Jumbune Trial Agreement
IMPORTANT - CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS LIMITED USAGE LICENSE AGREEMENT FOR THE SPECIFIC VERSION OF JUMBUNE (THIS "AGREEMENT"). BY CLICKING "I ACCEPT," OR PROCEEDING WITH THE USAGE OF THIS VERSION OF THE JUMBUNE SELECTED ("APPLICATION"), OR USING THE APPLICATION, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT WITH IMPETUS TECHNOLOGIES, INC. ("IMPETUS"), AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM "YOU" SHALL REFER TO SUCH ENTITY. IF YOU DOES NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST SELECT THE "DECLINE" OR "DISAGREE" BOX, AND YOU MAY NOT USE THE APPLICATION. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT YOU ACCEPT THIS AGREEMENT.
"License Term" means the period commencing on the Effective Date and ending on the last day of the license term specified on the web page unless expressly extended by Impetus in writing.
"Application" means the specific version of the Impetus software application known as Jumbune.
"Product" means the Application and all associated documentation (if any) ("Documentation"), collectively.
Scope of Agreement
This Agreement is between You and Impetus and governs Your use of the Product.
Subject to the terms and conditions of this Agreement, Impetus grants You a non-exclusive, non-transferable, limited license (without the right to sublicense), solely for the License Term, to (i) access and use the Product solely for internal business purposes and limited to the functionality and/or capacity applicable to the License.
Open Source and Third Party Software
Some of the software that is provided with or within the Application is licensed to Impetus by third parties (collectively, "Open Source and Third Party Software") and is not licensed under the terms of this Agreement, except that Sections 6 and 8 shall apply to such Open Source and Third Party Software. You agree to comply with terms and conditions contained in all such Open Source and Third Party Software licenses. Information related to this can be viewed in the files: 'Notice.txt' and 'License.txt' within the software itself. Additionally, You acknowledge and agree that You may be required to separately acquire and download certain Open Source and Third Party Software to use with the Application.
Except as expressly permitted in this Agreement, You and Your employees, contractors, affiliates, subsidiaries shall not: (i) copy, reverse engineer, reverse assemble, or otherwise attempt to discover the source code of all or any portion of the Product; (ii) reproduce, modify, translate or create derivative works of all or any portion of the Product; (iii) assist any third party to gain access, license, sublicense, resell distribute, assign, transfer or use the Product; (iv) remove or destroy any proprietary notices contained on or in the Product or any copies thereof; (v) run any computer program that will directly use any underlying embedded components of the Application or any of the APIs of those underlying embedded components; or (vi) publish or disclose the results of any benchmarking of the Products, or use such results for Your own competing services development activities, without the prior written permission of Impetus.
Disclaimer of Warranty
The Product is not recommended to be used in a production or commercial operating environment or with any PII data. You agree that any data that is being used with the product is your data and Impetus disclaims any warranties on authenticity, ownership and cleanliness of data. You agree that you own the data and you have rights to use the data in its existing form. You acknowledge and agree that Your use of the Products may be limited by the hardware or resources on which it is installed and limited to the functionality and/or capacity applicable to the version of the Application that You download. YOU AGREE THAT IMPETUS AND ITS LICENSORS PROVIDE THE PRODUCTS ON AN "AS IS" AND "WHERE-AS" BASIS. NEITHER IMPETUS NOR ITS LICENSORS MAKE ANY WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE PRODUCT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND IMPETUS AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Intellectual Property Rights and Feedback
All rights, title and interest in and to the Product and any improved, updated, modified or additional parts thereof, shall at all times remain the property of Impetus or its licensors. Nothing herein shall give or be deemed to give You any right, title or interest in or to the same except as expressly provided in this Agreement. Impetus reserves all rights not expressly granted herein. You agree to make reasonable efforts to provide Impetus with oral feedback and/or written feedback related to Your use of the Product, including, but not limited to, a report of any errors that You discover in the Product. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by You to Impetus concerning the Product and any information reported in log files regarding the Product ("Feedback") will be the property of Impetus. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback, and the related intellectual properties rights to Impetus, and agree to assist Impetus, at Impetus' expense, in perfecting and enforcing such rights.
Limitation of Liability
NEITHER IMPETUS NOR ITS LICENSORS SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT OR DATA OR ANY ACTUAL OR ANTICIPATED DAMAGES, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF IMPETUS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL IMPETUS' DIRECT DAMAGES EXCEED ONE HUNDRED DOLLARS (US $100.00). ADDITIONALLY, IN NO EVENT SHALL IMPETUS' LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND.
Allocation of Risk
You and Impetus agree that the foregoing Section 8.1 on limitation of liability and the Section 6 above on warranty disclaimer fairly allocate the risks in the Agreement between the parties. You and Impetus further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations specified in this Section 8 shall apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.
Definition of Confidential Information
"Confidential Information" of a party shall mean (i) any technical and non technical information related to such party's business and current, future and proposed products and services, including for example and without limitation, information concerning research, development, design details and specifications, financial information, procurement requirements, engineering and manufacturing information, customer lists, business forecasts, sales information, marketing plans and business plans, logs and other debugging artifacts, benchmark or comparison tests, bug tracking and quality measurements, information exchanged in the course of providing or receiving support, and encrypted or obfuscated information, whether or not decrypted; and (ii) any information that may be made known to the receiving party and which the disclosing party has received from others that the disclosing party is obligated to treat as confidential or proprietary, in each case, which information shall be marked as confidential. The Products are the Confidential Information of Impetus and You agree that you will not disclose any information about the Products to any third party without Impetus' express written consent.
Nondisclosure of Confidential Information and Confidentiality Obligations
Neither party will use, disseminate or in any way disclose any Confidential Information of the other party to any person, firm or business. Each party shall treat all Confidential Information with the same degree of care as such party accords to its own confidential information but not less than reasonable care. Each party shall disclose Confidential Information only to its employees or representatives who have a need to know such information. Each party certifies that each such employee or representative will have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to such party under this Agreement. Each party shall immediately give notice to the other party of any unauthorized use or disclosure of the other party's Confidential Information. Each party shall assist the other party in remedying any such unauthorized use or disclosure of the other party's Confidential Information.
Confidential Information shall not include any information that (i) was in the public domain at or subsequent to the time such information was communicated to the receiving party by the disclosing party through no fault of the receiving party; (ii) was rightfully in the receiving party's possession free of any obligation of confidence at or subsequent to the time such information was communicated to the receiving party by the disclosing party; or (iii) is or was developed by the receiving party's employees, contractors or agents independently of and without reference to any Confidential Information of the disclosing party. A disclosure of any Confidential Information by the receiving party (a) in response to a valid order by a court or other governmental body or (b) as otherwise required by law shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that the receiving party shall provide prompt prior written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent such disclosure.
Ownership of Materials
All Confidential Information shall be the property of the disclosing party and no license or other rights to Confidential Information is granted or implied hereby. Within five (5) days after any request by the disclosing party, the receiving party shall destroy or deliver to the disclosing party, at the disclosing party's option, all Confidential Information of the disclosing party in the possession of the receiving party. The receiving party will provide the disclosing party, upon request, a written certification of such party's compliance with the obligations under this Section.
Term and Termination
Term Upon the expiration of the License Term unless otherwise extended in writing by Impetus in its sole discretion, the software will stop working and all access will be terminated. Impetus agrees to purge all customer data on the expiration of the evaluation term.
Termination You may terminate this Agreement at any time by ceasing use of the Product. This Agreement will terminate immediately upon written notice from Impetus if You fail to comply with any provision of this Agreement. Except for Section 3 ("License Grant"), all Sections of this Agreement shall survive termination for a period of three (3) years from the date hereof.
Government End Users
The Product provided under this Agreement is commercial computer software programs developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to You), the Product licensed in this Agreement is deemed to be "commercial items" and "commercial computer software" and "commercial computer software documentation." Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to You), any use, modification, reproduction, release, performance, display, or disclosure of such commercial Product or commercial Product documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
Any notice required or permitted by this Agreement shall be in writing and sent to: Impetus Technologies, Inc. 720 University Avenue, Suite 130 Los Gatos, CA 95032 Or via electronic mail at: This Agreement shall be governed by the laws of the State of California, U.S.A. without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in the courts in Santa Clara County, California. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of this Agreement shall not be affected thereby. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement may not be assigned, sublicensed or otherwise transferred by either party without the other party's prior written consent except that either party may assign this Agreement without the other party's consent to any entity that acquires all or substantially all of such party's business or assets, whether by merger, sale of assets, or otherwise, provided that such entity assumes and agrees in writing to be bound by all of such party's obligations under this Agreement. In the event any judicial proceeding, lawsuit or claim is brought by one party against the other party in connection with this Agreement, the prevailing party shall be entitled to recover its reasonable fees and costs, including but not limited to attorneys' fees, expert witness fees, consultant fees, and related costs and expenses. This Agreement constitutes the parties' entire understanding regarding the Product, and supersedes any and all other prior or contemporaneous agreements, whether written or oral.