This Software License Agreement (hereinafter referred to as the "Agreement") is a legal agreement between you and Branch of Resource and Environment of the China National Institute of Standardization (hereinafter referred to as "CNIS"), and governs the use of the Benchmark of Server Energy Efficiency (BenchSEE) Software or any accompanying documentation (collectively referred to as the "SOFTWARE"). By downloading, installing, copying, or otherwise using the SOFTWARE, you agree to be bound by all the following terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind the entity to this Agreement, in which case "you" will mean the entity you represent. If you don't have the required authority to accept this Agreement, or if you don't agree to the terms and conditions of this Agreement, you shall not download, install, or use the SOFTWARE.
1. LICENSE GRANT
1.1 License to the SOFTWARE. Subject to the terms and conditions of this Agreement, CNIS hereby grants you a worldwide, non-exclusive, non-transferable, limited right and license under its copyrights, to: reproduce internally a reasonable number of copies of the original of the SOFTWARE for Your personal or business use; use the SOFTWARE, in whole or in part, for the generation of data regarding measurement and analysis of computer system (hardware and software) energy efficiency and/or power usage on the SOFTWARE only; and modify or create Derivative Works only of portions of the SOFTWARE, that are provided to You in Source Code form, provided that such modifications are to enable further analysis on systems under your control.
1.2 Third-Party Software. Third Party Software, even if included with the distribution of the SOFTWARE, may be governed by separate license terms, including without limitation, Third Party License Terms, and/or open source license terms. In the event of any conflict between the terms in this Agreement and the Third Party License Terms, the Third Party License Terms shall govern only to the extent necessary to resolve the conflict.
2. LIMITATIONS
2.1 The following license limitations apply to your use of the SOFTWARE: (1) Except as provided in this Agreement, you may not copy, modify, rent, sell, distribute, transfer, sublicense or otherwise make available the SOFTWARE or its functionality to third parties. (2) You may not use the SOFTWARE in any manner that would cause any part of it becomes subject to an Open Source License which requires that (i) it must be distributed in source code form; (ii) it must be licensed under the same open source license terms; and (iii) its derivative works must be licensed under the same open source license terms. (3) You may not reverse engineer, decompile, disassemble (except to the extent that this limitation is expressly prohibited by applicable law that cannot be waived by this agreement) or attempt to derive the source code, underlying ideas, algorithm or structure of the SOFTWARE provided to you in object code form. (4) You may not remove copyright or other proprietary notices that appear on or with the SOFTWARE or any copies thereof. (5) You may not use the SOFTWARE, or any derivative work that is based on (or derived from) the SOFTWARE for commercial purposes, for example, licensing or selling the SOFTWARE, or using the SOFTWARE with a purpose to procure a direct commercial gain.
2.2 Except as expressly provided in this Agreement, no rights or licenses are granted by CNIS to you under this Agreement, expressly or by implication, with respect to any proprietary information or patent, copyright, trade secret, or other intellectual property right owned or controlled by CNIS.
3. OWNERSHIP AND FEEDBACK The SOFTWARE is protected by intellectual property rights, including without limitation, patents, copyrights, trademarks, or trade secrets. Except as expressly granted in this Agreement, all rights are expressly reserved by CNIS. No additional rights whatsoever (including, without limitation, any implied licenses) are granted by implication, estoppel or otherwise. For any Feedback that you voluntarily provide, you hereby grant CNIS a perpetual, non-exclusive, worldwide, irrevocable license to use, reproduce, modify, license, sublicense, and distribute it without the payment of any royalties or fees to you. "Feedback" means suggestions, fixes, modifications, feature requests or other feedback regarding the SOFTWARE, including proposed changes. You represent and warrant that you have sufficient rights in any Feedback that you provide to grant the rights described above.
4. SUPPORT AND UPDATE CNIS may, at its option, make available patches, workarounds or other updates to the SOFTWARE. Unless the updates are provided with their separate governing terms, they are deemed part of the SOFTWARE licensed to you as provided in this Agreement. You agree that the form and content of the SOFTWARE that CNIS provides may change without prior notice to you. While CNIS generally maintains compatibility between versions, CNIS may in some cases make changes that introduce incompatibilities in future versions of the SOFTWARE.
5. MARKS You may use the Benchmark of Server Energy Efficiency or BenchSEE word mark, as well as the BenchSEE logotype, the BenchSEE graphical symbol, and all other BenchSEE logos (collectively, the "BenchSEE Marks") to identify the energy efficiency or power measurement results, provided that the results are obtained from unmodified copies of the SOFTWARE. You may not use or register, in whole or in part, the BenchSEE Marks as part of your own trademark, service mark, domain name, company name, trade name, product name, or service name. You agree to comply with CNIS’s branding guidelines for BenchSEE Marks and will not make use of any CNIS marks, logos or other trademarked assets except with the explicit permission of CNIS.
6. REPORTS In order to preserve the integrity of CNIS's energy efficiency standards, you agree to run the SOFTWARE in accordance with the benchmark product rules published by CNIS for the SOFTWARE. If you choose to publicly report the measured results, the reporting must be strictly in accordance with the CNIS product rules.
7. NO WARRANTY THE SOFTWARE IS PROVIDED BY CNIS ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, ABSENCE OF ANY INFRINGEMENT OF THIRD-PARTY RIGHTS (INCLUDING BUT NOT LIMITED TO INTELLECTUAL PROPERTY RIGHTS), FREE OF ERRORS, OR FREE OF SECURITY VULNERABILITIES. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES OR LIABILITIES ARISING FROM OR IN RELATION TO ITS USE OF THE SOFTWARE.
8. LIMITATION OF LIABILITY In no event and under no legal theory, whether in tort, contract, or otherwise, unless required by applicable laws, shall CNIS be liable for any damages caused by the use of the SOFTWARE, including any direct, indirect, special, incidental, or consequential damages (including but not limited to damages for loss of profit, loss of data, business disruption, or any other commercial damages or losses), even if CNIS has been advised of the possibility of such damages. EVEN IF THE SOFTWARE HAS ANY MATERIAL, VERIFIABLE, AND REPRODUCIBLE PROGRAM ERRORS, CNIS SHALL HAVE NO LIABILITY TO MODIFY SUCH ERRORS.
9. INDEMNIFICATIOM You agree to defend CNIS and indemnify CNIS against any and all claims, actions, litigations or procedures, as well as any and all losses, obligations, liabilities, damages, costs, and expenses (including reasonable attorney fees) arising from (1) its use of the SOFTWARE, and (2) any non-compliance by you with this Agreement.
10. TERMINATION If you are in material breach of any representation, warranty, term, condition or covenant of this Agreement, CNIS may terminate this Agreement immediately upon written notice at any time. Upon termination of this Agreement, you must stop using the SOFTWARE immediately and delete the SOFTWARE that has been copied. You may also terminate this Agreement by stopping using the SOFTWARE. If you or your Affiliates directly or indirectly commence or participate in any legal proceeding against any individual or entity with respect to the SOFTWARE, then any license granted to you under this Agreement for the SOFTWARE shall terminate as of the date such legal proceeding is filed or taken.
11. MISCELLANEOUS If any term of this Agreement becomes invalid, other terms shall remain in full force and effect and shall in no way be affected. This Agreement is written in both Chinese and English, and the Chinese version and English version shall have the same legal effect. In the case of divergence between the Chinese and English versions, the Chinese version shall prevail. This Agreement shall be governed by, construed, and interpreted in accordance with the laws of the People's Republic of China. Any dispute between the parties arising out of, or in connection with this Agreement shall be governed by the People's Court within jurisdiction in Beijing.