BAFFLE EVALUATION SOFTWARE END USER LICENSE AGREEMENT
PLEASE READ THIS EVALUATION SOFTWARE END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE INSTALLING OR OTHERWISE USING THIS EVALUATION SOFTWARE (“SOFTWARE” OR “EVALUATION SOFTWARE”) AS PROVIDED HEREWITH BY BAFFLE, INC.
This is a legal agreement (“AGREEMENT”) between the end-user customer (“you”), and Baffle, Inc. (hereinafter referred to as “BAFFLE”). BY INSTALLING OR USING THE SOFTWARE, YOU ARE ACCEPTING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS DOCUMENT, YOU ARE NOT AUTHORIZED TO INSTALL OR USE THIS SOFTWARE
1. Limited License
Notwithstanding any term to the contrary in this AGREEMENT, your license permits use only if you are an end-user customer and then only for your internal demonstration, test, or evaluation purposes, and not for any other purpose, including without limitation production purposes. Your license is for ninety (90) days with NO RIGHT TO MAINTENANCE, ANY WARRANTY OR INFRINGEMENT INDEMNIFICATION. In no event may an Evaluation Software be used beyond expiration.
2. Proprietary Rights; Restrictions on Use
Restrictions on Use. The Software is licensed (not sold) to you by BAFFLE. You acknowledge and agree that the Software is copyrighted and contains materials that are protected by copyright, trade secret and other laws and international treaty provisions relating to proprietary rights. You may not remove, deface, or obscure any of BAFFLE’s or its suppliers’ proprietary rights notices on or in the Software or on output generated by the Software. You may not, nor may you permit, any third party to: (a) decompile, reverse engineer, disassemble, or otherwise attempt to derive the source code, algorithms or underlying ideas, design, or architecture of the Software; (b) modify, translate, or create derivative works of the Software; or (c) rent, lease, loan, distribute, transmit, assign, or transfer the Software to any third party, or provide access to or use of the Software by any third party, including any agent of yours other than authorized users. Without prior written consent from BAFFLE, you shall not disclose any information relating to features, performance, or operation of the Software (including any benchmarking or other testing results) to any third party, nor use any of such information other than for purposes permitted under Section 1, above.
You acknowledge and agree that any unauthorized use, transfer, sublicensing, or disclosure of the Software, or other violation of this License, would cause irreparable injury to BAFFLE, and under such circumstances, BAFFLE shall be entitled to equitable relief, without posting bond or other security, including but not limited to, preliminary and permanent injunctive relief.
BAFFLE may request information from you regarding any problems discovered in the course of your evaluation of the Software and any resolutions, fixes, or work-arounds related to such problems (collectively, “Feedback”).
All rights, title, and interest in and to the Evaluation Software, the Feedback, accompanying materials, and all proprietary information contained therein, are owned by BAFFLE and are protected by copyright, trademark, patent and trade secret law, and international treaties. You will transfer and assign, and hereby does irrevocably transfer and assign, to BAFFLE all right, title, and interest, including all intellectual property rights, that you may have or acquire in the Feedback and will provide reasonable assistance to BAFFLE to effect such assignment. All rights not specifically granted in this Agreement are reserved by BAFFLE.
This Agreement shall be effective until terminated. Your rights under this EULA will terminate automatically without notice from BAFFLE if you fail to comply with any term(s) of this EULA. You may terminate this EULA at any time. In addition, BAFFLE may terminate this Agreement at any time upon notice to you. Immediately upon any termination, (a) the license granted under Section 1 above terminates, and (b) you must destroy the Software, including all copies and portions thereof, in your possession or under your control. If you choose to license BAFFLE’s Software, such purchase shall be pursuant to BAFFLE’s then-current terms and conditions for the purchase of BAFFLE’s Software. However, BAFFLE assumes no obligation under this EULA to introduce the Software as a commercial product.
You shall indemnify, defend and hold harmless BAFFLE from any and all damages, liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees) incurred by BAFFLE arising from or related to your use of BAFFLE’s products, including without limitation the Evaluation Software.
5. Disclaimer; Limitation of Liability
YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND BAFFLE AND BAFFLE’S LICENSOR(S) EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, NOR DOES THE BAFFLE PROVIDE ANY WARRANTY OR INDEMNIFICATION WITH RESPECT TO VIOLATION OF THE RIGHTS OF THIRD PARTIES. IN ADDITION, BAFFLE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL BAFFLE BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS), OR FOR THE COST OF PROCURING OTHER SOFTWARE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO THIS EULA, EVEN IF BAFFLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This EULA is governed by and construed in accordance with the laws of the State of California, U.S.A., without reference to its conflict of law principles. Any controversy or claim arising out of or relating to this EULA, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules, conducted in Santa Clara Country, California, U.S.A. There shall be one arbitrator, and the language of the arbitration shall be in English. If any provision of this EULA is held to be invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this EULA will remain in full force. Failure of a party to enforce any provision of this EULA shall not constitute and shall not be construed as a waiver of such provision or of the right to enforce such provision. BAFFLE reserves the right, and you agree that BAFFLE may, by itself or through its authorized representatives, inspect your systems, networks, hardware, books, and other records in any form to verify your compliance with this EULA, upon reasonable prior notice to you.
Evaluator shall not assign or transfer this Agreement or all or any part of its rights hereunder, by operation of law or otherwise, without the prior written consent of BAFFLE. Any unauthorized assignment or transfer shall be null and void and shall constitute a material breach of this Agreement. This Agreement shall inure to the benefit of and be binding upon each party’s permitted successors and assigns.
Evaluator agrees to comply fully with any and all applicable laws, rules and regulations, including without limitation those of the United States and other countries with respect to exports (“Export Laws”). Evaluator shall not (i) export the Product(s) or the accompanying materials, directly or indirectly, in violation of Export Laws, or (ii) use or permit the use of the Product(s) for any purpose prohibited by Export Laws.
This EULA sets forth the entire agreement between the parties with respect to your use of the Software and supersedes all prior or contemporaneous representations or understandings regarding such subject matter. No modification or amendment of this EULA will be binding unless in writing and signed by an authorized representative of BAFFLE.
BAFFLE EVALUATION SOFTWARE END USER LICENSE AGREEMENT