PLEASE READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY. ANY USE OF SOFTWARE OBTAINED FROM THE DISTRIBUTED MANAGEMENT TASK FORCE, INC. IS PERMITTED ONLY IF YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT WITH THE DISTRIBUTED MANAGEMENT TASK FORCE, INC. YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT OCCURS AUTOMATICALLY WHEN YOU INSTALL THIS SOFTWARE.
YOU MAY NOT REDISTRIBUTE ANY FILES OF THIS SOFTWARE WITHOUT PRIOR WRITTEN PERMISSION OF THE DISTRIBUTED MANAGEMENT TASK FORCE, INC.
This License Agreement ("Agreement") is made by and between the Distributed Management Task Force, Inc. (hereinafter "DMTF"), a not-for-profit 501c(6) membership corporation established under the laws of the state of Oregon, and any person (collectively "you", "your" or "I") who installs and uses the DASH Conformance Test Suite software (collectively referred to as "Software" and alternatively referred to as DASH CTS).
1. License Terms.
1.1 Subject to the terms of this Agreement, DMTF grants to you a non-exclusive, non-transferable, right to use the Software, in object code form and data files.
1.2 DMTF retains all proprietary rights of any type and nature in and to the Software and related Documentation and any corrections, bug fixes, enhancements, updates or other modifications thereto. Nothing in this Agreement shall be construed as transferring any aspects of such rights to you or any third party.
1.3 The Software may be installed on more than one (1) system by a licensee.
1.4 Redistribution: YOU CANNOT REDISTRIBUTE ANY FILES OF THIS SOFTWARE.
1.5 You are forbidden from publishing the results of the Software either voluntarily or by operation of law, without the prior written consent of DMTF, which may be withheld in DMTF's sole discretion.
1.6 You are forbidden from publishing claims of certification, conformance or compliance to the specifications tested by the Software, unless the results from using the Software are certified by the DMTF.
2. Limited Warranty/Limitations On Liability.
2.1 THE SOFTWARE IS PROVIDED "AS-IS". DMTF MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. DMTF HEREBY DISCLAIMS ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES. DMTF MAKES NO REPRESENTATION ABOUT THE SUITABILITY OF THE SOFTWARE OR ABOUT THE ACCURACY OF ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR GENERATED BY THE SOFTWARE. DMTF's limited warranty set forth in this Section is in lieu of all liabilities or obligations of DMTF for damages arising out of or in connection with the installation, use, or performance of the Software. The parties agree that the Software's failure to perform in accordance with the Documentation shall not be considered a failure of the essential purpose of the remedies contained herein. Except for the above limited warranty, the entire risk of the Software's quality, performance and the results of its operation are with you. All responsibility or liability for any damages caused by viruses contained within the electronic file containing the form or document is disclaimed by DMTF.
2.2. Limitations on Liability. WITH RESPECT TO THE SOFTWARE PROVIDED UNDER THIS AGREEMENT, THE DMTF SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES, UNDER ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY), CONTRACT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF YOUR USE OF THE SOFTWARE, OR THE RESULTS FROM YOUR USE OF THE SOFTWARE, OR YOUR INABILITY TO USE THE SOFTWARE, OF THE USE OF THE SOFTWARE BY ANY END USER, USER, DISTRIBUTOR, OR ANY THIRD PARTY, OR IN ANY OTHER WAY ARISING OUT OF THIS AGREEMENT AND/OR ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, EVEN IF DMTF HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF COVER.
3. Software Changes. DMTF reserves the right at any time not to release or to discontinue release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software without any notice to you.
4. Ownership. Nothing in this Agreement shall be construed as transferring any aspects of ownership to you or any third party. You agree to abide by the terms of this Agreement, the copyright laws and all other applicable laws of the United States in your use of the Software. You acknowledge that the Software contains valuable confidential information and trade secrets of DMTF and/or its Licensors; therefore you agree not to modify the Software, or attempt to decipher, decompile, disassemble or reverse engineer the Software or assist or encourage any third party in doing so.
5.1. You agree that DMTF shall have no indemnity or other obligation for any and all claims, actions or proceedings, arising out of any claim that the Software infringes or violates the U.S. patent, copyright or trade secret right of any third party.
5.2. You assume all risk as to the selection, use, performance, and quality of the Software, except as otherwise provided in this Agreement. You agree to indemnify, defend and hold DMTF and its partners, agents, staff, advertisers, product and service providers, and affiliates (collectively, "Affiliated Parties") harmless from any liability, loss, claim and expense, including reasonable attorneys' fees, related to your use of the Software, violation of this Agreement by you or your related entities as a result of your use, and/or your export or re-export of the Software.
6. Term and Termination.
6.1. This Agreement will take effect upon the date of installation of the Software by you, directly or indirectly, and will remain in force until terminated in accordance with this Agreement. This Agreement may be terminated by your destroying all copies and partial copies of the Software and Documentation under your direct or indirect control. DMTF may, by written notice to you, terminate this Agreement immediately if you are in material breach of any provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after DMTF gives you written notice thereof. Upon the expiration or termination of this Agreement, all rights granted to you under this Agreement will immediately cease and you must destroy all copies and partial copies of the Software and Documentation under your direct or indirect control.
6.2. Termination of this Agreement will not affect the following provisions, all of which will survive the termination of this Agreement, relating to (a) your confidentiality obligation, (b) your respective indemnification obligations and (c) the limitation of and/or the disclaimer by DMTF regarding its liability.
7. United States Government Rights. The Software provided under this Agreement is commercial software.
7.1 Department of Defense End Users: If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DOD), then, pursuant to DOD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Software and any accompanying documentation acquired under this Agreement is subject to the restrictions of this Agreement.
7.2 Civilian Agency End Users: If the Software is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement.
8. Non-Assignment/Binding Agreement. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by you, in whole or in part, including transfers or assignments to your related or affiliated entities, whether voluntary or by operation of law without the prior written consent of DMTF, which may be withheld in its sole discretion. DMTF may assign this Agreement at any time without notice to you. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
9.1. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the remaining terms, conditions and provisions will continue to be valid and enforceable to the fullest extent permitted by law.
9.2. This Agreement (including any addenda hereto signed by both parties) represents the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.
9.3. This Agreement may not be amended, except in writing, signed by both parties. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that you may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of DMTF to object to such terms, provisions or conditions. You acknowledge and agree that this Agreement will control in the event of any inconsistencies or differences between the terms of this Agreement and any such purchase order or other document.
9.4. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to the conflict of the law principles thereof. The parties agree that the exclusive venue for the litigation of any claim arising out of or in relation to this Agreement shall be the courts of Multnomah County, Oregon, and you agree that you shall be subject to the personal jurisdiction of such courts.
9.5. Downloading and/or using the Software constitute your acceptance of the terms of this Agreement. If you do not agree to be bound by these provisions, you are required to immediately destroy all copies of the Software.
9.6. If, at any time or times after the date of this Agreement, either party employs an attorney to pursue enforcement (by any lawful means) of the terms of this Agreement, or to file a petition, complaint, answer, motion, injunction, or other pleading in any suit or proceeding relating to this Agreement, then all of the attorneys' fees and costs of collection shall be an additional liability of the losing party and shall be payable by the losing party on the demand of the winning party.
9.7. The words used in this Agreement are the words chosen by both of the parties to this Agreement to express their mutual intent. Neither party will assert that it did not draft the words used in the Agreement so that any ambiguities are resolved against the party that drafted the Agreement.
9.8. The terms of this Agreement may be waived only in a written document signed by the party waiving compliance. DMTF shall not be precluded from enforcing any provision of this Agreement at any time even if DMTF has not previously required you to perform all of your obligations under this Agreement. The waiver by DMTF of any right arising from any breach of this Agreement by you shall not be considered as a waiver of any right arising from any subsequent breach.
9.9. The headings used in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
9.10. Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, any acts of war earthquakes, floods, fires, epidemics, riots, unavoidable accidents or governmental regulations or interference.
9.11. Only DMTF may take any action necessary to protect its rights hereunder, including injunctive relief, specific performance and any other remedies at law or in equity. No remedy made available to DMTF by any of the provisions of this Agreement is intended to be exclusive of any other remedy. Each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, or now or hereafter existing at law or in equity, or by statute or otherwise.
11. Confidential Information. You agree that the Software contains proprietary information, including trade secrets, know-how, and other such confidential information, that is the exclusive property of DMTF ("Confidential Information"). During the period this Agreement is in effect and at all times after its termination, you, and, if appropriate, your shareholders, members, directors, officers, employees and agents (collectively "Representatives"), shall maintain the confidentiality of this Confidential Information. Additionally, you and, if appropriate, your Representatives shall not sell, license, publish, display, distribute, disclose, or otherwise make available this Confidential Information to any third party nor use such information except as authorized by this Agreement.
You will not disclose any Confidential Information to any person who is not your actual legal employee without the prior written consent of DMTF, which may be withheld in DMTF's sole discretion. Additionally, you will not disclose Confidential Information to your employees other than to enable such employee to perform his/her employment responsibilities consistent with your rights under this Agreement.
Notwithstanding the other provisions of this Agreement, information shall not be deemed Confidential Information, and you shall have no obligation with respect to any information that (i) is or becomes publicly known through no act or omission of you; (ii) was or is received by you without restriction on disclosure from a third party who disclosed the information without violating any confidentiality restriction; (iii) is independently developed by you without reference to DMTF's Confidential Information; or (iv) is divulged by you pursuant to statute, regulation, or the order of a court of competent jurisdiction, provided you previously notified DMTF to take appropriate protective measures.
You will safeguard and protect DMTF's Confidential Information from theft, piracy, or unauthorized access using the same standard of care that you use to protect your own confidential information, but in no event shall you use less than a reasonable standard of care. You shall inform your employees, if applicable, of their obligations under this Agreement and shall take such steps as may be reasonable under the circumstances, or as may be reasonably requested by DMTF, to prevent any unauthorized disclosure, copying, distribution, or use of DMTF's Confidential Information. You acknowledge and agree that if you breach this Agreement, DMTF may suffer irreparable injuries not compensated by money damages and therefore shall not have an adequate remedy at law. Accordingly, DMTF shall be entitled to a temporary restraining order and a preliminary and final injunction without the necessity of posting any bond or undertaking in connection therewith to prevent any further breach of these confidentiality obligations or further unauthorized use of DMTF's Confidential Information. This remedy is separate and apart from any other remedy DMTF may have at law or in equity and/or otherwise provided under this Agreement.
You shall notify DMTF immediately upon discovery of any prohibited use or disclosure of DMTF's Confidential Information, or any other breach of these confidentiality obligations by you. You shall cooperate fully with DMTF to help DMTF regain possession of DMTF's Confidential Information and prevent the further prohibited use or disclosure of DMTF's Confidential Information.
12. Export Licensing Compliance. Software is subject to the United States Export Control Laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations.