PLEASE READ THESE TERMS CAREFULLY AS THEY PERTAIN TO THE FOLLOWING ONLINE SOFTWARE APPLICATIONS (THE “SOLUTION” AS DEFINED BELOW). SERENA SOFTWARE, INC. (“SERENA”) IS WILLING TO PERMIT YOU TO USE THE SOLUTION ONLY ON THE CONDITION THAT YOU ACCEPT THE TERMS OF THIS “AGREEMENT”. THIS IS A LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND SERENA. BY CLICKING THE <I ACCEPT> BUTTON DISPLAYED AS PART OF THE LOG-IN PROCESS, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ALSO AGREE THAT IT IS ENFORCEABLE LIKE ANY WRITTEN AND NEGOTIATED AGREEMENT SIGNED BY YOU AND SERENA. IF YOU DO NOT AGREE TO THESE TERMS, CLICK THE <I DO NOT ACCEPT> BUTTON AND MAKE NO USE OF THE SOLUTION.
For purposes of this Agreement, “You” and “Your” mean, as applicable, (a) an employee of the company subscribing to the Solution or (b) an individual subscribing to the Solution. The term “Solution” means Serena’s online software applications provided by Serena to You through the internet, including any modifications, corrections, updates, and any other enhancements, materials, processes or workflow applications that Serena may choose to provide to You.
1. Usage Rights
Serena grants to You a thirty (30) day limited, royalty-free, nonexclusive, nontransferable license to use the Solution in a non-production environment for the sole purpose of determining whether to purchase a commercial license of the Solution . You agree that You will not use the Solution in a production environment or for production purposes.
You agree that You and Your employees will not, directly or indirectly, sell, lease, assign, sublicense or otherwise transfer; duplicate, reproduce or copy; disclose, divulge or otherwise make available to any third party; use the Solution in the operation of a service bureau or hosted or subscription service; access the Solution in order to develop a competitive product or service; or decompile, disassemble or otherwise analyze for reverse engineering purposes the Solution, including all trade secrets and confidential information related to the Solution, unless expressly permitted by this Agreement.
You agree that any User ID and password that Serena assigns to You will be used only by You and will not be shared with any other person. To the extent You are permitted to submit data into the Solution, ("Your Data"), You agree to allow Serena and/or its third party service provider, as applicable, to store, display, view and otherwise use the Data to respond to technical or support related problems related to the Solution and as otherwise provided in this Agreement. Serena may access and use Your Data for purposes of developing, enhancing, testing, marketing and selling the Solution. Serena will have no liability to You with respect to the availability, reliability, integrity, security or loss of Your Data.
You agree that you will not process or permit to be processed any data that is not Your Data; attempt to gain unauthorized access to the Solution or its related systems or networks; or perform, publish, or release to any third party any benchmarks or other comparisons regarding the Solution. You will be responsible for all activities that occur in Your account. You agree to comply with all applicable local, state and federal laws and regulations in connection with the use of the Solution, including, without limitation, those related to privacy, electronic communications and anti-spam legislation. You agree to indemnify, defend and hold Serena harmless from and against any and all actions, claims, liabilities, obligations, damages and costs (including, without limitation, reasonable attorneys’ fees and costs of suit) directly or indirectly related to any claim by You or a third party that it has been injured or harmed as a result of any access to or use of Your Data by Serena or its third party service provider. You will not use the Solution in any way that is unlawful, harassing, libelous, defamatory, threatening, or fraudulent. You will be solely responsible for the availability, reliability, integrity and legality of Your Data.
Notwithstanding any other provision of this Agreement, Your rights under this Agreement will terminate thirty (30) days from the date You accept the term of this Agreement. Serena may, at its option, suspend Your access to the Solution, or terminate Your right to use the Solution if You breach the terms of this Agreement. Your obligations under Sections 1, 4, 5, 6, 7, 8 and 9 will survive the termination of this Agreement.
Serena will have no obligation under this Agreement to correct any bugs, defects or errors in the Solution or to otherwise support or maintain the Solution.
You agree that Serena (or its authorized licensor) owns all right, title and interest in all copyrights, patents, trade secrets and other intellectual property rights in the Solution, including, without limitation, any changes, modifications, enhancements and corrections to the Solution. Except as otherwise provided herein, Serena grants no express or implied rights under this license to any of Serena’s patents, copyrights, trade secrets, trademarks or other intellectual property rights. If You are ever held or deemed to be the owner of any copyright in the Solution, You hereby irrevocably assign and transfer to Serena all right, title and interest in the Solution and agree to promptly execute such documentation requested by Serena to evidence the same.
You acknowledge that the Solution and related documentation contain valuable trade secrets and confidential information of Serena. You agree to maintain in confidence and not disclose to any third party, the Solution and any related documentation. You further agree that any information provided by You to Serena with regard to Your use and evaluation of the Solution, will be the confidential information of Serena. Your obligations under this section will continue for a period of three (3) years from Your acceptance of this Agreement. You will take all reasonable precautions to prevent inadvertent disclosure of the Solution, trade secrets and confidential information related to the Solution. You agree that you will not permit any third party that develops, markets or licenses computer programs with functionality similar to the functionality of the Solution to have any access to the Solution or any trade secret or confidential information related to the Solution. The Solution is protected by United States copyright laws and international treaty provisions.
6. No Warranty; Limitation of Liability
THE SOLUTION MAY (A) HAVE LIMITED FEATURES; (B) FUNCTION FOR A LIMITED PERIOD OF TIME; OR (C) HAVE OTHER LIMITATIONS NOT CONTAINED IN A COMMERCIAL VERSION OF THE SOFTWARE. YOU ACKNOWLEDGE AND AGREE THAT SERENA IS PROVIDING THE SOLUTION “AS IS”. SERENA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND STATUTORY WARRANTIES OF NON-INFRINGEMENT.
IN NO EVENT WILL SERENA BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO DIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL AND INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOLUTION. YOU AGREE THAT YOU WILL HAVE SOLE RESPONSIBILITY FOR PROTECTING YOUR DATA USED IN CONNECTION WITH THE SOLUTION. THE USE OF THE SOLUTION IS AT YOUR OWN RISK. YOUR SOLE RECOURSE IN THE EVENT OF ANY DISSATISFACTION WITH OR DAMAGE CAUSED BY THE SOLUTION IS TO STOP USING IT.
7. Export Restrictions
You specifically acknowledge that the Solution and certain confidential information related to the Solution (collectively, “Technical Data”) are subject to United States export controls, including the Export Administration Regulations, 15 C.F.R. Parts 730 et seq. (collectively, “Export Control Laws”). You agree to comply with all requirements of the Export Control Laws with respect to the Technical Data. You may not (a) export, re-export, divert or transfer any such Technical Data, or any direct product thereof, to any destination, company, or person restricted or prohibited by Export Control Laws; (b) disclose any Technical Data to any national of any country when such disclosure is restricted or prohibited by the Export Control Laws; or (c) export or re-export the Technical Data, directly or indirectly, for nuclear, missile, or chemical/biological weaponry end uses prohibited by the Export Control Laws.
8. Choice of Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., exclusive of any provision of the United Nations Convention on Contracts for the International Sale of Goods, and without regard to principles of conflicts of law. The parties agree that the Uniform Computer Information Transactions Acts will not apply to this Agreement or the goods or services to be delivered hereunder.
(a) Publicity. You agree to serve as a reference regarding your evaluation and use of the Solution and grant to Serena the right to use Your name and logo in customer lists displayed on Serena’s website and other sales and marketing.
(b) Assignment. You may not assign this Agreement without Serena’s prior written consent. Any attempt to do so is void.
(c) Independent Parties. Nothing contained in this Agreement will be construed as creating a joint venture, partnership, agent or employment relationship between Serena and You.
(d) Waiver & Severability. The waiver or failure of either party to exercise in any respect any rights provided for in this Agreement will not be deemed a waiver of any further right under this Agreement. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction or by operation of law, the remaining terms and provisions of this Agreement will be unimpaired, and the invalid term or provision will be replaced by such valid term or provision as comes closest to the intention underlying the invalid term or provision.
(e) Notices. Any notice or other communication required or permitted in this Agreement will be in writing and will be deemed to have been duly given three (3) days after mailing by first class certified mail, postage prepaid, to the addresses set forth above.
(f) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof. No amendment or modification of any provision of this Agreement will be effective unless the same will be in writing and signed by both parties.
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