This Non-Production Use Contract (this "Contract") is an agreement between you ("Licensee") and Watsen Networks, LLC ("Watsen"), and governs the use of the software to which this Contract is attached (the "Software"). By installing or commencing use of the Software, you signify your agreement with all the terms and conditions of this Contract, and you indicate your intent that this Contract be legally binding and enforceable against you. Throughout this Contract, either Licensee or Watsen may be referred to individual as a "Party" or collectively as the "Parties".
As described below, this Contract grants to Licensee a limited license to use the Software for Non-Production Use (defined below). In the event that Licensee desires to use the Software for Production Use (defined below), Licensee will be required to accept the terms of a contract that expressly authorizes such Production Use. To receive a copy of that contract, please contact Sales at email@example.com.
"Production Use" means use of the Software (i) to operate Licensee's business or use to provide services to any third party; (ii) to rely upon the Software, or any data processed or produced by the Software, for purposes of making decisions related to the management of Licensee's business; or (iii) to derive revenue from Licensee's use of the Software.
"Non-Production Use" means use of the Software that is not a Production Use (including, without limitation, development, testing, evaluation, demonstration, research, and training purposes).
1. LIMITED LICENSE GRANT.
1.1. Limited-Purpose License Grant. Watsen grants to Licensee a license to install the Software in Source Code format onto non-production based computer servers operated and under the direct control of Licensee; and to use the Software for Non-Production Use. For purposes of this Contact, "Source Code" is any code, scripts, algorithms or other instructions comprising computer software in source or obfuscated form, designed to be interpreted in such form at the time of execution by a computer software interpreter or to be compiled and translated into machine-readable, binary object-code format for execution within operating system environments and/or targeted hardware platforms. This license is effective only during the Contract Period, is non-exclusive and non-assignable, and may not be sublicensed, in whole or in part. The scope of this license is defined by the terms and conditions of this Contract, and this license is granted subject to those terms and conditions.
1.2. No Implied Licenses. Licensee acknowledges that there are no licenses granted by implication under this Contract. Watsen reserves all rights that are not expressly granted. Licensee acknowledges that, as between the Parties, Watsen owns all intellectual property rights and proprietary interests that are embodied in, or practiced by, the Software and/or its associated documentation. To be clear, however, the preceding sentence does not constitute a representation or warranty regarding ownership of any intellectual property rights or other proprietary interests. Watsen is granting this license only under intellectual property rights that are owned by Watsen or that Watsen has a right to sublicense.
1.3. Restrictions on Scope of Licenses. Licensee agrees not to act outside the scope of the rights that are expressly granted by Watsen in this Contract. In particular Licensee will not use the Software for any purposes other than Non-Production Use. Further, Licensee will not (i) use the Software in any manner that is inconsistent with its associated documentation; (ii) make or install any copies of the Software except as expressly authorized elsewhere in this Contract; (iii) modify any code of the Software, nor create any derivative works of the Software; (iv) reverse engineer or use any other method to view or recreate any of the un-obfuscated source code of the Software; (v) use the Software to operate the business of a third party, or to process data or content provided by a third party for the operation a third party's business, or otherwise use the software on a third party's behalf, or act as a service bureau or provider of application services ("ASP" or software-as-a-service) to any third party; (vi) digitally transmit, publicly perform, publicly display, distribute or otherwise convey to any third party any copies of the Software or any content of the Documentation, in whole or in part; or (vii) sell, lend, lease, assign, transfer, pledge, permit a lien upon, or sublicense any of the rights having been granted by this Contract with respect to the Software and/or Documentation. Licensee agrees to use the Software only for lawful purposes and in compliance with all applicable laws, rules and regulations issues by governing authorities. Licensee may not export or re-export any full or partial copies of the Software or Documentation outside the United States of America, unless it first obtains any and all licenses and permits that may be required from governmental authorities. Licensee acknowledges and agrees that any act or omission in breach of this section will constitute an unauthorized exercise of Watsen's exclusive intellectual property rights beyond the scope of the rights licensed by this Contract, and strict compliance with this section is an essential basis of this Contract. Licensee agrees to reimburse Watsen for attorneys' fees and court costs incurred in connection with any lawsuit brought by Watsen in which a court or arbitrator finds that Licensee has breached any provisions of this section.
1.4. Non-Production Use Restrictions. Licensee acknowledges that the Software may only be used for Non-Production Use. Licensee acknowledges that the Software may be in the process of further development and refinement by Watsen, and may contain programming errors, design errors, or malfunctions, and Licensee accepts and assumes all risk of reliance upon the Software, and/or reliance upon any data processed or produced by the Software, in the operation and management of Licensee's business, and/or in Licensee's provision of services to any third party. Licensee agrees that this Contract does not grant it any right to use the Software for Production Use.
1.5 No Duty to Correct Errors. Licensee acknowledges and agrees that Watsen has no obligation under this Agreement to correct any defects or errors in the Software, regardless of whether Licensee informs Watsen of such defects or errors or Watsen otherwise is, or becomes aware of, such defects or errors.
2. LICENSEE'S REPORTING OBLIGATIONS.
Licensee acknowledges and agrees that the Software has been provided by Watsen solely for the purposes of Non-Production Use. In consideration for the rights granted in this Contract, Licensee agrees to provide Watsen with such error reports or other comments as Licensee may at any time develop with respect to the Software. Such reports may be sent to Support at firstname.lastname@example.org. Licensee also acknowledges and agrees that any such comments, ideas and/or error reports shall be considered Watsen's Proprietary Information (defined below), and shall be subject to all the terms and conditions of this Contract governing Proprietary Information. Licensee hereby irrevocably transfers and assigns to Watsen (i) all patents, copyrights, trademarks, trade secrets and other intellectual property rights in any idea, comment, suggestion, error report or other materials Licensee may submit to Watsen with respect to the Software; and (ii) any and all "moral rights" that Licensee may have in, or with respect to, any such materials.
3. FEES AND EXPENSES.
3.1. No Fees. The Parties agree that no license fees or other fees shall be payable under this Contract in exchange for the rights granted and/or the use of the Software or other materials provided under this Contract. Licensee acknowledges and agrees that this fee arrangement is made in consideration for the mutual covenants set forth in this Contract, including, without limitation, the disclaimers, exclusions, and limitations of liability set forth herein.
3.2. Operating Expenses. Licensee shall bear its own expenses in connection with exercising its rights or performing its obligations under this Contract, including, without limitation, any and all expenses incurred in connection with Non-Production Use of the Software.
4. CONFIDENTIALITY OBLIGATIONS.
Licensee agrees not to disclose or permit access to the Watsen's Proprietary Information, except to the Licensee's employees and agents who are informed of the confidential nature of the Proprietary Information and who have agreed in writing or who are otherwise legally bound to treat Watsen's Proprietary Information in a manner consistent with Licensee's duties under this Contract. Licensee will not use Watsen's Proprietary Information except (i) as necessary to perform the Licensee's duties under this Contract; and (ii) in any other manner that this Contract expressly authorizes. Even after termination or expiration of this Contract, the Licensee will continue to treat Proprietary Information received from Watsen in accordance with this Contract, for so long as the information fits the definition of "Proprietary Information," or until use and disclosure of the information would no longer be restricted even if this Contract remained in full force. For purposes of this Contract, "Proprietary Information" means data or information in any form disclosed by Watsen to the Licensee by any means, if and for so long as the data and information are protectable as trade secrets by Watsen or are otherwise subject to legal rights that give Watsen, independent of contract, a right to control use and/or disclosure of the data and information.
5. ALLOCATIONS OF RISK.
5.1. Representations and Warranties. Licensee represents that (i), if it is not a natural person, it is in good standing in the state where it is formed, and it has the power to enter and perform this Contract under applicable law, its bylaws and/or other governance documents; and (ii) it has obtained any consent it requires from its management, its board of directors and any third parties to the extent consent is necessary to authorize it to enter and perform this Contract. Licensee warrants that all of its representations above will remain true throughout the term of this Contract; and that full performance of its duties under this Contract will not conflict with its performance under any other legally binding agreement. Licensee agrees that, in the event that any of its representations or warranties under this Contract ceases to be true or accurate, it will promptly notify Watsen.
5.2. General Disclaimers. Licensee acknowledges and agrees that the Software has been provided solely for the purposes of Non-Production Use. Licensee represents that it is entering this Contract without relying upon any representation or warranty not expressly stated in this document or documents incorporated herein. Licensee acknowledges that the Software may contain operational malfunctions, errors, or other defects and agrees that licensee is entering this agreement solely for purposes of Non-Production Use of the Software. Accordingly, Licensee agrees to assume all risks from use of the Software and acknowledges that the Software is provided "as is" and "with all defects," and Licensee agrees to indemnify Watsen from and against any and all damages, liabilities and out-of-pocket expenses incurred by Watsen arising from Licensee's use of the Software and/or arising from Licensee's breach of this Contract. To the maximum extent permitted by applicable law, Watsen disclaims any and all promises, representations and warranties, express, implied or statutory, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, data accuracy, system integration, title, non-infringement, non-interference and/or quiet enjoyment, and all warranties that may otherwise be implied. No warranties are made on the basis of trade usage, course of trade, or course of performance. Watsen does not warrant that the Software will meet Licensee's requirements or that the operation of the Software will be uninterrupted or error-free, or that all or any errors will be corrected.
5.3. No Duty to Correct Errors. Licensee acknowledges and agrees that Watsen has no obligation under this Contract to correct any defects or errors in the Software furnished to Licensee under this Contract, regardless of whether Licensee informs Watsen of such defects or errors or Watsen otherwise is, or becomes aware of, such defects or errors.
5.4. Limits of Contractual Liabilities. Licensee agrees that Watsen will have no liability for any indirect, incidental, consequential, special or punitive damages in connection with this Contract, regardless of the theory of liability (including theories of contractual liability, tort liability, or strict liability), nor liability for lost profits, loss of business opportunity, or business interruption, even if Watsen knew or should have known that those kinds of damages were possible. Watsen's maximum cumulative liability in connection with this Contract shall never exceed One Dollar ($1.00). Licensee irrevocably waives any and all claims that it has or may have in the future for direct damages in excess of the foregoing limit. Watsen acknowledges that this Section is an essential part of this Contract, absent which the economic terms and other provisions of this Contract would be substantially different.
6. DURATION AND TERMINATION OF CONTRACT.
6.1. Duration of Contract. This Contract will become legally enforceable on the date Licensee installs or begins using the Software and will remain in effect until either Party terminates it in one of the situations permitting termination as described below (the "Contract Period").
6.2. Termination for Breach. Watsen may terminate this Contract immediately if Licensee breaches any of its material obligations under this Contract.
6.3. Termination for Convenience. Licensee may terminate this Contract at any time by uninstalling and ceasing all use of the Software.
6.4. No other right to terminate. The Parties agree that neither of them may terminate this Contract except in the limited circumstance when this Contract expressly permits termination.
6.5. General consequences of termination. Effective immediately upon termination of this Contract, (i) all licenses granted under this Contract will become void, (ii) Licensee shall cease all use of the Software and shall destroy all copies of the Software and associate documentation in its possession, and (iii) Licensee will not have continuing rights to use any of Watsen's Proprietary Information or to exercise any intellectual property rights having been licensed under this Contract. As soon as can reasonably be accomplished after this Contract is terminated, Licensee will discontinue its use and will return any Proprietary Information and proprietary materials to Watsen.
6.6. Continuing Force of Certain Provisions. Even if this Contract expires or is terminated, the Parties agree to remain bound by the provisions of Section 1.2, 1.3, 2, 3, 4, 5, 6.5, 6.6 and Section 7. The rights and duties created by those provisions will not terminate, but will remain in effect for so long as the provisions themselves expressly state, or, if not stated, indefinitely. Each Party will retain any claims accrued prior to termination, such as accrued rights to receive payments from the other Party. However, those claims, including accrued claims to receive payment, will expire on the second anniversary of the Contract's termination, after which each Party irrevocably releases and waives those claims, except any claims arising from the other Party's infringement of its intellectual property rights or misappropriation of its Proprietary Information.
7. GENERAL AND MISCELLANEOUS PROVISIONS.
7.1. Limitations on Assignment and Delegation. Licensee agrees that it may not assign to any third party some or all of its rights under this Contract, nor delegate to any third party some or all of it its duties. Any document, instrument or act that claims to make such an assignment or delegation will be interpreted as wholly ineffective and will be disregarded. Watsen may waive enforcement of this provision only in a writing signed by its representative that expressly indicates its consent to Licensee's assignment or delegation.
7.2. Benefit of Contract Parties Only. The Parties intend to make commitments only to each other under this Contract, and only for their respective benefits. They do not intend to give any third party any right to enforce this Contract or any part of it.
7.3. Applicable Law. The Parties intend that the laws of the Commonwealth of Virginia should be used to interpret and enforce this Contract. If any instances occur when the laws of Virginia themselves would require the law of another jurisdiction to be applied to this Contract, the Parties do not wish the other jurisdiction's law to be applied and instead intend for Virginia's law to be applied even in those situations.
7.4. Venue for disputes. The Parties agree that any litigation between them may only be brought in courts located within Virginia, and each Party consents to the jurisdiction of those courts. However, a Party may bring an action solely for purposes of seeking an injunction to stop or prevent infringement of intellectual property rights or misappropriation of Proprietary Information by the other Party in any court that has jurisdiction.
7.5. Entire Agreement. The Parties agree that the provisions of this Contract are the entire agreement between them regarding the matters that this Contract addresses. The Parties also agree that any prior agreements about those same matters, whether written or oral, are superseded by this Contract, and previous oral agreements about those matters do not have any legally binding force.