BLOOMBASE
EVALUATION LICENSE AGREEMENT
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE").
THE TERMS AND CONDITIONS OF THIS EVALUATION LICENSE AGREEMENT ("AGREEMENT") GOVERN YOUR USE OF THE SOFTWARE FOR TESTING AND EVALUATION PURPOSES UNLESS YOU AND BLOOMBASE, INC. ("BLOOMBASE") HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING USE OF THE SOFTWARE.
Bloombase is willing to license the Software to you for testing and evaluation purposes only upon the condition that you accept all the terms contained in this Agreement. By clicking on the "I accept" button below or by downloading, installing, or using the Software, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, "you" and "your" will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then Bloombase is unwilling to license the Software to you, and you must uninstall and destroy all copies of the Software.
1. License
A. Grant of License
Conditioned upon your compliance with the terms and conditions of this Agreement, Bloombase grants you a limited, non-exclusive, non-transferable, revocable license for a period of thirty (30) calendar days from the date you download the Software, to use the executable form of the Software in your testing environment on a single virtual-processor for hypervisors, or a single processor-core for multi-core processors, or a single processor-unit for single-core processors, solely for the purposes of testing and evaluation and not for general production use.
B. Restrictions
You will not: (a) copy the Software, except as strictly necessary to use the Software in accordance with the terms of Section 1(A); (b) modify the Software; (c)sell, sublicense, transfer, lease, lend, rent or otherwise distribute the Software to any third party; or (d) make the functionality of the Software available to multiple users through any means, including but not limited to, by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services. You acknowledge and agree that the Software contains trade secrets of Bloombase and its licensors and, in order to protect such trade secrets and other interests that Bloombase and its licensors may have in the Software, you agree not to disassemble, decompile, or reverse engineer the Software, in whole or in part, or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. You will reproduce all of Bloombase's and its licensors' copyright notices and any other proprietary rights notices on all copies of the Software that you make hereunder.
C. Limited Rights
Your rights in the Software will be limited to those expressly granted in Section 1(A). Bloombase and its licensors reserve all rights and licenses in and to the Software not expressly granted to you under this Agreement.
2. Ownership
The copy of the Software is licensed, not sold. Bloombase owns all right, title, and interest in and to the Software, including all intellectual property rights therein. The Software is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on or in the Software as downloaded by you.
3. No Use of Software with Open Source
You agree not to use the Software in connection with any software or other materials that are distributed as "free software," "open source software" or similar licensing or distribution terms in a manner that would create, or purport to create, obligations for Bloombase to grant, or purport to grant, to any third party any rights in the Software, including but not limited to, requiring the Software to be disclosed or distributed in source code form, licensed for the purpose of making derivative works, or redistributed at no charge.
4. CONFIDENTIAL INFORMATION
A. Definition
"Confidential Information" means: (i) the Software, and any features, results, or output produced by, and other information relating to, the Software; and (ii) any business or technical information of Bloombase, including, but not limited to, any information relating to Bloombase's product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development, or know-how, that is designated by Bloombase as "confidential" or "proprietary" and, if orally disclosed, is reduced to writing by Bloombase within thirty (30) days of such disclosure.
B. Exclusions
The obligations in Section 4(C) will not apply to the extent any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by you; (ii) is rightfully known by you at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by you without access to or use of any Confidential Information; or (iv) is rightfully obtained by you from a third party who has the right to disclose such information without breach of a confidentiality obligation to Bloombase.
C. Restrictions
You will not use or disclose any Confidential Information, except as necessary for the performance of this Agreement. You will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that it ordinarily uses with respect to its own proprietary information of a similar nature and importance. You may disclose Confidential Information only to those of its employees who have a bona fide need to know such Confidential Information for the performance of this Agreement; provided, that each such employee first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement.
5. WARRANTY DISCLAIMER
THE SOFTWARE IS BEING PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. BLOOMBASE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING 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. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BLOOMBASE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. THE BLOOMBASE SOFTWARE HAS NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH THEY MAY BE USED. BLOOMBASE WILL NOT BE LIABLE FOR THE RESULTS OBTAINED THROUGH USE OF THE BLOOMBASE SOFTWARE AND YOU ARE SOLELY RESPONSIBLE FOR DETERMINING APPROPRIATE USES FOR THE BLOOMBASE SOFTWARE AND FOR ALL RESULTS OF SUCH USE. IN PARTICULAR, BLOOMBASE SOFTWARE IS NOT SPECIFICALLY DESIGNED, MANUFACTURED OR INTENDED FOR USE IN (A) THE DESIGN, PLANNING, CONSTRUCTION, MAINTENANCE, CONTROL, OR DIRECT OPERATION OF NUCLEAR FACILITIES, (B) AIRCRAFT CONTROL, NAVIGATION, OR COMMUNICATION SYSTEMS (C) WEAPONS SYSTEMS, (D) DIRECT LIFE SUPPORT SYSTEMS (E) OR OTHER SIMILAR HAZARDOUS ENVIRONMENTS.
6. LIMITATION ON LIABILITY
IN NO EVENT WILL BLOOMBASE BE LIABLE TO YOU FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) 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 BLOOMBASE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
7. Termination.
Either party may terminate this Agreement at any time, with or without cause, upon five (5) days' written notice to the other party. Bloombase may terminate this Agreement immediately upon written notice to you in the event that you breach Section 4 or infringe or otherwise violate Bloombase'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) unless the parties otherwise agree in writing, within five (5) days after any such termination or expiration, you will, at your expense, return to Bloombase all copies of the Software and any other Confidential Information in your possession or control, and an officer of your company or other legal entity will certify in writing to Bloombase that it has complied with the foregoing. The provisions of Sections 2, 4, 5, 6, 8, 9, 10, and the last two sentences of this Section 7 will survive any termination or expiration of this Agreement.
8. U.S. Government End Users
The Software and documentation are "commercial items" as that term is defined in FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software and documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government's rights in the Software and Documentation will be only those specified in this Agreement.
9. Export Law
You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
10. General
A. Assignment
You may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Bloombase. Any attempted assignment without such consent will be null. Bloombase may assign this Agreement, in its sole discretion, without restriction.
B. Governing Law
This Agreement will be governed by and construed in accordance with the laws of the State of California, U.S.A. (excluding its body of law controlling conflict of laws). 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.
C. Severability and Waiver
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.
D. Entire Agreement
This Agreement constitutes the entire and exclusive agreement between the parties regarding its subject matter, and supersedes 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.
11. Contact Information
If you have any questions regarding this Agreement, you may contact Bloombase at licensing@bloombase.com or +1.855.256.6622.
BY DOWNLOADING OR INSTALLING THE SOFTWARE, YOU AGREE TO THE FOREGOING TERMS AND CONDITIONS.
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