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4D WebSTAR Test Product Evaluation License
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Last update: 05-07-2004 |
Submitted by
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4D WebSTAR Test Product Evaluation License
This agreement is made by you personally or as an authorized agent for your employer as of the date you accept the terms of this agreement by pressing the accept button on the screen during the installation process. If you do not accept all the terms and conditions of this agreement do not press accept, stop the installation process, and return the software to 4D, Inc. By installing or using the installed program, you agree to be bound by all the terms and conditions of this agreement.
WebSTAR and other software has been designed and developed by 4D, Inc., either alone or together with other third parties. Subject to the terms and provisions hereinafter set forth, the Customer (an individual, company or entity) is willing to accept and install one or more such Products which is included in the package and installed with this agreement (each a "Test Product") for the purpose of using and evaluating the same for a specific test period as effectuated by a time-out mechanism in the Test Product (a "Test Period").
4D, Inc. is willing to permit the Customer to use and evaluate the Test Product under the terms and conditions hereinafter contained in order to obtain user information pertaining to such Test Product which may be helpful to 4D, Inc. in making any changes, enhancements or modifications with respect thereto. Therefore, in consideration of the mutual promises herein contained, the parties agree as follows:
1. Ownership of Proprietary Rights and Grant.
1.1 4D, Inc. hereby grants Customer, at no charge, a nonexclusive, nontransferable and limited right to use the Test Product for the Test Period. This right shall terminate at earlier of: (i) the end of the Test Period; or (ii) the date 4D, Inc. determines in its sole discretion that either (x) the Customer is not satisfactorily performing evaluations of the Test Product and reporting such evaluations to 4D; or (y) 4D, Inc. no longer has a need for user information from the Customer regarding the Test Product.
1.2 Subject to the Provisions of this Agreement, 4D, Inc. will furnish Customer with updates and enhancements of the Test Product, if applicable, as and when the same are released. Nothing in this Agreement obligates 4D, Inc. to create any such updates or enhancements.
2. Evaluation and Reports.
2.1 Customer shall utilize and evaluate the Test Product in its day-to-day business environment and conduct such tests and evaluations as may be reasonably necessary to form an opinion concerning the performance of the Test Product. The Customer shall provide 4D, Inc. with reports concerning its opinion and evaluation of the Test Product. Customer shall consult with representatives of 4D, Inc. from time to time concerning the performance of the Test Product.
2.2 Customer agrees that all right, title and interest to any reports, feedback or suggestions relating to the Test Product or any inventions relating to an improvement of the Test Product conceived in or made as a result of Customer’s performance of this Agreement shall become the exclusive property of 4D, Inc. and that 4D, Inc. may disclose and use such information for any purposes whatsoever, entirely without obligation of any kind to Customer.
3. Confidential Information and Data.
3.1 Customer shall not translate, copy, disassemble, reverse engineer, or decompile any Test Product, nor shall Customer make copies or translations of any Test Product documentation. Furthermore, Customer will not make any pre-release reports or give pre-release interviews concerning the Test Product or the confidential information without 4D, Inc’s prior written consent.
4. Disclaimer of Warranty.
4.1 Customer acknowledges that the Test Products have not been completely tested and will contain defects or deficiencies which cannot or may not be corrected. 4D, Inc. cautions Customer to determine for itself the suitability of the use of the Test Product for any purpose. Customer acknowledges that 4D, Inc. has no express or implied obligation to announce or introduce the Test Product or any similar or compatible product. Customer acknowledges that all testing, research and development performed by it pursuant to this Agreement are done entirely at its own risk. At the end of the Test Period, the Test Product will become disabled and you may lose software, data or both. Customer is responsible for backing up its own software and data at all times.
ACCORDINGLY, 4D, INC. MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE SOFTWARE. 4D, INC. DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. THE EXCLUSION OF IMPLIED WARRANTIES IS NOT PERMITTED BY SOME JURISDICTIONS. THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
4.2 EXCEPT AS SPECIFICALLY SET FORTH ABOVE, 4D, INC. AND ITS DIRECTORS, OFFICERS, SUPPLIERS, DISTRIBUTORS AND DEALERS (COLLECTIVELY 4D) WILL IN NO EVENT BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFROMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF 4D, Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
4.3 4D, INC’S LICENSOR(S) MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE SOFTWARE. 4D, INC’S LICENSOR(S) DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. THE EXCLUSION OF IMPLIED WARRANTIES IS NOT PERMITTED BY SOME JURISDICTIONS. THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
4.4 IN NO EVENT WILL 4D, INC’S LICENSOR(S), AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY 4D, INC’S LICENSOR) BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF 4D, INC’S LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
5. GENERAL PROVISIONS
5.1 CUSTOMER shall not directly or indirectly transfer the Test Product to any other party for any reason not to any country to which such transfer would be prohibited by any applicable export control laws.
5.2 No change or modification to this Agreement will be valid unless it is in writing, and is signed by CUSTOMER and an authorized officer of 4D, Inc. This is the entire agreement with respect to the subject matter hereof. The recitals are incorporated in the agreement and part of the agreement.
5.3 If any provision of this Agreement is held to be unenforceable upon a definite legal, statutory or judicial determination, the remainder of this Agreement shall continue in full force and effect.
5.4 The waiver by 4D, Inc. of one breach or default hereunder shall not constitute the waiver of any subsequent breach or default.
5.5 The relationship between 4D, Inc. and the CUSTOMER is that of LICENSOR/CUSTOMER. In all matters relating to the present Agreement, the CUSTOMER will act as an independent party.
5.6 This Agreement will be governed by the laws of the state of California. Any dispute, controversy or claim arising out of or related to this Agreement shall be settled by adjudication before the competent courts in California. Venue in any action shall be in Santa Clara County, California. This agreement is made and to be performed in Santa Clara County California.
5.7 This Agreement shall terminate when the Test period is over. Sections 1.1, all of 3, all of 4, and all of 5 shall survive termination.
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