This Agreement is between Evaluator and BeyondTrust Corporation, a Delaware corporation with its principal place of business located at 11695 Johns Creek Parkway, Suite 200, Johns Creek, GA 30097 (“BeyondTrust”). Evaluator desires to evaluate and test (the “Evaluation”) the applicable BeyondTrust products as described above or in the electronic confirmation from BeyondTrust (the “Products)”, at no charge during the Evaluation Period as defined above, or in the electronic confirmation. The cover page is a material part of this Agreement.
1. License Grant. BeyondTrust hereby grants to Evaluator a limited, non-exclusive, non-transferable right and license (“License”) to conduct the Evaluation during the Evaluation Period. The Evaluation of the Products will be for Evaluator’s internal evaluation purposes only. All products shall remain the property of BeyondTrust. Evaluator may not copy, modify or make derivative works of the Products, including customization, translation or localization, nor merge the Products with other computer programs nor reverse engineer, disassemble, decompile, nor attempt to derive the software source code. Evaluator agrees and acknowledges that the Products are provided to be used only for lawful purposes and in accordance with applicable laws.
2. Confidentiality. Unless otherwise agreed in a separate confidentiality agreement between the parties, Evaluator agrees to keep the Software (which shall include any technical specifications provided by BeyondTrust for the use and operation of the Software) confidential and not to disclose or make available the Software to any third party.
3. Limitation of Liability. EXCEPT FOR EVALUATOR’S VIOLATION OF SECTION 1 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A)NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE OR CONTENT) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S CUMULATIVE, AGGREGATE LIABILITY FOR ANY DAMAGES SHALL NOT EXCEED THE FEES PAID BY EVALUATOR TO BEYONDTRUST FOR THE EVALUATION GIVING RISE TO SUCH LIABILITY.
4. Limited Warranty. BeyondTrust warrants that it can grant the License described in this Agreement. SINCE EVALUATOR IS RECEIVING A LICENSE TO CONDUCT THE EVALUATION AT NO CHARGE, THE PRODUCTS ARE PROVIDED STRICTLY ON AN “AS IS” AND UNSUPPORTED BASIS AND WITHOUT ANY DIRECT OR I M P L IE D WARRANTY OF A NY K I ND, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
5. Return or Destruction of Materials. Upon completion of the Evaluation, Evaluator agrees to cease all use of the Products and to remove and destroy the software and all copies thereof and, at BeyondTrust’s request certify in writing to their removal and destruction. If any hardware has been included with the Products, Evaluator agrees to promptly return the hardware to BeyondTrust at the end of the Evaluation Period at the expense of the Evaluator. Evaluator agrees that if for any reason the hardware is not returned to BeyondTrust in good condition except for normal wear and tear after the end of the Evaluation Period, Evaluator will be responsible for the cost of repairing or replacing the hardware.
6. Term Termination. Unless otherwise provided in an Product Description or terminated sooner, the term of the Agreement shall be for thirty days (30) from the date BeyondTrust delivers the product to Evaluator or otherwise make the software available for download. This Agreement shall terminate (i) immediately upon the breach by the Evaluator of BeyondTrust’s intellectual property rights, or (ii) five (5) days after written notice from a party to the other party in the event that breaching party has breached or violated any other provision of this Agreement and fails to cure such breach within such five (5) day period.
7. Entire Agreement. This Agreement will be governed by the laws of the State of Delaware. The parties agree and consent to personal jurisdiction and service and venue in any federal or state court within the State of Georgia. This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior representations, proposals, discussions and communications, whether oral or in writing. This Agreement may be modified only by a writing signed by both parties.