READ THIS AGREEMENT CAREFULLY. BY CHECKING THE “I Agree” BOX OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT CHECK THE “I Agree” BOX. YOU WILL NOT BE GIVEN ACCESS TO THE SOFTWARE UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU HAVE PAID A LICENSE FEE FOR USE OF THE SOFTWARE AND DO NOT AGREE TO THESE TERMS, YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND PROVIDED YOU (A) DO NOT USE THE SOFTWARE AND (B) RETURN THE SOFTWARE WITHIN THIRTY (30) DAYS OF YOUR INITIAL PURCHASE. IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
This Software Pre-Release Development License Agreement (“Agreement”) is between MuleSoft, Inc., located at 77 Geary Street, Suite 400, San Francisco, CA 94108 (“MuleSoft”) and the customer (individual or entity) that has procured the licensed Software (as defined below) for use as an end user (“you”). The purpose of this Agreement is for the parties to collaborate on evaluating and debugging the Software.
Documentation: means any supporting technical documentation provided with the Software. Effective Date: means the date on which the Software is first made available to you. Software: means the MuleSoft software pre-release product(s) provided in connection with this Agreement in object code form for the purpose of evaluating and debugging the Software. Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software”. Development Servers: means those servers that are only used by developers to develop applications on a regular basis using a development environment ( e.g.: an IDE ). Production Servers: means those servers that provide applications to end users ( customers, internal users ) and are not primarily used by developers to develop new applications and update existing applications. Servers that are used for (i) testing of applications prior to deploying to production servers or (ii) any purpose or use that falls outside of the definition of a Development Server are also considered Production Servers.
2.1 Grant of License.
Grant of License. Subject to all of the terms and conditions of this Agreement, MuleSoft grants you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software internally solely for the purpose of evaluating the Software during a limited evaluation period of fourteen (14) days, beginning on the day that you first download the Software (the "Evaluation Period"). Unless you enter into a separate written agreement with MuleSoft for ongoing use of the Software, the Software will become inoperable, and your right to use the Software automatically expires, at the end of the Evaluation Period. Your license to use the Software during the Evaluation Period is limited to using the Software internally at your designated evaluation site, solely to test the Software in an evaluation environment. Any other use of the Software during the Evaluation Period is expressly prohibited.
2.2 Installation and Copies.
MuleSoft shall make the Software and Documentation available for download in electronic form. You may download and install the Software on unlimited Development Servers. You may also make one copy of the Software solely for back-up purposes. All other copying is prohibited.
2.3 License Restrictions.
You shall not:
(a) copy the Software or any portion thereof, except for the one permitted backup copy;
(b) distribute, sell, rent, lease, sublicense or transfer any copies of the Software, or portions thereof, to a third party or allow a third party to use the Software;
(c) modify, decompile, disassemble or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever if the Software to the extent the Software is not provided in source code form (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions);
(d) use the Software to develop services or products for sale or include any components of the Software in any product;
(e) use any portion of the Software to create a competitive service, product or technology;
(f) make the functionality of the Software available to the public in any manner;
(g) use the Software on a Production Server; (h) remove any product identification, proprietary, copyright or other notices contained in the Software; or (i) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, MuleSoft and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof, regardless of who made the modifications or additions. You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise. You understand and agree that MuleSoft may acquire, license, develop for itself or have other develop for it, and market or distribute similar software to that which you may develop. In the absence of a separate written agreement to the contrary, MuleSoft will be free to use any information you provide to MuleSoft for any purpose.
4. Acknowledgement of Pre-Release Software, Your Warranties and Payment.
MuleSoft and you agree that the Software is a test version only and may contain bugs, defects and errors, and that the Software is not expected to fully function. You acknowledge that it is your responsibility to establish backup, log, review and other procedures and controls as appropriate to maintain the integrity of your data and operations. MuleSoft and you further acknowledge and agree that the Software is being supplied to you without charge in exchange for your evaluation of the Software. You warrant that you are a software developer, that you are not a competitor of MuleSoft and that you will not use any information obtained from your use of the Software as an aid to your, or any other party’s, developing, marketing or selling software or services that competes with any software or services of MuleSoft. No payment from you shall be due for any Software licensed hereunder unless MuleSoft specifically identifies any applicable fees prior to making the Software available to you for download.
5. Term of Agreement.
This Agreement is effective as of the Effective Date and expires at the end of the Usage Period (the “Term”). MuleSoft may terminate this Agreement and seek injunctive relief immediately upon any breach by you. In addition, either party may terminate this Agreement if the other party:
(a) ceases operation without a successor; or
(b) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof (including the backup copy, if made).
5.3 No Obligation to Enter Into Further Agreement.
Nothing herein obligates either party to enter into any further agreement with the other party.
Sections 2.3 (License Restrictions), 3 (Ownership), 4 (Payment), 5 (Term of Agreement), 6 (No Warranty), 8 (Limitation of Remedies and Damages), 9 (Confidential Information), 10 (Export Compliance) and 11 (General) shall survive any termination or expiration of this Agreement.
6. No Warranty.
THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOU MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7. No Support & Maintenance.
MuleSoft shall have no support or maintenance obligations with respect to the Software hereunder.
8. Limitation of Remedies and Damages.
IN NO EVENT SHALL MULESOFT OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, MULESOFT'S ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED $10. The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9. Confidential Information.
Any Software, documentation or technical information provided by MuleSoft (or its agents) shall be deemed “MuleSoft Confidential Information” without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any MuleSoft Confidential Information. You acknowledge that disclosure of MuleSoft Confidential Information would cause substantial harm to MuleSoft that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, MuleSoft shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
10. Export Compliance.
You acknowledge that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not, and shall not allow any third-party to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof:
(i) into (or to a national or resident of) any embargoed or terrorist-supporting country;
(ii) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals;
(iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or
(iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. MuleSoft may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of MuleSoft's assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without MuleSoft's written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
11.3 Governing Law; Jurisdiction and Venue.
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the California state and United States federal courts located in San Francisco, California, and both parties hereby submit to the personal jurisdiction of such courts.
11.4 Attorneys' Fees and Costs.
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys' fees and costs in connection with such action.
11.5 Notices and Reports.
Any notice or report hereunder shall be in writing. If to MuleSoft, such notice or report shall be sent to MuleSoft at the address above to the attention of “Legal Department”. If to you, such notice or report shall be sent to the address you provided prior to downloading the Software. Notices and reports shall be deemed given:
(i) upon receipt if by personal delivery;
(ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or
(iii) one day after it is sent if by next day delivery by a major commercial delivery service.
11.6 Amendments; Waivers.
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
11.7 Entire Agreement.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any purchase order or in any other business form employed by you will supersede the terms and conditions of this Agreement, and any such document issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect. Notwithstanding the foregoing, if you have entered into a separate written license agreement signed by MuleSoft for use of the Software, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement.
11.8 Independent Contractors.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
11.9 Force Majeure.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
11.10 Government End-Users.
The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
11.11 Third-Party Code.
If designated in the Documentation, the Software may contain or be provided with certain third-party code (including code which may be made available to you in source code form). Ownership, use, warranty and modification rights with respect to any such designated code shall be as expressly set forth in the Documentation.
No failure or delay (in whole or in part) on the part of either party to exercise any right or remedy hereunder shall operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law.
BY CLICKING ON THE “I Agree” BUTTON OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, CLICK “I Do Not Agree”. YOU WILL NOT BE GIVEN ACCESS TO THE SOFTWARE UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU HAVE PAID A LICENSE FEE FOR USE OF THE SOFTWARE AND DO NOT AGREE TO THESE TERMS, YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND PROVIDED YOU (A) DO NOT USE THE SOFTWARE AND (B) RETURN THE SOFTWARE WITHIN THIRTY (30) DAYS OF YOUR INITIAL PURCHASE. IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL. IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN LICENSE AGREEMENT WITH VENDOR FOR USE OF THE SOFTWARE, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.
(c) 2003-2012 MuleSoft, Inc. This software is protected under international copyright law. All use of this software is subject to MuleSoft’s Master Subscription Agreement (or other license agreement) separately entered into between you and MuleSoft. If such an agreement is not in place, you may not use the software.