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THESE TERMS AND CONDITIONS GOVERN YOUR USE OF THE SOFTWARE ACCOMPANYING THIS EVALUATION LICENSE AGREEMENT, UNLESS YOU HAVE AN EXISTING LICENSE AGREEMENT CONTAINING A PAID LICENSE TO USE THIS SOFTWARE. NOTWITHSTANDING ANYTHING IN THE EVALUATION LICENSE AGREEMENT BELOW, IF YOU HAVE SUCH AN EXISTING LICENSE AGREEMENT FOR THIS SOFTWARE, CLICKING “I ACCEPT” WILL BE DEEMED TO BE CONFIRMATION OF SUCH EXISTING LICENSE AGREEMENT RATHER THAN MUTUAL AGREEMENT TO THE EVALUATION LICENSE AGREEMENT BELOW.

 

EVALUATION LICENSE AGREEMENT

 

This Evaluation License Agreement (this “Agreement”) is between Advanced Systems Concepts, Inc., a New Jersey corporation with an address at 1180 Headquarters Plaza, West Tower, Fourth Floor, Morristown, NJ 07960, USA (“ASCI” or “we”) and the customer (referred to herein as “Customer” or “you”) licensing the software accompanying this Agreement (the “Software”).

 

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING OR USING ANY OF OUR SOFTWARE.  WE ARE ONLY WILLING TO LICENSE THE SOFTWARE TO YOU IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY DOWNLOADING, INSTALLING, OR USING ANY OF OUR SOFTWARE OR BY CLICKING "I ACCEPT" BELOW, YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND IT TO THIS AGREEMENT, IN WHICH CASE "YOU" WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN WE ARE UNWILLING TO LICENSE ANY OF OUR SOFTWARE TO YOU, AND YOU ARE PROHIBITED FROM DOWNLOADING, INSTALLING, OR USING IT.

License Grant.

 

Subject to your compliance with the terms of this Agreement, we hereby grant you a non-exclusive, non-transferable, non-sublicensable, revocable license from the time we provide you an evaluation serial number to the expiration of such evaluation serial number (the “Evaluation Term”) to install, execute, reproduce, and use the Software, and to use and reproduce any accompanying documentation (the “Documentation”), on any number of operating system instances for your internal business purposes and for evaluating whether to purchase a paid license to the Software. If you reproduce any of the Software or Documentation as permitted in this Agreement, you must reproduce all copyright and other proprietary notices that are on the copies we make available to you. There is no fee associated with this evaluation license. If you decide you want to use the Software beyond the Evaluation Term, you will need to buy a paid license (and accept a new agreement for that purpose).

 

You acknowledge that the Software becomes unusable at the expiration of the Evaluation Term. The expiration date is displayed as part of the Software startup process each time the Software is executed. If we provide you with a replacement evaluation serial number under this Agreement, you must install the replacement evaluation serial number to continue using the Software and the Evaluation Term will continue until the expiration of that serial number.

 

To continue operation of the Software product after the Evaluation Term you will be required to purchase the current release of the Software and agree to the Software license agreement that governs that Software's use. However, you are under no obligation to purchase the Software product as a result of evaluating this product. If you decide not to purchase the Software product you agree to destroy all materials associated with the Software and to cease using the product. ASCI, at its sole option, may require you to certify in writing that all Software and Documentation have been destroyed.

 

Restrictions.

 

The Software is licensed, not sold. As between ASCI and you, ASCI owns all right, title, and interest in and to the Software, and any intellectual property rights associated with the Software and with ASCI. We reserve all rights in and to the Software and Documentation that we do not expressly grant you in this Agreement.

 

You agree not to, nor permit nor authorize any third party to: (i) sublicense, sell, rent, lease, transfer, assign, or distribute the Software or Documentation to third parties; (ii) host the Software for the benefit of third parties; (iii) permit any third party to use the Software or Documentation; (iv) modify any evaluation serial number, or try to avoid or change any license registration process we may implement; (v) modify or create derivative works of the Software, or merge the Software with other software; (vi) disassemble, decompile, or otherwise reverse engineer the Software or attempt to derive any of its source code, in whole or in part, except to the extent such activities are expressly permitted by law notwithstanding this prohibition; (vii) modify, obscure, or delete any proprietary rights notices included in or on the Software or Documentation; (viii) use or copy the Software or Documentation in a manner not expressly permitted by this Agreement; or (ix) use the Software beyond the Evaluation Term unless you have entered into a separate license agreement with ASCI.

 

Warranty Disclaimer.

 

You acknowledge that the Software and Documentation are being provided "AS IS", and without warranty of any kind, express or implied. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY SPECIFICALLY DISCLAIM ALL WARRANTIES WITH RESPECT TO THE MATERIALS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACCEPTS THAT SOFTWARE MAY CONTAINS BUGS.

 

Confidentiality.

 

Without limiting either party’s rights or obligations under any nondisclosure agreement between ASCI and Customer, Customer shall use the Software or Documentation or any ASCI price offers (“Confidential Information”) solely for evaluation purposes and not disclose such Confidential Information to any third party except to its employees, agents, and contractors who have a need to know such information and are bound by obligations of confidentiality no less stringent than the terms of this Agreement. Notwithstanding the foregoing, Customer may disclose Confidential Information when compelled to do so by law, so long as the Receiving Party provides prior written notice of the disclosure (if legally permitted) to allow the Disclosing Party the opportunity to seek protection or confidential treatment or to limit or prevent such disclosure. Customer recognizes that its breach of confidentiality obligations may cause irreparable injury to ASCI and that remedies other than injunctive relief may not be adequate. In the event of a breach, or threatened breach, of Customer’s confidentiality obligations under this Agreement, ASCI may seek an injunction in addition to any other available remedies. Within 30 days of expiration or termination of this Agreement, Customer shall return or destroy all Confidential Information in its possession or control except as may be archived by Customer’s backup systems. These confidentiality obligations survive any expiration or termination of this Agreement.

 

Limitation of Liability.

 

REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL ASCI BE LIABLE TO YOU FOR (A) ANY SPECIAL CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF ASCI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) AMOUNTS PAID BY YOU FOR THE EVALUATION OR $100, WHICHEVER IS GREATER.

 

U.S. Government Users.

 

The Software and Documentation are “commercial items” as that term is defined at FAR 2.101. If You are a Federal agency of the US Government (“Government”), including any executive, legislative, or judicial agency, or anyone acquiring on behalf of such agency, ASCI provides the Software and Documentation, including any related technical data, in accordance with the following: the Government acquires, in accordance with FAR 12.211 and FAR 12.212, or DFARS 227.7202-3, as applicable, only those rights in technical data and software customarily provided to the public as provided in this Agreement, except that DFARS 252.227-7015 applies in the case of acquisition by or on behalf of any agency within the Department of Defense. This paragraph is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.

 

Export Controls.

The Software is subject to the export control laws of the United States. You agree not to export or re-export the Software in violation of U.S. export laws.

General.

 

This Agreement is the complete agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and representations between them concerning such subject matter. This Agreement is governed by the laws of the State of New Jersey without regard to conflicts of laws provisions. The application of the United Nations Convention of Contracts for the international Sales of Goods is expressly excluded. This Agreement will be automatically superseded if the parties enter into a separate license agreement governing the use of the Software. Otherwise, this Agreement may be amended only in writing executed by both parties. A party's obligations under this Agreement can only be waived in a writing signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.





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