Trial License Agreement

Aviatrix Trial License Agreement

IMPORTANT- READ THIS TRIAL LICENSE AGREEMENT ("AGREEMENT") BEFORE CLICKING “SIGN UP” OR USING THE AVIATRIX SOFTWARE (“SOFTWARE”). YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH AVIATRIX SYSTEMS, INC. ("AVIATRIX"). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE "SIGN UP" BUTTON AND YOU WILL NOT BE ABLE TO INSTALL OR USE THE SOFTWARE. THE DATE THAT YOU AGREE TO THIS AGREEMENT IS THE "EFFECTIVE DATE." This Agreement is between You and AVIATRIX and governs Your use of the Product hereunder is for non-production use only for a “Trial Period” of fourteen (14) days from the Effective Date, unless an extension is agreed upon with Aviatrix.

1. License Grant.

Subject to the terms and conditions of this Agreement, AVIATRIX grants You a non-exclusive, non-transferable, limited license (without the right to sublicense), solely for the Trial Period, to (i) install the Software and use the Product solely for internal evaluation purposes; and (ii) use all provided documentation (“Documentation”) in connection with such authorized use of the Software. The Documentation and the Software are the “Product.”

2. Open Source Software.

The Software may contain open source software components (“Open Source Components”) that can be viewed at https://s3-us-west-2.amazonaws.com/aviatrix-download/docs/AviatrixOpenSourceCompliance.docx. Your use of each Open Source Component is subject to the terms of each applicable license.

3. Restrictions.

You shall not, and shall not permit any third party to: (i) reverse engineer, reverse assemble, or otherwise attempt to discover the source code of all or any portion of the Software; (ii) reproduce, modify, translate or create derivative works of all or any portion of the Product; (iii) assist any third party to gain access, license, sublicense, resell distribute, assign, transfer or use the Product; (iv) remove or destroy any proprietary notices contained on or in the Product or any copies thereof; or (v) use the Product in production or publish or disclose the results of any benchmarking of the Products. YOU ACKNOWLEDGE THAT THE PRODUCT MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE TRIAL PERIOD AND/OR USE INCONSISTENT HEREWITH.

4. Disclaimer of Warranty.

YOU AGREE THAT AVIATRIX AND ITS LICENSORS PROVIDE THE PRODUCTS ON AN “AS IS” AND “WHERE-AS” BASIS. NEITHER AVIATRIX NOR ITS LICENSORS MAKE ANY WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE PRODUCT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND AVIATRIX AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

5. Intellectual Property Rights.

All rights, title and interest in and to the Product and any improved, updated, modified or additional parts thereof, shall at all times remain the property of AVIATRIX or its licensors. Nothing herein shall give or be deemed to give You any right, title or interest in or to the same except as expressly provided in this Agreement. AVIATRIX reserves all rights not expressly granted herein.

6. Limitation of Liability; Allocation of Risk.

NEITHER AVIATRIX NOR ITS LICENSORS SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT OR DATA OR ANY ACTUAL OR ANTICIPATED DAMAGES, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF AVIATRIX OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AVIATRIX’S DIRECT DAMAGES EXCEED ONE HUNDRED DOLLARS (US $100.00).ADDITIONALLY, IN NO EVENT SHALL AVIATRIX'S LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND. You and AVIATRIX agree that the foregoing on limitation of liability and the Section 5 above on warranty disclaimer fairly allocate the risks in the Agreement between the parties. You and AVIATRIX further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations specified in this Section 7 shall apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.

7. Confidentiality.

The terms of this Section 7 shall not apply to the extent that You and AVIATRIX have executed a separate nondisclosure agreement. Each party acknowledges that the terms of this Agreement and any other information marked as “confidential” are confidential (“Confidential Information”). Each party agrees that it will not disclose to any third party or use for its own account or the account of any third party the Confidential Information and will take precautions to protect the confidentiality of such information, to at least the same extent as it takes to protect its own Confidential Information, but in no event less with than reasonable care. Either party may disclose Confidential Information if required by a governmental agency or by operation of law if it gives the other party reasonable prior written notice sufficient to permit the other party to contest such disclosure.

8. Term and Termination.

Upon the expiration of the Trial Period unless otherwise extended in writing by AVIATRIX in its sole discretion, this Agreement terminates and unless You and AVIATRIX have entered into a subsequent executed license agreement You must cease use of the Product. You may terminate this Agreement at any time by ceasing use of the Product. This Agreement will terminate immediately upon written notice from AVIATRIX if You fail to comply with any provision of this Agreement. Except for Section 1(“License Grant”), all Sections of this Agreement shall survive termination for a period of three (3) years from the date hereof. On termination of this Agreement, AVIATRIX may destroy all of Your data that You have submitted through the Software.

9. General Provisions.

As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Products and accompanying documentation provided by Aviatrix Systems are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms. You agree and certify that neither the Product nor any other technical data received from AVIATRIX, nor the direct product thereof, will be exported outside the United States or re-exported except as authorized and as permitted by the laws and regulations of the United States and/or the laws and regulations of the jurisdiction, (if other than the United States) in which You rightfully obtained the Product. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. This Agreement shall be governed by the laws of the State of California, U.S.A. without regard to conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of this Agreement shall not be affected thereby. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement may not be assigned, sublicensed or otherwise transferred by either party without the other party's prior written consent except that Aviatrix may assign this Agreement without the other party's consent to any entity that acquires all or substantially all of such party’s business or assets, whether by merger, sale of assets, or otherwise, provided that such entity assumes and agrees in writing to be bound by all of Aviatrix’s obligations under this Agreement. In the event any judicial proceeding, lawsuit or claim is brought by one party against the other party in connection with this Agreement, the prevailing party shall be entitled to recover its reasonable fees and costs, including but not limited to attorneys’ fees, expert witness fees, consultant fees, and related costs and expenses. This Agreement constitutes the parties’ entire understanding regarding the Product, and supersedes any and all other prior or contemporaneous agreements, whether written or oral.

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