Software Evaluation Agreement for the Camunda Trial

IMPORTANT – READ CAREFULLY. THIS CAMUNDA SOFTWARE EVALUATION AGREEMENT (“AGREEMENT”) SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN RELATIONSHIP BETWEEN YOU (“CUSTOMER” OR “YOU”) AND CAMUNDA (THE “COMPANY”) AND THE RELATED TERMS AND CONDITIONS APPLICABLE TO THE CAMUNDA ENTERPRISE PLATFORM (THE “SOFTWARE”). IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU SHOULD NOT (I) CLICK ON “DOWLOAD 30-DAYS TRIAL” AT THE BOTTOM OF THIS PAGE, OR (II) DOWNLOAD THE SOFTWARE FROM CAMUNDA`S DOWNLOAD PAGE, AT WHICH POINT YOU WILL NOT BE GRANTED ACCESS TO THE SOFTWARE. DO NOT (I) CLICK “DOWNLOAD 30-DAYS TRIAL” OR (II) DOWNLOAD THE SOFTWARE UNLESS (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU (I) CLICK ON THE BOX AT THE BOTTOM OF THIS PAGE LABELED “DOWNLOAD 30-DAYS TRIAL”, OR (II) DOWNLOAD THE SOFTWARE, YOU WILL BE GRANTED ACCESS TO THE SOFTWARE, AND THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY.

  1. Grant of Rights; Restrictions; Feedback

    1. Grant of Rights. Subject to the terms and conditions of this Agreement, and solely during the Evaluation Period (which shall be agreed upon separately with the Customer and confirmed via email), the Company hereby grants to Customer a nonexclusive, nontransferable license, without the right of sublicense, to royalty-free, limited, personal, non-exclusive, non-transferable and non-sublicensable license to: (i) install on a server and internally run and use the Software; and (ii) use the documentation, training materials or other materials supplied by the Company or downloaded at docs.camunda.org/manual/latest/ to enable such internal use, in each case solely for evaluation purposes and pursuant to the restrictions set forth in this Agreement. All of the documentation provided to Customer pursuant to this Agreement is copyright Camunda, Inc., and is licensed to Customer solely for Customer’s use during the term of this Agreement. Except for such use, Customer does not have the right to copy or redistribute the documentation. The Company retains all rights in the documentation not expressly granted to Customer.

    2. Restrictions. Customer shall not: (i) electronically transmit the Software from one computer to another or over a network; (ii) distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Software or documentation; (iii) copy the Software or documentation, in whole or in part;  (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or documentation; (v) except as expressly provided for in this Agreement, use the Software (or any component thereof) in a production environment or in connection with any deployed computer system, including without limitation commercial, for-profit, or publicly accessible system or for commercial or revenue generating purposes; (vi) permit third parties to use the Software or documentation, or develop or deploy any system or software including the Software for use by any third parties; (vii) reverse assemble, reverse compile, decompile, translate or otherwise attempt to discover the source code of any component of the Software; (viii) reproduce, prepare derivative works of, display, perform, rent, lease, sell, license, sublicense, assign, distribute or otherwise transfer the Software or documentation or any components thereof; or (ix) access or use the Software or documentation in order to build a competitive product or service.

    3. Open Source Software. The Software contains certain libraries, utilities or other software components licensed under the “open source”, “free software” or similar “public” software licenses. Nothing in this Agreement is intended to change or restrict the terms of any open source, free software or public license, and the Company does not seek to restrict, or receive compensation for, the act of copying or redistributing publicly licensed code which is otherwise freely redistributable to third parties (and not otherwise restricted by federal trademark or other laws).

    4. Feedback. Customer agrees that any information or feedback Customer may provide to Company related to the Software or this Agreement is non-confidential and Customer grants Company a non-exclusive, worldwide, fully paid up, perpetual and irrevocable license to use this information/feedback in Company’s business activities without restriction and without payment or accounting to Customer or any third party.

  2. Intellectual Property Ownership

    1. Ownership of Intellectual Property. The Software contains proprietary and confidential information of the Company and its licensors. Except to the extent licenses are expressly granted hereunder, each party and each party’s licensors, respectively, retains all right, title and interest in and to all patent, trademark, trade secret rights, inventions, copyrights, knowhow and trade secrets in and to that party’s respective products and services. The Company retains all right, title and interest in and to any work product created by the Company in the course of providing the Software and any service or support under this Agreement.

    2. Collection of Certain Data. Despite any other provision hereof, the Company may collect certain data with respect to certain aggregate measures of the Software’s performance and Customer’s use of the Software; provided that the Company will not identify Customer as the source of any such data without Customer’s prior written consent. Customer agrees and understands that the Company may use the information collected to provide technical support, and otherwise improve the Software.

  3. No Indemnities; No Warranties; No Support. THIS AGREEMENT DOES NOT ENTITLE CUSTOMER TO ANY INDEMNIFICATION OF ANY KIND. THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS.” THE COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR SUCCEED IN RESOLVING ANY PROBLEM. CUSTOMER AGREES THAT USE OF THE SOFTWARE IS AT CUSTOMER’S OWN RISK. CUSTOMER HAS NO WARRANTY OR GUARANTEE UNDER THIS AGREEMENT THAT THE OPERABILITY OF ANY OF CUSTOMER’S APPLICATIONS RUNNING WITH THE SOFTWARE WILL BE MAINTAINED WITH ANY SUBSEQUENT OR GENERALLY AVAILABLE VERSIONS OF THE SOFTWARE OR THAT ANY VERSION OF THE SOFTWARE WILL EVER BE MADE AVAILABLE OR MARKETED. NEITHER THIS AGREEMENT NOR CUSTOMER’S ACCESS TO THE SOFTWARE ENTITLE CUSTOMER TO RECEIVE SUPPORT SERVICES FROM THE COMPANY FOR THE SOFTWARE.

  4. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, LOST REVENUE OR PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, OR PUNITIVE DAMAGES ARISING FROM THE USE OF THE SOFTWARE, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL THE COMPANY’S LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF THE AMOUNT PAID FOR THE SOFTWARE UNDER THIS AGREEMENT OR FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK.

  5. Termination. 

    1. Termination. This Agreement will terminate automatically at the end of the Evaluation Period. In addition, either party may terminate the Agreement at any time by giving the other party written notice of termination.

    2. Effect of Termination. Upon termination or expiration of this Agreement, all licensed granted hereunder shall cease. Substantially concurrent with the end of the Evaluation Period or any earlier termination of this Agreement, Customer shall (in the case of Customer-hosted, on-premise evaluations) remove the Software (by deleting the Software and all copies thereof) from Customer’s premises, and any copies of it made by Customer, unless the Company gives Customer written authorization before close of the Evaluation Period or any earlier termination to retain possession of the Software and copies for a longer time period.

    3. Survival. The following sections shall survive any termination of this Agreement: 1(b), 1(c), 1(d), 2, 3, 4, 5(b), 5(c), 7-9 all associated definitions and all accrued rights to payment, if any.

  6. Relationship of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. The parties agree that each is an independent contractor and neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. Nothing in this Agreement shall be construed as an obligation by either party to enter into a contract, subcontract, or other business relationship with the other party. Each party shall bear all costs and expenses incurred by it under or in connection with this Agreement.

  7. Export Regulations.  The Software may be subject to export laws and regulations of the United States, the European Union, the United Kingdom, the Federal Republic of Germany and other jurisdictions. Customer shall not transfer, export or re-export, directly or indirectly, the Software to any Prohibited Entity, and Customer affirms that it is not a Prohibited Entity or acting on behalf of any Prohibited Entity.  A Prohibited Entity includes any entity restricted from receiving the Software under U.S., European Union, United Kingdom or German laws and regulations. 

  8. Data Privacy and Security.Customer represents and warrants that Customer will not provide to the Company any information relating to identified or identifiable individuals.

  9. Miscellaneous.All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) on the date of receipt, when delivered by email. This Agreement is not assignable or transferable by Customer without the Company’s prior written consent. No failure or delay in exercising any right hereunder will operate as a waiver, thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate. This Agreement may be modified, replaced or rescinded only in writing and signed by a duly authorized representative of each party. 

  10. Contracting Party, Governing Law and Venue The Camunda entity entering into this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where Customer is domiciled. Each Party agrees to the applicable governing law below without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts below:

  11. If Customer is domiciled in:The Camunda entity entering into this Agreement:Governing law:Exclusive jurisdiction:
    The United States of America, CanadaCamunda, Inc. 275 Battery Street, Suite 2600, San Francisco, CA 94111, USACalifornia and controlling United States federal lawSan Francisco, California, U.S.A. 
    Germany, Austria, SwitzerlandCamunda Services GmbH Zossener Strasse 55-58, 10961 Berlin, GermanyGermany, excluding both CISG and conflict of laws provisionsLondon, England
    United Kingdom and CommonwealthCamunda LTD Moorcrofts Llp Thames House, Mere Park, Dedmere Road, Marlow, United Kingdom, SL7 1PBEngland and Wales, excluding both CISG and conflict of laws provisionsLondon, England
    Any other countryCamunda Services GmbH Zossener Strasse 55-58, 10961 Berlin, GermanyEngland and Wales, excluding both CISG and conflict of laws provisionsLondon, England

    Local Law Requirements Germany. With respect to Customers domiciled in Germany, Austria or Switzerland, this Agreement is only applicable to companies as laid down in §§ 14, 310 Abs.1 of the German Code of Civil Law (BGB). Sections “No Indemnities; No Warranties; No Support” and “Limitation of Liability” of this Agreement are replaced with the following sections respectively:

    Liability: Camunda is liable to the user only for damages caused intentionally or by gross negligence (“grobe Fahrlässigkeit”). The foregoing limits and exclusions of liability shall not apply to any loss arising in respect of the death or personal injury of any person nor to liability arising from the German Product Liability Act. For those losses, Camunda shall be liable according to the applicable statutory provisions.

    No Support: Neither this Agreement nor Customer´s access to the Software entitle Customer to receive Support Services from the Company for the Software.

    THIS AGREEMENT SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS ORAL OR WRITTEN COMMUNICATIONS, PROPOSALS, REPRESENTATIONS AND WARRANTIES AND PREVAILS OVER ANY CONFLICTING OR ADDITIONAL TERMS OF ANY QUOTE, PURCHASE ORDER, ACKNOWLEDGMENT, OR OTHER COMMUNICATION BETWEEN THE PARTIES RELATING TO ITS SUBJECT MATTER DURING THE TERM OF THIS AGREEMENT.