EXPRESSPLAY® SPECIAL PRODUCT EVALUATION LICENSE AGREEMENT
IMPORTANT: PLEASE READ CAREFULLY
This ExpressPlay Special Product Evaluation License Agreement (“Agreement”) is a legal agreement between you (on behalf of your company) (“Company”) and Intertrust Technologies Corporation and its majority owned subsidiaries (“Intertrust”) (each, a “Party” and collectively the “Parties”) relating to certain software or other products provided by Intertrust via this website or otherwise, as well as associated documentation (collectively, the “Licensed Products”).
By clicking the “I Agree” button below, or by installing, copying, or otherwise using the Licensed Products, you acknowledge that you have read and understood this Agreement, and agree to be bound by its terms and conditions. If you do not agree to the terms and conditions of this Agreement, do not click the button below and do not install or use the Licensed Products.
1. SOFTWARE EVALUATION LICENSE
1.1 License. During the Term, Intertrust may make certain Licensed Products available to Company at Intertrust’s sole discretion. Subject to Company’s compliance with the terms and conditions of this Agreement, Intertrust grants to Company, during the Term (as defined in Section 6.1), a limited, nonexclusive, nontransferable, non-sublicenseable license to use the Licensed Products solely for the purpose of internal evaluation by Company. Company agrees not to make any commercial use of the Licensed Products or any output created using the Licensed Products.
1.2 No Additional Licenses. Company understands and acknowledges that: (i) the evaluation license granted under Section 1.1 is the only license granted to Company; and (ii) no other licenses have been, or shall be construed to have been, granted expressly, by implication, by estoppel, or by any other provision of this Agreement.
1.3 General Restrictions. Any use by Company of any portion of the Licensed Products, except as provided under Section 1.1 of this Agreement, shall constitute a material breach of this Agreement entitling Intertrust to an immediate right of termination. Company will not rent, lease, sell, loan, or distribute the Licensed Products in any form, nor share the results of its evaluation with any third parties. In addition, Company will not (i) decompile, disassemble or reverse-engineer the Licensed Products; (ii) determine or attempt to determine any source code, algorithms, methods, or techniques embodied in the Licensed Products; or (iii) attempt to remove, modify, circumvent, or otherwise work around any security features of the Licensed Products, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary.
1.4 No Updates or Support. Intertrust has no obligation to commercialize the Licensed Products or to provide any updates, new releases, support, or maintenance of the Licensed Products.
1.5 No Fees. No license fees are due.
As between Company and Intertrust, Company agrees that Intertrust is the sole and exclusive owner and/or licensor of, and shall retain all right, title and interest in and to the Licensed Products (including, but not limited to, any enhancements and/or modifications, whether or not made by Intertrust) and any and all intellectual property rights embodied therein (including, but not limited to, patent, copyright, trade secret, trademark, and other proprietary rights). Nothing contained in this Agreement shall be construed to transfer to Company or any other person or entity any title or ownership interest in the Licensed Products or in any other Intertrust property.
Company may receive information from Intertrust in connection with this Agreement, including, but not limited to, the Licensed Products and technical or pricing information, that is proprietary to Intertrust or its licensors, and is marked as confidential or with a similar notice (if disclosed in writing or tangible form), identified as confidential (if disclosed verbally), or should reasonably be treated as confidential under the context in which the disclosure is made (“Confidential Information”). Company will: (i) safeguard Confidential Information with the same degree of care as it exercises with its own confidential information, but with no less than reasonable care; (ii) not disclose any Confidential Information to third parties other than agents who have a need to know and who are bound by a confidentiality agreement having similar provisions to those herein, and for which Company agrees to be responsible in the event of an unlawful disclosure; and (iii) will use Confidential Information solely in the exercise of the rights and obligations under this Agreement and for no other purpose.
Confidential Information does not include information that Company can demonstrate: (i) is or has become public knowledge through no fault of Company; (ii) is rightfully obtained by Company from a third party without breach of any confidentiality obligation; or (iii) is independently developed by employees of Company without use of or reference to such information. Company 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 Intertrust to allow Intertrust to contest such disclosure.
4. NO WARRANTY AND LIMITATION OF LIABILITY
4.1 No Warranty. THE LICENSED PRODUCTS AND ANY CONFIDENTIAL INFORMATION IS PROVIDED ‘AS IS’. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, INTERTRUST EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OF NONINFRINGEMENT. THERE IS NO WARRANTY THAT THE FUNCTIONS CONTAINED IN THE LICENSED PRODUCTS WILL MEET COMPANY’S REQUIREMENTS, OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE.
INTERTRUST DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE LICENSED PRODUCTS AND/OR CONFIDENTIAL INFORMATION WITH RESPECT TO ITS PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS, OR OTHERWISE.
4.2 Further Limitation of Liability. Intertrust shall not be liable to Company, including any of its agents, affiliates, or customers, or to any other persons, for any lost profits or any incidental, indirect, or consequential damages for the breach of this Agreement. In no event will Intertrust be liable in the aggregate to Company or any third party in connection with this Agreement for more than the greater of (a) the total amount paid by Company to Intertrust hereunder, or (b) one hundred dollars ($100).
Company agrees to indemnify, hold harmless and, upon Intertrust’s request, defend and/or assist in defending, Intertrust, and its affiliates, licensors, and agents from and against any losses, claims, damages, liabilities, or expenses paid to a third party (including reasonable attorney’s fees) (“Losses”) related to or arising out of any breach by Company of this Agreement, or any exploitation or use by Company of the Licensed Products under this Agreement. If any claim is brought by a third party for which a claim of indemnification is or may be provided hereunder, Intertrust shall provide prompt written notice to Company. In such instance, Company shall have the right to control the defense and/or settlement of any claim, provided that the parties cooperate reasonably with each other in the defense of any claim, including making available (under seal if desired, and if allowed) all records reasonably necessary to the defense of such claim, and Intertrust shall have the right to join and participate (through its own counsel and at its own expense) actively in Company’s defense of the claim. Intertrust shall be entitled to prior written notice of any settlement of any claim to be entered into by Company and to reasonable approval of a settlement to the extent Intertrust’s rights would be directly or materially impaired.
6. TERM AND TERMINATION
6.1 Term of Agreement. This Agreement shall commence on the Effective Date and, unless terminated earlier pursuant to Section 6.2, shall continue until the earlier of (a) the date six (6) months after the Effective Date, or (b) the execution of a definitive commercial agreement between the Parties governing use of the Licensed Products (the “Term”).
6.2 Termination. This Agreement and the licenses granted hereunder shall be subject to termination upon the occurrence of any of the following events or such other provisions hereof expressly so stating: (a) if a Party defaults on any of its material obligations under this Agreement, the non-defaulting Party may immediately terminate this Agreement by written notice describing with reasonable specificity the nature of the default; or (b) upon written notice by a Party to the other Party. Upon expiration or termination hereof, any and all licenses granted hereunder shall automatically terminate; provided that the provisions of Sections 1.2, 1.3, 1.4, 2, 3, 4, 5, 7 and this Section 6.2 shall survive such expiration or termination.
7. GENERAL PROVISIONS
7.1 Dispute Resolution. This Agreement and any actions between the Parties involving the Licensed Products and/or any Confidential Information shall be governed solely by, and construed solely in accordance with, the laws of the State of California, excluding conflict of laws principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the Licensed Products in any competent jurisdiction. Each Party hereby unconditionally and irrevocably consents to the exclusive jurisdiction of, and venue in, the state and federal courts located in Santa Clara County, California in connection with any litigation arising hereunder.
7.2 Miscellaneous. If any provision or portion of this Agreement is held to be unenforceable, such provision or portion shall be enforced to the maximum extent permissible consistent with the terms hereof, and the remainder of this Agreement shall continue in full force and effect. Company acknowledges that the Licensed Products may be subject to United States export controls and other relevant regulations, and agrees to comply therewith. This Agreement may not be amended or modified, and no provision may be waived, without a writing signed by the Parties. This Agreement may not be assigned by a Party (whether expressly or by operation of law) without the prior written consent of the other Party. Nothing contained herein shall be construed to constitute the Parties as partners, joint venturers, or agents of the other.
7.3 Entire Agreement. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings between the Parties with respect to the subject matter hereof.