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ExpressCluster Software Evaluation License Agreement

Before you download a 30-day evaluation copy of the software, you must accept all of the terms and conditions in the ExpressCluster Evaluation License Agreement. If you do not accept all terms and conditions, you may not download the software.
 
    
 
THIS EVALUATION LICENSE AGREEMENT ("AGREEMENT") BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY REPRESENTED BY YOU) AND NEC Corporation of America ("NECAM") GOVERNS YOUR USE OF THE SOFTWARE, AS DEFINED BELOW. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING OR ACCESSING IN ANYWAY THE SOFTWARE. BY CLICKING ON THE "ACCEPT" BUTTON BELOW, YOU MANIFEST YOUR ASSENT TO, AND AGREE TO BE BOUND BY, ALL TERMS AND CONDITIONS OF THIS AGREEMENT.
 
1. Definitions: "Documentation" means any user guides, printed materials, and "online" or electronic documentation provided with the Software by NECAM; "Software" means the ExpressCluster® DR computer software and any related enhancements, upgrades, components, add-ons, or modules, in object code form only, provided now or at a later date, which are owned or licensed by NECAM; "Term" means a period of thirty (30) days from the first date you download the Software.
2. Grant of License for Internal Evaluation Use. Provided you comply with all terms of this Agreement, NECAM grants you a non-exclusive, non transferable limited license without right of sublicense to internally use the Software during the Term for internal evaluation purposes only. The Software is licensed and not sold to you under the terms of this Agreement only and any rights not expressly granted by NECAM to you are reserved by NECAM or its licensors, and all implied licenses are disclaimed.
3. Ownership. The Software and all copies and derivative works (by whomever produced) thereof shall remain the sole property of NECAM or its licensors, and, except as expressly and unambiguously licensed herein, NECAM or its licensors shall exclusively own all rights, title and interest in the Software and derivative works of the Software and all intellectual property and proprietary rights anywhere in the world therein. The Software and Documentation contain material that is protected by United States Copyright Law and trade secret law, international treaty provisions, and all other applicable national laws.
4. Restrictions. You may not publish, display, disclose, sell, rent, lease, loan, distribute, or create derivative works of the Software, or any part thereof. You may not assign, sublicense, convey or otherwise transfer, pledge as security or otherwise encumber the rights and licenses granted hereunder with respect to the Software. You may not copy (except to the limited extent necessary to download and use the Software per Section 2 hereof), reverse engineer, decompile, reverse compile, derive source code, translate, adapt, or disassemble the Software, or any part thereof, except and only to the extent that it is expressly permitted by applicable law notwithstanding these restrictions. You may not market, co-brand, private label or otherwise permit third parties to link to the Software, or any part thereof. You may not use the Software, or any part thereof, in the operation of a service bureau or for the benefit of any other person or entity. You may not cause, assist or permit any third party to do any of the foregoing.
5. Confidentiality. You acknowledge that the Software contains proprietary trade secrets of NECAM or its licensors and you hereby agree to maintain the confidentiality of the Software using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information. You agree to reasonably communicate the terms and conditions of this Agreement to those persons employed by you who come into contact with the Software, and to use reasonable best efforts to ensure their compliance with such terms and conditions, including, without limitation, not knowingly permitting such persons to use any portion of the Software for the purpose of deriving the source code of the Software.
6. No Warranty. Inasmuch as this Agreement allows you to evaluate the Software without charge, THE SOFTWARE IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY LAW, NECAM DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NECAM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU. IF THIS EXCLUSION IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN ALL EXPRESS AND IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF PURCHASE OF THE SOFTWARE, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD.
7. Limitation of Liability. IN NO EVENT WILL NECAM OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF NECAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NECAM'S AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION OR OTHERWISE SHALL IN NO EVENT EXCEED $1,000. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. Export Restrictions. This Agreement is expressly made subject to any applicable laws, regulations, orders, or other restrictions on the export of the Software or information about such Software which may be imposed from time to time. You shall not export the Software, Documentation or information about the Software and Documentation without complying with such laws, regulations, orders, or other restrictions. You agree to indemnify NECAM and its licensors against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees, to the extent such claims arise out of any breach of this section 8.
9. Support. NECAM will not provide any maintenance, updates, enhancements, upgrades, bug fixes or support of any kind for the Software.
10. Termination. On or before expiration or termination of the Term, you agree to either (i) enter into a royalty-bearing license agreement with NECAM for continued use of the Software, or (ii) promptly cease all use of the Software and send written certification to NECAM that you have removed the Software and any parts thereof from your systems and returned or destroyed all Software and Documentation. Your failure to do either of the aforementioned will create a royalty-bearing license for the Software in accordance with the terms and conditions of NECAM's standard license agreement for the Software at the then-current list price, for which you shall be invoiced. All provisions relating to confidentiality, proprietary rights and indemnity shall survive the termination of this AGREEMENT.
11. Special Procedure for U.S. Government Sales. If the Software and Documentation is acquired by the U.S. Government or on its behalf, the Software is furnished with "RESTRICTED RIGHTS," as defined in Federal Acquisition Regulation ("FAR") 52.227-9(c)(2), are DFAR 252.227-7013 to 7019, as applicable. Use, duplication or disclosure of the Software and Documentation by the U.S. Government and parties acting on its behalf is governed by and subject to the restrictions set forth in FAR 52.227-19(c)(1) and (2) or DFAR 252.227-7013 to 7019, as applicable.
12. General. This Agreement shall be construed, interpreted and governed by the laws of the State of New York without regard to conflicts of laws provisions thereof. The exclusive forum for any disputes arising out of or relating to this Agreement shall be an appropriate federal or state court sitting in the Eastern District of the State of New York, USA. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter covered in this Agreement and supersedes all prior or contemporaneous oral or written communications relating to the same subject matter. Any waiver or modification of this Agreement, except as otherwise provided herein, shall only be effective if it is in writing and signed by both parties hereto. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by you, whether voluntary or by operation of law. Any such attempted assignment shall be void and of no effect without the prior written consent of NECAM. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably affect the intention of the parties.
 
    
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