ATTENTION: THIS IS A LICENSE, NOT A SALE. THIS SOFTWARE IS PROVIDED UNDER THE
FOLLOWING AGREEMENT THAT SPECIFIES WHAT YOU MAY DO WITH THE SOFTWARE AND CONTAINS
LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES.
THE SOFTWARE IS BEING LICENSED TO YOU BY DYNIMIZE INC. (“DYNIMIZE”) PURSUANT TO
THE THIS BETA LICENSE.
Dynimizer Beta License
Last Updated July 6th, 2017
IMPORTANT: BEFORE DOWNLOADING, INSTALLING, OR USING THIS SOFTWARE, PLEASE CAREFULLY READ THIS AGREEMENT WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LIMITED LICENSE TO USE THE SOFTWARE. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT PLEASE DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND PROMPTLY RETURN OR DESTROY THE SOFTWARE. IF YOU DOWNLOAD, INSTALL, OR USE THE SOFTWARE, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. THE SOFTWARE IS ALSO PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
In addition to the other terms defined in this Agreement the following terms shall have the following meanings:
(i) “Customer” or “You” means the individual acquiring the Software license or any entity on whose behalf such individual is acting. In the case of an entity, "Customer" includes any entity that by majority voting interest controls, is controlled by, or is under common control with Customer. The term “control” means the possession, direct or indirect, of the power to direct or cause the direction of management and policies, whether through the ownership of voting shares or by contract; and
(ii) “Software” means the Dynimizer software that is available to Customer for use after acceptance of this Agreement, and includes any printed, online, or electronic user manuals, documentation and/or release notes.
Subject to the terms and conditions of this Agreement, Customer is granted a limited, royalty-free, non-exclusive, non-transferable license to use 10 copies of the Software for a period of sixty (60) days from the date of delivery of the Software to Customer (the “Beta Evaluation Period”) solely for the purpose of testing and evaluating the Software to determine if Customer wants to purchase a license or distribution rights for any commercial release of the Software if and when the Software is made commercially available by Dynimize. No other rights in the Software are granted to Customer.
3. Restrictions on Use of Software
Customer agrees to use the Software only for the evaluation purposes set forth in Section 2. Customer further agrees not to (a) rent, lease, sell, sublicense, assign, or otherwise transfer the Software to anyone else; (b) reverse engineer, decompile, disassemble, make any disk sets of or otherwise copy the Software; (c) conduct any competitive analysis of the Software; or (d) directly or indirectly use the Software or any information about the Software in the development of any product, software or service that is competitive with the Software. Customer further agrees not to (i) use the Software in a business production mode or in a non-lab environment; (ii) use the Software to provide any services to anyone; or (iii) use the Software to operate or as a part of a time-sharing service, outsourcing service, service bureau, application service provider or managed services provider offering.
Customer agrees, at no charge, to use and evaluate the Software and provide Dynimize with periodic reports that fully describe: (i) the results of Customer’s use and evaluation of the Software, including any defects found in the Software and any information necessary for Dynimize to evaluate such defects, and (ii) any recommendations for changes or modifications to the Software. Customer agrees to respond to reasonable requests for feedback and, upon request, to provide a written evaluation of the Software, which shall be the exclusive property of Dynimize.
Ownership of the Software, and all copyrights and all other rights, title and interest in or relating to the Software and all derivative works, adaptations, modifications, additions, translations and changes thereto, shall at all times remain with Dynimize and its licensors. If Customer provides feedback to Dynimize, Customer grants to Dynimize, without charge, the unrestricted right to use, share and commercialize such feedback in any way and for any purpose. Customer also grants to third parties, without charge, any intellectual property rights needed for their products, technologies and services to use or interface with the Software or any service that includes the feedback.
Customer shall be responsible for any applicable duties, import taxes or other government charges assessed on shipments or other methods of delivery for the Software.
7. Technical Support
Dynimize may provide an updated version of the Software, but is not obligated to correct errors or omissions in the Software or ensure proper operation with any other Software. Although Dynimize may from time to time provide technical support, Customer understands and agrees that Dynimize has not, and does not thereby commit to any level of effort or availability. The Software provided by Dynimize to Customer may be an earlier version than the Software as ultimately made commercially available by Dynimize. Dynimize reserves the right at any time to not make the Software commercially available or, even if made available, to alter prices, features, specifications, capabilities, functions, release dates, general availability, or other characteristics of the Software. Dynimize shall not have any obligation to provide migration service or capabilities between pre-release versions of the Software or between any pre-release versions of the Software and any commercial releases of the Software.
The term of this Agreement will begin upon delivery or download of the Software to Customer (“Effective Date”) and will continue for the Beta Evaluation Period; unless earlier terminated (a) by Dynimize in the event of breach of this Agreement by Customer if such breach has not been cured within ten (10) days of notice to Customer; or (b) immediately and without notice if Customer becomes insolvent, files for bankruptcy, is the subject of involuntary bankruptcy or has a receiver appointed. If the parties have agreed to extend the Beta Evaluation Period beyond an initial 60-day period, either party may terminate this Agreement without cause by providing ten (10) days written notice to the other.
9. Effect of Termination
Customer’s rights to use the Software will immediately terminate upon termination or expiration of this Agreement. Within five (5) days of termination or expiration of this Agreement, Customer shall purge all Software and all copies thereof from all computer systems and storage devices on which it was stored, and certify such to Dynimize. The Software may contain automatic shutdown features which make it inoperable after the end of the Beta Evaluation Period. Sections 5 and 9 to 18 inclusive, of this Agreement shall survive any termination or expiration of this Agreement.
10. Disclaimer of Warranty and Limited Liability
(A) THE SOFTWARE IS LICENSED BY DYNIMIZE TO CUSTOMER, AND ANY ASSOCIATED SERVICES OR SUPPORT ARE PROVIDED TO CUSTOMER ON AN ‘AS IS’ BASIS, AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER SOFTWARE, SUPPORT OR SERVICE PROVIDED UNDER THIS AGREEMENT OR IN CONNECTION WITH THIS AGREEMENT BY DYNIMIZE (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS). CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT IT IS RECEIVING A PRELIMINARY BETA VERSION OF THE SOFTWARE THAT THE PARTIES EXPECT MAY CONTAIN SIGNIFICANT ERRORS, OMISSIONS, AND PROBLEMS. CUSTOMER AGREES AND ACKNOWLEDGES THAT DYNIMIZE (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) SHALL HAVE NO RESPONSIBILITIES TO CUSTOMER TO CORRECT ANY DEFECTS OR PROBLEMS IN THE SOFTWARE, OR TO ASSURE THAT THE SOFTWARE OPERATES PROPERLY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, DYNIMIZE (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING PERFORMANCE OF THE SOFTWARE, SHALL BE DEEMED TO BE A WARRANTY, CONDITION OR REPRESENTATION BY DYNIMIZE (OR ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS). DYNIMIZE (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE SOFTWARE CAN BE FOUND OR CORRECTED. NOTHING IN THE AGREEMENT SHALL BE CONSTRUED AS AN OBLIGATION OR COMMITMENT BY DYNIMIZE (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) THAT THE SOFTWARE WILL BE MADE COMMERCIALLY AVAILABLE BY DYNIMIZE OR ITS AFFILIATES OR DISTRIBUTORS. THE ENTIRE RISK OF THE USE OF THE SOFTWARE AND ANY SUPPORT OR SERVICES SHALL BE BORNE ENTIRELY BY CUSTOMER.
(B) IN NO EVENT SHALL DYNIMIZE (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, THE RESULTS OF USE OR THE INABILITY TO USE THE SOFTWARE OR ANY SUPPORT OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. ALL DISCLAIMERS AND LIMITATIONS APPLY ONLY TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO CUSTOMER IN SUCH JURISDICTIONS.
(C) THE EXCLUSION OF WARRANTY, EXCLUSIVE REMEDIES AND LIMITED LIABILITIES SET OUT IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CUSTOMER AND DYNIMIZE. CUSTOMER ACKNOWLEDGES AND AGREES THAT DYNIMIZE (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS.
11. U.S. Government Rights
Any Software provided hereunder was developed exclusively at private expense and is a trade secret of Dynimize for all purposes of the Freedom of Information Act. The Software is a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined in FAR 12.212, and is provided to the U.S. Government only as a commercial end item. Government end users acquire the rights set out in this Agreement for the Software consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of this Software and related documentation is further restricted by the terms and conditions of this Agreement.
12. Governing Law
This Agreement shall be governed by the laws of the Province of Ontario, Canada. No choice of laws rules of any jurisdiction shall apply to this Agreement. Customer consents and agrees that the courts of the Province of Ontario, Canada, shall have jurisdiction over any legal action or proceeding brought by Customer arising out of or relating to this Agreement and Customer consents to the jurisdiction of such courts for any such action or proceeding. Customer waives all rights that Customer may have or that may hereafter arise to contest such jurisdiction of such courts. The parties waive any right to a jury trial with respect to any action brought in connection with this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The Uniform Computer Information Act does not apply to this Agreement.
Customer shall not assign or transfer this Agreement without the prior written consent of Dynimize and any attempt to do so shall be of no force or effect. Dynimize may assign this Agreement at any time without notice. This Agreement will enure to the benefit of the successors and permitted assigns of the parties.
Any notice or other communication to the other party shall be in writing, and, unless delivered by hand to a responsible officer of the addressee, shall be given by courier or registered mail and shall be deemed to have been given when such notice should have reached the addressee in the ordinary course, provided there is no strike by postal or other employees in effect or other circumstances delaying mail or courier delivery, in which case notice shall be delivered or given by facsimile (proof of transmission required). All such notices from Customer to Dynimize shall be directed to the CEO of Dynimize.
15. High-Risk Activities.
The Software is not fault-tolerant and is not designed, manufactured or intended for use in or in conjunction with on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, or direct life support machines. Dynimize, its Affiliates, licensors, suppliers, subcontractors and distributors specifically disclaim any express or implied representations, warranties or conditions for such uses.
This Agreement is the entire agreement between the parties with respect to the subject matter hereof and may only be modified or amended in writing signed by authorized officers of each party. No terms and conditions or stipulations written on a purchase order or similar document will affect these terms even if such document is accepted by the receiving party. A failure or waiver by either party to enforce any right or obligation under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of the parties under this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such a provision shall be deemed severed from the Agreement and the other provisions shall remain in full force and effect.
17. Independent Contractors
The parties to this Agreement are independent contractors. No agency, partnership, joint venture or similar relationship is established hereby. Neither party has the authority to bind the other or incur any obligation on behalf of the other.
The Software and related information are subject to export and import restrictions. By downloading, installing, or using the Software and/or Documentation, You are representing and warranting that You are not located in, under the control of, or are a national or resident of any country to which the export of the Software, Documentation or related information would be prohibited by the laws and/or regulations of Canada or the United States. Customer is also representing and warranting that Customer is not an individual to whom the export of the Software or related information would be prohibited by the laws of the United States or Canada. Customer shall comply with the export laws and regulations of the United States and Canada that are applicable to the Software and related information and Customer shall comply with any local laws in Customer’s jurisdiction that may impact Customer’s right to export, import, or use the Software or related information, and Customer represents and warrants that Customer has complied with any such applicable laws or regulations. The Software shall not be used for any purposes prohibited by export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Software or related information.