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| ICESOFT EVALUATION LICENSE AGREEMENT
This EVALUATION LICENSE AGREEMENT is a legal contract between Customer and ICEsoft Technologies Inc. (ICEsoft). The right to use the Software is granted only on the condition that Customer agrees to the following terms. If Customer does not agree to the terms of this Agreement, then ICEsoft and its licensors are unwilling to license the Software to Customer, in which case Customer shall return the Software within thirty (30) days of shipment, or refuse to download the Software, whichever is applicable. PLEASE READ THE TERMS CAREFULLY BEFORE CLICKING ON THE ACCEPT BUTTON, AS BY CLICKING ON THE ACCEPT BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. 1. DEFINITIONS 1.1 'Confidential Information' means: (i) the Software; (ii) the technology, ideas, know how, documentation, processes, algorithms and trade secrets embodied in the Software; (iii) any software keys related to the Software; and (iv) any other information, except information specified as non-confidential in Section 4 hereunder, whether disclosed orally or in written or magnetic media, that is identified as CONFIDENTIAL, PROPRIETARY or with a similar legend at the time of such disclosure. 1.2 'Intellectual Property Rights' means all copyrights, trademarks, trade secrets, patents, mask works and other intellectual property rights recognized in any jurisdiction worldwide, including all applications and registrations with respect thereto. 1.3 'Software' means the computer programming code and accompanying documentation in the form and format provided hereunder, including updates, if any, provided by ICEsoft, and all full or partial copies, whether such copies are provided by ICEsoft or made by Customer as permitted under this Agreement. The definition of Software includes the Reference Source Code, if any, provided by ICEsoft hereunder. 1.4 'Source Code' means computer programming code in human readable form that is not suitable for machine execution without the intervening steps of interpretation or compilation. 2. EVALUATION LICENSE Subject to Customer's compliance with the terms and conditions of this Agreement, ICEsoft hereby grants to Customer a restricted, personal, non-transferable, non-exclusive, internal-use license: (i) to use the Software for the sole purpose of internally evaluating the Software; (ii) to reproduce the Software for archive purposes, consistent with Customer's standard archive procedures; and (iii) to modify the Reference Source Code solely to the extent necessary to evaluate the use of the Software in the development of prospective Customer products. Customer shall reproduce and include any and all copyright notices and proprietary rights legends, as such notices and legends appear in the original Software, on any copy of the Software, or any portion thereof. 3. RESTRICTIONS 3.1 Customer shall reproduce and include any and all copyright notices and proprietary rights legends, as such notices and legends appear in the original Software, on any copy of the Software, or any portion thereof. 3.2 Customer shall not: (i) use the Software or any portion thereof for any productive or commercial purpose; (ii) modify, create derivative works of, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or attempt to derive the Source Code of the Software provided to Customer in machine executable object code form; (iii) market, distribute or otherwise transfer copies of the Software to others; (iv) rent, lease or loan the Software; or (v) distribute externally or to any third party any communication that compares the features, functions or performance characteristics of the Software with any other product of Customer or any third party. 3.3 Customer shall use its best efforts to protect the Software from unauthorized access, reproduction, disclosure or use. In the event Customer becomes aware of any unauthorized use or disclosure of Software, Customer shall notify ICEsoft immediately in writing and shall give full cooperation, at Customer's expense, to minimize the effects of such unauthorized use or disclosure. 3.4 UPON TRANSFER OF ANY COPY OF THE SOFTWARE, OR ANY PORTION THEREOF, TO ANOTHER PARTY, THIS LICENSE WILL AUTOMATICALLY TERMINATE. 3.5 The Software licensed under this Agreement may contain or be derived from materials of third party licensors. Such third party materials may be subject to restrictions in addition to those listed in this Section 3, which restrictions, if any, are set forth at the end of this Agreement. 4. CONFIDENTIAL INFORMATION 4.1 PROTECTION Customer shall not use or disclose any Confidential Information, except as expressly authorized by this Agreement, and shall protect all such Confidential Information using the same degree of care which Customer uses with respect to its own proprietary information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. Customer's obligations regarding the protection of Confidential Information shall survive any expiration or termination of the Agreement. Customer shall take prompt and appropriate action to prevent unauthorized use or disclosure of the Confidential Information. 4.2 EXCEPTIONS Confidential Information shall not include any information which is: (i) published or otherwise available to the public other than by breach of this Agreement by Customer; (ii) rightfully received by Customer from a third party without confidential limitations; (iii) independently developed by Customer as evidenced by appropriate records; (iv) known to Customer prior to its first receipt of same from ICEsoft as evidenced by appropriate records; (v) hereinafter disclosed by ICEsoft to a third party without restriction on disclosure; or (vi) approved for public release by written authorization of ICEsoft. If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of Customer, Customer shall promptly notify ICEsoft of the order or request and permit ICEsoft (at its own expense) to seek an appropriate protective order. 5. OWNERSHIP ICEsoft and its licensors shall retain exclusive ownership of all worldwide Intellectual Property Rights in and to the Software. Customer hereby assigns to ICEsoft any such rights Customer may have or obtain in and to the foregoing. All rights in and to the Software not expressly granted to Customer in this Agreement are expressly reserved for ICEsoft and its licensors. 6. TERMS AND TERMINATION This Agreement shall commence on the date ICEsoft provides Customer with the Software keys as specified in Section 7 and continue for a period of thirty (30) to sixty (60) days. This Agreement will immediately terminate upon Customer's breach of this Agreement. Upon termination, Customer shall: (i) not use the Software for any purpose whatsoever; and (ii) immediately destroy or return to ICEsoft all material belonging to ICEsoft or its licensors, including without limitation all copies of the Software and ICEsoft Confidential Information then in Customer's possession or control, and certify to ICEsoft in writing that it has done so. Customer should be aware that the Software might contain functionality that will cause it to stop operating on a certain date. These remedies shall be cumulative and in addition to any other remedies available to ICEsoft. The following Sections shall survive any termination of this Agreement: Sections 1, 4, 5, 6, 8, 9, 10 and 11. 7. KEYS AND ACCESS ICEsoft agrees to provide to Customer those Software keys which are reasonably necessary to permit Customer to gain access to the Software contained on media shipped to Customer and which Software has been properly licensed to Customer pursuant to a license agreement. All such keys shall be considered the Confidential Information of ICEsoft. Notwithstanding anything to the contrary in this Agreement, Customer hereby acknowledges that Customer shall have no right or license to any software shipped to Customer on media as provided above which software is not properly licensed pursuant to a license agreement, that any such software is included therein solely as a matter of administrative convenience, and Customer further agrees not to attempt to gain access to, or permit any third party to attempt to gain access to, such software. 8. AUDIT To ensure compliance with the terms of this Agreement, ICEsoft or its designated representative shall have the right, exercisable upon reasonable notice, to conduct an inspection and audit of such records, and to obtain true and correct copies of such records, and to obtain such other information as necessary to determine Customer's compliance with this Agreement. 9. WARRANTY DISCLAIMER THE SOFTWARE IS LICENSED FOR CUSTOMER'S TEMPORARY EVALUATION "AS IS", AND ICESOFT AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ICESOFT, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. 10. LIMITATION OF LIABILITY ICESOFT AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF WIND RIVER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ICESOFT'S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $50.00 OR THE AMOUNT CUSTOMER ACTUALLY PAID ICESOFT UNDER THIS AGREEMENT (IF ANY). THE WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ICESOFT AND CUSTOMER. ICESOFT WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS. 11. GENERAL Customer shall not export or re-export the Software in violation of the export control laws of the United States and/or any other jurisdiction. This Agreement will be governed in all respects by the laws of the State of Delaware without regard to conflicts of law principles as applied to contracts entered into between residents thereof and performed entirely within the State. All disputes arising under this Agreement shall be brought in Superior Court of the State of Delaware. If any legal action or proceeding is brought for the enforcement of this Agreement, or because of any alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees and other costs incurred in that action or proceeding, in addition to any other relief to which such party may be entitled. If any provision or provisions of this Agreement are determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. This Agreement may not be assigned, sublicensed, or otherwise transferred by Customer without ICEsoft's prior written consent. Nothing contained herein shall be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties. This Agreement constitutes the complete, final and exclusive statement of the agreement between ICEsoft and Customer, which supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. No waiver, alteration or modification of the provisions of this Agreement will be valid unless made in writing and signed by a corporate officer of ICEsoft. Each party agrees that use of pre-printed forms, such as purchase orders or acknowledgements, is for convenience only and all terms and conditions stated thereon are void and of no effect. Should you have any questions concerning this Agreement, please write "product.sales@icesoft.com". THE SOFTWARE AND ACCOMPANYING DOCUMENTATION ARE PROTECTED BY UNITED STATES INTELLECTUAL PROPERTY LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES. BY CLICKING ON THE ACCEPT BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. |