SymbioTest Probe 3.1.0.200

Free Evaluation Agreement Terms And Conditions

**WARNING** YOU OR THE ENTITY THAT YOU REPRESENT ("LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE FREE EVALUATION AGREEMENT CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") WITH RESPECT TO THE "SOFTWARE" (AS DEFINED BELOW). IF A SEPARATE WRITTEN LICENSE AGREEMENT WITH RESPECT TO THIS SOFTWARE EXISTS BETWEEN LICENSEE AND SYMBIOWARE INC. ("COMPANY"), THE TERMS OF THAT WRITTEN LICENSE AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY COMPANY) SHALL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT LICENSEE IS BOUND BY THE TERMS OF THAT WRITTEN LICENSE AGREEMENT. PROVISION OF THE SOFTWARE IS CONDITIONED ON, AND LICENSEE'S INSTALLATION, ACCESS OR USE OF ANY PART OF THIS SOFTWARE SHALL CONSTITUTE, LICENSEE'S ASSENT TO THE TERMS OF THIS AGREEMENT OR OF SUCH EXISTING SEPARATE WRITTEN LICENSE AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO THE FOREGOING, CLICK THE "CANCEL" BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE. IF YOU CONTINUE, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND LICENSEE.

Free Evaluation Agreement Terms And Conditions

**WARNING** YOU OR THE ENTITY THAT YOU REPRESENT ("LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE FREE EVALUATION AGREEMENT CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") WITH RESPECT TO THE "SOFTWARE" (AS DEFINED BELOW). IF A SEPARATE WRITTEN LICENSE AGREEMENT WITH RESPECT TO THIS SOFTWARE EXISTS BETWEEN LICENSEE AND SYMBIOWARE INC. ("COMPANY"), THE TERMS OF THAT WRITTEN LICENSE AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY COMPANY) SHALL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT LICENSEE IS BOUND BY THE TERMS OF THAT WRITTEN LICENSE AGREEMENT. PROVISION OF THE SOFTWARE IS CONDITIONED ON, AND LICENSEE'S INSTALLATION, ACCESS OR USE OF ANY PART OF THIS SOFTWARE SHALL CONSTITUTE, LICENSEE'S ASSENT TO THE TERMS OF THIS AGREEMENT OR OF SUCH EXISTING SEPARATE WRITTEN LICENSE AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO THE FOREGOING, CLICK THE "CANCEL" BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE. IF YOU CONTINUE, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND LICENSEE.

Certain Definitions. Capitalized terms will have the meaning indicated above unless more specifically defined herein.

Grant of Limited License. Subject to all the terms of this Agreement, Company grants Licensee the nonsublicensable, nonexclusive, limited-term right (the "License") to use the SymbioWare software ("Software"), which use is limited to non-productive evaluation only. Any activity under the License shall be strictly in accordance with and subject to Company's applicable user documentation. The "Software" will also include updates thereto that the Company provides or makes accessible to Licensee.

Restrictions. Licensee will maintain the copyright notice and any other notices that appear on or in the Software or any copies and any media, including, without limitation, the Key/Agent click-through notice/license. Licensee will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Software for the benefit of any third party, or (iii) use the Software, or allow the transfer, transmission, export, or re-export of the Software or any portion thereof or any technical data (A) in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency or (B) in any case into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Sudan, Syria, or any other country to which the U.S. has embargoed or restricted the export of goods or services; or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. All the limitations and restrictions the Software in this Agreement also apply to documentation.

Confidential Pre-release Software. Recognizing that the Software is a beta version: (a) it should be expected to have significant flaws; (b) Licensee will regularly and promptly report errors or difficulties in a manner that allows Company to recreate them; and (c) Licensee will not disclose or use any non-public information it may obtain, learn or develop relating to the Software or to Company-related technical, business, product, marketing or financial information, plans or data, including, but not limited to, the existence of, or testing, problems, performance or analysis regarding, the Software. Licensee acknowledges that any breach of (c) above will result in irreparable harm to Company for which damages is not an adequate remedy, entitling Company to injunctive and other equitable relief in addition to legal remedies.

Delivery. The Software shall be provided or made accessible by Company in accordance with Company's standard procedures.

Termination. This Agreement shall remain in effect except as specified below. This licenses and services and all rights of Licensee will terminate upon completion of the Term (which Term shall end (a) thirty days from when Company has first enabled its system so that Licensee could obtain any access to or use of all or a portion of the Software, or (b) if authorized agents of the parties have agreed in writing to a shorter or longer period, at the end of that period) or, if earlier, upon notice from Company of any breach by Licensee. Upon any termination, Licensee shall immediately cease all use of and destroy the Software and all portions thereof and so certify to Company. Except as otherwise expressly provided herein, the terms of the Agreement shall survive termination. Termination is not an exclusive remedy and all other remedies will remain available.

Warranty Disclaimer. EVERYTHING PROVIDED UNDER THIS AGREEMENT (WHETHER PRODUCT, SERVICE OR OTHERWISE) IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, COMPANY DOES NOT WARRANT RESULTS OF USE OR FREEDOM FROM BUGS OR UNINTERRUPTED USE OR ACCESS.

Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, COMPANY SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER; (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

Miscellaneous. Neither this Agreement nor the licenses granted hereunder are assignable or transferable; any attempt to do so shall be void. Company may assign this Agreement in whole or in part. Any notice, report, approval or consent required or permitted hereunder shall be in writing. As between the parties, Company will own all intellectual property rights in the Software and anything else created in pursuant to the Agreement. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the jurisdictions in which Company address on the cover page of this agreement is located, without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any waivers or amendments shall be effective only if made in writing. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney's fees and costs in connection with such action. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, the Software and accompanying documentation provided by Company are "commercial items," "commercial computer software" and/or "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement