SOFTWARE TESTING LICENSE AGREEMENT
QMETRY AUTOMATION STUDIO (“QAS”)
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING THIS PACKAGE OR CLICKING THE ACCEPTANCE DIALOG BOX. OPENING THIS PACKAGE, CLICKING THE ACCEPTANCE DIALOG BOX OR USING ANY PART OF THE SOFTWARE SIGNIFIES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS, PROMPTLY RETURN THE PACKAGE UNOPENED AND UNUSED.
This Software License Agreement (“Agreement”) is entered into and is effective as of today (“Effective Date”), by and between Qmetry, Inc., a Delaware corporation (“QMetry”) with its principal place of business at 3200 Patrick Henry Drive, Suite 250, Santa Clara, CA 95054, and Organization or Individual who installs this software (“Licensee”). “Party” means QMetry or Licensee and “Parties” means both QMetry and Licensee.
WHEREAS, QMetry owns the QAS alpha, or other preliminary version of a QMetry software product, related documentation, and any pre-generally available updates, new versions, and upgrades, if any (collectively, the “QAS Product”) or has the rights to license use of the QAS Product, and is willing to grant to Licensee a limited license to use such QAS Product;
WHEREAS, Licensee and QMetry have agreed to a no-obligation evaluation for the purpose of performing tests and evaluations of the QAS Product for Licensee’s own internal use;
WHEREAS, QMetry desires to receive from Licensee feedback and results regarding the testing of the QAS Product.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Subject to the terms of this Agreement, QMetry grants Licensee, effective upon delivery of the QAS Product, a worldwide, revocable (pursuant to the termination section of the Agreement), non-exclusive, royalty-free, non-transferable license to use the QAS Product on any central processing unit (“CPU”) owned or leased by Licensee and located at its premises, solely for the purpose of Licensee performing internal testing of the QAS Product (“Purpose”).
QAS Product is NOT a QMetry software product generally available for licensing by its customers (“GA Product”). If QMetry does release a GA Product, replacing the QAS Product, and Licensee desires to acquire a license to use that GA Product, then Licensee must license that GA Product under the then-current license terms with QMetry.
2. Restrictions on Use
Licensee agrees NOT to:
a. use the QAS Product to process production data, or where it may be used as would the GA Product;
b. use the QAS Product with data or information that has not been backed up;
c. decompile, disassemble, reverse engineer, or otherwise attempt to derive the QAS Product’s source code from object code, except to the extent expressly permitted by applicable law or treaty despite this limitation;
d. sell, rent, lease, license, sublicense, display, modify, outsource, or otherwise transfer the QAS Product to any third party;
e. release any results of performance tests related to the QAS Product to any third party without QMetry’s prior written consent;
f. copy or make any derivative work based upon the QAS Product;
g. use the QAS Product for any purpose other than the Purpose; and
h. export or re-export the QAS Product without both the written consent of QMetry and the appropriate U.S. and/or foreign government license.
3. Fees and Costs
a. There are no license fees for Licensee’s use of the QAS Product under this Agreement.
b. Licensee is responsible for all costs and expenses associated with the use of the QAS Product and the performance of all testing and evaluation activities.
4. Copyright and Ownership
All title to and intellectual property rights in the QAS Product, including, but not limited to all modifications thereto, are owned by QMetry and/or its licensors, and are protected by both United States copyright law and applicable international copyright treaties. Licensee agrees not to claim or assert title to or ownership of the QAS Product. To the extent expressly permitted by applicable law or treaty, Licensee may copy the QAS Product for backup or archival purposes, but for no other purpose. Licensee may not remove or alter any copyright or proprietary notice from copies of the QAS Product.
5. Feedback; Consent to the Use of Data
a. Upon request, Licensee shall promptly provide to QMetry, in writing, any relevant feedback on the functionality and performance of the QAS Product and test results (“Feedback”). QMetry owns all Feedback relating to the QAS Product. Licensee hereby assigns to QMetry all rights, title, and interest in and to the Feedback and all intellectual property therein. If requested by QMetry, Licensee agrees to execute such further instruments as QMetry may reasonably request confirming QMetry’s ownership interest in the Feedback. Licensee expressly acknowledges that its testing of the QAS Product is undertaken on a volunteer basis and it shall have no right in the QAS Product or Feedback, whether in original form (as provided by Licensee) or in respect of any derivative work (whether or not based upon, in whole or in part, on any Feedback).
“Confidential Information” means all proprietary or confidential information that is disclosed by QMetry to Licensee or which Licensee has access to in connection with this Agreement, and includes, without limitation, (i) any and all information relating to the QAS Product or services provided by QMetry, or QMetry’s financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) the terms of this Agreement; and (iii) Feedback. Confidential Information does not include information that Licensee can demonstrate: (a) was lawfully in Licensee’s possession without any obligation of confidentiality prior receipt from QMetry; (b) is or becomes a matter of public knowledge through no fault of Licensee; (c) is lawfully received by Licensee from a third party without violation of a duty of confidentiality; or (d) is independently developed by Licensee without use of or reference to the Confidential Information. Licensee shall maintain the confidentiality of the Confidential Information made available, directly or indirectly, by QMetry. Licensee shall exercise a reasonable degree of care to protect and preserve the Confidential Information which shall include, without limitation, an obligation to not, without the QMetry’s prior written consent: (a) transfer or disclose any Confidential Information to any third party, including to any patenting entity; (b) use any of the Confidential Information for any purpose other than in connection with the Purpose; (c) make copies of the Confidential Information for any purpose other than the Purpose; or (d) take any other action with respect to the Confidential Information that is inconsistent with the confidential and proprietary nature of such information. Notwithstanding the foregoing, Licensee may disclose Confidential Information to Licensee’s employees who have need to know such Confidential Information solely in connection with the Purpose provided that such employees are bound by obligations of confidentiality and use substantially similar (and in no case less protective) to obligations contained in this Agreement. Licensee shall assume full responsibility for any breach of the confidentiality and use obligations in this Agreement caused by any such employees. If the Licensee becomes aware of any unauthorized use or disclosure of the Confidential Information, then Licensee will promptly and fully notify QMetry of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Licensee or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any Confidential Information, the Licensee will not disclose the Confidential Information without providing QMetry with commercially reasonable advance prior written notice to allow QMetry to seek a protective order or other appropriate remedy or to waive compliance with this provision. If such protective order or other remedy is not obtained, or if QMetry waives in writing compliance with the terms of this Agreement, Licensee agrees to furnish only that portion of the Confidential Information which Licensee is advised to furnish by written opinion of Licensee’s counsel and to exercise reasonable efforts to obtain confidential treatment of such Confidential Information. In any event, the Licensee will exercise all commercially reasonable efforts to preserve the confidentiality of QMetry’s Confidential Information, including, without limitation, cooperating with QMetry to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7. Equitable Relief
A breach by Licensee of any of the promises or agreements contained herein may result in irreparable and continuing damage to QMetry for which there will be no adequate remedy at law, and QMetry shall be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive and/or other equitable relief, and such further relief as may be proper (including monetary damages if appropriate).
This Agreement shall terminate on the earlier of:
a. six months from the Effective Date or
b. immediately upon QMetry’s notice of termination for convenience.
Upon termination, Licensee shall cease using the QAS Product and shall uninstall the QAS Product from each applicable CPU. Licensee agrees to destroy and certify the destruction of the QAS Product and delete all copies that have been installed on all CPU’s or upon request return the QAS Product to QMetry.
9. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
a. THE QAS PRODUCT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. QMETRY AND/OR ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE QAS PRODUCT WILL SATISFY LICENSEE’S REQUIREMENTS, THAT THE QAS PRODUCT IS WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE QAS PRODUCT WILL BE UNINTERUPTED OR RELIABLE, OR THAT QAS PRODUCT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, PRODUCT OR DATA. QMETRY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, MADE WITH RESPECT TO THE QAS PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL QMETRY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE QAS PRODUCT, OR ANY ERRORS OR DEFECTS IN THE QAS PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL, DATA OR COMPUTER PROGRAMS, WORK STOPPAGE, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF QMETRY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED.
c. IN NO EVENT WILL QMETRY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
10. THIRD-PARTY SOFTWARE AND OPEN SOURCE SOFTWARE
a. The QAS Product may include or reference other third party or open source products.
b. Licensee shall comply with the license terms for all third-party software used with the Product. All third-party software is governed by its own licensed terms. Licensee shall visit the respective links provided for the use of third-party software. THIRD-PARTY SOFTWARE IS PROVIDED “AS IS” ALONG WITH THE QAS PRODUCT WITHOUT ANY WARRANTY.
c. The QAS Product may be delivered with software that is subject to open source licensing terms (“Open Source Software”). Licensee agrees that all Open Source Software is and will remain subject to the terms and conditions under which it is provided. Licensee shall visit the respective links provided for the use of Open Source Software. OPEN SOURCE SOFTWARE IS PROVIDED “AS-IS,” WITHOUT ANY WARRANTY OF ANY KIND, AND QMETRY FURTHER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO OPEN SOURCE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER QMETRY NOR THE LICENSORS OF OPEN SOURCE SOFTWARE SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR DISTRIBUTION OF THE OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Qmetry Automation Framework (QAF) is licensed under the following terms:
11. Governing Law; Mandatory Arbitration
a. This Agreement, and all of the rights and duties of the Parties arising from or relating in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, are governed by, construed and enforced in accordance with the laws of the State of California (excluding any conflict of laws provisions of the State of California which would refer to and apply the substantive laws of another jurisdiction).
b. Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Santa Clara, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The prevailing Party as determined by the arbitrator will be entitled to reimbursement for attorney’s fees, expenses and costs of investigation, litigation, and arbitration from the other Party.
a. QMetry shall have no obligation to support, service, or repair the QAS Product. Licensee acknowledges and agrees that QMetry is under no obligation to provide any maintenance releases, updates, or new versions of the QAS Product. QMetry does not guarantee that the QAS Product will become a GA Product. If a GA Product is announced replacing a QAS Product, QMetry does not guarantee that the GA Product will be similar in functionality to the comparable QAS Product version licensed under this Agreement. This Agreement creates no obligation on behalf of Licensee to license any GA Product.
b. This Agreement is the entire understanding between Licensee and QMetry and replaces any prior communication, agreement, or understanding of any kind, oral or written, concerning the subject matter hereof. No amendment or other modification to this Agreement shall be valid or binding with respect to either Party unless agreed to in writing and signed by an authorized officer of each Party.
c. If any part of this Agreement is found to be invalid or unenforceable, that part will be modified to the extent necessary to eliminate its invalidity or unenforceability, and the remaining terms will be in full force and effect. Licensee may not assign or otherwise transfer this Agreement or any of its rights or obligations without the prior written consent of QMetry.
d. Any forbearance or delay on the part of QMetry in enforcing any provision of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or of a right to enforce the same for any future occurrence.
e. Nothing in this Agreement will be construed as creating a joint venture, partnership, or principal/agent relationship between the Parties.
f. This Section applies to all acquisitions of the commercial QAS Product subject to this Agreement by or on behalf of the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the federal government. By accepting delivery of the QAS Product, the government hereby agrees that the QAS Product qualifies as “commercial” within the meaning of the acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the government’s use and disclosure of the QAS Product and shall supersede any conflicting contractual terms and conditions. If the license granted by this Agreement fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return the QAS Product, unused, to QMetry. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
g. Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 shall survive termination of this Agreement.
h. This Agreement may be executed in counterparts which, taken together, shall constitute one agreement and each Party may execute this Agreement by signing such counterpart. Facsimile signatures will be treated as originals. The Parties agree and acknowledge that notwithstanding any law or presumption to the contrary, the exchange of copies of this Agreement and the signature pages by electronic transmission shall constitute effective execution and delivery of this Agreement for all purposes, and signatures of the Parties transmitted electronically shall be deemed original signatures for all purposes.