PLEASE READ THE FOLLOWING AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING ITEMSENSE™ SOFTWARE, INCLUDING ANY UPDATES, UPGRADES OR BUG FIXES MADE AVAILABLE TO YOU (“SOFTWARE”) AND ASSOCIATED DOCUMENTATION PROVIDED IN CONNECTION WITH THE SOFTWARE (COLLECTIVELY WITH THE SOFTWARE, “LICENSED MATERIALS”).
BY USING THE LICENSED MATERIALS, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL THE TERMS AND CONDITIONS OF THE AGREEMENT AND YOU WILL BE CONSENTING TO BE BOUND BY THEM. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD OR USE THE LICENSED MATERIALS.
1. EVALUATION. Subject to the terms and conditions of this Agreement, Impinj, Inc. (“Impinj”) will provide you (“Evaluator”) with one copy of the Licensed Materials to permit Evaluator to internally evaluate the Software to determine if Evaluator will purchase a license or subscription to use the Software. Evaluator will provide, at its own expense, all hardware, equipment, and third party software necessary to evaluate the Software.
2. EVALUATION PERIOD. This Agreement will begin on the Effective Date and continue in effect for 90 days, unless Impinj agrees in writing (including via email from an authorized Impinj representative) to extend the term for a specific period. Impinj may immediately terminate this Agreement if Evaluator breaches any provision of this Agreement. Upon the expiration or termination of this Agreement, Evaluator must (a) discontinue all use of the Software, (b) uninstall the Software from its systems, (c) destroy or return to Impinj all copies of the Software and any other materials provided by Impinj to Evaluator, and (d) promptly provide Impinj with written confirmation (including via email) of Evaluator’s compliance with these provisions. Sections 2, 4, 5, 6, 7, and 10 will survive termination or expiration of this Agreement.
3. SOFTWARE LICENSE. Subject to the terms and conditions of this Agreement, Impinj hereby grants to Evaluator a limited, non-exclusive, non-transferable license, without right of sublicense, to internally use the Software, without modification, solely for internal evaluation during the term of this Agreement. The Software may only be used by employees of Evaluator that must have access to the Software to permit Evaluator to evaluate the Software. Evaluator is prohibited from modifying, enhancing, or creating derivative works of the Software. This license will immediately terminate upon expiration or termination of this Agreement.
4. OWNERSHIP. The Software is licensed, not sold, by Impinj to Evaluator. Impinj and its suppliers own and retain all right, title, and interest, including all intellectual property rights, in and to the Software, including any improvements, modifications, and enhancements to it. Except for those rights expressly granted in this Agreement, no other rights are granted, either express or implied, to Evaluator.
5. CONFIDENTIALITY. In order to protect the trade secrets and proprietary know-how contained in the Licensed Materials, Evaluator will not decompile, disassemble, or reverse engineer, or otherwise attempt to gain access to the source code or algorithms of the Licensed Materials. Evaluator will maintain the confidentiality of and not disclose to any third party: (a) the terms of this Agreement, (b) all non-public information disclosed by Impinj to Evaluator under this Agreement, and (c) all Software performance data and all other information obtained through evaluation of the Licensed Materials.
6. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED “AS IS” FOR EVALUATION ONLY, AND IMPINJ DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. IMPINJ EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF IMPINJ ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID BY EVALUATOR TO IMPINJ PURSUANT TO THIS AGREEMENT. IN NO EVENT WILL IMPINJ HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
8. THIRD PARTY SOFTWARE. The Software may contain software created by a third party. Evaluator’s use of any such third party software is subject to the applicable license terms and this Agreement does not alter those license terms. Evaluator may not subject any portion of the Software to an open source license.
9. RESTRICTED USE. Any use, duplication, or disclosure of the Licensed Material by the United States government is subject to the restrictions set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 and the Commercial Computer Software – Restricted Rights clauses at FAR 52.227-19. Use, duplication, or disclosure of the Licensed Materials by the government of any other country is subject to that country’s restrictions of similar applicable laws. Evaluator will comply in all respects with all U.S. and foreign export and re-export laws and regulations applicable to the technology and documentation provided hereunder.
10. MISCELLANEOUS. This Agreement will be governed by the laws of the State of Washington, U.S.A without reference to conflict of law principles. All disputes arising out of or related to it, will be subject to the exclusive jurisdiction of the state and federal courts located in King County, Washington, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Evaluator will not assign this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of Impinj. This is the entire agreement between the parties relating to the evaluation of the Software. No waiver or modification of this Agreement will be valid unless contained in a writing signed by each party, except that Impinj may extend the Agreement in accordance with Section 2.