To request our PitBull Trusted Operating System software, please fill out the form below.
ex: 12450 Fair Lakes Circle, Fairfax, VA 22033, United States
This Evaluation License Agreement (“Agreement”) is entered into as of date of agreeing to this notice electronically (“Effective Date”) by General Dynamics Mission Systems, Inc. (GDMS), a Delaware corporation acting through its office located at 8220 E. Roosevelt Street, Scottsdale, AZ 85257 and the website evaluation software requester (“Licensee”).
1. LICENSE GRANT.
1.1 This Agreement is a limited license Agreement for Licensee to evaluate PitBull Software, including other bundled 3rd party Software programs branded by GDMS further including any associated printed or electronic documentation (collectively, the “Software”) for a period of sixty (60) days (“Evaluation Period”).
1.2 Subject to Licensee’s compliance with all the terms and conditions of this Agreement, GDMS grants to Licensee a personal, non-transferable, revocable, and non-exclusive license during the Evaluation Period, to install and use the Software, in form provided by GDMS, solely for the purposes of internal testing and evaluation of the Software on a maximum of two (2) single central processing units (hereinafter “Seats”). Any other use of the Licensed Program is not permitted. The Licensed Program may not be placed on a production server.
2. RESERVATION OF RIGHTS AND OWNERSHIP.
2.1 The Software is protected by copyright and other intellectual property laws and treaties. Except for the limited rights granted to Licensee in Section 1, GDMS reserves all right, title, and interest in and to the Software. GDMS reserves all right, title, and interest in and to, including but not limited to all Intellectual Property Rights in, the Software and any derivative works of the Software. Licensee agrees that GDMS does not, directly or by implication, by estoppel or otherwise, grant any other rights or licenses to Licensee under this Agreement.
2.2 If Licensee informs GDMS of any errors, difficulties or other problems with the Software, or provides any feedback or makes any suggestions as to changes or modifications to the Software (collectively, “Feedback”), GDMS will have the right to use the Feedback for any purpose without compensation to Licensee. All Feedback, including any Intellectual Property Rights and any and all other proprietary rights in or derived from the Feedback, will be the sole property of GDMS.
2.3 If Licensee develops any modifications to the Software (“Modifications”), GDMS will own all right, title, and interest in and to any Modifications. Licensee hereby assigns to GDMS, its successors and assigns, all rights, title and interest in and to all Modifications and any Intellectual Property Rights embodied in the Modifications or created in the course of developing the Modifications. At GDMS’ expense, Licensee will execute and deliver all instruments and take all other action as may be requested by GDMS to perfect or protect GDMS’ rights in the Modifications and to carry out the assignments contemplated in this Section. Licensee will cooperate with GDMS in the filing and prosecution of any copyright or patent applications that GDMS may elect to file on the Modifications or inventions and designs relating to the Modifications. To the maximum extent permitted by law, Licensee waives all moral rights in the Modifications.
3. LICENSE LIMITATIONS.
3.1 Limitations on Use. Licensee may not demonstrate, test, examine, evaluate or otherwise use the Software in a live operating environment or with data that has not been sufficiently backed up.
3.2 Reverse Engineering. Licensee may not decompile, decipher, disassemble, reverse engineer or otherwise attempt to access the source code of any object code version of the Software, except as expressly permitted by applicable law notwithstanding this limitation.
3.3 No Rental or Transfer. Licensee may not rent, lease, lend, sublicense, transfer or otherwise provide the Software to any third party.
3.4 Open Source. This Agreement does not include any license, right, power or authority to, and are subject to the condition that Licensee does not subject GDMS’s intellectual property rights to any of the terms of an Open Source License. “Open Source License” means a license that requires as a condition of use, modification, or distribution of software subject to the license, that the software or other software combined or distributed with the software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
4.1 The Software is proprietary and confidential information. Licensee will not disclose or provide the Software or any related information (including the Software features or the results of use, benchmarking, or other testing) to any third party unless authorized in writing by GDMS. For internal Licensee evaluations GDMS requests the Licensee review concerns and issues noted with the Software with GDMS. For GDMS authorized Licensee 3rd party evaluations GDMS will require a copy of the Licensee evaluation and sufficient time for GDMS to review and respond to any noted issues prior to Licensee submission of an evaluation to an identified 3rd party.
4.2 However, Licensee may disclose confidential information in accordance with judicial or other governmental order, provided Licensee gives GDMS reasonable written notice prior to disclosure and comply with any applicable protective order or equivalent.
4.3 Further, Licensee will not be liable for disclosure of information which Licensee can prove by documentary evidence: (i) Licensee already possessed when Licensee received the Software and which Licensee had no obligation to maintain as confidential; (ii) became publicly known through no wrongful act of Licensee; (iii) was rightfully received from a third party without breach of an obligation of confidentiality owed to GDMS; or (iv) was independently developed by Licensee.
5. SUPPORT. During the Evaluation Period and subject to Section 6, Evaluation Fee, GDMS will provide reasonable remote support to Licensee questions on the correct usage of the Software, submitted via email or telephone, to a designated support point of contact to be identified by GDMS. In no event will GDMS be responsible for additional support, testing, bug fixes, integration or other services under this agreement unless agreed to in writing by the parties.
6. EVALUATION FEE. Upon the Effective Date, Licensee will pay GDMS a non-refundable fee in the amount of USD $0.
7. PAYMENT TERMS AND DELIVERY.
7.1 Payments. Reserved
7.2 Taxes. (a) You shall bear all taxes, duties, import licenses or clearances, excise or other charges imposed by governmental or quasi-governmental bodies, other than GDMS's United States income or franchise taxes thereon, assessable on an article or service sold hereunder. (b) To the extent You are required to withhold or deduct non-U.S. income or similar taxes from payments due to GDMS, You shall use reasonable commercial efforts to reduce such tax to the maximum extent possible giving effect to the applicable tax convention and shall furnish GDMS with such evidences as may be required by U.S. taxing authorities to establish that such taxes have been paid so that GDMS may claim any applicable credit.
7.3 Delivery. Unless set forth otherwise in a Software Addendum, GDMS will ship Software to Licensee either: (i) electronically; or, (ii) Ex Works (EXW) GDMS-designated point of shipment (INCOTERMS 2010).
8. TERMINATION. This Agreement will automatically terminate at the earlier of: (i) Licensee breach of any of its terms and conditions, (ii) expiration of the Evaluation Period, or (iii) Licensee’s receipt of a written notice of termination from GDMS. Upon termination, Licensee will immediately destroy all copies of the Software and the following Sections of this Agreement will survive: 3-16.
9. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE SOFTWARE IS PROVIDED AS IS, AND GDMS AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE, LACK OF VIRUSES OR BUGS, OR ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS. THE ENTIRE RISK ARISING OUT OF THE USE, PERFORMANCE OR QUALITY OF THE SOFTWARE REMAINS WITH YOU.
10. LIMITATION of LIABILITY and DISCLAIMER of DAMAGES
10.1. LIMITATION OF LIABILITY. FOR ALL EVENTS AND CIRCUMSTANCES, GDMS AND ITS AFFILIATES' AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNTS RECEIVED BY GDMS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, WITH RESPECT TO THE PARTICULAR ITEMS (WHETHER SOFTWARE, SERVICES OR OTHERWISE) UNDER THE MOST APPLICABLE ORDERING DOCUMENT.
10.2. DISCLAIMER of DAMAGES. . NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR A CONTRACT OR ORDER FORM, IN NO EVENT WILL GDMS OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR ITS AFFILIATES FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF GDMS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR THESE DAMAGES WILL BE LIMITED AND EXCLUDED EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
11. INDEMNIFICATION. Licensee shall indemnify, defend, and hold harmless GDMS and its employees, directors, officers and agents from all claims, suits, damages, liabilities, expenses (including reasonable attorneys' fees), judgments, settlements and penalties ("Claims") to the extent any of the foregoing is caused by Licensee’s breach of this Agreement.
12. NO ASSIGNMENT. Licensee may not assign or otherwise transfer Licensee’s rights or obligations under this Agreement without GDMS’s prior written consent. Any attempted assignment or transfer without consent will be null and void. Otherwise, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and permitted assignees.
13. U.S. GOVERNMENT RIGHTS in COMMERCIAL LICENSED SOFTWARE. If acquired under Federal Acquisition Regulation (FAR) section 52.227-19, the U.S. Government shall obtain rights in the Licensed Program consistent with the language in that section. If acquired under the Department of Defense FAR supplement section 227.7202-3, the U.S. Government is granted only the commercial rights given in this Agreement.
14. EXPORT COMPLIANCE. Licensee agrees that it will not in any form export, re-export, ship, or divert or cause to be diverted, directly or indirectly, the Licensed Software to any country for which the United States Government, any agency thereof, or any other sovereign Government, at the time of export or re-export, requires an export license or other governmental approval without first obtaining such license or approval. PitBull Software is subject to the Export Administration Regulation (EAR).
15. GOVERNING LAW and VENUE. The validity, interpretation, and enforcement of this Agreement will be governed by and construed in accordance with the laws of the United States and of the State of Virginia without giving effect to the conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts of competent jurisdiction located in Virginia, and each part irrevocably consents to such personal jurisdiction and waives all objections to this venue. In the event the Uniform Computer Information Transactions Act (UCITA) or any similar federal or state laws or regulations are enacted, it will not apply to this Agreement, and the governing law will remain as if such law or regulation had not been enacted.
15.1 If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees, costs and other expenses.
15.2 If the Customer is a Federal entity then this Agreement is governed by applicable Federal Statues, Case Law, and Federal Regulations.
15.3 If a court of competent jurisdiction determines one or more provisions of this Agreement is illegal or invalid, that determination shall not affect the enforceability of the remaining provisions to the extent they can be given effect without the illegal or invalid provision.
16. Marks. Unless expressly stated and agreed to in writing, no right or License, express or implied, is granted in this Agreement for the use of any GDMS, GDMS Affiliate, Customer or third party trade names, service marks or trademarks, including, without limitation, the distribution of the Software.
17. NOTICES. All notices given under this Agreement must be in writing and delivered in person; nationally recognized courier; or mailed by first class, registered or certified mail, postage prepaid, to the individual and the address listed on the signature page of this Agreement. Either party may from time to time change the individual designated to receive notices or its address by giving the other party notice in accordance with this Section. All notices are effective upon receipt.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between Licensee and GDMS with respect to the Software and merges all prior and contemporaneous communications and proposals, whether electronic oral or written, between Licensee and GDMS with respect to the Software. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument. No waiver of any provision of this Agreement will be effective unless it is in a signed writing, and no waiver will constitute a waiver of any other provision or of the same provision on another occasion. If a court of competent jurisdiction holds any term, covenant or restriction of this Agreement to be illegal, invalid or unenforceable, in whole or in part, the remaining terms, covenants and provisions will remain in full force and effect and will in no way be affected, impaired or invalidated.
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