PLEASE READ THIS PRODUCT EVALUATION AND DEVELOPMENT LICENSE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE AND SERVICES OFFERED BY AEROSPIKE, INC. AND ITS SUBSIDIARIES, (“AEROSPIKE”). BY SIGNING AN AEROSPIKE ORDER FORM WHICH REFERENCES THIS AGREEMENT (AN “ORDER FORM”) YOU OR THE ENTITY THAT YOU REPRESENT (“LICENSEE”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS PRODUCT EVALUATION AND DEVELOPMENT LICENSE AGREEMENT CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS (THE “AGREEMENT”).
Subject to the terms and conditions hereof, Licensee wishes to evaluate and develop with the Products (as defined below) for the limited purposes of internal testing, development and evaluation during the Evaluation Period and Term set forth on the applicable Order Form (where an “Order Form” is a mutually executed written order form that references this Agreement). LICENSEE AGREES NOT TO USE THE PRODUCTS IN ANY PRODUCTION OR PRODUCTION RELATED ENVIRONMENTS.
2.1 “Products” means, collectively, all modules of the Aerospike Enterprise Edition, together with related documentation, including updates, modifications, or new releases thereof which may be provided by Company to Licensee from time to time and access to the Company’s on-line training found at https://aerospike.com/training/.
2.2 Subject to the terms and conditions of this Agreement, Company hereby grants to Licensee a non-exclusive, non transferable, nonsublicensable limited license (the “License”) to use the Products internally only for evaluation and development and non-production purposes only during the Evaluation Period and Term. Licensee may not sublicense, assign, or otherwise transfer any of its rights in this License. The License granted hereunder will expire at the end of the Evaluation Period (or, if applicable, the end of the Term) unless extended, upon mutual consent in writing, or earlier terminated as described below. At the end of the Evaluation Period (or, if applicable, the Term), or any earlier termination of the License herein, Licensee shall promptly cease all use of the Products and, if applicable, return the Products to Company and erase or otherwise destroy all copies.
Support and Maintenance. While all applicable fees have been timely paid for each license Term, Company will use reasonable commercial efforts to provide the support and maintenance services for that Product as and to the extent described in Company’s then-current Support and Maintenance Terms found at https://aerospike.com/forms/premium-support-terms/. Licensee shall not use any Support Services for any unsupported application, including, without limitation, any open source or community edition of any Company product without paying Company’s then-current enterprise subscription fees.
Licensee agrees to make no more than one (1) copy of any Product only as is required solely for replacement of the original in the event the original becomes unusable. Licensee may use the Products in machine-readable form only and agrees not to (and not to allow any third party to): (i) reverse engineer, decompile or disassemble the Products or otherwise attempt to discover any source code or underlying ideas or algorithms of any software contained or incorporated therein (except to the extent such restriction is prohibited by applicable law); (ii) modify nor create a derivative work of any part of the Products, nor remove any product identification, copyright or other notices; (iii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, any Product. If Company delivers an upgrade or maintenance release update of any Product, Licensee agrees to destroy and not use, nor permit the use of, any previous copy of such Product except during the limited conversion period identified by Company at the time of such delivery.
Licensee may use the Products in machine-readable form only and agrees not to (and not to allow any third party to): (i) reverse engineer, decompile or disassemble the Products or otherwise attempt to discover any source code or underlying ideas or algorithms of any software contained or incorporated therein (except to the extent such restriction is prohibited by applicable law); (ii) modify nor create a derivative work of any part of the Products, nor remove any product identification, copyright or other notices; (iii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, any Product. If Company delivers an upgrade or maintenance release update of any Product, Licensee agrees to destroy and not use, nor permit the use of, any previous copy of such Product except during the limited conversion period identified by Company at the time of such delivery.
If the Agreement has not been terminated prior to the expiration of the Evaluation Period, Company will invoice, and Licensee shall pay Company the subscription fees for the Product, or such other fees as have been expressly agreed to by Licensee and Company on the applicable Order Form. Licensee shall pay Company the fees for any additional services as described in the applicable Order Form within thirty (30) days following receipt of invoice thereof. All payments shall be made in the currency of, and within the borders of the United States. Any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. In addition, Licensee will pay all taxes, shipping, duties, withholdings, backup withholding and the like; when Company has the legal obligation to pay or collect such taxes, the appropriate amount shall be paid by Licensee directly to Company.
ALL PRODUCTS ARE PROVIDED “AS IS” AND COMPANY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Each Party understands that the other Party has disclosed or may disclose information which is marked as confidential or reasonably understood to be confidential relating to the disclosing Party’s technology or business, including, without limitation, the Products and any other software, documentation, updates, modifications, or new releases thereof and the existence, terms and conditions of this Agreement (hereinafter collectively referred to as “Proprietary Information”). The Party receiving Proprietary Information of the disclosing Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the receiving Party takes with its own proprietary information, but in no event will the receiving Party apply less than reasonable precautions to protect such Proprietary Information. Nothing in this Agreement will prevent Licensee from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that Licensee gives Company reasonable prior notice of such disclosure to contest such order.
IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR (I) ANY LOST PROFITS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHER DAMAGES OF ANY KIND WHATSOEVER, OR (II) ANY DIRECT DAMAGES IN EXCESS (IN THE AGGREGATE) OF THE FEES PAID OR PAYABLE TO COMPANY HEREUNDER, IN EACH CASE RESULTING FROM OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN AN ACTION BASED ON CONTRACT OR TORT AND EVEN IF PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
During the Term of the Agreement, Company agrees to defend, indemnify, and hold harmless Licensee, its affiliates, directors, officers, employees, representatives, and agents from and against any and all claims, actions, demands, legal proceedings, liabilities, damages, losses, judgments, authorized settlements, costs or expenses, including without limitation reasonable attorneys’ fees, arising out of or in connection with any alleged or actual infringement of copyright, patent, trademark, trade name, trade secret or other proprietary or intellectual property right of any third party by the Products and/or any materials delivered under this Agreement.
Licensee may terminate the Evaluation Period any time during the Evaluation Period by providing written notice, with or without cause. Following the Evaluation Period, if the Agreement has not been terminated, the term of the Agreement will automatically extend for the additional term set forth in the applicable Order Form (the “Term”). All licenses will terminate thirty (30) days after notice of any breach by Licensee remaining uncured at the end of such notice period. Upon any termination of this Agreement, or upon expiration of the Evaluation Period and or Term, only the License to use the Products in Section 2, Support in Section 3, and the limited permission to make copies as stated in Section 5, will terminate, and all other rights and obligations will survive such termination.
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements, negotiations, understandings and communications regarding such subject matter. If any of the provisions of this Agreement are invalid under any applicable law, they are, to that extent, deemed omitted, and the balance of this Agreement will be enforceable in accordance with its terms. Neither this Agreement nor the license granted hereunder are assignable or transferable (and any attempt to do so shall be void); provided that either Party may assign or transfer all of its rights and obligations under this Agreement to a successor-in-interest in connection with a sale of all or substantially all of such Party’s business relating to this Agreement and Licensor may assign or novate this Agreement to its affiliates upon notice to Company. This Agreement will be governed by the laws of the State of California, without regard to the conflict of laws provisions thereof.