This Sideview Trial Internal Use License Agreement (this “Agreement”) governs the use of software provided by Sideview LLC (the “Sideview Software”).
PLEASE REVIEW THIS AGREEMENT CAREFULLY; IT SETS FORTH TERMS AND CONDITIONS YOU MUST ACCEPT IN EXCHANGE FOR ACCESS TO AND USE OF THE SIDEVIEW SOFTWARE. BY CLICKING “I AGREE,” YOU FORM A BINDING CONTRACT BETWEEN YOUR COMPANY AND SIDEVIEW LLC (“Sideview”), AND YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO EXECUTE CONTRACTS ON BEHALF OF YOUR COMPANY. (This Agreement refers to your company as “Licensee.” The “Licensee” may be your employer, yourself acting as a sole proprietorship, or any other business entity you represent.) IF YOU DO NOT CONSENT TO THIS AGREEMENT, YOU MAY NOT DOWNLOAD, REPRODUCE, OR OTHERWISE EXPLOIT THE SIDEVIEW SOFTWARE.
1.1 Rights Granted. Sideview hereby grants Licensee and its Authorized Users a non-exclusive, non-transferable license to reproduce and use the Sideview Software and the Documentation, for the Trial Period and solely for internal use, and provided Licensee and its Authorized Users comply with the restrictions in Section 1.2 below.
1.2 License Restrictions.
(a) Scope of License restrictions. Licensee’s use of the Software is limited by the license restrictions (if any) specified in the applicable Trial Order Form.
(b) Other License Restrictions. Copies of Sideview Software created or transferred pursuant to this Agreement are licensed, not sold, and Licensee receives no title to or ownership of any copy or of any Sideview Software. Furthermore, Licensee receives no rights to the Sideview Software other than those specifically granted in Section 1.1 above. Without limiting the generality of the foregoing, Licensee will not: (i) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Sideview Software; or (ii) use the Sideview Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Sideview Software. Licensee will not remove any copyright or other legal notices on the Sideview Software.
2. Proprietary Rights.
2.1 Ownership. Sideview retains all right, title, and ownership in and to the Sideview Software, and Licensee recognizes that its Software is protected by U.S. and foreign intellectual property laws, including copyright.
2.2 No Obligations with respect to Splunk Software. Licensee recognizes and agrees that Sideview is not the provider of the Splunk Server software and that SIDEVIEW WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE SPLUNK SERVER SOFTWARE, FOR ANY OTHER PRODUCT OR SERVICE FROM SPLUNK, INC., OR FOR ANY ACT OR OMISSION OF SPLUNK, INC. OR OF ANY OTHER THIRD PARTY.
3. Warranty Disclaimer.
3.1 Disclaimer. THE SIDEVIEW SOFTWARE IS PROVIDED “AS IS”. SIDEVIEW MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR SUPPORT, ITS QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
3.2 Limitation of Liability. IN NO EVENT WILL SIDEVIEW’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS. IN NO EVENT WILL SIDEVIEW BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. If applicable law limits the application of the provisions of this Article 3.2, Sideview’s liability will be limited to the maximum extent permissible.
4. Confidential Information.
4.1 Confidential Information: Each party may receive from the other party information that is proprietary to the disclosing party, and is marked as confidential or a similar notice (if disclosed in writing or tangible form), identified as confidential (if disclosed verbally) and reduced to writing within thirty days of such disclosure (Confidential Information). The Software shall be treated as confidential information hereunder. Confidential Information does not include information that the receiving party can demonstrate: (i) is or has become public knowledge through no fault of the receiving party; (ii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iii) is independently developed by employees, agents or consultants of the receiving party without use of or reference to such information.
4.2 Use and Disclosure Restrictions: The receiving party will: (i) safeguard Confidential Information with the same degree of care as it exercises with its own confidential information of a like nature, but no less than reasonable care; (ii) not disclose any Confidential Information to third parties other than Licensee’s agents and consultants who have a need to know and are bound by confidentiality agreement; and (iii) will use the other party’s Confidential Information solely in the exercise of the rights and obligations under this Agreement and for no other purpose. The receiving party may disclose Confidential Information if required by a regulation, law or court order, but only to the extent required to comply with such regulation, law or order, and only after providing reasonable advance notice to the originally disclosing party to allow such party to contest such disclosure.
5. Term & Termination.
5.1: Trial Term License: This Agreement begins upon execution and will remain in effect until the expiration of the Software trial license term specified on Sideview’s Order Form (the “Trial License Term”).
5.2 Termination. Either party may terminate this Agreement for material breach by written notice, effective in 30 days unless the other party first cures such breach; provided no advanced notice is required to terminate for Licensee’s breach of any provision of Section 1.1 or 1.2 above.
5.3 Effect of Termination. Upon termination of this Agreement, the license granted in Section 1.1 above will terminate and Licensee will cease all use of the Sideview Software and delete all copies in its possession or control. The following provisions will survive termination of this Agreement: Sections and Articles 1.2, 2, 3, 4, 5 & 6.
6.1 Interpretation. This Agreement will be governed solely by the internal laws of the State of California, without reference to any rule or law that would apply the laws of any other jurisdiction to the parties’ rights or duties. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Francisco, California. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
6.2 Government Restricted Rights. The Sideview Software is provided with Restricted Rights. Use, duplication, or disclosure for or by the government of the United States, including without limitation any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable, in subparagraphs (a) through (d) of the Commercial Computer Software Restricted Rights clause at FAR 52.227.19; in subparagraph ©(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227−7013; or in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is Sideview, LLC. Licensee will not remove or deface any restricted rights notice or other legal notice appearing in the Sideview Software or on any media (including packaging) associated with the Sideview Software.
6.3 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
6.4 Amendment. This Agreement may not be modified in any other way except through a written contract signed by authorized representatives of each party.
“Authorized Users” means Licensee’s authorized users including its employees, agents and consultants, and any other individual or entity working on behalf of Licensee in connection with Licensee’s use of the Sideview Software under this Agreement.
“Documentation” means the Software’s standard online user manual.
“Order Form” means an ordering document such as an online order or invoice for the trial use or the purchase of the Sideview Software. Each Order shall be subject to the this Agreement and all applicable exhibits.
“Term” means the Trial Term as described in Section 5.1 and the applicable Order Form.