BY ACCEPTING THESE TERMS AND DOWNLOADING THE SOFTWARE (DEFINED BELOW),YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU”, “YOUR”, OR “YOU’RE”) ACKNOWLEDGETHAT YOU HAVE READ, UNDERSTAND, UNCONDITIONALLY AGREE TO BE BOUND BY, AND ARE APARTY TO THIS SOFTWARE LICENSE (“EULA”). YOUR INSTALLATION AND CONTINUED USE OFTHE DOWNLOADED MATERIALS SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS EULA.IF YOU DO NOT AGREE, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
1. License Grant and Restrictions. Opsera, Inc. (“Opsera”) grants You a personal, non-transferable, nonexclusive, right to download one no-charge trial version of the Git Custodian software (“Software”) for installation on a single computer system owned or leased by You. Without Opsera’s consent, You may not (a) use the Software on any other systems, servers or devices except the single device or server associated with Your initial installation, (b) modify the Software, copy the Software (except to the extent specifically allowed by local law), reverse engineer, decompile, disassemble, or derive source code from the Software, (c) publish, distribute, rent, lease, sell, sublicense, assign or otherwise transfer the Software or any part thereof, (d) use the Software for competitive analysis, adapt, create derivative works of, or translate the Software, (e) permit application development use of the Software, (f) permit publication or distribution of results of any benchmark tests run on the Software without the express written permission of Opsera or (g) remove or obscure any copyright, trademark or other proprietary notices or legends from any portion of the Software or any associated documentation except in a manner specifically supported by Opsera, or as agreed to in writing by Opsera. If You use open-source software in conjunction with the Software, You must ensure that such use does not create, or purport to create, obligations with respect to the Software. For instance, You may not combine the Software with programs licensed under the GNU General Public License (“GPL”) in any manner that could cause, or could be interpreted or asserted to cause, the Software or any modifications thereto to become subject to the terms of the GPL.
2. Ownership. The Software is protected by copyright, patent and trade secret laws and international treaty provisions. All right, title, and interest in and to the Software and any associated documentation are and shall remain the exclusive property of Opsera and its licensors. No title to the intellectual property in the Software is transferred to You and You do not acquire any rights to the Software except as expressly set forth in this EULA. This EULA does not grant You any rights to trademarks or service marks of Opsera. The Software is licensed, not sold.
3. Third Party Products and Open Source. The Software has been developed to operate with other software and technology owned and controlled by third parties (“Third Party Products”). You agree that (a) Opsera makes no representations and disclaims all warranties, express or implied, regarding Third Party Products, (b) Opsera is not responsible and shall have no liability for Third Party Products or the unavailability of Third Party Products, (c) this EULA does not govern Your use of any Third Party Products, which are solely subject to a separate license or other agreement with the provider of such Third Party Products, (d) You are solely responsible and liable for Your use of Third Party Products and (e) Opsera has no obligation to support any integration(s) of Third Party Products with the Software and may cease any integrations of Third Party Products at any time, in Opsera’s sole discretion.
Additionally, the Software may be delivered with open-source software that is subject to open-source licensing terms. Any such open-source software is not subject to the terms and conditions of this EULA. Instead, each item of open-source software is licensed under the terms of the end-user license agreement that accompanies such open-source software. Nothing in this EULA limits Your rights under, or grants You rights that supersede, the terms and conditions of any applicable end user license for the open-source software.
4. Confidentiality. For the purposes of this EULA, “Confidential Information” shall mean data and information of a proprietary or confidential nature disclosed by Opsera to You under or relating to this EULA, including, but not limited to, the existence of the Software, its features and mode of operation, this EULA, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, the design and architecture of the Software, computer code, associated documentation, design and functional specifications, requirements of the Software, problem reports, analysis and performance information, and other technical, business, marketing and financial information, plans and data. Confidential Information shall not include (or shall cease to include) data or information that (a) is already known to You prior to receipt from Opsera, (b) is or becomes publicly known other than through a wrongful act by You or (c) is independently developed by You without the use of Opsera’s Confidential Information.
The Software includes Confidential Information that is secret and valuable to Opsera and its licensors and, in the course of evaluating the Software under this EULA, You may obtain other Confidential Information relating to Opsera. You are not entitled to use or disclose Confidential Information other than in strict accordance with the terms of this EULA. You agree (i) to hold Opsera’s Confidential Information in strict confidence, (ii) not to disclose Confidential Information to any third parties, except for employees and independent contractors who have a “need to know” and who have signed agreements containing disclosure and use restrictions no less stringent than those set forth herein and (iii) not to use any Confidential Information for any purpose except as reasonably necessary to use the Software in accordance with this EULA. This provision shall not prohibit You from disclosing Confidential Information to the extent required by law; provided that You shall provide prior notice to Opsera of such required disclosure and the opportunity to obtain an appropriate protective or other court order. You acknowledge that any unauthorized use or disclosure of the Software or Confidential Information would cause irreparable damage to Opsera. If an unauthorized use or disclosure occurs, You will promptly notify Opsera and take, at Your expense, all steps which are necessary to recover the Software or Confidential Information and to prevent its subsequent unauthorized use or dissemination, including actions for seizure and injunctive relief. If You fail to take these steps in a timely and adequate manner, Opsera may take them in its own or Your name and at Your expense.
5. Feedback. You may provide Opsera with suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Software (“Feedback”). Feedback is not confidential and does not impose any confidentiality obligations on Opsera. You agree that Opsera is free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
6. Termination. Your right to use the Software will automatically terminate if You fail to comply with any provision of this EULA. Either party may terminate this EULA at any other time upon written notice. Opsera may modify, suspend or discontinue the Software at any time for any reason and You acknowledge and agree that You may not rely on the future availability of the Software. If Your right to use the Software is terminated, You must cease all use of the Software and associated documentation, installed or otherwise, and permanently delete all copies of the Software from the computer on which it has been installed.
7. Your Warranties. You represent and warrant that You have the authority to accept the terms of this EULA on behalf of the company or entity you represent. You represent and warrant that You are not a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this EULA, or with which Opsera is prohibited from doing business. You further represent that the Software shall not be used for or in connection with any manner that would violate U.S. export controls or economic sanctions laws. You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and You shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations.
8. Warranty Disclaimer. You acknowledge that the Software is untested and preliminary in form, and You assume the sole risk for downloading, installing, and/or using the Software. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OPSERA OR AN OPSERA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. WITHOUT LIMITATION OF THE FOREGOING, OPSERA AND ITS LICENSORS DO NOT WARRANT THAT (A) THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (B) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR (C) THE SOFTWARE WILL OPERATE WITH THE HARDWARE OR SOFTWARE CONFIGURATION YOU CHOOSE.
9. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL OPSERA OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM YOUR USE OF THE SOFTWARE. OPSERA’S ENTIRE LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS EULA SHALL BE LIMITED TO THE GREATER OF THE FEES PAID BY YOU HEREUNDER OR ONE HUNDRED DOLLARS ($100). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF OPSERA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTHWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
10. Indemnity. You agree to indemnify and hold harmless Opsera from any third-party claims, damages, liabilities, costs, and fees (including reasonable attorney fees) arising from Your use of the Software or from Your failure to comply with any term of this EULA
11. Updates and Support. Opsera may, but is not obligated to, offer support for the Software and may from time to time make available to You updates for the Software, subject to the terms and conditions of this EULA. In Opsera’s sole discretion, Opsera may condition release of such upgrades to You upon Your acceptance of another EULA or other execution of a separate agreement. If You should elect to install or otherwise use updates, Your use of such updates will be subject to the applicable license and the terms and conditions of this EULA or other agreement.
12. Government Rights. If You are part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this EULA.
13. Governing Law and Venue. This EULA shall be governed by the laws of the United States and the State of California, irrespective of any conflicts of laws rules. Any action arising out of or relating to this EULA must be brought exclusively in the appropriate state or federal court in Santa Clara County, California and You irrevocably consent to the jurisdiction of such courts and venue in Santa Clara County, California.
14. General. Neither the license to use nor this EULA are assignable or transferable by You without prior written notice to and written consent from Opsera, any attempt to do so shall be void. Any notice, report, approval, or consent required or permitted hereunder shall be in writing. If any provision of this EULA shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this EULA shall otherwise remain in full force and effect and enforceable. You agree that a material breach of this EULA would cause irreparable injury to Opsera, its suppliers and/or its licensors for which monetary damages would not be an adequate remedy and that Opsera, its suppliers and its licensors shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law. Any waivers or amendments shall be effective only if made in writing by non-preprinted agreements clearly understood by both parties to be an amendment or waiver and signed by an authorized representative of the respective parties. Any waiver of any breach or failure to enforce any provision of this EULA will not be deemed a future waiver of such term or a waiver of any other provision. Both parties agree that this EULA is the complete and exclusive statement of mutual understanding of the parties regarding the Software and supersedes any prior agreement, proposal, written or oral, and any other communication relating to the subject matter of this EULA.