Trial Software End-User License Agreement
PLEASE READ THIS TRIAL SOFTWARE END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS FROM THIS WEB SITE (http://www.gigabalance.com/). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the "Licensee" or "You") AND GIGABALANCE, INC. ("Gigabalance" or "Licensor"). PLEASE CHECK THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AT THE BOTTOM OF THIS AGREEMENT IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CHECKING THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AND/OR BY PURCHASING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY GIGABALANCE THROUGH THIS WEB SITE, YOU ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND IT, (3) THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND (4) TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY.
TRIAL SOFTWARE PRODUCT LICENSE
1. TRIAL SOFTWARE LICENSE
1.1 License Grant. Gigabalance hereby grants to You, and You accept, a limited, non–exclusive, non–transferable, time-restricted license to install and use Gigabalance's proprietary Pico Lux Kit software (the "Software") for testing and evaluation purposes only, solely as authorized below.
1.2 Scope of License. You are granted a Trial Software license pursuant to this Section 1 for the sole purpose of testing and evaluating the Software’s functionality. As such you are allowed to install the Software onto one single device for use by a single user only.
1.3 Assumption of Risk. Use of the Software is at your sole discretion and risk. You should take adequate precautionary measures to back up and protect your data. You will be solely responsible for all costs and expenses required to restore any data, information or content that is corrupted or lost as a result of your use of the Software.
1.4 No Redistribution. You may NOT redistribute the Software or any products built using the Software.
2. TRIAL SOFTWARE.
You expressly acknowledge, understand and agree that the Software is in “Trial” version for evaluation purposes, which means that it is not expected to contain the functionality or functions of the version of such software that Gigabalance makes available for commercial distribution.
The customer can evaluate for 15 days a limited version of the software before purchasing, after which the license herein terminates as explained below, and Licensee must make a purchase of a final commercial Software to continue using any form of the the Software.
During the trial period, the software cannot be used to submit products to the Apple App Store or Google Play Store for distribution, nor distribute the software in any way or form, as the rest of the license herein still applies.
3. SUPPORT AND MAINTENANCE.
Gigabalance may provide updates that extend, enhance, or modify the Software at any time without notice, even though Gigabalance shall not be obligated to provide updates, maintenance or technical support to you. At our sole discretion we may, but shall not be required to provide updates to you for the Software. In the event that Gigabalance updates the Software, it may include changes to the API, features, or functionality different from the Software licensed hereunder.
4. LICENSE LIMITATIONS
4.1 Except as required by law or expressly required by third party licenses applicable herein, You are not allowed to reverse engineer, decompile or disassemble the software, or otherwise attempt to derive the source code for the software Software that is provided to you in object code form only.
4.2 You are not allowed to resell, share, transfer, rent, lease, or sublicense the Software and your associated rights.
4.3 You are not allowed to copy, modify, merge, or distribute copies of the Software or any accompanying documents.
4.4. You are not allowed to use the Software or any of its functionalities in any way that could in any way infringe upon or violate any applicable law, rule or regulation, any contract with a third party or any rights of any third person, including without limitation, any rights of patent, trade secret, copyright or other intellectual property right of any kind whatsoever.
4.5: You are not allowed to remove, minimize, block or modify any notices of Gigabalance or its suppliers in the Software.
4.6. The Software contains open source software with re-distribution requirements, therefore you should fully comply with such notices, which you can find here https://www.gigabalance.com/opensource.
5. FEEDBACK
Any feedback, ideas, modifications, suggestions, improvements and the like made by You with respect to the Software (the "Feedback") will be the sole property of Gigabalance. You agree to assign, and hereby assign, all worldwide right, title and interest in the Feedback and the related intellectual property rights to Gigabalance and agree to assist Gigabalance, in perfecting and enforcing such rights. Gigabalance may disclose or use Your Feedback for any purposes whatsoever without any obligation to You, and Gigabalance shall have no confidentiality obligations with respect thereto. You agree that Gigabalance may copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense, incorporate and otherwise use the Feedback, for any and all commercial and non-commercial purposes.
6. DELIVERY
Gigabalance shall make the Software available to Licensee for download in electronic format only.
7. COLLECTION AND USE OF DATA.
Gigabalance uses tools to deliver certain Software features and extensions, identify trends and bugs, collect activation information, usage statistics and track other data related to your use of the Software and the end users of your Software. By Your acceptance of the terms of this Agreement and/or use of the Software, You authorize the collection, use and disclosure of this data for the purposes provided for in this Agreement.
8. INTELLECTUAL PROPERTY
All title and ownership rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, or text embedded in the Software), the intellectual property embodied in the Software (including the source code, its samples and the object code), binary software, and any trademarks or service marks of Gigabalance that are used in connection with the Software are and shall at all times remain exclusively owned by Gigabalance and its licensors. All title and intellectual property rights in and to the content that may be accessed through use of the Software are the property of the respective content owner and are protected by applicable copyright or other intellectual property laws and treaties. Any use of content by You where such content is owned or operated by another party, including any intellectual property thereof, shall be governed by any applicable terms and conditions set by such party or parties; this Agreement does not grant you any presumptive rights to the use of content or materials owned by others. Further, any open source software that may be delivered by Gigabalance embedded in or in association with Gigabalance products is provided pursuant to the applicable open source license with respect to such software, if any, and shall be subject to the disclaimers and limitations set forth in such license, which You agree to be responsible for reviewing and remaining in compliance with.
9. PRE-RELEASE CODE; NO WARRANTY
THE SOFTWARE CONTAINS PRE-RELEASE CODE THAT IS NOT AT THE LEVEL OF PERFORMANCE AND COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OFFERING AND MAY NOT OPERATE CORRECTLY. YOUR EXERCISE OF ANY RIGHTS UNDER THIS TRIAL SOFTWARE LICENSE IS AT YOUR SOLE DISCRETION AND YOU ASSUME ALL RESPONSIBILITY FOR, AND RISK OF, ANY AND ALL DAMAGES THAT MAY RESULT FROM OR IN CONNECTION WITH THE EXERCISE OF SUCH RIGHTS, INCLUDING WITHOUT LIMITATION THE LOSS OF ANY DATA OR OTHER CONTENT.
THE SOFTWARE IS LICENSED ‘AS IS’. YOU BEAR THE RISK OF USING IT. GIGABALANCE GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, GIGABALANCE EXCLUDES THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GIGABALANCE AND ITS LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
IN ANY CASE, GIGABALANCE’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED $5, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. GIGABALANCE IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. ANY DATA INCLUDED IN THE SOFTWARE UPON DOWNLOAD FROM GIGABALANCE IS FOR TESTING USE ONLY AND GIGABALANCE HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING THEREFROM.
11. TERM AND TERMINATION
Unless terminated earlier, this Agreement shall terminate 15 days from the date You downloaded the Software and all associated rights for Your continued use of the Software shall cease. Gigabalance may also terminate this Agreement at any time upon written notice to You. This Agreement shall terminate immediately if You breach the terms and conditions of this Agreement. Upon termination of this Agreement for any reason, all licenses granted to You under this Agreement shall terminate. Upon termination, You must destroy and delete any copies of Software in your possession.
12. INDEMNITY
To the extent permitted by applicable law, You agree to indemnify, defend and hold harmless Gigabalance, its directors, officers, employees, independent contractors and agents (each an "Indemnified Party") from any and all claims, losses, liabilities, damages, expenses and costs (including without limitation attorneys' fees and court costs) (collectively “Losses”) incurred by an Indemnified Party as a result of Your breach of this Agreement, or any certification, covenant, representation or warranty made by You in this Agreement.
13. CONFIDENTIALITY
13.1. You acknowledge that by evaluating the Trial Software, You may have access to, and Gigabalance may disclose to You, certain valuable information belonging to and relating to Gigabalance which Gigabalance considers confidential, including, but not limited to, information concerning the Software and Gigabalance’s trademark(s) and trade name(s), computer programs, user manuals, sales and marketing plans, business plans, processes, customer lists and other trade secrets ("Confidential Information"). You shall use the Confidential Information only as allowed under this License Agreement and from the moment of Your receipt of the Confidential Information, shall not disclose, divulge or otherwise make public such Confidential Information to third parties or use such Confidential Information for Your own benefit, unless explicitly allowed by this License Agreement, or for the benefit of third parties.
13.2. If Licensee is a company or other entity, Licensee shall disclose Confidential Information only to those of its employees who need to know such information for the purpose of the agreed-upon trial software evaluation, and shall ensure that its employees observe the confidentiality obligations in this Section 13. Licensee acknowledges that the Software contains Confidential Information developed or acquired by Gigabalance and that all rights therein and in other Gigabalance Confidential Information remain in Gigabalance and/or its licensors. Licensee will not disclose that it is evaluating or testing or has evaluated or tested the Software to any third party without Gigabalance’s prior written consent. In addition, Licensee agrees to treat any communications and reports prepared under this Agreement, as Confidential Information and will not divulge the existence or content of such communications or reports to any third party.
13.3. This Agreement shall impose no obligation of confidentiality upon Licensee with respect to any portion of the confidential information which: (i) now or hereafter, through no act or failure to act on Licensee’s part, becomes generally known or available; (ii) is known to Licensee at the time Licensee receives same from Gigabalance as evidenced by written records; (iii) is hereafter furnished to Licensee by a third party as a matter of right and without restriction on disclosure; or (iv) is furnished to others by Gigabalance without restriction on disclosure.
14. GOVERNING LAW
This License will be governed by the laws of the State of California, without regard to the conflict of laws principles thereof. If any dispute, controversy, or claim cannot be resolved by a good faith discussion between the parties, then it shall be submitted for resolution to a State or Federal court or competent jurisdiction in San Francisco, California, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court. The Convention on the International Sale of Goods shall not apply to this Agreement. If any provision of this Agreement is to be held unenforceable, such holding will not affect the validity of the other provisions hereof.
15. CHANGES TO THE AGREEMENT
Gigabalance reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this Agreement for security, legal, best practice or regulatory reasons. Such changes will be effective with or, as applicable, without prior notice to You. You can review the most current version of this Agreement by clicking on the https://www.gigabalance.com/trial-license link.
16. ENTIRE AGREEMENT
Subject to and without limiting the rights of Gigabalance as to any revisions, updates, changes, modifications, additions, supplements or other amendments to this Agreement, as may be made from time to time, this Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications regarding the subject matter hereof. Use of any purchase order or other Licensee document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect unless otherwise agreed to in writing by both parties. This Agreement was last updated on December 7, 2022.
17. NO ASSIGNMENT
You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Gigabalance’s prior written consent.
18. SURVIVAL
For avoidance of doubt, any provisions of the Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
19. SEVERABILITY
If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions.
20. FORCE MAJEURE
Neither party shall be deemed in default of this Agreement if failure or delay in performance is caused by an act of God, fire, flood, severe weather conditions, material shortage or unavailability of transportation, government ordinance, laws, regulations or restrictions, war or civil disorder, or any other cause beyond the reasonable control of such party.
21. EXPORT CLASSIFICATIONS
You expressly agree not to export or re-export the Software to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export, re-export, or transfer the Software to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country, or to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied your export privileges.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE PRODUCT, BY LOADING OR RUNNING THE SOFTWARE PRODUCT, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE, YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN GIGABALANCE AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.