SimSpace Not for Resale (NFR) Agreement

READ THE TERMS AND CONDITIONS OF THIS NOT FOR RESALE (NFR) AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE DOWNLOADING, ACCESSING OR OTHERWISE USING ANY PART OF THE SIMSPACE SOFTWARE SERVICES, AND/OR PROVIDED CONTENT (TOGETHER KNOWN AS THE “SIMSPACE PRODUCTS”). THE SIMSPACE PRODUCTS ARE THE PROPERTY OF SIMSPACE CORPORATION. CLICKING ON THE “I ACCEPT” BUTTON BELOW, OR IN ANY OTHER WAY INSTALLING, ACCESSING, COPYING OR USING THE SIMSPACE PRODUCTS, CREATES A LEGALLY ENFORCEABLE CONTRACT AND CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. IF NFR PARTNER IS NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT, OR IF NFR PARTNER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN NFR PARTNER MUST CLICK ON THE “CANCEL” BUTTON BELOW, AND NFR PARTNER MUST NOT INSTALL, ACCESS, COPY OR USE THE SIMSPACE PRODUCTS, AND MUST, IMMEDIATELY DELETE AND PERMANENTLY ERASE FROM ALL COMPUTER MEMORIES AND STORAGE MEDIA ALL COPIES OF THE SIMSPACE PRODUCTS AND DOCUMENTATION.

  1. Definitions. The following capitalized terms shall have the meanings set forth below:
    • “Feedback” means any comments or other feedback NFR Partner may provide to SimSpace concerning the functionality and performance of the SimSpace Products, including identification of potential errors and improvements.
    • “Instance” means a single deployment of SimSpace Products on a physical or virtual computer or server.
    • “NFR Period” means : As stipulated on the then current executed SimSpace NFR Quote.
    • “SimSpace NFR Quote” means a Quote sent from SimSpace to NFR Partner that stipulates the NFR Period and SimSpace Products that NFR Partner will have access to, which will be required to be executed by both Parties.
  2. Grant of Rights. Subject to NFR Partner’s compliance with the terms and conditions of this Agreement, SimSpace hereby grants NFR Partner a limited, non-exclusive, non-transferable, non-sub-licensable right/license during the NFR Period to use the SimSpace Products solely for NFR Partner’s internal evaluation, training and product demonstration purposes, in connection with the deployment of no more than the Permitted Number of Instances of SimSpace Products. For the avoidance of doubt, the SimSpace Products may not be used by NFR Partner for any internal development of applications or any commercial purpose.
  3. Payment. Subject to NFR Partner’s compliance with the terms and conditions of this Agreement, and solely during the NFR Period, the SimSpace Products shall be provided to NFR Partner without charge unless otherwise stated in the then current SimSpace NFR Quote.
  4. Restricted Activities. NFR Partner shall not, and shall not encourage any third party to: (a) modify, adapt, alter, translate, or create derivative works of the SimSpace Products; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the SimSpace Products, in whole or in part, except to the extent that such activities are permitted under applicable law; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the SimSpace Products to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of SimSpace or its suppliers contained on or within any copies of the SimSpace Products; (e) use the SimSpace Products for the purpose of creating a product or service competitive with the SimSpace Products; (f) use the SimSpace Products with any unsupported software or hardware (as described in the applicable documentation provided by SimSpace); (g) use the SimSpace Products for any time-sharing, outsourcing, service bureau, hosting, application service provider or like purposes; (h) disclose the results of any benchmark tests on the SimSpace Products without SimSpace’s prior written consent; or (i) use the SimSpace Products other than as described in the documentation provided therewith, or for any unlawful purpose.
  5. Ownership of SimSpace Products. SimSpace and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the SimSpace Products, including any improvements, modifications, and enhancements to it. Except for the rights expressly granted in this Agreement, NFR Partner shall acquire no other rights, express or implied, in or to the SimSpace Products, and all rights not expressly provided to NFR Partner hereunder are reserved by SimSpace and its licensors. All SimSpace Products provided or made available hereunder are temporarily licensed, not sold.
  6. Term. Unless otherwise terminated in accordance with this section, this Agreement will remain in effect until the expiration of the NFR Period. Either party may immediately terminate this Agreement if the other party materially breaches this Agreement. Either party may terminate this agreement without cause upon ten (10) days’ prior written notice. Unless otherwise agreed by the parties, upon the expiration or termination of the NFR Period all rights and licenses granted herein will automatically terminate and NFR Partner will discontinue all use of the applicable SimSpace Products and will return to SimSpace any materials (including any copies of SimSpace Products) provided by SimSpace to NFR Partner. Sections 1, 2, 4, 5, and 6 through 12 shall survive any termination or expiration of this Agreement.
  7. Feedback. By submitting any Feedback, NFR Partner hereby assigns to SimSpace all right, title, and interest in and to the Feedback, if any.
  8. No Warranties. THE SIMSPACE PRODUCTS IS PROVIDED "AS IS" AND "AS AVAILABLE." SIMSPACE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SIMSPACE PRODUCTS, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE. SIMSPACE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO NFR PARTNER THAT: (A) NFR PARTNER’S USE OF THE SIMSPACE PRODUCTS WILL MEET NFR PARTNER’S REQUIREMENTS, OR (B) NFR PARTNER’S USE OF THE SIMSPACE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL EXCLUDE OR LIMIT SIMSPACE'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
  9. Indemnification by NFR Partner. NFR Partner agrees to hold harmless and indemnify SimSpace and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third party claim arising from or in any way related to NFR Partner’s breach of this Agreement, use of the SimSpace Products, or violation of applicable laws, rules or regulations in connection with the SimSpace Products, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, SimSpace will provide NFR Partner with written notice of such claim, suit or action.
  10. Limitation of Liability.
    • Exclusion of Damages. NFR PARTNER EXPRESSLY UNDERSTANDS AND AGREES THAT SIMSPACE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO NFR PARTNER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES INCURRED BY NFR PARTNER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. THE FOREGOING LIMITATIONS ON SIMSPACE'S LIABILITY SHALL APPLY WHETHER OR NOT SIMSPACE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL EXCLUDE OR LIMIT SIMSPACE'S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
    • Liability Cap. THE TOTAL LIABILITY OF SIMSPACE ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED USD $100.
  11. Export Restrictions. NFR Partner understands that the SimSpace Products may contain encryption technology and other software programs that may require an export license from the U.S. State Department and that export or re-export of the SimSpace Products to certain entities (such as a foreign government and its subdivisions) and certain countries is prohibited. NFR Partner acknowledges that it will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which the SimSpace Products is used and, in particular, NFR Partner will not export or re-export the SimSpace Products without all required United States and foreign government licenses. NFR Partner will defend, indemnify, and hold harmless SimSpace and its suppliers and licensors from and against any violation of such laws or regulations by NFR Partner or any of its agents, officers, directors or employees.
  12. Assignment. This Agreement will bind and inure to the benefit of the parties, as applicable, and their respective permitted successors and assigns; provided, that NFR Partner will not voluntarily or involuntarily in any form or manner assign, sublicense, transfer, pledge, lease, network, rent, loan, distribute, or share license of the SimSpace Products, or other rights under this Agreement to or with any other person or entity, including, without limitation, any assignment or transfer incident to NFR Partner merger or consolidation with another entity, any assignment or transfer by operation of law or any use of the SimSpace Products to provide hosted services, to operate a service bureau or publish, disclose or otherwise display in writing, electronically or otherwise any part of the SimSpace Products or such other rights without Supplier’s prior written consent in each such instance. Any such assignment, sublicense, transfer, pledge, lease, network, rental, loan, or sharing of NFR Partner’s rights under this Agreement absent Supplier’s prior written consent will be void and of no force or effect and, as will any such publication, disclosure or display, will cause the immediate termination of this Agreement and NFR Partner’s rights under this Agreement.
  13. Governing Law. This Agreement will be construed and governed in accordance with the laws of the Commonwealth of Massachusetts, without regard to any rules of conflicts or choice of law provisions that would require the application of the laws of any other jurisdiction. The parties hereby submit to the exclusive jurisdiction and venue of the State and Federal courts sitting in Suffolk County, Massachusetts for any action or legal proceeding related to or arising under this Agreement and waive any objections based on forum non conveniens. This Agreement will be construed and enforced without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act.
  14. Miscellaneous. No amendment, change, or extension to this Agreement is valid or binding, unless approved in writing by SimSpace. This Agreement represents the entire agreement between SimSpace and NFR Partner concerning the SimSpace Products addressed herein, and any and all other prior or contemporaneous agreements, representations, statements, negotiations and undertakings with respect to such subject matter are superseded hereby.