Trial Agreement
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Last updated: July 20, 2011
BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE,
YOU AGREE TO BE BOUND BY THE TERMS OF THIS FREE-TRIAL AGREEMENT (this
"Trial Agreement"). IF YOU DO NOT AGREE TO THE TERMS OF THIS Trial
Agreement, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.
1. DEFINITIONS
"Company" means Nexenta Systems, Inc.
"Product" means Nexenta Storage Appliance software (NexentaStor).
"You" means the natural person or the entity that is agreeing to
be bound by this Trial Agreement, their employees and third party
contractors that provide services to you. The individual entering
into this Agreement on behalf of You hereby represents that such
individual is Your employee or agent and has authority to enter into
this Agreement on behalf of You.
"Open Source Software" means various open source software components
licensed under the terms of applicable open source license agreements
included in the materials relating to such software. Open Source
Software is composed of individual software components, each of which
has its own copyright and its own applicable license conditions.
"NexentaOS" means a complete GNU-based open source operating system
available at http://www.nexenta.org
"Site" means Nexenta Systems, Inc. website: http://www.nexenta.com
2. TERMS AND CONDITIONS
2.1. Company grants to You a non-exclusive, non-sublicensable,
non-transferable license to use the Product on a single real or virtual computer
for a forty-five (45) day trial period, subject to the terms and
conditions of this Trial Agreement and in accordance with the
instructions, specifications and documentation provided with the
Product (collectively, the "Documentation"). This license of Product
may not be shared or used concurrently on different real or virtual computers.
2.2. The Product may be activated with no-cost Trial License Key
that can be obtained by registering the Product at the Free Trial
Registration page. You may use the Product to evaluate the suitability
of the Product for licensing on a for-fee basis.
2.3. Product Warranty Disclaimer. THE PRODUCT IS PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY,
OR OTHERWISE. Company BEARS NO LIABILITY FOR ANY DAMAGES RESULTING
FROM USE (OR ATTEMPTED USE) OF THE PRODUCT.
2.4. You agree that You will NOT without the express written
authorization of the Company:
(a) copy, sell, sublicense, or otherwise transfer the Product to any
third party;
(b) remove any titles, trademarks or trade names, copyright notices,
legends, or other proprietary markings on the software in the Product;
(c) except to the extent expressly permitted by applicable law, and
to the extent that the Company is not permitted by that applicable
law to exclude or limit the following rights, You will not decompile,
disassemble, reverse engineer, or otherwise attempt to derive source
code from the Product, in whole or in part.
2.5. NexentaOS software. The Product contains part of NexentaOS
software, which in turn contains a variety of Open Source Software
components. You can redistribute and/or modify the Open Source Software
under the terms and conditions of the corresponding open source
licenses. You may obtain a copy of the source code corresponding to
the binaries for the Open Source Software from the NexentaOS home page
at http://www.nexenta.org. You agree to comply with the applicable
licenses and additional terms and notices of such Open Source Software
components. Company makes no warranties or representations of any
kind to You regarding Open Source Software components, or that the
corresponding open source licenses may not change or be altered at
any time.
2.6. SUPPORT AND SUBSCRIPTION SERVICES NOT INCLUDED. Company will not
provide any support services under this Trial Agreement. This Trial
Agreement does not give You any rights to any updates or upgrades
to the Product or to any extensions or enhancements to the Product
developed by Company at any time in the future. Company may offer
support and subscription services separately, under the terms of a
different License agreement.
2.7. Third party software. The Product may contain Third Party software
that must be separately licensed. Any separately licensed software
is licensed exclusively by that license and the terms of this Trial
Agreement do not apply.
2.8. Software Modifications. Modifications of the Product software
will not be supported by the Company unless indicated otherwise
by express written authorization. Company will not be liable for
any modifications to the Product software or any errors or damages
resulting from such modifications.
2.9. UNIX shell. You agree that You will not use the UNIX shell to
administer or reconfigure the Product unless directed by the Company.
The Product includes a management console that is specifically designed
for command line based management of the Product. Using UNIX shell
without authorization of the Company will not be supported, and the
Company will not be liable for any errors or damages resulting from
such usage.
2.10. Company may update or discontinue the Product or revise the
Documentation at any time without prior notice to You, and the Product
and/or the Documentation may become unavailable to You even after an
order is placed. All prices mentioned on the Company Site are subject
to change without notice.
2.11. Product Descriptions; Pricing; Errors. Company attempts to
be as accurate as possible and eliminate errors in the Product and
on the Site. However, Company does not warrant that the Product,
its descriptions, photographs, pricing or other content of the Site
is accurate, complete, reliable, stable, defect free, current, or
error-free. In the event of an error, whether on the Site or otherwise,
Company reserves the right to correct such error at any time, and
Your sole remedy in the event of such error is stop using the Product.
3. TERMINATION
3.1. This Trial Agreement shall commence as of the date on which the
submitted trial registration request has been received by Company and,
unless terminated earlier in accordance with this Trial Agreement
or extended agreement of the parties, shall automatically terminate
on the forty-fifth (45th) day of the Trial Period. At the end of the
Trial Period, You shall either purchase a license to use the Product,
or destroy all copies of the Nexenta Storage Appliance software
(the Product).
3.2. Termination. Company may terminate this Trial Agreement
immediately and without notice if You fail to comply with any term
of this Trial Agreement.
4. LIMITATION OF LIABILITY
4.1. Company PROVIDES THE PRODUCT WITHOUT ANY WARRANTIES OF ANY KIND,
EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS Trial
Agreement OR COMMUNICATION WITH You. Company SPECIFICALLY DISCLAIMS
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON- INFRINGEMENT.
4.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
WILL Company BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES,
LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY
THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE,
PRODUCT LIABILITY, OR OTHERWISE.
5. GENERAL
5.1. Governing Law. This License Agreement shall be governed,
construed and enforced in accordance with the laws of the United
States of America and of the State of California.
5.2. Entire Agreement. This Agreement constitutes the entire and
only agreement between the parties for Product and all other prior
negotiations, representations, agreements, and understandings are
superseded hereby. No agreements altering or supplementing the terms
hereof may be made except by means of a written document signed by
the duly authorized representatives of the parties.
5.3. Waiver and Modification. No failure of either party to exercise
or enforce any of its rights under this Trial Agreement will act as
a waiver of those rights. This Trial Agreement may only be modified,
or any rights under it waived, by a written document executed by the
party against which it is asserted.
5.4. Severability. If any provision of this Trial Agreement is
found illegal or unenforceable, it will be enforced to the maximum
extent permissible, and the legality and enforceability of the other
provisions of this Trial Agreement will not be affected.
5.5. United States Government End Users. For any Software licensed
directly or indirectly on behalf of a unit or agency of the United
States Government, this paragraph applies. Company's proprietary
software embodied in the Product: (a) was developed at private
expense and is in all respects Company's proprietary information;
(b) was not developed with government funds; (c) is Company's trade
secret for all purposes of the Freedom of Information Act; (d) is a
commercial item and thus, pursuant to Section 12.212 of the Federal
Acquisition Regulations (FAR) and DFAR Supplement Section 227.7202,
Government's use, duplication or disclosure of such software is
subject to the restrictions set forth by the Company.
5.6. Foreign Corrupt Practices Act. You will comply with the
requirements of the United States Foreign Corrupt Practices Act
(the "FCPA") and will refrain from making, directly or indirectly,
any payments to third parties which constitute a breach of the FCPA.
You will notify Company immediately upon Your becoming aware that
such a payment has been made. You will indemnify and hold harmless
Company from any breach of this provision.
5.7. Export Restrictions. You may not export or re-export the Product
except in compliance with the United States Export Administration Act
and the related rules and regulations and similar non-U.S. government
restrictions, if applicable. The Product and accompanying documentation
are deemed to be "commercial computer software" and "commercial
computer software documentation" respectively, pursuant to DFAR
Section 227.7202 and FAR Section 12.212(b), as applicable.
5.8. All disputes arising out of or relating to this Trial Agreement
will be exclusively resolved in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (the "AAA
Rules") under confidential binding arbitration held in Santa Clara
County, California. To the fullest extent permitted by applicable
law, no arbitration under this Trial Agreement will be joined to an
arbitration involving any other party subject to this Trial Agreement,
whether through class arbitration proceedings or otherwise. Any
litigation relating to this Trial Agreement shall be subject to
the jurisdiction of the Federal Courts of the Northern District of
California and the state courts of the State of California, with
venue lying in Santa Clara County, California.
5.9. Title. Company retains all right, title, and interest in and
to the Software and the Software License Key and in all related
copyrights, trade secrets, patents, trademarks, and any other
intellectual and industrial property and proprietary rights, including
registrations, applications, renewals, and extensions of such rights.
5.10. Contact Information. If You have any questions about this
Trial Agreement, or if You want to contact Company for any reason,
please email sales@nexenta.com. Please contact us also if you would
like to unsubscribe from emails and other communications regarding
Company's products and services and if you would prefer not to act
as a reference for new customers and prospects. We assume you
remain interested and available unless and until you opt out.
