EXPRESSCLUSTER Trial License Agreement
Welcome to the EXPRESSCLUSTER 60-Day Trial Download site. Before you download a 60-day Trial copy of the software, you must accept all of the terms and conditions in the EXPRESSCLUSTER Trial License Agreement. If you do not accept all terms and conditions, you may not download the software and documentation.
THIS TRIAL LICENSE AGREEMENT ("AGREEMENT") BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY REPRESENTED BY YOU) AND NEC CORPORATION("NEC") GOVERNS YOUR USE OF THE SOFTWARE AND DOCUMENTATION, AS DEFINED BELOW. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING OR ACCESSING IN ANYWAY THE SOFTWARE AND DOCUMENTATION. BY CLICKING ON THE "ACCEPT" BUTTON BELOW, YOU MANIFEST YOUR ASSENT TO, AND AGREE TO BE BOUND BY, ALL TERMS AND CONDITIONS OF THIS AGREEMENT.
- Definitions: "Documentation" means any user guides, printed materials, and "online" or electronic documentation provided with the Software by NEC; "Software" means the EXPRESSCLUSTER computer software and any related enhancements, upgrades, components, add-ons, or modules, in object code form only, provided now or at a later date, which are owned or licensed by NEC; and "Term" means a period of sixty (60) days from the first date you download the Software.
- Grant of License for Internal Trial Use: Provided you comply with all terms and conditions of this Agreement, NEC grants you a non-exclusive, non-transferable, limited license without right of sublicense to internally use the Software and Documentation during the Term for internal Trial purposes only. The Software and Documentation are licensed and not sold to you under the terms of this Agreement only and any rights not expressly granted by NEC to you are reserved by NEC or its licensors, and all implied licenses are disclaimed.
- Ownership: The Software, Documentation and all copies and derivative works (by whomever produced) thereof shall remain the sole property of NEC or its licensors, and, except as expressly and unambiguously licensed herein, NEC or its licensors shall exclusively own all rights, title and interest in the Software, Documentation and derivative works of the Software or Documentation and all intellectual property and proprietary rights anywhere in the world therein. The Software and Documentation contain material that is protected by Japanese and United States Copyright Laws and trade secret laws, international treaty provisions, and all other applicable laws.
- Restrictions: You may not publish, display, disclose, sell, rent, lease, loan, distribute, or create derivative works of the Software or Documentation, or any part thereof. You may not assign, sublicense, convey or otherwise transfer, pledge as security or otherwise encumber the rights and licenses granted hereunder with respect to the Software and Documentation. You may not copy (except to the limited extent necessary to download and use the Software per Section 2 hereof), reverse engineer, decompile, reverse compile, derive source code, translate, adapt, or disassemble the Software or Documentation, as the case may be, or any part thereof, except and only to the extent that it is expressly permitted by applicable law notwithstanding these restrictions. You may not market, co-brand, private label or otherwise permit third parties to link to the Software and Documentation, or any part thereof. You may not use the Software and Documentation, or any part thereof, in the operation of a service bureau or for the benefit of any other person or entity. You may not cause, assist or permit any third party to do any of the foregoing.
- Confidentiality: You acknowledge that the Software and Documentation contains proprietary trade secrets of NEC or its licensors and you hereby agree to maintain the confidentiality of the Software and Documentation using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information. You agree to reasonably communicate the terms and conditions of this Agreement to those persons employed by you who come into contact with the Software and Documentation, and to use best efforts to ensure their compliance with such terms and conditions, including, without limitation, not knowingly permitting such persons to use any portion of the Software for the purpose of deriving the source code of the Software. You shall treat as confidential all information received or obtained as a result of entering into this Agreement, or which relates to the provisions or subject matter of this Agreement, including, but not limited to, the results of any Trial of the Software, to any other party.
- No Warranty: Inasmuch as this Agreement allows you to evaluate the Software without charge, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEC DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEC DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE AND DOCUMENTATION WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE AND DOCUMENTATION WILL OPERATE ERROR FREE, OR IN AN UNINTERUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED, OR THAT THE SOFTWARE AND DOCUMENTATION ARE COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU. IF THIS EXCLUSION IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN ALL EXPRESS AND IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO A PERIOD OF SIXTY (60) DAYS FROM THE DATE OF DOWNLOAD OF THE SOFTWARE AND DOCUMENTATION.
- Limitation of Liability: IN NO EVENT WILL NEC OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF THE SOFTWARE OR DOCUMENTATION OR THE USE THEREOF, EVEN IF NEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMEGES. THE FOREGOING LIMITATIONS, EXCUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER ANY APPLICABLE LAW.
- Export Restrictions: This Agreement is expressly made subject to any applicable laws, regulations, orders, or other restrictions on the export of the Software, Documentation or information about such Software and Documentation which may be imposed from time to time. You shall not export the Software, Documentation or information about the Software and Documentation without complying with such laws, regulations, orders, or other restrictions. You agree to indemnify NEC and its licensors against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees, to the extent such claims arise out of any breach of this section 8.
- Support: NEC will not provide any maintenance, updates, enhancements, upgrades, bug fixes or support of any kind for the Software and Documentation.
- Termination: On or before expiration or termination of the Term, you agree to either (i) enter into a royalty-bearing license agreement with NEC for continued use of the Software and Documentation, or (ii) promptly cease all use of the Software and Documentation and send written certification to NEC that you have removed the Software, Documentation and any parts thereof from your systems and returned or destroyed all Software and Documentation. Your failure to do either of the aforementioned will create a royalty-bearing license for the Software in accordance with the terms and conditions of NEC's standard license agreement for the Software at the then-current list price, for which you shall be invoiced. All provisions relating to confidentiality, proprietary rights and indemnity shall survive the termination of this AGREEMENT.
- General: This Agreement shall be construed, interpreted and governed by the laws of Japan without regard to conflicts of laws provisions thereof. You agree that the exclusive forum for any disputes arising out of or relating to this Agreement shall be the Tokyo District Court, and accordingly hereby consent to submit to the jurisdiction of such court and expressly waive any objections or defenses based upon lack of personal jurisdiction.This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter covered in this Agreement and supersedes all prior or contemporaneous oral or written communications relating to the same subject matter. Any waiver or modification of this Agreement, except as otherwise provided herein, shall only be effective if it is in writing and signed by both parties hereto. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by you, whether voluntary or by operation of law. Any such attempted assignment shall be void and of no effect without the prior written consent of NEC. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably affect the intention of the parties.
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