Software Evaluation & End User License Agreement
1. Background & Purpose. Exago is the owner and licensor of the Software and each of its Application, Documentation and Source Materials components. Licensee desires to review internally through its own employees the features and functions of the Software’s Application component in order to determine whether to purchase certain license rights (the “Evaluation“). Subject to the terms and conditions of this Agreement, Exago is willing to grant to Licensee certain temporary license rights solely for the Evaluation. For good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties each agree to the terms contained in this Agreement.
2. Exago Owns the Software. All right, title and interest throughout the world including all intellectual property rights (including copyrights, trademarks and patents), proprietary rights (including trade secrets) and moral rights (including rights of authorship and subsequent modification) in and related to the Software and in and to all Derivative Works of the Software are solely and exclusively owned by, and are hereby exclusively reserved by, Exago. Other than the license rights expressly granted below in Section 3, no other right, title or interest in or to the Software or any of its components or any of their Derivative Works is transferred or granted to Licensee under this Agreement or otherwise.
3. Grant of Evaluation License. Subject to the terms and conditions of this Agreement, Exago grants to Licensee during the Term (as defined in Section 4) a limited, revocable, nonexclusive, non-transferable, non-assignable right to: (a) load, install, and execute the Application and to display the graphical interface components of the Application solely for the Evaluation at the Authorized Location; (b) reproduce the Application solely as required for reasonable back-up purposes related to the Evaluation; and (c) display and reproduce (provided all proprietary rights notices are retained) the Documentation as reasonably required for the Evaluation (the foregoing rights collectively the “Evaluation License“). Licensee acknowledges and agrees that as an express condition of Exago grant of the Evaluation License: (i) neither Licensee nor any third party acting at Licensee’s direction or under its control shall create Derivative Works of the Application; (ii) Licensee shall not use or exploit in any manner any Source Materials nor reverse engineer, compile, decompile, translate, adapt or disassemble or otherwise attempt to create the Source Materials or other human readable source materials from the Application; and/or (iii) Licensee shall not use or exploit the Application for any purpose other than the Evaluation. Licensee shall not remove any proprietary notices, labels, or marks placed on any Application, Documentation nor deliver to or allow access by any governmental authority without the prior written consent of Exago. Licensee acknowledges that the Evaluation will be conducted solely by Licensee employees and that no third party will be given access to, possession of, or control over the Software or any component thereof.
4. Term & Termination. The term of this Agreement and the Evaluation License shall commence on the Effective Date and, unless earlier terminated, shall expire on the thirtieth (30th) calendar day thereafter (the “Term“). Exago shall have the right, in its sole discretion, to terminate this Agreement and the Evaluation License at any time upon notice to Licensee. If not so earlier terminated, this Agreement and the Evaluation License shall terminate automatically and immediately upon: (a) any breach by Licensee of any term or condition of this Agreement; or (b) execution by the Parties of a separate, definitive, written license agreement for the Software or any component thereof. Within seven (7) business days of any termination or expiration hereof, Licensee shall delete and destroy all copies and embodiments of the Application, Documentation and Confidential Information (as defined in Section 5) in whatever form or medium, and shall certify to Exago in writing or by e-mail as to such deletion and destruction within twenty-four (24) hours after such deletion or destruction. Exago’s failure to receive written or e-mail confirmation of such deletion or destruction within eight (8) business days of the expiration or termination of this Agreement shall be deemed a material breach of this Agreement, and Exago shall be entitled to receive, as liquidated damages for breach of this Agreement and not as a penalty, the sum of U.S. $100.00 for each day that elapses between the date of expiration or termination of this Agreement and the date that Exago receives notice that Licensee has deleted or destroyed all copies and embodiments of the Application, Documentation and Confidential Information (as defined in Section 5) in accordance with this Section 4.
5. Confidentiality. Exago may disclose to Licensee during the Term certain materials, methodologies, and information (in written, oral, and/or electronic format) including, without limitation, certain of the unique and valuable trade secrets that are or may be contained in portions of the Software (collectively the “Confidential Information“). Licensee shall use the same level of care to protect the Confidential Information as it uses to protect its own most confidential and sensitive information but not less than reasonable care. Licensee shall not disclose any Confidential Information to any individual or entity without the prior written consent of Exago. Except as expressly provided in Section 3 with respect to the Software components of the Confidential Information, nothing in this Agreement shall be construed to grant Licensee any right, title or interest (including, without limitation, any license) in or to Confidential Information. The obligations set forth in this Section 5 shall not apply to Confidential Information that: (a) is already, or otherwise becomes, generally known by third parties as a result of no act or omission of Licensee; (b) subsequent to disclosure hereunder is lawfully received from a third party having the right to disseminate the information and without restriction on disclosure; (c) is generally furnished to others by Exago without restriction on disclosure; (d) is independently developed by Licensee with written evidence of such independent development; or (e) is disclosed pursuant to a legal or administrative order, provided that Exago is given prior notice and a reasonable opportunity to object (with Licensee’s assistance) to such disclosure.
6. Non-Publication of Evaluation Results. The Evaluation License conditions under Section 3 and the confidentiality obligations under Section 5 include an express prohibition on the direct or indirect publication, disclosure or dissemination by Licensee of any type of comparative analysis, benchmarking, summary, report or like information concerning, referencing or describing the Application or its performance at any time during the Term or thereafter except with the express written consent of Exago in each instance.
7. Warranties. Subject to the warranty conditions described in this Section 7, Exago represents and warrants that Exago has used industry-accepted practices to ensure that, as of the Effective Date: (a) the medium on which the Application is recorded is free from material defects; and (b) industry accepted practices were used to scan the Application for known viruses. Licensee’s sole remedy and Exago’ sole liability for breach of the warranty provided in this Section 7 shall be to return the media on which the Application is delivered and receive a replacement therefor. The warranties provided in this Section 7 shall become null, void and unenforceable in all respects and Exago shall have no liability whatsoever with regard to the Software (including under this Section 7) if the Application: (i) is installed, implemented, modified or enhanced by any party (including the employees of Licensee) other than Exago; (ii) is used on or in combination with any software, equipment or hardware not supplied by Exago.
8. No Other Warranties; UCITA Opt-Out. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN SECTION 7, THE APPLICATION AND DOCUMENTATION ARE PROVIDED “AS-IS” AND THEIR USE IS AT LICENSEE’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXAGO SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND THE PARTIES HEREBY VOLUNTARILY, EXPRESSLY, IRREVOCABLY AND PERPETUALLY OPT-OUT OF ANY AND ALL APPLICABLE PROVISIONS OF THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (AND ALL SUCCESSOR OR AMENDED ACTS WHICH ARE OR MAY BE ADOPTED IN ANY JURISDICTION). EXAGO DOES NOT WARRANT THAT THE SOFTWARE SHALL BE OPERABLE, UNINTERRUPTED OR ERROR FREE, THAT IT MEETS LICENSEE’S REQUIREMENTS OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR HARDWARE. EXAGO IS NOT OBLIGATED TO PROVIDE ANY SUPPORT WHATSOEVER TO LICENSEE DURING THE TERM.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER EXAGO NOR ITS AFFILIATES, NOR ITS OR THEIR RESPECTIVE, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN ALL EVENTS, THE AGGREGATE, CUMULATIVE LIABILITY OF EXAGO FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT THAT SHALL NOT EXCEED ONE THOUSAND UNITED STATES DOLLARS (U.S. $1,000). CLAIMS FOR DAMAGES MUST BE MADE WITHIN ONE (1) YEAR OF THE INCIDENT TO WHICH THEY RELATE OR BE FOREVER BARRED. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 9 SHALL APPLY TO ALL CLAIMS OR CAUSES OF ACTION IN THE AGGREGATE WHETHER FOR BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, MISREPRESENTATION AND STRICT PRODUCT LIABILITY) AND IRRESPECTIVE OF WHETHER THE PARTY HAS ADVISED OR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH CLAIM, LOSS OR DAMAGE. LICENSEE HEREBY WAIVES ANY CLAIM THAT THESE LIMITATIONS OR EXCLUSIONS DEPRIVE LICENSEE OF AN ADEQUATE REMEDY.
10. Miscellaneous Terms & Conditions. Licensee shall not assign or otherwise transfer this Agreement or the Evaluation License granted hereunder. In the event that any one or more of the provisions of this Agreement shall be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected. The Parties agree to comply with all relevant export laws and regulations of the United States, to bear their own costs in connection with such compliance and to indemnify one another from any costs arising out of actual or alleged non-compliance. This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut, without regard to principles of conflicts of law. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous or contemporaneous agreements. This Agreement shall not be modified or amended or the Term extended except in a writing signed by a duly authorized representative of each Party, including an electronic signature or other affirmative indication of assent (e.g., by clicking “I accept” when prompted on a screen). The headings in this Agreement are used for convenience of reference and shall not be deemed to modify or affect the interpretation of this Agreement. This Agreement may be executed in separate, identical counterparts, each of which shall be deemed an original, and all of which shall be deemed one and the same instrument. An electronic or .pdf signature or other indication of assent (e.g., by clicking “I accept” when prompted on a screen). shall be deemed an original signature for all purposes. All notices required or permitted to be given by either Party under this Agreement shall be sent by registered or certified mail or by reputable overnight commercial delivery to the address specified in the initial paragraph of this Agreement and shall be deemed given three (3) business days after having been sent. Sections, 2, 4, 5, 6 the sole remedy provisions of Section 7, Section 8 and 9 and those portions of this Section 10 which by their nature should survive, shall survive the termination or expiration of this Agreement unless such survival is superseded by a separate definitive written agreement between the Parties. The waiver by Exago of any breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
11. Certain Definitions. The terms set forth below shall have the meaning ascribed to them in this Section 11 wherever they are used throughout this Agreement.
11.1 Application. The term “Application” shall mean the object code form of the computer software application identified by version and name as follows: eWebReports Version: v3.
11.2 Derivative Works. The terms “Derivative Works” and “Derivative Work” shall have the meanings ascribed to them under the United States Copyright Act (as amended) located at Title 17 U.S.C. as applied to software at law.
11.3 Documentation. The term “Documentation” shall mean the manuals, guides and reference materials provided by Exago, in whatever form or medium, related to the use and maintenance of the Application.
11.4 Software. The term “Software” shall mean the Application, Documentation and Source Materials, collectively.
11.5 Source Materials. The term “Source Materials” shall mean all proprietary, tools, computer code, files, libraries, graphics, business rules, source code, commented source code, schematics, drawings, flowcharts, diagrams, specifications, algorithms, formulae and creative content and other materials related to the Application and Documentation.