Standard Evaluation Software Appliance Distribution Agreement

1. INTRODUCTION. By clicking "I Accept" on the program registration website, the person performing the acceptance represents that he or she has the authority to commit Company (the individual or company identified through the program registration website) this Agreement, and that Company agrees to be bound hereby. Under this Agreement Novell authorizes Company, among other rights, to distribute certain Novell products as part of an evaluation as set forth below.
2. DEFINITIONS. The following terms have the meanings assigned to them below:

   “Company Product” means either an evaluation or generally available version of product marketed under a Company-controlled brand for which Company has sufficient right to include in an Evaluation Software Appliance as contemplated by this Agreement.

   “Effective Date” means the later of the dates on which this Agreement is accepted by a duly authorized representative of Novell or Company.

   “End User License Agreement” means the Novell Product end user license agreement included in the Novell Product that third parties must agree to prior to using the Evaluation Software Appliance.

   “Evaluation Software Appliance” means a software product that integrates a pre-configured copy a Novell Product and a copy of a Company Product into a composite package that is deployed in the context of a virtual machine aboard general purpose, mass-produced, industry-standard client or server hardware, on a virtual machine. An Evaluation Software Appliance is not modifiable to something other than its initial function.

   “Evaluation Period” means the length of time specified in the Exhibit A attached to this Agreement.

   “Novell Product” means an evaluation version of the Novell product identified in the Exhibit A attached to this Agreement. In Novell's discretion, the Novell Product shall be: a) accompanied by a Novell End User License Agreement under which the license grant expires after the Evaluation Period; and/or, b) accompanied by a no charge maintenance subscription of Evaluation Period length.

3. LICENSES. The Novell Product is licensed under U.S. copyright laws, international copyright treaties, and other intellectual property laws. In addition, Company’s possession and use of the Novell Product is subject to the restrictions contained in this Agreement. Novell grants Company the non-exclusive, non-transferable right to a) internally use, evaluate, test and reproduce the Novell Product solely for the purpose of creating and supporting the Evaluation Software Appliance, and to incorporate the Novell Product into an Evaluation Software Appliance; and b) reproduce and distribute the Novell Product as part of an Evaluation Software Appliance for evaluation and testing by end users. The foregoing grant is subject to the End User License Agreement being presented to and accepted by recipients of the Evaluation Software Appliance prior to use of the Novell Product included in the Evaluation Software Appliance. Such license is solely for the Novell Product originally provided by Novell, and not for any upgrades or updates of the Novell Product, unless such upgrades or updates are provided to Company by Novell specifically for the purposes of this Agreement. If the Novell Product contains a development tool, Company shall not develop any product with the development tool. Nothing in this Agreement shall restrict, limit or otherwise affect any rights or obligations Company may have, or conditions to which Company may be subject, under any applicable open source licenses to any open source code contained in the Novell Product or any third-party licenses for third-party code contained in the Novell Product.
4. RESERVATION OF RIGHTS. Novell reserves all rights not expressly granted to Company.
5. SUPPORT. Novell shall have no obligation to provide any support, upgrades or updates for the Evaluation Software Appliance or the Novell Product to Company, or to those who receive the Evaluation Software Appliance from Company.
6. TERM AND TERMINATION. This Agreement shall commence on the Effective Date and shall remain in effect for a period of one (1) year unless terminated earlier in accordance with this Agreement. Either party may terminate this Agreement without cause by providing thirty (30) days' prior written notice.
7. TRANSFER. This Agreement may not be transferred or assigned without Novell’s prior written approval.
8. GOVERNING LAW. Except as otherwise restricted by law, this Agreement shall be governed by, and interpreted in accordance with, the laws of the State of Utah of the United States of America, without regard to Utah law governing conflicts of law. Any action relating to this Agreement shall be brought in a Utah court of competent jurisdiction. This Agreement is not assignable by Company in whole or in part.
9. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding and Agreement between Company and Novell and may be amended only in a writing signed by both parties. No vendor, distributor, dealer, retailer, sales person or other person is authorized to modify this Agreement or to make any warranty, representation or promise which is different than, or in addition to, the representations or promises of this license.
10. WAIVER. No waiver of any right under this Agreement shall be effective unless in writing, signed by a duly authorized representative of the party to be bound. No waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.
11. SEVERABILITY. If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement shall remain unaffected.
12. NOTICES. Unless otherwise agreed to by the parties, all notices under this Agreement are effective upon receipt when made in writing by either (i) registered mail, (ii) certified mail, return receipt requested, (iii) overnight mail, or (iv) telephone facsimile transfer with confirmation, and addressed and sent to the receiving party’s address.
13. EXPORT. Any products or technical information provided under this Agreement may be subject to U.S. export controls and/ the trade laws of other countries. The parties agree to comply with all export control regulations and to obtain any required licenses or classification to export, re-export or import deliverables. The parties agree not to export or re-export to entities on the current U.S. export exclusion lists or to any embargoed or terrorist countries as specified in the U.S. export laws. The parties will not use deliverables for prohibited nuclear, missile, or chemical biological weaponry end uses. Please consult the Bureau of Industry and Security web page www.bis.doc.gov before exporting Novell products from the U.S. Please refer to www.novell.com/info/exports/ for more information on exporting Novell software. Upon request, Novell will provide Company specific information regarding applicable restrictions; Novell assumes no responsibility for Company's failure to obtain any necessary export approvals.
14. U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in FAR § 52.227-14 (June 1987) Alternate III(g)(3) (June 1987), FAR § 52.227-19 (June 1987), or DFARS § 52.227-7013 (c)(1)(ii) (June 1988), as applicable. Contractor/Manufacturer is Novell, Inc., 1800 S. Novell Place, Provo, Utah 84606.
15. OTHER. Those terms which by their nature extend beyond termination of this Agreement shall survive and remain in effect until all obligations are satisfied. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
16. DISCLAIMER. EXCEPT AS OTHERWISE RESTRICTED BY LAW, THE NOVELL PRODUCT AND ANY ASSOCIATED SERVICES ARE PROVIDED “AS IS.” NOVELL MAKES NO WARRANTY, REPRESENTATION OR PROMISE. NOVELL DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NOVELL DOES NOT WARRANT THAT THE NOVELL PRODUCT WILL SATISFY COMPANY'S REQUIREMENTS OR THAT THE NOVELL PRODUCT IS WITHOUT DEFECT OR ERROR OR THAT ITS OPERATION WILL BE UNINTERRUPTED. Some states do not allow some limitations on implied warranties, so the above limitations may not fully apply to Company. This warranty gives Company specific legal rights which vary from state to state.
17. LIMITATION OF LIABILITY. NEITHER PARTY (INCLUDING NOVELL’S LICENSORS, EMPLOYEES, OR AGENTS) SHALL IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS OR REVENUE, LOSS OF USE OF SOFTWARE, LOSS OF DATA, COSTS OF RE-CREATING LOST DATA, OR THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM), INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. EXCEPT AS OTHERWISE RESTRICTED BY LAW, NOVELL'S AGGREGATE LIABILITY ARISING FROM OR RELATING TO COMPANY'S USE OR DISTRIBUTION OF THE NOVELL PRODUCT IS LIMITED TO THE GREATER OF $100 OR THE TOTAL OF ANY PAYMENTS MADE FOR SUCH NOVELL PRODUCT. Some states do not allow the complete exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not fully apply to Company.

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