10.23 Thirty-Day Evaluation License Agreement with Perpetual Option
IMPORTANT: READ THESE TERMS CAREFULLY BEFORE DOWNLOADING OR INSTALLING THIS
SOFTWARE. BY SELECTING THE "I ACCEPT" BUTTON BELOW, DOWNLOADING, INSTALLING, OR
OTHERWISE USING THIS SOFTWARE (EACH AN "ACCEPTANCE" OF THIS EVALUATION
AGREEMENT), YOU OR THE ENTITY IDENTIFIED BY YOU WHEN ACCEPTING THIS EVALUATION
AGREEMENT (THE "LICENSEE") ACKNOWLEDGE THAT YOU HAVE READ THIS EVALUATION
AGREEMENT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO
NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EVALUATION AGREEMENT, YOU
ARE NOT AN AUTHORIZED USER OF THE SOFTWARE AND IT IS YOUR RESPONSIBILITY TO EXIT
THIS DOWNLOADING / INSTALLATION PROCESS WITHOUT DOWNLOADING, INSTALLING OR
OTHERWISE USING THE SOFTWARE BY SELECTING THE "I DO NOT ACCEPT" BUTTON BELOW,
AND TO DELETE THE SOFTWARE FROM YOUR COMPUTER.
DUE TO GOVERNMENT PROCUREMENT REGULATIONS AND SIMILAR LAWS AND REGULATIONS WHICH
MAY VARY FROM JURISDICTION TO JURISDICTION, THIS EVALUATION AGREEMENT IS NOT
INTENDED FOR USE BY NATIONAL, FEDERAL, STATE, PROVINCIAL OR LOCAL GOVERNMENTAL
ENTITIES OR OTHER QUASI-GOVERNMENTAL ENTITIES SUCH AS AUTHORITIES, AGENCIES,
COMMISSIONS, ETC., OR ANY OTHER ENTITY WHOSE USE OR LICENSING OF THE SOFTWARE IS
GOVERNED BY OR SUBJECT TO SUCH LAWS OR REGULATIONS. IF LICENSEE IS SUCH AN
ENTITY, THIS EVALUATION AGREEMENT AND THE LICENSE SHALL NOT APPLY. SUCH ENTITIES
SHOULD CONTACT LICENSOR DIRECTLY FOR THE APPROPRIATE LICENSE.
1. Definitions (a) Authorized Use. "Authorized Use" shall mean, subject to the
restrictions set forth herein, the installation and operation of the Software
[on a computer or a computer network] owned or operated by Licensee, solely for
Licensee's internal use in a non-production environment. Licensee shall not in
any way use the Software to provide, or use the Software as part of, any
commercial service or application, and shall use the Software solely for
evaluation purposes in contemplation of entering into the License Agreement.
Without limitation of the above: (i) Licensee may only make one copy of the
Software as necessary for bona fide backup or archival purposes, (ii) no
identifying marks, copyright or proprietary rights notices may be deleted from
the Software or any copies of the Software made by Licensee, (iii) Licensee
shall not rent, lease, loan, sell, transfer, publish, display, distribute,
disclose or otherwise make the Software available to third parties or use the
Software, or any portion thereof, in a service bureau, time-sharing or
outsourcing service or otherwise use the Software for the benefit of third
parties, and (iv) Licensee shall not modify, translate, create derivative works
from or decompile the Software, or any portion thereof, or create or attempt to
create, by reverse engineering or otherwise, the source code from the object
code supplied hereunder, or adapt the Software, or any portion thereof, in any way.
(b) Effective Date. "Effective Date" shall mean the date that Licensee
first Accepts this Evaluation Agreement.
(c) Evaluation Term. "Evaluation Term" shall mean the period commencing on
the Effective Date and continuing for a period of thirty (30) days thereafter
unless earlier terminated pursuant to Section 3.
(d) License Agreement. "License Agreement" shall mean the License
Agreement attached hereto as Exhibit A, under which Licensor may grant Licensee
a license to use the Software perpetually, subject to the terms and conditions therein.
(e) Licensor. "Licensor" shall mean (i) if, on the Effective Date,
Licensee [resides] in Peru, Licensor Ltd., a Peruvian private limited company,
or (ii) if, on the Effective Date, Licensee [resides] outside of Peru, Licensor,
Inc., a [____]
(f) Software. "Software" shall mean Licensor's computer software program
known as XXXX, as downloaded and installed pursuant to this Evaluation
Agreement, in machine-executable form only, and any related documentation (the
"Documentation").
Software License. Subject to the terms and conditions set forth in
this Evaluation Agreement, Licensor grants to Licensee a limited, non-exclusive
and non-transferable license, solely during the Evaluation Term, to install and
operate the Software, in machine-executable form only, solely for Licensee's
Authorized Use (the "License"). Licensee is solely responsible for acquiring,
installing, operating and maintaining the hardware and software environment
necessary to operate the Software. Licensee shall maintain accurate and up-to-
date records of the number and location of any authorized copy Licensee makes of
the Software.
Term; Termination; Effect of Termination; Entry into License
Agreement.
(a) Term; Termination. The term of this agreement shall be for the
Evaluation Term. Licensor shall have the right to terminate this Evaluation
Agreement for any reason or no reason upon written notice to Licensee.
(b) Effect of Termination. The termination or expiration of this
Evaluation Agreement shall automatically, and without further action by
Licensor, terminate and extinguish the License and all rights granted to
Licensee hereunder. In the event of termination or expiration of this Evaluation
Agreement for any reason, Licensor shall have the right, at any time, to take
immediate possession of the Software, and all copies thereof, wherever located.
Within fourteen (14) days after the termination or expiration of the License
granted hereunder, Licensee shall return the Software, including all portions
and copies thereof, to Licensor, or upon request of Licensor, destroy the
Software and all portions and copies thereof and certify in writing that the
same have been destroyed. Sections 3(b), 4, 5, 6, 7, 8, 9, 10 and 11 shall
survive the expiration or termination hereof for any reason.
(c) Entry into License Agreement. In the event that Licensee desires to
enter into the License Agreement, Licensee shall, before the expiration or
termination of the Evaluation Term, notify Licensor in writing or by e-mail of
such desire and make payment to Licensor of the applicable license fees under
the License Agreement. By making such payment to Licensor, Licensee thereby
offers to enter into the License Agreement with Licensor. Licensor's acceptance
of such payment in full and provision to Licensee of a license key enabling the
Software to continue to be used beyond the Evaluation Term shall be considered
an acceptance of such offer and the License Agreement shall then be deemed to
have been entered into by and between Licensor and Licensee.
2. Proprietary Rights. Licensee acknowledges that the Software is the sole and
exclusive property of Licensor or Licensor's licensors, including, without
limitation, all rights to patents, copyrights, trademarks, trade secrets and any
other intellectual property and proprietary rights inherent therein or
appurtenant thereto, in all media now known or hereinafter developed. The
Software includes certain computer software which is copyrighted by Licensor
and/or Licensor's affiliates and/or licensors. Without limitation of the
foregoing, Licensee agrees and acknowledges that, as between Licensee and
Licensor, Licensor retains title to the Software and any copies thereof.
Licensee is not purchasing title to the Software or copies thereof, but rather
is being granted only a license to use the Software. All rights not granted to
Licensee herein are reserved to Licensor.
3. Confidentiality(a) Confidential Information. Licensee shall (and shall ensure that its
employees and agents shall) maintain the strict confidentiality of the Software
and all information and materials con-tained in or related to the Software and
all information and materials conveyed by Licensor to Licensee hereunder or
under the License Agreement, including but not limited to any license keys
provided to Licensee at any time, financial records and the Software's features
and modes of operation, inventions (whether or not patentable), techniques,
processes, algorithms, schematics, testing procedures, software design and
architecture, computer code, internal documentation, design and functional
specifications, analysis and performance information, user documentation and
other technical information, plans and data (collectively, the "Licensor
Proprietary Information").
(b) Non-Disclosure. Licensee shall not permit anyone other than its own
most trusted employees with a need to know to access or use the Licensor
Proprietary Information. Licensee shall not disclose the Licensor Proprietary
Information to any third party and shall not use the Licensor Proprietary
Information other than as expressly authorized hereunder. Furthermore, Licensee:
(a) recognizes that the unauthorized use or disclosure of Licensor Proprietary
Information will give rise to irreparable injury to Licensor or its licensors or
affiliates for which monetary damages may be an inadequate remedy; and (b)
agrees that Licensor or its licensors or affiliates may seek and obtain
injunctive relief against the breach or threatened breach of Licensee's
obligations hereunder, in addition to any other legal and equitable remedies
which may be available to Licensor.
(c) Non-Compete. During the Evaluation Term (and the Term of the License
Agreement in the event it is entered into by the parties), and for a period of
twelve (12) months after the Evaluation Term or Term, as applicable, Licensee
agrees that it shall not, directly or indirectly, develop, release, distribute
or otherwise offer a product that has similar functionality to the Software or
that may otherwise compete, directly or indirectly, with the Software. Licensee
acknowledges that the breach, or threatened breach, by Licensee of this Section
5(c) will cause irreparable harm to Licensor, which harm cannot be fully
redressed by the payment of damages to Licensor. Licensee further agrees and
acknowledges that, due to the nature of Licensor's disclosure to Licensee of
Licensor Proprietary Information (including without limitation the Software),
the restrictions contained in this Section 5(c) are reasonable under the
circumstances.]
4. Indemnity. Licensee will, at its own expense, indemnify, defend and hold
harmless Licensor, its parents, subsidiaries and affiliates, and their
respective directors, officers, employees and agents, from and against any
action brought by a third party against such entities to the extent that such
action is based on a claim arising from or relating to Licensee's use of the
Software. Licensor shall have the exclusive right to control such defense. In no
event shall Licensee settle any such claim, lawsuit or proceeding in any manner
that materially prejudices Licensor's rights without Licensor's prior written approval.
5. Warranty; Disclaimer; High Risk Activities; Time Limiting Device(a) Warranty. Licensee hereby represents and warrants that: (a) it shall
use the Software, and require that its employees and agents use the Software,
only for Authorized Use, and (b) all registration and payment information
provided by Licensee to Licensor relating to this transaction, whether via
online forms or otherwise, is accurate and complete and that the person
Accepting the terms hereof is authorized to bind to this Evaluation Agreement
the entity identified by it as the licensee under this Evaluation Agreement.
(b) DISCLAIMER. THE SOFTWARE IS BEING LICENSED HEREUNDER WITH NO WARRANTY
WHATSOEVER. LICENSEE ACKNOWLEDGES THAT ITS USE OF THE SOFTWARE IS AT ITS OWN
RISK. THE SOFTWARE IS PROVIDED SOLELY ON AN "AS-IS" BASIS. LICENSOR AND ITS
AFFILIATES AND LICENSORS MAKE, AND LICENSEE RECEIVES, NO WARRANTIES, EXPRESS OR
IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE. LICENSOR, ITS
AFFILIATES AND LICENSORS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, FITNESS FOR A PARTICULAR
PURPOSE, AND/OR NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE OPERATION
OF THE SOFTWARE SHALL BE OPERABLE, UNINTERRUPTED OR ERROR FREE OR THAT IT WILL
FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT.
(c) High Risk Activities. The Software is not designed, manufactured or
intended for use or resale in hazardous environments requiring fail-safe
performance, such as in the operation of nuclear facilities, aircraft navigation
or communication systems, air traffic control, direct life support machines, or
weapons systems, in which the failure of the Software could lead directly to
death, personal injury, or severe physical or environmental damage ("High Risk
Activities"). Licensor specifically disclaims any express or implied warranty of
fitness of the Software for High Risk Activities.
(d) TIME LIMITING DEVICE. LICENSOR ACKNOWLEDGES THAT THE SOFTWARE MAY
CONTAIN A TIME-LIMITING DEVICE BY WHICH THE SOFTWARE MAY NOT OPERATE BEYOND THE
EVALUATION TERM.
6. Limitation of Liability. LICENSOR AND LICENSOR'S LICENSORS AND AFFILIATES
SHALL HAVE NO LIABILITY WITH RESPECT TO THIS EVALUATION AGREEMENT OR OTHERWISE
FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES,
INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION,
OR LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE
SOFTWARE, EVEN IF LICENSOR OR LICENSOR'S LICENSORS OR AFFILIATES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR OR
LICENSOR'S LICENSORS OR AFFILIATES BE LIABLE FOR ANY REASON AND UPON ANY CAUSE
OF ACTION WHATSOEVER RELATING TO ANY THIRD PARTY SOFTWARE OR HARDWARE. IN NO
EVENT SHALL LICENSOR'S OR ITS LICENSORS' OR AFFILIATES' AGGREGATE LIABILITY FOR
ANY REASON(S) AND UPON ANY CAUSE(S) OF ACTION WHATSOEVER EXCEED $______.
7. EXPORT RESTRICTIONS. LICENSEE'S RIGHTS HEREUNDER ARE EXPRESSLY MADE SUBJECT
TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT
OR IMPORT OF THE SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE
IMPOSED FROM TIME TO TIME BY ANY GOVERNMENT. LICENSEE SHALL NOT EXPORT, REEXPORT
OR IMPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR
DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF LICENSOR AND COMPLIANCE WITH SUCH
LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
8. Governmental Licensees. Due to government procurement regulations and similar
laws and regulations which may vary from jurisdiction to jurisdiction, this
Evaluation Agreement is not intended for use by national, federal, state,
provincial or local governmental entities or other quasi-governmental entities
such as authorities, agencies, commissions, etc., or any other entity whose use
or licensing of the Software is governed by or subject to such laws or
regulations. If licensee is such an entity, this Evaluation Agreement and the
License shall not apply. Such entities should contact Licensor directly for the
appropriate license.
9. General. This Evaluation Agreement constitutes the complete and exclusive
statement of the terms and conditions between the parties, and supersedes and
merges all prior proposals, understandings and other agreements, oral and
written, between the parties, relating to the subject matter hereof. Licensor's
obligations under this Evaluation Agreement shall be subject to force majeure.
This Evaluation Agreement may not be modified or altered except by written
instrument duly executed by both parties. The failure of either party to
exercise any right provided for herein shall not be deemed a waiver of any
further right hereunder. No action, regardless of form, arising out of this
Evaluation Agreement may be brought by Licensee more than one (1) year after the
cause of action has arisen. Licensee may not assign, sublicense or transfer,
without the prior written consent of Licensor, its rights, duties or obligations
under this Evaluation Agreement, in whole or in part, to any person or entity.
[The construction, interpretation and performance of this Evaluation Agreement
and all transactions under it shall be governed by the laws of the
________________, but excluding both _______________choice of laws' rules and
the U.N. Convention for the International Sales of Goods. The parties agree that
any action relating to this Evaluation Agreement shall be instituted and
prosecuted in a court of competent jurisdiction in _________________and each
party waives its right to a change of jurisdiction or venue.] Should any
provision of this Evaluation Agreement be held to be void, invalid,
unenforceable or inoperative, the remaining provisions of this Evaluation
Agreement shall not be affected and shall continue in effect and the invalid
provision shall be deemed modified to the least degree necessary to remedy such
invalidity. It is expressly agreed that Licensor and Licensee are acting
hereunder as independent contractors. Any notice provided by Licensee to
Licensor pursuant to this Evaluation Agreement shall be in writing: (a) if
Licensor is Licensor Ltd. as set forth in Sec-tion 1(e), then to Licensor Ltd.,
and (b) if Licensor is Licensor, Inc. as set forth in Section 1(e), then to
Licensor Software, Inc., Notices to Licensor shall be deemed given (i) if by
hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after
deposit in the U.S. mails, postage prepaid, certified mail, return receipt
requested; or (iii) if by next day delivery service, upon such delivery. Any
notice provided by Licensor to Licensee pursuant to this Evaluation Agreement
shall be sent to the e-mail or mailing address provided by Licensee upon
registering for this Evaluation Agreement, and shall be deemed given (i) if by
hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after
deposit in the U.S. mails, postage prepaid, certified mail, return receipt
requested; (iii) if by next day delivery service, upon such delivery; or (iv) if
by e-mail, upon the date sent, provided that such e-mail is not bounced back as
undeliverable. Either party may change its address by giving written notice to
the other party. The headings contained in this Evaluation Agreement are for
convenience purposes only and shall not effect the construction or application
of this Evaluation Agreement. I ACCEPT
I DO NOT ACCEPT
LICENSE AGREEMENT
("AGREEMENT")
10. Definitions (a) Authorized Use. "Authorized Use" shall mean, subject to the
restrictions set forth below, internal use only [on the number of machines for
which Licensee subscribed and has paid the applicable License Fees to Licensor.
Without limitation of the above: (i) Licensee may only make one copy of the
Software as necessary for bona fide backup or archival purposes, (ii) no
identifying marks, copyright or proprietary rights notices may be deleted from
the Software or any copies of the Software made by Licensee, (iii) Licensee
shall not rent, lease, loan, sell, transfer, publish, display, distribute,
disclose or make the Software available to third parties or use the Software, or
any portion thereof, in a service bureau, time-sharing or outsourcing service or
otherwise use the Software for the benefit of third parties, and (iv) Licensee
shall not modify, translate, create derivative works from or decompile the
Software, or any portion thereof, or create or attempt to create, by reverse
engineering or otherwise, the source code from the object code supplied
hereunder, or adapt the Software, or any portion thereof, in any way.
(b) Effective Date. "Effective Date" shall mean the date that Licensee and
Licensor enter into this Agreement as set forth in Section 3(c) of the
Evaluation Agreement.
(c) Evaluation Agreement. "Evaluation Agreement" shall mean the Thirty
(30) Day Evaluation License Agreement to which this Agreement is attached, under
which Licensee is granted a right to evaluate the Software subject to the terms
and conditions therein.
(d) License Fee. "License Fees" shall be as set forth in Licensor's
current applicable price list, depending on the number of licenses Licensee
orders, plus any applicable Taxes (as defined in Section 5).
(e) Licensor. "Licensor" shall have the meaning set forth in the
Evaluation Agreement.
(f) Software. "Software" shall have the meaning set forth in the
Evaluation Agreement. For all purposes of this Agreement, Upgrades shall be
included within the definition of Software.
(g) Support. "Support" shall mean: (i) the right of Licensee to download
from the Licensor's web site upgrades to the Software that are made generally
available by Licensor to similarly situated licensees where the number prior to
the first period in the version number has not changed (collectively,
"Upgrades"), and (ii) solely for the first twelve (12) months of the Term, e-
mail based support with respect to Licensee's use of the Software, with no
guarantees with respect to response times. In no event does Licensor represent
or warrant that Support will remedy any problem with the Software.
(h) Term. "Term" shall mean the period commencing on the Effective Date
and continuing perpetually unless earlier terminated pursuant to Section 4.
11. Software License. (a) License. Subject to the terms and conditions set forth in this
Agreement and Licensee's payment of the License Fees, Licensor grants to
Licensee a limited, non-exclusive and non-transferable license, solely during
the Term, to install and operate the Software, in machine-executable form only,
solely for Licensee's Authorized Use (the "License"). Licensee is solely
responsible for acquiring, installing, operating and maintaining the hardware
and software environment necessary to operate the Software. Licensee shall
maintain accurate and up-to-date records of the number and location of any
authorized copy Licensee makes of the Software.
(b) License Key. Upon Licensor's receipt from Licensee of the applicable
License Fees, Licensor shall issue Licensee a license key which shall enable
Licensee to use the Software beyond the Evalua-tion Term of the Evaluation
Agreement.
12. Support. Subject to the terms and conditions set forth in this Agreement,
Licensor shall provide Support to Licensee. Notwith-standing anything to the
contrary, Licensor shall have no obligation hereunder to provide Support for
corrections of difficulties or defects due to Licensee's computer hardware,
third party software, computer environment, computer operating system or other
causes external to the Software, and Licensor shall have no obligation to
provide Support for third party software or Software that has been modified from
its standard form as provided by Licensor. Support under this Agreement shall
continue: (i) only so long as Licensee maintains the most current installed
version of the Software with all updates, new releases, bug fixes and Upgrades
released by Licensor, and so long as the equipment on which the Software is
installed is configured as specified in the Documentation; and (ii) until
termination or expiration of this Agreement for any reason. Notwithstanding
anything to the contrary herein, Licensee shall be solely responsible for
backing up the Software and performing other basic maintenance as set forth in
the Documentation or instructions which may be provided by Licensor from time to
time. Services provided by Licensor beyond the Support provided hereunder shall
be subject to additional fees.
13. Term; Termination; Effect of Termination
(a) Term; Termination. The term of this agreement shall be for the Term.
Licensor shall have the right to immediately terminate this Agreement with no
refund of License Fees: (a) for a material breach of this Agreement by Licensee
(including, without limitation, Licensee's failure to meet its payment
obligations hereunder), or (b) if Licensee becomes insolvent or is unable to pay
its debts as due, enters into or files (or has filed or commenced against it) a
petition, arrangement, action or other proceeding seeking relief or protection
under the bankruptcy laws of the United States or similar laws of any other
jurisdiction or transfers all of its assets to another person or entity.
(b) Effect of Termination. The termination or expiration of this Agreement
shall automatically, and without further action by Licen-sor, terminate and
extinguish the License and all rights granted to Licensee hereunder. In the
event of termination or expiration of this Agreement for any reason, Licensor
shall have the right, at any time, to take immediate possession of the Software,
and all copies thereof, wherever located. Within fourteen (14) days after the
termination or expiration of the License granted hereunder, Licensee shall
return the Software, including all portions and copies thereof, to Licensor, or
upon request of Licensor, destroy the Software and all portions and copies
thereof and certify in writing that the same have been destroyed.
Notwithstanding the foregoing, Sections 4(b), 5, 6, 7 and 8 shall survive the
expiration or termination hereof for any reason.
14. Payment. Licensee shall pay the non-refundable License Fees, including all
applicable sales, use, transfer or other taxes and all duties, whether
international, national, state, or local, however designated, which are levied
or imposed by reason of the transaction contemplated hereby, excluding, however,
taxes which may be levied on the net income of Licensor ("Taxes"). Licensee
shall reimburse Licensor for the amount of any such Taxes paid or accrued
directly by Licensor as a result of this transaction. If Licensee fails to pay
License Fees or Taxes by their due date, without limitation of other rights and
remedies, at Licensor's request, Licensee shall pay late charges of one and one
half percent (1.5%) per month, together with all of Licensor's expenses and
collection costs, including reasonable attorneys' fees, incurred in enforcing
the Agreement. Payments shall be paid in U.S. currency. Any rate of exchange
which may be applicable to payments due or other monetary calculations for
purposes of this Agreement shall be the rate set forth in the Wall Street
Journal on the day that the pay-ment is due.
15. Proprietary Rights; Confidentiality; Indemnity; Warranty, Dis-claimer; High
Risk Activities; Export Restrictions; Governmental Licensees. Sections 4, 5, 6,
7 (other than subsection 7(d)), 9 and 10 of the Evaluation Agreement are hereby
incorporated herein by reference and such Sections shall survive the termination
or expiration hereof.
16. Limitation of Liability. LICENSOR AND LICENSOR'S LICENSORS AND AFFILIATES
SHALL HAVE NO LIABILITY WITH RESPECT TO THIS AGREEMENT OR OTHERWISE FOR SPECIAL,
INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING
DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF
INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF
LICENSOR OR LICENSOR'S LICENSORS OR AFFILIATES HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR OR LICENSOR'S LICENSORS
OR AFFILIATES BE LIABLE FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER
RELATING TO ANY THIRD PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL LICENSOR'S
OR ITS LICENSORS' OR AFFILIATES' AGGREGATE LIABILITY FOR ANY REASON(S) AND UPON
ANY CAUSE(S) OF ACTION WHATSOEVER EXCEED THE AMOUNT PAID BY LICENSEE HEREUNDER.
17. General. This Agreement constitutes the complete and exclusive statement of
the terms and conditions between the parties, and supersedes and merges all
prior proposals, understandings and other agreements, oral and written, between
the parties, relating to the subject matter hereof. Licensor's obligations under
this Agreement shall be subject to force majeure. This Agreement may not be
modified or altered except by written instrument duly executed by both parties.
The failure of either party to exercise any right provided for herein shall not
be deemed a waiver of any further right hereunder. No action, regardless of
form, arising out of this Agreement may be brought by Licensee more than one (1)
year after the cause of action has arisen. Licensee may not assign, sublicense
or transfer, without the prior written consent of Licensor, its rights, duties
or obligations under this Agreement, in whole or in part, to any person or
entity. [The construction, interpretation and performance of this Agreement and
all transactions under it shall be governed by the laws of
______________________, but excluding both ______________choice of laws' rules
and the U.N. Convention for the International Sales of Goods. The parties agree
that any action relating to this Agreement shall be instituted and prosecuted in
a court of competent jurisdiction in __________________and each party waives its
right to a change of jurisdiction or venue.] Should any provision of this
Agreement be held to be void, invalid, unenforceable or inoperative, the
remaining provisions of this Agreement shall not be affected and shall continue
in effect and the invalid provision shall be deemed modified to the least degree
necessary to remedy such invalidity. It is expressly agreed that Licensor and
Licensee are acting hereunder as independent contractors. Any notice provided by
Licensee to Licensor pursuant to this Evaluation Agreement shall be in writing:
(a) if Licensor is Licensor Ltd. as set forth in Section 1(e), then to Licensor
Ltd, and (b) if Licensor is Licensor, Inc. as set forth in Section 1(e), then to
Licensor, Inc. Notices to Licensor shall be deemed given (i) if by hand
delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in
the U.S. mails, postage prepaid, certified mail, return receipt requested; or
(iii) if by next day delivery service, upon such delivery. Any notice provided
by Licensor to Licensee pursuant to this Agreement shall be sent to the e-mail
or mailing address provided by Licensee upon registering for the Evaluation
Agreement, and shall be deemed given (i) if by hand delivery, upon receipt
thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage
prepaid, certified mail, return receipt requested; (iii) if by next day delivery
service, upon such delivery; or (iv) if by e-mail, upon the date sent, provided
that such e-mail is not bounced back as undeliverable. Either party may change
its address by giving written notice to the other party. The headings contained
in this Agreement are for convenience purposes only and shall not effect the
construction or application of this Agreement.
