SOFTWARE EVALUATION LICENSE AGREEMENT The software accompanying this Software Evaluation License Agreement is the property Lucas Technologies Pty Ltd, Australia ACN 115 617 555 ("Licensor"). Licensor has granted you (“Licensee”) a license to this software upon the terms and conditions set forth in this Software Evaluation License Agreement (this “Agreement”) and by installing the software you agree to all of the terms and conditions set forth in this Agreement.

 

1.        DEFINITIONS.

1.1.      “Agreement” means this Software Evaluation License Agreement.

 

1.2.      “Documentation” means all printed and electronic user manuals and other materials provided by Licensor to Licensee describing the installation and operation of the Software.

 

1.3.      “Licensed Product(s)” means a current or future product of Licensee, including a new version or release of that product, that contains some or all of the Software and that adds significant function or value to the Software by integrating, embedding, bundling, or incorporating the Software into the product such that the primary reason for developing the product is other than to license the Software by itself to third parties.

 

1.4.      “Software” means authorized copies of the computer software programs accompanying this Agreement, in source code, object code form, binary file form, as limited by the code and form received by Licensee from Licensor.

2.        LICENSE GRANTS AND RESTRICTIONS.

2.1.      Subject to the terms of this Agreement, Licensor grants to Licensee a worldwide, non-transferable, and non-exclusive license to copy and use the Software on not more than one server, solely for the purpose of evaluating the Software.

 

2.2.      Except as expressly set forth in this Agreement, Licensee may not:

a)        copy, modify, merge, embed, sell, lease, assign, distribute or transfer in any manner or form, in whole or in part, the Software, Licensed Products or Documentation except as otherwise required by law; or

b)        use the Software or Documentation to develop or distribute any software product that competes in the marketplace with the Software, or any other tool, system or library developed or marketed by Licensor.

Notwithstanding the foregoing, Licensee may make copies of the Software and Documentation solely for archive or backup purposes or as otherwise required by law.

 

2.3.      Licensee acknowledges that this Agreement does not grant Licensee any rights to the source code for the Software, unless Licensee has received source code directly from Licensor, and in such event, this Agreement shall govern Licensee’s use of such source code. Licensee agrees not to reverse engineer, disassemble or decompile the Software or otherwise attempt to reproduce its source code or equivalent.

 

2.4.      Licensee acknowledges that Licensor has, and will from time to time create, other computer software programs that may be based upon or related to the Software and that those other programs are not licensed to Licensee under this Agreement.

 

2.5.      Licensee acknowledges that Licensor has no responsibility for providing Licensee with any support, product upgrades or other enhancements for, and that Licensor is under no obligation to create any product upgrades or enhancements to, the Software.

3.        WARRANTIES AND DISCLAIMERS.

3.1.      Licensee acknowledges that Licensor makes no representations or warranties with respect to the Software or Licensee’s use of the Software. The Software is provided to Licensee “as is” and with all faults.

4.        LIMITATION OF LIABILITY; INDEMNIFICATION

4.1.      IN NO EVENT WILL LICENSOR BE LIABLE OR OBLIGATED UNDER THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY.

5.        TRADE SECRETS AND PROPRIETARY INFORMATION.

5.1.      Licensee acknowledges that (a) Licensor is the owner of all rights, title and interest, including, but not limited to, all trademarks, copyrights, patent rights, and all other proprietary rights in the Software; (b) the Software is confidential in nature and not in the public domain; (c) Licensor claims all intellectual and industrial property rights granted by law therein; and (d) except as set forth in this Agreement, Licensor does not grant any rights to or ownership of the Software to Licensee. Licensee further acknowledges that Licensor retains all right, title and interest in the Software and in all improvements, enhancements, modifications and derivative works of the Software including all rights to patent, copyright, trade secret and trademark.

 

5.2.      Licensee agrees to take all reasonable steps to ensure that unauthorized persons will not have access to any of the Software or Documentation and that all authorized persons having access will refrain from any disclosure, duplication or reproduction of the Software and Documentation except to the extent permitted under this Agreement.

 

5.3.      Licensee agrees to accord the Software and the Documentation and all other confidential information relating to this Agreement the same degree and methods of protection as Licensee generally undertakes with respect to its similar confidential information, trade secrets and other proprietary data.

5.4.      Licensee agrees not to challenge, directly or indirectly, any right or interest of Licensor in the Software, nor the validity or enforceability of Licensor’s rights under applicable law. Licensee agrees not to directly or indirectly register, apply for registration or attempt to acquire any legal protection for any of the Software or any proprietary rights in the Software or to take any other action which may adversely affect Licensor’s rights or interest in the Software or Documentation in any jurisdiction.

 

5.5.      Licensee agrees to notify Licensor immediately and in writing of all circumstances, of which Licensee is aware, surrounding the unauthorized possession or use of the Software and Documentation by any person or entity. Licensee agrees to cooperate fully with Licensor, at Licensor's expense, in any litigation relating to or arising from such unauthorized possession or use.

 

5.6.      Licensee acknowledges that, in the event of a breach by Licensee of its obligations under this Section 5, Licensor may (a) immediately terminate this Agreement, without liability to Licensee; (b) bring an appropriate legal action to enjoin any such breach of this Agreement; and (c) recover from Licensee reasonable attorneys’ fees and costs in addition to other appropriate relief.

6.        TERM; TERMINATION.

6.1.      The term of this Agreement shall begin on the date the Software is received by Licensee and shall terminate on the thirtieth day thereafter. Licensee acknowledges that the Software may have encoded commands which will prevent the Software from functioning after the termination date of this Agreement.

 

6.2.      Upon termination of this Agreement Licensee will (a) immediately discontinue all use of the applicable Software and Documentation; (b) immediately delete the applicable Software and Documentation and all copies in any form, including, but not limited to, any back-up or archival copies, from its system files and storage media; and (c) will return to Licensor within ten (10) days or destroy all printed copies of the Software and Documentation. At Licensor's request, Licensee will verify in writing to Licensor that the actions set forth in (a), (b), and (c) above have been taken.

 

6.3.      The provisions of Sections 4, 5.4, and 5.6 will survive the termination of this Agreement, as will the continuing obligations of the parties under this Section 6.

7.        GENERAL PROVISIONS.

7.1.      This Agreement does not create any relationship of association, partnership, joint venture or agency between the parties. Neither party will have any right or authority to assume, create or incur any liability or obligation of any kind against or in the name of the other party.

 

7.2.      This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter in this Agreement. This Agreement merges all previous discussions and negotiations between the parties and supersedes and replaces any and every other agreement, which may have existed between Licensor and Licensee with respect to the contents of this Agreement.

 

7.3.      Except to the extent and in the manner specified in this Agreement, any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized representative of each party.

 

7.4.      The failure of either party to exercise any right granted under this Agreement, or to require the performance by the other party of any provision of this Agreement, or the waiver by either party of any breach of this Agreement, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement.

 

7.5.      Licensee may not sell, assign or transfer any of its rights, duties or obligations under this Agreement without the prior written consent of Licensor and the payment of license transfer fees. Licensor reserves the right to assign or transfer this Agreement or any of its rights, duties and obligations to any direct or indirect subsidiary or affiliate of Licensor.

 

7.6.      The parties agree that no person or entity who is not a party to this Agreement will be deemed to be a third-party beneficiary or entitled to any rights under this Agreement.

 

7.7.      All notices, requests, reports, submissions and other communications permitted or required to be given under this Agreement will be deemed to have been duly given if such notice or communication is in writing and sent by personal delivery or by airmail, cable, telegram, telex, facsimile transmission, email or other commercial means of rapid delivery, postage or costs of transmission and delivery prepaid, to the parties at addresses specified below until such time as either party gives the other party not less than ten (10) days' prior written notice of a change of address in accordance with the provisions of this Agreement.

 

7.8.      If any provision of this Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision will to such extent as it is determined to be illegal, invalid or unenforceable under such law be deemed null and void, but this Agreement will otherwise remain in full force and effect. Furthermore, it is the intention of the parties that in lieu of such illegal, invalid, or unenforceable provision, there automatically be added as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.