Last Modified: November 20, 2023
This Software Evaluation Agreement (the “Agreement”) is a binding contract between you ("Licensee," "you," or "your") and ETAS Inc., a Delaware corporation, having an office at 3021 Miller Road, Ann Arbor, Michigan 48103 (“ETAS”). ETAS and Licensee are hereinafter jointly referred to as “Parties” or individually as “Party”. This Agreement governs your access to and use of the Product(s), which you desire to access and use solely for your internal evaluation purposes during the Evaluation Period.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK/CHECK “EVALUIERUNGSVEREINBARUNG GELESEN UND ZUGESTIMMT” BOX OR BY ACCESSING OR USING THE PRODUCT(S) (the "Effective Date"). BY CLICKING ON THE “EVALUIERUNGSVEREINBARUNG GELESEN UND ZUGESTIMMT” BOX OR BY ACCESSING OR USING THE PRODUCT(S) YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE AND ACCEPT THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.
1. DEFINITIONS
a. “Authorized User” means Licensee and Licensee's employees (i) who are authorized by Licensee to access and use the Product(s) under the rights granted to Licensee pursuant to this Agreement and (ii) for whom access to the Product(s) has been granted hereunder.
b. “Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with a Party to this Agreement, wherein the term “control”, “controls”, or “controlled” means (i) more than fifty percent (50%) ownership or beneficial interest of income or capital of such entity, (ii) ownership of more than fifty percent (50%) of the voting power or voting equity, or (iii) the ability to otherwise direct or share management policies of such entity.
c. “Customer Data” means any information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Licensee or any other Authorized User through the Product(s).
d. “Documentation” means materials, specifications, manuals, documentation, and other written information provided by ETAS (or its Affiliate) related to the Product(s).
e. “Evaluation Period” means the time period starting on the Effective Date and ending 30 calendar days from the Effective Date.
f. “Intellectual Property Rights” means any and all known or hereafter known tangible and intangible rights associated with (i) works of authorship, including copyrights, moral rights, and mask works, including any object code and source code, (ii) trade secret rights, (iii) patents, designs, algorithms and other industrial property rights, and (iv) all other intellectual and industrial property rights, whether arising by operation of law, contract, license, or otherwise, and all registrations, initial applications, renewals, extensions, continuations, continuations-in-part, divisions or reissues hereof now and hereinafter in force anywhere in the world (including any rights in any of the foregoing).
g. “Product(s)” mean, individually or collectively, the Software and accompanying Documentation.
h. “Software” means, the AUTOSAR classic Development Pipeline Demo provided by ETAS under this Agreement that is available at https://www.etas.services/cdw/registration.
2. Access and Use
a. Account.
i. You must provide accurate and complete information to register for an account to use the Product(s). Please note that an existing AWS Account ID is required for the registration of an account. Without an existing AWS account you will not be able to register and use the Product(s).
ii. The Products may be used for business purposes only, specifically excluding personal use. By accessing and/or using the Product(s), Licensee represents and warrants that Licensee (i) is 18 or older and otherwise lawfully able and has the capacity to enter into this Agreement, (ii) will use the Product(s) for business purposes only. If you enter into this Agreement as a representative for an entity, you warrant to ETAS that you have legal authority to bind that entity.
iii. Licensee agrees that Licensee will not share Licensee’s account or account information, including, but not limited to the password, with any unauthorized third party. Licensee is responsible for taking reasonable steps to maintain the confidentiality of Licensee’s user name and password. In the event ETAS provides an account password, Licensee shall immediately change such password into a password only known to Licensee.
iv. Licensee shall use reasonable efforts to ensure that Licensee’s account and the Product(s) are only used by Licensee and its Authorized Users. Licensee shall ensure that Licensee and its Authorized Users comply with the terms and conditions of this Agreement, and any terms and conditions referenced herein or otherwise provided by ETAS. Licensee shall immediately notify ETAS of any unauthorized use of Licensee’s username, password or other account information, or of any other breach of security that Licensee becomes aware of, involving Licensee’s account or the Product(s).
b. Provision of Access. Conditioned on Licensee’s acceptance of and compliance with the terms and conditions of this Agreement, ETAS hereby grants to Licensee a non-exclusive, non-transferable, non-sublicenseable, revocable, royalty free and limited right during the Evaluation Period to access and use the Product(s) solely for Licensee’s internal evaluation purposes by Authorized Users and in accordance with the Documentation. Licensee shall not use the Products for any purpose other than evaluating and testing such Product(s) internally in connection with assessing whether Licensee desires to enter into a commercial agreement with ETAS for supply of the Products.
c. Documentation License. Subject to the terms and conditions contained in this Agreement, ETAS hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Evaluation Period solely for your internal evaluation purposes in connection with your use of the Product(s).
d. Use Restrictions. Except as expressly granted pursuant to Section 2b above, Licensee shall not, and shall not permit, assist or cause any Authorized User or third party to:
i. use, modify, copy, reproduce, create derivative works of, adapt, translate, rent, lease, loan, sell, supply, transfer, distribute, transmit or sublicense the Products, in whole or in part;
ii. decompile, disassemble, or reverse-engineer the Products, in whole or in part;
iii. alter or remove copyright and other proprietary notices which appear on or in the Products;
iv. utilize any equipment, device, software, or other means to circumvent or remove any security or protection used by ETAS in connection with the Products, or to circumvent or remove any usage restrictions, or to enable functionality disabled by ETAS;
v. use the Products for purposes of benchmarking or competitive analysis of the Products; use the Products to develop, use, or provide a competing product or service; or any other purpose that is to ETAS’s detriment or commercial disadvantage; or
vi. use the Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person, or that violates any applicable law.
e. Support. This Agreement does not entitle you to any support, maintenance, upgrades, or modifications for the Product(s).
3. LICENSEE OBLIGATIONS
a. Licensee represents and warrants (i) Licensee will use the Products in a safe manner solely in a suitable evaluation/testing environment (not on public roads), by suitably trained and qualified persons; (ii) Licensee will not use the Products in any commercial or production capacity, unless expressly agreed to by ETAS in writing; (iii) Licensee will use the Products in strict compliance with all applicable laws and regulations; and (iv) Licensee will use the Products in strict compliance with the Documentation and any other written instructions from ETAS. Licensee shall not use the Products for military purposes or in the service of nuclear technology.
b. The license grant in Section 2b is for the Term (defined below) of this Agreement and is being provided by ETAS to Licensee free of charge solely for evaluation purposes.
4. DATA AND DATA PRIVACY
a. Data Privacy.
i. The Parties shall comply with all applicable state and federal data protection laws and regulations, and ensure their employees and agents comply with such laws and regulation.
ii. Any personal data provided by Licensee to ETAS through or in connection with the Product(s), including, but not limited to account information, shall be processed by ETAS in accordance with all applicable laws, regulations and “ETAS PRIVACY NOTICE for AUTOSAR classic Development Pipeline Demo”, and solely to the extent necessary for the provision of the Product(s). ETAS shall keep any Licensee personal data strictly confidential and may share such personal data only as described in the "ETAS PRIVACY NOTICE for AUTOSAR classic Development Pipeline Demo”.
iii. License represents and warrants that all personal data Licensee provides to or is provided on behalf of Licensee to ETAS hereunder is owned by Licensee or Licensee has the right to provide such data to ETAS for use by ETAS in connection with the Product(s); and (b) ETAS’s authorized processing of such data does not and will not violate or infringe any applicable data privacy and security laws or regulations.
b. Customer Data. You hereby grant to ETAS a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for ETAS to provide the Product(s) to you. You will ensure that Customer Data and any Authorized User's use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
5. DISCLAIMERS
a. THE PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” WITH NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ETAS MAKES NO REPRESENTATION OR WARRANTY EXPRESS OR IMPLIED, WHETHER BY STATUTE, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTERS, INCLUDING NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
b. ETAS MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE PRODUCT(S) ARE ERROR FREE OR THAT ITS USE WILL BE UNINTERRUPTED. LICENSEE BEARS THE SOLE RESPONSIBILITY AND RISK FOR ITS USE OF THE PRODUCTS AND ANY LEGAL COMPLIANCE RELATED THERETO.
6. LIMITATION OF LIABILITY
a. IN NO EVENT SHALL ETAS, ITS AFFILIATES, OR THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUBCONTRACTORS, AND AGENTS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF BUSINESS, REVENUE, PROFIT OR GOODWILL, DOWNTIME COSTS, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES CLAIMS OF LICENSEE’S CUSTOMERS FOR SUCH DAMAGES, OR OTHER COMMERCIAL OR ECONOMIC DAMAGES OR COSTS, FOR ANY REASON WHATSOEVER AS A RESULT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE, THE PRODUCTS, UNDER ANY LEGAL THEORY OR CAUSE OF ACTION, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR FEDERAL, STATE OR LOCAL STATUTE, ORDINANCE OR REGULATION, WHETHER OR NOT ETAS OR ITS AFFILIATES SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
b. IN NO EVENT SHALL THE TOTAL LIABILITY OF ETAS, ITS AFFILIATES, OR THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUBCONTRACTORS, AND AGENTS FOR LOSSES OF ANY KIND, UNDER ANY LEGAL THEORY OR CAUSE OF ACTION, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR FEDERAL, STATE OR LOCAL STATUTE, ORDINANCE OR REGULATION, EXCEED THE GREATER OF 10% OF THE TOTAL AMOUNTS PAID BY LICENSEE TO ETAS UNDER THIS AGREEMENT OR $100.
c. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE TERMS OF THIS AGREEMENT ARE REASONABLE AND THAT ETAS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT SUCH TERMS.
7. INDEMNIFICATION
a. Licensee shall defend, indemnify and hold ETAS, its Affiliates, and their respective directors, officers, employees, and agents (each an “Indemnified Party”) harmless from any loss, claim, damage, or liability (including attorneys’ fees) brought by a third party (collectively, “Claim”) which arises from or in connection with Licensee’s (a) use, testing, or evaluation of the Products, (b) breach of any of the terms of this Agreement, or (c) negligence or willful misconduct.
b. ETAS agrees to (i) give prompt written notice to Licensee of any Claims for which indemnity is claimed, (ii) grant Licensee complete control of the defense and settlement thereof by and at the cost of Licensee, provided that Licensee shall not have the right to settle any Claim that includes an admission or obligation of an Indemnified Party without the express written consent of the Indemnified Party, and (iii) reasonably cooperate in such defense, at the expense of Licensee.
8. THIRD PARTY SOFTWARE COMPONENTS
a. The Products may contain third-party software components (including free and open source software (“OSS”)), which are subject to the license terms of the respective third-party licensors. If applicable, comprehensive information about such third-party software components as well as any applicable license terms can be found here and/or in the corresponding Documentation for the Products (collectively, the “Third-Party Software Terms”). Licensee hereby accepts any applicable Third-Party Software Terms.
b. Licensee shall not combine the Products with any OSS or other data in any manner which would result in the Products becoming subject to the terms of an OSS license.
9. FEEDBACK
Licensee may provide suggestions, comments, response or other feedbacks (“Feedback”) to ETAS with respect to the Products on a voluntary basis. Licensee acknowledges that any Feedback, even if designated as confidential by Licensee, will not be deemed confidential or create any confidential obligation on ETAS. ETAS will be free to use, exploit, disclose, reproduce, license, transfer or otherwise distribute any of the Feedback provided to it without any obligation or restriction.
10. EXPORT COMPLIANCE
Licensee shall not export, directly or indirectly, any of the Products to any country, person or entity which the US Government, at the time of export, requires an export license or other governmental approval without first obtaining such license or approval. Licensee shall first obtain the written consent of ETAS prior to submitting any request for authority to export the Products. For the purposes of this Agreement, export occurs when the Products are transferred from one country to another by any means, including but not limited to physical shipments, FTP file transfers, e-mails, faxes, oral transfers or remote server access and an export may also occur when the Products are transferred to or accessed by a person who is neither a citizen nor permanent resident of the country in which such transfer or access is taking place.
11. TITLE AND OWNERSHIP
a. Licensee acknowledges that ETAS, its Affiliates, or their respective licensors (if any), own all legal right, title and interest in and to the Products including any Intellectual Property Rights therein. The grant of rights expressly set forth in Section 2b are the complete grant of rights to Licensee and no further rights shall be granted by waiver, estoppel, implication, equity or otherwise. ETAS reserves all rights not expressly granted by this Agreement.
b. Licensee agrees that it will not, during or after the Term, assert or claim any interest in, or do anything directly or indirectly that may adversely affect the validity of or infringe any of ETAS’s Intellectual Property Rights. Licensee shall cooperate with ETAS and use all reasonable efforts to protect ETAS’s Intellectual Property Rights.
12. CONFIDENTIALITY
Any and all non-public information and data concerning the Products, or any other transaction covered hereunder which ETAS discloses to Licensee, is generated by the Products, or which Licensee otherwise obtains knowledge of hereunder, and any non-public technical, financial, or business information, trade secrets, orders, content, or other information provided by ETAS to Licensee (collectively, “Confidential Information”) remains the exclusive property of ETAS and shall not be disclosed by Licensee to third parties without ETAS’s express written consent. Confidential Information shall be held in strict confidence and shall not be used except to the extent necessary to carry out Licensee’s obligations or express rights hereunder, unless otherwise authorized by ETAS in writing. For the sake of clarity, Licensee shall have no right whatsoever to such Confidential Information other than to use it for the purposes stated in this Agreement. If the Licensee is compelled by law to disclose ETAS’s Confidential Information as part of a civil proceeding, Licensee shall promptly inform ETAS and cooperate with ETAS to seek or obtain a protective order. If a protective order or other remedy is not obtained, Licensee shall furnish only that portion of the Confidential Information that is legally required and use commercially reasonable efforts to obtain assurance that confidential treatment shall be accorded the Confidential Information. The confidentiality obligations set forth in this Section 12 shall survive for a period of ten (10) years after the Term, except with respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information remains a trade secret under applicable law.
13. TERM AND TERMINATION
a. This Agreement shall continue in effect until the expiration of the Evaluation Period, unless terminated earlier as provided herein (the “Term”). The Term may only be extended by mutual written agreement between the Parties hereto.
b. Either Party may terminate this Agreement at any time by giving at least ten (10) business days’ written notice to the other Party prior to the desired termination date. This Agreement shall immediately and automatically terminate upon breach by Licensee.
c. Upon expiration or termination of this Agreement, the license grants under Section 2b shall immediately and automatically terminate and Licensee shall immediately cease using the Products and, if applicable, return the Products to ETAS. Any use by Licensee of the Products after termination of this Agreement will be deemed an unauthorized use in breach of this Agreement and Licensee shall be liable for damages no less than the standard price of the Product for the period of unauthorized use if for Software.
d. Notwithstanding the foregoing, Sections 2d (Restrictions), 5 (Disclaimers), 6 (Limitation of Liability), 7 (Indemnification), 9 (Feedback), 11 (Title and Ownership), 12 (Confidentiality), 13.d (Survival), 14 (Applicable Law; Arbitration) and 15 (Miscellaneous), and any other right or obligation of the Parties in this Agreement, which by its express terms or nature and context is intended to survive, shall survive the expiration or termination of this Agreement.
14. APPLICABLE LAW; ARBITRATION
a. Any and all disputes between the Parties arising out of or related to this Agreement shall be governed by the laws of the State of Michigan except for its choice of law rules; the United Nations Convention on the International Sale of Goods shall not apply.
b. Any and all disputes, controversies, differences, or claims arising out of or relating to this Agreement (including the formation, existence, validity, interpretation (including of this arbitration clause), breach or termination thereof) shall be referred to and finally resolved exclusively through binding arbitration administered by the American Arbitration Association (“AAA”), except that either Party shall have the right, at its option, to seek interim injunctive relief at any time, under seal to maintain confidentiality to the extent permitted by law, (i) in either the Michigan Circuit Court for the County of Oakland or the United States District Court for the Eastern District of Michigan, or (ii) from the AAA tribunal pursuant to its Commercial Arbitration Rules. A request by a Party to a court of competent jurisdiction for such interim measures shall not be deemed incompatible with, or a waiver of, this agreement to arbitrate. The Parties agree that any ruling by the arbitration tribunal on interim measures shall be deemed to be a final award for purposes of enforcement. The arbitration proceedings shall be conducted in accordance with the Commercial Arbitration Rules of the AAA as amended from time to time, except as modified by this clause or by mutual agreement of the Parties, and shall be governed by the United States Federal Arbitration Act. Within 14 days after the commencement of arbitration, each Party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within 10 days of their appointment. If the arbitrators selected by the Parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the AAA pursuant to its Commercial Arbitration Rules. The arbitration shall be conducted in Detroit, Michigan, USA, and the language of the arbitration shall be English. The arbitrators’ award shall be final and binding. The arbitrators shall issue a written opinion setting forth the basis for the arbitrators’ decision. The written opinion may be issued separately from the award, in the arbitrators’ discretion. Each Party shall bear its own attorney fees and costs, and each Party shall bear one half the cost of the arbitration hearing fees and the cost of the arbitrator, unless the arbitrators find the claims or defenses to have been frivolous or harassing, in which case fees and costs may be assessed in the arbitrators’ discretion. Either Party may apply to have the arbitration award confirmed and a court judgment entered upon it. Venue for confirmation of or any challenge to the arbitration award shall be in either the Michigan Circuit Court for the County of Oakland or the United States Court for the Eastern District of Michigan and shall be done under seal to maintain confidentiality to the maximum extent permitted by law. To the fullest extent permitted by law, the arbitrators shall have no authority to award punitive damages or any other damages excluded herein. Except as may be required by law, neither Party, its counsel, nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.
15. MISCELLANEOUS
a. Notices delivered to EATA by you must be made in writing in order to be effective. The same applies to waiving this written form requirement.
b. Licensee shall not assign or sublicense this Agreement or any other rights or obligations under this Agreement without ETAS’s prior written consent and any such assignment or sublicense will be void and automatically and immediately terminates this Agreement.
c. Each Party hereto shall be considered as an independent contractor responsible for its own expenses and financial obligations incurred in the performance of this Agreement.
d. Neither Party waives any rights in invention or development lawfully possessed by it at the time of signing this Agreement. In addition, this Agreement does not imply any waiver of any rights or action under the patent, trademark, copyright, trade secret, unfair competition, fair trade or related laws. Failure to exercise any rights under this Agreement shall not be construed as a waiver of such rights.
e. If a court finds any provision of this Agreement or any right or obligation invalid or unenforceable, this Agreement shall be immediately deemed amended to (i) include a provision that reflects the intent of the Parties; or if (i) is not possible, (ii) to exclude such provision and the Parties shall negotiate in good faith a substitute provision that reflect the Parties’ intent at the time of entering into the Agreement.
f. No change or addition to any provision shall be binding unless it is in writing and signed by an authorized representative of both Parties.