DEVICESCAPE LICENSES THIS SOFTWARE PRODUCT TO YOU SUBJECT TO THE TERMS CONTAINED IN THIS EVALUATION AGREEMENT. READ THE TERMS OF THIS EVALUATION AGREEMENT CAREFULLY. BY SELECTING THE “I AGREE” RADIO BUTTON YOU AGREE TO THE TERMS OF THIS EVALUATION AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS EVALUATION AGREEMENT, SELECT THE “I DO NOT AGREE” RADIO BUTTON AND THE DOWNLOAD, REGISTRATION OR INSTALLATION PROCESS WILL NOT CONTINUE.
If you do not agree to the terms of this Evaluation Agreement, do not download, install, activate, or use this software. This Evaluation Agreement is a contract between you (either an individual or an entity) and Devicescape Software, Inc. (“Devicescape”), which governs your use of this Devicescape software product that accompanies this Evaluation Agreement and related software components, which may include associated media, printed materials, and online or electronic documentation.
Installing the software package provided with this Evaluation Agreement on your computer will modify some of the existing software stored in memory on your computer, including existing software that may be integral to your computer. This may void the warranty provided to you by your computer manufacturer, and/or result in loss of computer data or functionality.
Subject to Your compliance with the terms and conditions of this Agreement, and during the Term provided hereunder, Devicescape hereby grants to You a limited, personal, non-exclusive, non-transferable, revocable license, during the Evaluation Period (defined as thirty (30) days following Your download of the Software) to do the following only at the location(s) specified in Exhibit A, and solely for the purposes of internal testing and evaluating whether to enter into the currently-proposed business relationship with Devicescape (the “Purpose”): (a) use the Software, in object code form only, solely in accordance with its documentation; and (b) create works that access the Software through the Software's application program interfaces ("Your Works"), provided that the Your Works do not change or alter the Software or the related application program interfaces.
You understand and agree that the Software may not be used for any production use whatsoever. You will not rent, sell, lease, sublicense or otherwise transfer the Software or any part thereof or use it for the benefit of a third party. You will not copy the Software, except as strictly necessary to exercise the license rights granted to You herein. You agree that unauthorized copying, disclosure or use will cause great damage to Devicescape or to any third party holding and right, title or interest in the Software. You will reproduce all of Devicescape's and its licensor(s)' copyright notices and any other proprietary rights notices on all copies of the Software that You make hereunder.
Your rights in the Software will be limited to those expressly granted in Section 1. Devicescape and its licensors reserve all rights and licenses in and to the Software not expressly granted to You under this Agreement.
You acknowledge and agree that, as between the parties, Devicescape owns all right, title and interest in and to the Software, including all intellectual property rights therein. You will not earn or acquire any rights or licenses in the Software or in any Devicescape intellectual property rights as a result of this Agreement or Your performance under this Agreement. You hereby assign to Devicescape any invention, work of authorship, mask work, idea, information, feedback or know-how (whether or not patentable) that is conceived, learned or reduced to practice in the course of performance under this Agreement and any patent rights, copyrights (including moral rights; provided that any non-assignable moral rights are waived to the extent permitted by law), trade secret rights, mask work rights, sui generisdatabase rights and all other intellectual and industrial property rights of any sort with respect thereto. You agree to take any action reasonably requested by Devicescape to evidence, perfect, obtain, maintain, enforce or defend the foregoing. Provided that the Your Works do not change or alter the Software or the related application program interfaces, Devicescape acknowledges and agrees that such Your Works will be the sole and exclusive property of You.
You will provide feedback to Devicescape regarding the results of Your evaluation of the Software. You hereby understand that no formal support is provided under this Agreement.
You acknowledge that the Software is being provided "AS IS." Devicescape has no obligation to provide any technical support or error corrections for the Software. DEVICESCAPE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
IN NO EVENT WILL DEVICESCAPE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, REVENUES, BUSINESS OR PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT DEVICESCAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
The term of this Agreement (the “Term”) shall commence on the Effective Date and end on the last day of the Evaluation Period, unless earlier terminated in accordance herewith. Either party may terminate this Agreement at any time, with or without cause, upon five (5) days' written notice to the other party. Devicescape may terminate this Agreement immediately upon written notice to You in the event that You breach Section 1 or infringes or otherwise violates Devicescape's intellectual property rights. Upon any termination or expiration of this Agreement: (a) the rights and licenses granted to You under this Agreement will automatically terminate; and (b) within five (5) days after any such termination or expiration, You will, at Your expense return to Devicescape or destroy all copies of the Software in Your possession or control. The provisions of Sections 2 - 10 will survive any termination or expiration of this Agreement.
Although fully assignable and transferable by Devicescape, You may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Devicescape. Any attempted assignment without such consent will be void and of no effect. This Agreement will be governed by and construed in accordance with the laws of the State of California, USA (excluding its body of law controlling conflicts of law). The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby consent to the personal jurisdiction and venue therein. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default. This Agreement constitutes the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersede any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
If you have any questions about this Evaluation License Agreement, or if you want to contact Devicescape for any reason, please direct all correspondence to: Devicescape Software, Inc., 900 Cherry Avenue #600, San Bruno, CA 94066, United States of America.
Devicescape is a registered trademark of Devicescape Software, Inc.