USE OF THE
SOFTWARE AND YOU DO SO AT YOUR SOLE RISK.
5. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES
SHALL NEXAWEB
BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY
INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE
DAMAGES, OR ANY
OTHER PECUNIARY LOSS ARISING OUT OF THE
INSTALLATION, USE, OR
INABILITY TO USE, THE SOFTWARE (INCLUDING, WITHOUT
LIMITATION,
ANY LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE
GOODS, DISRUPTION
OF BUSINESS, LOSS OF PROFITS, OR ANY OTHER MATTER
RELATING TO
YOUR USE OR INABILITY TO USE THE SOFTWARE) OR
RELATED IN ANY
WAY TO THIS AGREEMENT OR THE SUBJECT HEREOF, WHETHER
ARISING
UNDER THEORIES OF CONTRACT, NEGLIGENCE, STRICT
LIABILITY, TORT
OR OTHER THEORY, REGARDLESS OF WHETHER NEXAWEB HAS
BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS,
EXCLUSIONS
AND DISCLAIMERS SET FORTH IN THIS SECTION SHALL
APPLY TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF
ANY REMEDY
FAILS OF ITS ESSENTIAL PURPOSE. NO OBLIGATION OR
LIABILITY SHALL
ARISE FROM NEXAWEB�S RENDERING OF TECHNICAL OR OTHER
ADVICE OR
SERVICE IN CONNECTION WITH THIS AGREEMENT INCLUDING,
WITHOUT
LIMITATION, ADVICE OR SERVICE RELATED TO THE
INSTALLATION OR
CONFIGURATION OF THE SOFTWARE. SOME STATES AND
JURISDICTIONS
DO NOT ALLOW EXCLUSION OR LIMITATION OF LIABILITY
FOR CONSEQUENTIAL
OR INCIDENTAL DAMAGES AND SO THE ABOVE LIMITS AND
EXCLUSIONS
MAY NOT APPLY TO YOU OR MAY BE LIMITED BY LAW.
6. ACKNOWLEDGMENT AND RESERVATION OF RIGHTS. You
acknowledge
and agree that Nexaweb owns all intellectual
property and other
proprietary rights in and to the Software including,
without
limitation, all trademarks, service marks and
tradenames associated
with the Software. Furthermore, You acknowledge and
agree that
this Agreement does not and shall not be construed
to transfer
to You any express or implied license to Nexaweb's
intellectual
property or other proprietary rights, except as
expressly set
forth herein. All rights not expressly granted
herein are reserved
to Nexaweb, including the right to make use of any
and all trademarks,
service marks and/or tradenames associated with the
Software.
7. Governing Law and Forum Choice. This Agreement
shall be construed
as having been made in, and shall be governed in
accordance with,
the laws of the Commonwealth of Massachusetts,
without regard
to choice of law rules or conflict of law
provisions. You agree
that both venue and personal jurisdiction over You
shall be proper
in any state or federal court in Middlesex County,
Massachusetts
for purposes of any disputes arising out of or
related in any
way to this Agreement, and You hereby irrevocably
consent to
the jurisdiction of such courts.
8. Injunctive Relief. You acknowledge and agree that
monetary
damages alone would not be an adequate remedy in the
event of
a material breach by You of Your obligations under
this Agreement
and that, in such event, Nexaweb shall be entitled
to seek injunctive
relief to require You to comply with Your
obligations hereunder.
9. GENERAL. This Agreement contains the entire
agreement between
the parties relating to the matters covered by it,
superseding
all other oral or written representations,
understandings, proposals
or other communications between the parties. This
Agreement may
be modified only by a written instrument signed by
an authorized
representative of each party. You shall not assign,
sublicense
or otherwise transfer all or any part of this
Agreement without
the prior written consent of Nexaweb. In the event
that any provision
of this Agreement is for any reason void or
unenforceable in
any respect, such provision shall be without effect
to the extent
of the voidness or unenforceability without
affecting such provision
in any other respect and without affecting any other
provision.
You shall not export or re-export the Software to
any country,
person, entity or end user subject to U.S. export
restrictions.
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