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CROSSVISTA, INC.
TRIAL SOFTWARE LICENSE AGREEMENT
THIS TRIAL SOFTWARE LICENSE AGREEMENT (the 'Agreement'), effective as of the earliest date set forth below (the 'Effective Date'), is between CrossVista, Inc., a Delaware corporation, having its principal place of business at CROSSVISTA, 211 Pine St. #607, Seattle, WA 98101 ('CROSSVISTA' or 'LICENSOR'), and the end user ('LICENSEE'). The provisions of this Agreement shall govern each trial license of CrossVista 'Software Applications' (defined as one (1) individual license copy of CrossVista TEAM Synchronizer and known as 'Trial Copy') granted by CrossVista to Licensee hereunder. Future additional Trial Copies may be described in separately numbered schedules attached and incorporated hereto as mutually agreed to by LICENSOR and LICENSEE.
Subject to the limitations set forth herein, LICENSOR grants, without charge, and LICENSEE accepts, a limited, non-exclusive, non-transferable, royalty free, revocable license to use, solely for trial purposes while this Agreement is in effect and is not otherwise terminated, the Software Applications set forth in the applicable License Certificate. LICENSOR shall provide LICENSEE with one (1) Trial Copy of the Software Applications, to be used solely for purposes authorized in this Agreement and the applicable License Certificate for a period of ninety (30) days from the day of execution of this Agreement (Trial Period) at no charge for the Software Applications. LICENSEE shall not, and shall not permit any other third party to, modify, decompile, reverse engineer, recreate, disassemble, or otherwise attempt to determine the makeup of the Software Applications, 'Tools', 'Objects', or 'Software Code' (as such terms are defined in Section 2 hereof). Limited on-line support is available at no charge during the Trial Period.
The Software Applications, Software Code, Tools, and Objects, in any form, are and shall remain the sole and exclusive property of LICENSOR and shall be deemed LICENSOR's 'Confidential Information' (as defined herein). Except as expressly provided in this Agreement, LICENSEE does not acquire any right or license in the Software Applications, Software Code, Tools, or Objects. 'Software Applications' means the software products described in the applicable License Certificate. 'Software Code' means any and all of LICENSOR's proprietary software code, whether source or executable in form. 'Tools' means LICENSOR's proprietary information and know-how used at any time by LICENSOR in the conduct of its business. Tools include, by way of illustration, only technical information, designs, templates, software modules, processes, methodologies, systems used to create computer programs and/or software, procedures, code books, computer programs, plans, and/or any other similar information, including improvements, modifications or developments thereto. 'Objects' mean any and all of LICENSOR's proprietary reusable software code.
LICENSEE shall not use the Software Applications, Tools, Objects or Software Code, except as expressly provided in this Agreement. LICENSEE shall not permit its employees or any other third party to use the Software Applications, Tools, Objects or Software Code, except for those employees of LICENSEE with a need to use the Software Applications to effect the purposes of this Agreement. Notwithstanding any provision of this Agreement to the contrary, LICENSEE shall not: (i) use the Software Applications, Tools, Objects or Software Code for the purpose of analyzing data for commercial purposes; (ii) install the Software Applications on hardware other than LICENSEE's designated computers mutually selected by LICENSOR and LICENSEE for purposes of this Agreement; (iii) use the Software Applications, Tools, Objects or Software Code to develop applications for the purpose of supporting internal or commercial LICENSEE activities; (iv) copy all or any part of the Software Applications, Tools, Objects or Software Code for any reason; (v) sublicense, rent or otherwise make the Software Applications, Tools, Objects or Software Code available any third party with or without a fee (whether in a service bureau environment or otherwise); or (vi) otherwise transfer or grant any rights or access with respect to the Software Applications, Tools, Objects or Software Code to any third party.
LICENSEE acknowledges that in connection with the party's performance under this Agreement, LICENSEE will have access to certain confidential, proprietary or trade secret information owned or provided by LICENSOR (collectively, 'Confidential Information'), including, without limitation, confidential information relating to software computer programs, software computer systems, object code, source code, database schemas, marketing plans, business plans, financial information, specifications, flow charts, other LICENSOR documents, other LICENSOR information and all amendments or modifications thereto. Confidential Information shall not include any of LICENSOR's information that (i) was in the public domain at the time of the LICENSOR's communications of such information to LICENSEE; (ii) entered the public domain through no fault of LICENSEE subsequent to the time of communication to LICENSEE; (iii) was already known to LICENSEE at the time of disclosure without an obligation of confidentiality; (iv) was disclosed under no obligation of confidentiality to LICENSEE by a third party; or (v) the parties have agreed in writing may be disclosed. If LICENSEE is required by applicable law, regulation, court order or legal process to disclose any Confidential Information of LICENSOR, LICENSEE will provide LICENSOR with prompt notice of such request or requirement, and LICENSEE will use reasonable efforts to ensure that all Confidential Information to be disclosed is treated confidentially. Such disclosure of Confidential Information in accordance with the foregoing sentence will not violate the terms of this Agreement. Except as otherwise provided in this Agreement, LICENSEE shall not disclose Confidential Information to anyone other than its employees who have a need to know such Confidential Information in connection with this Agreement. LICENSEE shall notify its employees of its confidentiality obligations with respect to all Confidential Information and shall require such parties to comply with the obligations set forth in this Agreement. The confidentiality obligations of LICENSEE and its employees shall survive the expiration or termination of this Agreement for any reason. LICENSEE acknowledges that LICENSOR believes that LICENSOR's Confidential Information is unique and valuable property and the unauthorized use or disclosure thereof would cause irreparable harm that could not be compensated by monetary damages. Accordingly, LICENSEE agrees that LICENSOR may seek and obtain injunctive and preliminary relief to remedy any actual or threatened unauthorized use or disclosure of Confidential Information.
THE SOFTWARE APPLICATIONS AND ALL PORTIONS THEREOF, AND ANY SERVICES PROVIDED BY LICENSOR HEREUNDER ARE PROVIDED 'AS IS.' LICENSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE RESULTS OBTAINED THEREFROM, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL LICENSOR (OR ITS EMPLOYEES, AGENTS OR SUPPLIERS) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF WHETHER ANY CLAIM IS BASED UPON ANY AGREEMENT, NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, LICENSOR's TOTAL LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE FEES RECEIVED BY LICENSOR FROM LICENSEE HEREUNDER.
The term of this Agreement and the license granted hereunder shall commence on the Effective Date and shall extend for such term as is set forth in the applicable License Certificate. Upon the expiration of the foregoing term, the license granted hereunder shall only be renewed by the parties in a writing executed by each of LICENSOR and LICENSEE.
Except as expressly set forth herein, this Agreement does not constitute a license to use Software Applications, Software Code, Tools, or Objects. The parties acknowledge and agree that LICENSEE is strictly prohibited from using the Software Applications, Software Code, Tools and Objects to develop or create any intellectual property for its benefit or the benefit of any other third party and further agree that any such intellectual property developed or created by LICENSEE in violation of this Agreement shall constitute the sole property of LICENSOR. The parties acknowledge and agree that LICENSEE relinquishes any rights in, or claims of ownership of, any intellectual property conceived of or developed by LICENSOR from any material, information or documents provided to LICENSOR by LICENSEE (the 'Derived Intellectual Property'), and further acknowledge and agree that upon such conception or development by LICENSOR, such Derived Intellectual Property shall constitute the intellectual property of LICENSOR and LICENSOR will own all right, title, and interest in and to such Derived Intellectual Property. LICENSEE hereby grants to LICENSOR a nonexclusive, irrevocable, perpetual, and royalty-free right and license to use the material, information, and documents provided to LICENSOR hereunder for any purpose in connection with the Derived Intellectual Property. Unless otherwise agreed in writing, nothing herein shall be deemed to authorize LICENSEE to use any pending or existing trademark or service mark of LICENSOR. LICENSEE shall not remove or alter any pending or existing copyright or trade secret notice affixed to any software or documentation provided by or through LICENSOR without the express written consent of LICENSOR. The Software Applications, Tools and Objects are provided with the restricted rights set forth in this Section 9. The use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19, and in similar clauses in the NASA FAR Supplement, as applicable.
The rights granted by LICENSOR to LICENSEE hereunder shall not be assigned, sublicensed, encumbered by any security interest or otherwise transferred or resold by LICENSEE (whether by operation of law or otherwise) without the prior written consent of LICENSOR, and any purported assignment, sublicense, encumbrance or other transfer of such rights in violation of this Agreement shall be void and shall terminate this Agreement and the license granted hereunder. An amalgamation, acquisition, or merger of LICENSEE by or with any person or entity who or which is not a party to this Agreement shall be treated as an assignment of this Agreement that is subject to the provisions hereof. LICENSOR may assign its rights and obligations under this Agreement to any party acquiring all or substantially all of its assets, regardless of the form of the transaction.
This Agreement may only be amended by an instrument in writing signed by both parties.
The failure of either party to require the strict performance of any provisions of this Agreement in any one or more instances, or to exercise its rights hereunder at law or equity, shall not constitute a waiver of any provisions or rights under this Agreement, and such provisions and rights shall continue in full force and effect. If any provision of this Agreement is held to be invalid, the remaining provisions of this Agreement will continue to be valid and enforceable.
LICENSEE shall not directly or indirectly export or re-export any services, software, equipment, technology, or data supplied by LICENSOR to LICENSEE under this Agreement, in violation of any applicable law, rule or regulation.
Each party agrees to inform the other of any information made available to the other party that is classified or restricted data, to comply with the security requirements imposed by any state, local or federal government, and except as otherwise provided herein, to return all such material upon request of the other party. Each party warrants that its participation in this Agreement does not conflict with any contractual or other obligation of such party or create any conflict of interest prohibited by the U.S. Government or any other governmental authority, and shall promptly notify the other party if any such conflict arises during the term of this Agreement.
Each party shall maintain commercially reasonable and adequate insurance protection covering its respective activities hereunder, including coverage for statutory worker's compensation, comprehensive general liability for bodily injury and tangible property damage, and coverage for vehicles. Each party shall indemnify and hold the other harmless from liability for bodily injury, death, and tangible property damage resulting from the acts or omissions of such party, its officers, agents, employees or representatives acting within the scope of their work.
LICENSEE acknowledges that a violation by LICENSEE of LICENSOR's intellectual property rights or confidentiality rights would cause irreparable harm to LICENSOR that may not be adequately compensated by monetary damages. In addition to other relief, it is agreed that temporary and permanent injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such rights or to enforce such rights. If LICENSOR prevails in an action for injunctive relief under this Section 17, LICENSOR shall be entitled to recover its costs of enforcement, including reasonable attorneys' fees.
THIS AGREEMENT AND ANY SCHEDULES MADE A PART HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE , EXCLUDING ITS CHOICE OF LAW RULES. ANY PROCEEDING OR DISPUTE RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE INITIATED AND MAINTAINED IN COURTS LOCATED IN SUCH STATE.
The headings of this Agreement are for reference purposes only and do not affect the meaning or construction of the provisions of this Agreement.
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and the parties agree that there are no other representations, warranties or oral agreements relating to the subject matter of this Agreement.
All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party's address set forth below, or to any other address that a party may designate by notice hereunder. All notices shall be (i) delivered by hand, (ii) made by telex or confirmed facsimile transmission, (iii) sent by recognized overnight courier, or (iv) sent by registered or certified mail, return receipt requested, postage prepaid.
CrossVista, Inc.
211 Pine St. #607
Seattle, WA 98101