TRIAL LICENSE AGREEMENT FOR TERRACOTTA SOFTWARE

 

IMPORTANT -- READ CAREFULLY BEFORE USING THIS SOFTWARE: This License Agreement

for certain Terracotta Products ("License Agreement" or "Agreement") is a

legal agreement between you (either an individual or an entity, if you are

acting in the scope of your employment) and Terracotta, Inc. and its suppliers

and licensors (collectively for the purposes of this License Agreement,

"Terracotta") for: the Terracotta software which may include components

provided by suppliers and licensors to Terracotta ("Software"). The Software

may include any of the following Terracotta products including any combination

of such products and Alpha, Beta, trial, pre-release, free, pay and premium

versions of the products (collectively, "Terracotta Products"): Terracotta Software.

By clicking on the "Accept" button, installing, copying or otherwise using the

Software, you agree to be bound by the terms of this License Agreement. IF YOU

DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, CLICK ON THE "CANCEL"

BUTTON AND/OR DO NOT INSTALL THE SOFTWARE. YOU AGREE THAT YOUR USE OF THE

SOFTWARE ESTABLISHES THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT,

AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

 

1. GRANT OF LICENSE. Terracotta hereby grants to you a non-exclusive,

revocable, limited license to use the Software and any related documentation

("Documentation") subject to the condition that you may copy the Software for

back-up and archival purposes, provided that any copy must contain all of the

original Software's proprietary notices.

 

2. LICENSE RESTRICTIONS. You may not: (i) permit other individuals outside of

your company or organization to use the Software; (ii) modify, translate,

reverse engineer, decompile, disassemble (except to the extent that this

restriction is expressly prohibited by law) or create derivative works based

upon the Software or Documentation; (iii) copy the Software or Documentation

(except for back-up or archival purposes); (iv) rent, lease, transfer,

redistribute, or otherwise transfer rights to the Software or Documentation;

(vi) remove any proprietary notices or labels on the Software or

Documentation; or (v) disclose the results of any Software performance

benchmarks to any third party without Terracotta's prior written consent. Any

such forbidden use shall immediately terminate your license to the Software.

You agree that you shall only use the Software and Documentation in a manner

that complies with all applicable laws in the jurisdictions in which you use

the Software and Documentation, including, but not limited to, applicable

restrictions concerning copyright and other intellectual property rights. You

may not use the Software in an attempt to circumvent, or in conjunction with

any device, program or service designed to circumvent, technological measures

employed to control access to, or the rights in, a content file or other work

protected by any applicable copyright or other intellectual property law(s).

 

3. EXPIRATION. Your license to use the Software shall last for 30 days,

provided that you comply with all the terms of this license.

 

4. TITLE. Title, all ownership rights, and all applicable intellectual

property rights in and to the Software and Documentation shall remain with

Terracotta, unless otherwise noted. The Software and Documentation are

protected by the copyright laws of the United States and international

copyright treaties.

 

5. DISCLAIMER OF WARRANTY & LIMIT OF LIABILITY. THE SOFTWARE, DOCUMENTATION,

AND SERVICES ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM

EXTENT PERMITTED BY APPLICABLE LAW, TERRACOTTA FURTHER DISCLAIMS ALL

WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF

MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE

ENTIRE RISK STEMMING FROM THE USE OR PERFORMANCE OF THE SOFTWARE, IF ANY,

REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO

EVENT SHALL TERRACOTTA BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT,

SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION,

DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS

INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE

OF OR INABILITY TO USE THE SOFTWARE OR THE CONTENT, EVEN IF TERRACOTTA HAS

BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TERRACOTTA DOES NOT ENDORSE,

WARRANT OR GUARANTEE ANY DOCUMENTATION CONTENT PROVIDED BY OR THROUGH

TERRACOTTA.

 

6. INDEMNIFICATION. This Software is intended for use in the manner for which

it was designed. You agree to hold harmless, indemnify and defend Terracotta,

its officers, directors and employees, from and against any losses, damages,

fines and expenses (including attorneys' fees and costs) arising out of or

relating to any claims that you have used the Software in violation of another

party's rights, or in violation of any law, or (ii) violated any terms of this

License Agreement. If you are importing the Software from the United States,

you shall indemnify and hold Terracotta harmless from and against any import

and export duties or other claims arising from such importation.

 

7. TERMINATION. This License Agreement will automatically terminate if you

fail to comply with any term hereof. No notice shall be required from

Terracotta to effect such termination. You may also terminate this License

Agreement at any time by notifying Terracotta in writing of termination. Upon

any termination of this License Agreement, you shall immediately discontinue

use of the Software and shall within three (3) days return to Terracotta, or

certify destruction of, all full or partial copies of the Software,

documentation and related materials provided by Terracotta.

 

8. NO ASSIGNMENT. This Agreement is personal to you, and may not be assigned

without Terracotta's express written consent. In the event that you are an

entity that merges with another entity or are acquired by another entity

during the Term, you shall provide written notice of such merger or

acquisition not later than the date on which any public announcement is made.

If Terracotta does not consent to assignment of this Agreement to the new or

acquiring entity in such merger or acquisition, Terracotta may terminate this

Agreement on ten (10) days' written notice. Both parties shall perform under

this Agreement until such termination is effective.

 

9. U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS. This Software

and Documentation are provided with restricted rights. Use, duplication or

disclosure by the Government is subject to restrictions set forth in

subparagraphs (a) through (d) of the Commercial Computer Software--Restricted

Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the

Rights in Technical Data and Computer Software clause at DFARS 252.227-7013,

and in similar clauses in the NASA FAR supplement, as applicable. The

manufacturer is Terracotta, Inc., 650 Townsend Street, suite 325; San

Francisco, California 94103; U.S.A. You are responsible for complying with all

trade regulations and laws both foreign and domestic. You acknowledge that

none of the Software or underlying information or technology may be downloaded

or otherwise exported or re-exported (i) into any Taliban-controlled areas of

Afghanistan, Cuba, Iran, Iraq, North Korea, Serbia (except Kosovo), the Sudan,

and Syria or any other country subject to a U.S. embargo; or (ii) to anyone on

the U.S. Treasury Department's list of Specially Designated Nationals or the

U.S. Commerce Department's Denied Parties List or Entity List. By using the

Software you are agreeing to the foregoing and are representing and warranting

that (i) no U.S. federal agency has suspended, revoked, or denied you export

privileges, (ii) you are not located in or under the control of a national or

resident of any such country or on any such list, and (iii) you will not

export or re-export the Software to any prohibited county, or to any

prohibited person, entity, or end-user as specified by U.S. export controls.

For more information on the U.S. Export Administration Regulations (EAR), 15

C.F.R. Parts 730-774, and the Bureau of Export Administration ("BXA"), please

refer to the BXA homepage (http://www.bxa.doc.gov).

 

10. ARBITRATION & JURISDICTION. All claims, disputes, and other matters in

question arising out of, or relating to, this Agreement or the interpretation

or breach thereof, shall be fully, finally and exclusively resolved by binding

and confidential arbitration conducted pursuant to the rules of Judicial

Arbitration and Mediation Services, Inc. (JAMS) in San Francisco, California.

This agreement to arbitrate shall be specifically enforceable under applicable

law in any court. Notice of the demand for arbitration shall be filed in

writing with the other party to this Agreement and JAMS. By entering into this

Agreement, Terracotta and Licensee waive their respective rights to have any

such disputes or claims tried by a judge or jury. To the fullest extent

permitted by law: no arbitration under this License Agreement shall be joined

to any other arbitration, including any arbitration involving any other

current or former licensee of Terracotta; no class arbitration proceedings

shall be permitted; no finding or stipulation of fact in any other

arbitration, judicial or similar proceeding may be given preclusive or

collateral estoppel effect in any arbitration hereunder (unless determined in

another proceeding between you and Terracotta); and no conclusion of law in

any other arbitration may be given any weight in any arbitration hereunder

(unless determined in another proceeding between you and Terracotta). Your

arbitration fees and your share of arbitrator compensation will be limited to

those set forth in the JAMS Rules with the remainder paid by Terracotta. If

such costs are determined to be excessive, Terracotta will pay all arbitration

fees and arbitrator compensation. You and Terracotta may litigate in court

only to compel arbitration under this Agreement, stay proceedings pending

arbitration, or to confirm, modify, vacate or enter judgment on the award

rendered by the arbitrator(s). You and Terracotta hereby consent to the

exclusive jurisdiction of the state and federal courts sitting in the State of

California to enforce the provisions of this section, and to resolve any

disputes and claims cognizable in court relating in any way, or arising out

of, this Agreement, the Software, or your use of the Software. The court, not

the arbitrator, shall determine whether arbitration may occur and enforce the

arbitration agreements contained herein, including the prohibition on

consolidated arbitrations and class arbitration. This Agreement and all

disputes and claims relating in any way to, or arising out of, this Agreement,

the Software or Services or your use of the Software or Services shall be

governed by the laws of the State of California and the Federal Arbitration

Act.

 

11. COPYRIGHT. All content copyright Terracotta, Inc., unless otherwise

indicated. All rights reserved. Any copying, re-distribution, or sale is

expressly prohibited. Violators will be prosecuted to the maximum extent

permissible under applicable law.

 

12. MISCELLEANOUS. The Software may automatically communicate with

Terracotta's servers to check for important messages, including updates and

service bulletins. Terracotta may keep statistics on the aggregated anonymous

use of the Software. The Software may contain certain third-party libraries

that are licensed under separate, distinct software licenses, as detailed in

the download kit and/or Documentation.

 

13. INTEGRATION CLAUSE & EXCLUSIONS. This Agreement shall constitute the

complete and exclusive agreement between us, notwithstanding any variance with

any purchase order or other written instrument submitted by you, whether

formally rejected by Terracotta or not. The acceptance of any purchase order

you place is expressly made conditional on your consent to the terms set forth

herein. The terms and conditions contained in this Agreement may not be

modified by you except in a writing duly signed by you and an authorized

representative of Terracotta. If any provision of this Agreement is held to be

unenforceable for any reason, such provision shall be reformed only to the

extent necessary to make it enforceable, and such decision shall not affect

the enforceability of such provision under other circumstances, or of the

remaining provisions hereof under all circumstances. This Agreement will not

be governed by the United Nations Convention of Contracts for the

International Sale of Goods, the application of which is hereby expressly

excluded.