POLYSERVE, INC. SOFTWARE EVALUATION LICENSE AGREEMENT (20050215)
IMPORTANT: READ
THIS DOCUMENT CAREFULLY. THIS SOFTWARE
EVALUATION LICENSE
AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT
BETWEEN THE COMPANY NAMED BELOW
ON WHOSE BEHALF YOU ARE ACCEPTING THESE TERMS
("LICENSEE") AND POLYSERVE, INC.
("POLYSERVE").
BY INSTALLING, DOWNLOADING, COPYING, ACCESSING OR
OTHERWISE USING POLYSERVE'S
SOFTWARE AS SPECIFICALLY IDENTIFIED AND DEFINED IN THIS
AGREEMENT ("SOFTWARE"),
YOU ARE:
(I) AGREEING THAT YOU ARE AUTHORIZED TO BIND LICENSEE TO
THIS AGREEMENT, AND
THAT YOU ACCEPT, ON BEHALF OF LICENSEE, TO BE BOUND TO
THE TERMS AND CONDITIONS
OF THIS AGREEMENT; AND
(II) CERTIFYING THAT NEITHER YOU NOR LICENSEE ARE AN
ENTITY TO WHICH SHIPMENTS
OF SOFTWARE ARE CONTROLLED OR EMBARGOED BY THE UNITED
STATES GOVERNMENT, AND
THAT YOU SHALL NOT USE THE
THE SOFTWARE TO ANY ENTITY TO WHICH SHIPMENT OF SOFTWARE,
IS CONTROLLED OR
EMBARGOED BY THE UNITED STATES GOVERNMENT.
Specifically, neither the Software nor the Documentation,
and underlying
information or technology, may be downloaded or otherwise
exported or
re-exported, transferred or diverted: (a) into (or to a
national or resident
of)
to which the
on the U.S. Treasury Department's list of Specially
Designated Nations or the
List"; and (III) "Denied Parties List"; or
(c) for any end-use or
application related to the design, development,
production, stockpiling,
testing or use of any nuclear, chemical or biological
weapons or missile.
By downloading or using the Software, Licensee is
agreeing to the foregoing and
is certifying that Licensee is not located in, under the
control of, or a
national or resident of any such country, or on any such
list, and shall not
so use the Software.
SOFTWARE LICENSE
0.1 Licensed
Software:
Matrix Server, Cluster Volume Manager Option, File Serving Solution Pack, Database Solution Pack
0.2 Licensed
Number of CPUs:
16 CPUs
0.4 Term
The Term commences on the date this agreement is accepted
and terminates thirty (30) days thereafter.
1. LICENSE
RIGHTS. Subject to the terms of this
Agreement,
grants Licensee, at no license fee, a non-exclusive,
non-transferable
license to install and use one copy of the Software for
evaluation and
test purposes only during the Term solely: (i) at the
Evaluation Site,
provided that such location is not in violation of any
applicable laws,
(ii) on no more than the specified number of Servers;
(iii) on the specified
operating systems.
Notwithstanding anything to the contrary, in no event shall
Licensee be entitled to use the Software for: (a)
production purposes; or (b)
for purposes of improving the efficiency of internal data
processing
operations; or (c) to modify the Software; or (d)
competitive analysis. No
license, right, or interest in any
mark is granted pursuant to this Agreement. All rights not expressly granted
pursuant to this Agreement are reserved by
"Documentation" means only those technical
publications published by
directly relating to the use of the Software, such as
technical tips, release
notes, user, installation, and systems administrator
guides delivered by
Documentation.
"Server" means the functional unit that
contains one or more central
processing units and associated memory running its own
operating system.
"Software"
means, collectively, all or any portions of the commercially-
available version of the
related object code set forth above.
2. LICENSE
EXCLUSIONS. Licensee shall not:
a. Copy the
Software;
b. Cause or
permit disassembly, reverse compilation, reverse
engineering, or reverse assembly of all or any portion of
the Software,
except to the extent permitted by applicable law, and only to the extent that
c. Distribute,
disclose, market, rent, lease or transfer to any third
party any portion of the Software or Documentation, or
use the Software
or Documentation in third-party training;
d. Disclose to
any third party or publish the results of the evaluation,
any Software testing, including performance benchmarks or
any concerns
regarding
e. Export the
Software in violation of U.S. Department of Commerce
export administration regulations.
3. LICENSE TERM
AND TERMINATION. This Agreement will
terminate on the last
date of the Term.
Within ten (10) days after termination of this Agreement,
each party shall destroy all copies of Confidential
Information of the other
party.
4. EVALUATION. Licensee agrees that
in any manner and for any purpose, any information related
to the Software
obtained as a result of Licensee's use of the Software
pursuant to this
Agreement including, without limitation, incorporation of
such information
into software programs and written documentation for
assignment, license,
and/or other transfer to third parties; provided,
however, that
not identify Licensee in any marketing materials or
endorsements regarding the
Software.
"Intellectual Property" means any: (i) patent; (ii) copyright,
derivative works thereto and screen shots; (iii) trademark, trade name, logo,
corporate symbol, product name or legends; (iv) trade
secret; (v) know-how;
(vi) software code, including the Software; and (vii) any
other intellectual
property right owned by, or licensed to,
unregistered.
5. SUPPORT.
to install, support, maintain or repair the
Software.
Licensee telephone access to
6. TITLE AND
PROTECTION.
applicable) owns and retains title to all Intellectual
Property, including,
without limitation, all portions of the Software,
Documentation, and any
copies thereof and any modifications thereto. Title to the physical media for
the Software shall vest in Licensee upon delivery.
the Software and Documentation contains valuable
proprietary information.
7. CONFIDENTIAL
INFORMATION. "Confidential
Information" means all
information disclosed by one party ("Disclosing
Party") to the other
("Recipient") pursuant to this Agreement that
the Disclosing Party has
designated as being confidential or should be reasonably
understood to be
confidential.
limitation, the Software and Documentation, information
proprietary to
herein. Each party
shall protect the other party's Confidential Information
with at least the same degree of care and
confidentiality, but not less than a
reasonable standard of care, which the party utilizes for
its own confidential
information that it does not wish disclosed to the
public. Recipient shall
not disclose any Disclosing Party's Confidential
Information, whether orally
or in writing, to any third party without the prior
written consent of the
Disclosing Party, provided, however, Licensee may
disclose the Software or
Documentation only to those of its employees or
consultants under
nondisclosure obligations with Licensee who have a need
to access the Software
and/or Documentation for purposes consistent with this
Agreement.
This Agreement imposes no obligation upon either party
with respect to the
other party's Confidential Information which the
Recipient can establish by
legally sufficient evidence: (a) was in the possession
of, or was rightfully
known by the Recipient without an obligation to maintain
its confidentiality
prior to receipt from the Disclosing Party; (b) is or
becomes generally known
to the public without violation of this Agreement; (c) is
obtained by the
Recipient in good faith from a third party having the
right to disclose it
without an obligation of confidentiality; or (d) is
independently developed by
the Recipient without the participation of individuals
who have had access to
the Disclosing Party's Confidential Information. Disclosure of Confidential
Information that was required to be disclosed by
applicable law shall not be
considered a breach of this term; provided that the
Recipient notifies the
Disclosing Party of such requirement prior to disclosure,
and provided further
that the Recipient makes diligent efforts to limit
disclosure.
8. INDEMNIFICATION.
any claim alleging that the Software infringes any
copyright brought by a third party asserting rightful
ownership pursuant to a
lawsuit filed in a court of competent jurisdiction to
which Licensee is named
as a defendant provided that: (i) Licensee gives
notice in writing of any such suit and permits
its choice, to answer the charge of infringement and
defend such claim or
suit; (ii) Licensee provides
to enable
responsible for any settlement made by Licensee without
permission; and (d) the Agreement and the license to the
Software granted
thereto shall be immediately terminated.
to indemnify or defend Licensee to the extent the alleged
infringement is
based on: (a) a modification of the Software by anyone
other than
(b) use of the Software in connection with any other
software not licensed by
with the Documentation or the terms set forth in this Agreement.
9. NO
WARRANTY. LICENSEE AGREES THAT THE
SOFTWARE IS PROVIDED "AS IS" AND
THAT POLYSERVE MAKES NO WARRANTY REGARDING THE
SOFTWARE. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, POLYSERVE DISCLAIMS
ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
RELATED TO THE SOFTWARE,
ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS
USE, AND THIS
AGREEMENT.
10. LIMITATION OF
LIABILITY. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE
LAW, EXCEPT: (I) AS PROVIDED IN THE SECTION ENTITLED
"INDEMNIFICATION"; AND
(II) FOR DAMAGES RESULTING FROM BREACHES RELATED TO
POLYSERVE'S INTELLECTUAL
PROPERTY; IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY DAMAGES, WHETHER IN
CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT
NOT LIMITED TO DIRECT,
CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL AND
INDIRECT DAMAGES, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE,
THE RESULTS OF USE, OR
THE INABILITY TO USE THE SOFTWARE.
11. GENERAL
PROVISIONS. This Agreement is made in
and shall be governed by
the laws of the
of laws provisions.
The terms of the following Sections shall survive
termination:
"Definitions", "License Term and Termination",
"Evaluation",
"Title and Protection", and "Confidential
Information". Licensee may not
assign or sublicense, in whole or in part, this Agreement
or any of Licensee's
rights, duties, or obligations under this Agreement
without the prior written
consent of
created hereby, and neither party has any authority to
bind the other in any
respect whatsoever.
All notices, demands, or consents required or permitted
under this Agreement shall be in writing in the English
language and shall be
delivered personally or sent by an overnight courier
service or by registered
or certified, return receipt requested mail to the other
party at the
addresses first set forth above, and shall be deemed
effective upon personal
delivery or three (3) days following dispatch via first
class mail or one (1)
business day following deposit with any national
overnight courier service in
accordance with this section. In the event any provision of this Agreement
is
held to be invalid or unenforceable, the valid or
enforceable portion thereof
and the remaining provisions of this Agreement will
remain in full force and
effect. Any waiver
(express or implied) by a party of any default or breach
of this Agreement shall not constitute a waiver of any
other or subsequent
default or breach or any further right under this
Agreement. This Agreement
(and any exhibits referenced herein and attached hereto)
embodies the entire
understanding of the parties with respect to Licensee's
evaluation of the
Software and shall supersede all previous communications,
representations or
understandings, either oral or written, between the
parties relating to such
evaluation. This
Agreement may be modified pursuant to an amendment signed by
both parties.
If you have any questions concerning these terms and
conditions, or if you
would like to contact
or write:
97006,
Copyright 2002 - 2005