OSIsoft, LLC. PRE-RELEASE LICENSE AGREEMENT
OSIsoft, LLC. ("OSIsoft") IS WILLING TO LICENSE THIS PRE-RELEASE VERSION OF OSIsoft SOFTWARE ("SOFTWARE") TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. BEFORE YOU CLICK ON THE "I AGREE" BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE "I AGREE" BUTTON, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN OSIsoft IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD CLICK THE "I DECLINE" BUTTON.
LICENSE. Subject to the terms of this Agreement, OSIsoft grants to you a nonexclusive license to use the Software for evaluation and trial use purposes only, and not for general production use. You may not use, copy, modify, or transfer the Software, in whole or in part, except as expressly provided for in this Agreement. You acknowledge that the Software is a confidential trade secret of OSIsoft and/or its suppliers and you agree not to reverse engineer, disassemble or decompile the Software, except to the extent applicable laws specifically prohibit such restrictions.
OWNERSHIP. The Software is licensed, not sold, to you for use only upon the terms of this Agreement and OSIsoft reserves all rights not expressly granted to you. OSIsoft and/or its suppliers own all right, title and interest in the Software and all worldwide intellectual property rights therein.
RISK OF USE. You acknowledge and agree that: (a) the Software is not an official product and has not been commercially released by OSIsoft; (b) the Software may not be in final form or fully functional and may contain errors, design flaws or other problems; (c) it may not be possible to make the Software fully functional; (d) use of the Software may result in unexpected results, loss of data or other unpredictable damage or loss; and (e) we may update the Software from time to time without notice. Although OSIsoft intends to distribute a commercial release of the Software, OSIsoft reserves the right, in its sole discretion, not to release a commercial release of the Software or, if released, to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of such commercial release.
NO WARRANTY. THE SOFTWARE IS PROVIDED ON AN "AS IS" and "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND. OSIsoft MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE SOFTWARE FOR YOUR INTENDED REQUIREMENTS OR PURPOSES. OSIsoft DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR IS ERROR-FREE. OSIsoft EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
TERM AND TERMINATION. You may terminate it at any time by discontinuing use of the Software or destroying the Software and all copies in any form. This Agreement will automatically terminate without notice if you fail to comply with any term or condition of this Agreement. Upon any termination you must promptly discontinue use of the Software and destroy the Software and all copies in any form.
LIMITATION OF LIABILITY. IN NO EVENT WILL OSIsoft OR ITS SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT OSIsoft OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
GOVERNMENT USERS. With respect to any acquisition of the Software by or for any unit or agency of the United States Government, the Software shall be classified as "commercial computer software", as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the "FAR") and supplements thereto, including the Department of Defense (DoD) FAR Supplement (the "DFARS"). If the Software is supplied for use by DoD, the Software is delivered subject to the terms of this Agreement and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252.227-7013(c)(1)(ii) (OCT 1988), as applicable. If the Software is supplied for use by a Federal agency other than DoD, the Software is restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14(ALT III), as applicable.
EXPORT CONTROLS. You may not download or otherwise export or re-export the Software or its underlying information or technology except in full compliance with U.S. and other applicable export control laws. Without limiting the preceding sentence, you may not download or otherwise export or re-export the Software or its underlying information and technology to any destination or individual prohibited by U.S. export laws. Further, by downloading the Software, you agree to the foregoing and further represent that you are not resident in a country or region to which U.S. exports are prohibited.
GENERAL. You may not assign this Agreement, in whole or in part, without OSIsoft's prior written consent. This Agreement will be governed by the laws of the State of California, excluding its conflicts of law rules and principles. This Agreement is the complete and exclusive statement of the agreement between OSIsoft and you and supersedes any proposal or prior agreement, oral or written, and any other communications between OSIsoft and you regarding such subject matter.