PLEASE READ CAREFULLY: THIS EVALUATION AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU, THE INDIVIDUAL USING THE SERVICES OR SOFTWARE, AS WELL AS YOUR EMPLOYER IF YOU ARE USING THE SERVICES OR SOFTWARE WITHIN THE SCOPE OF YOUR EMPLOYMENT (“COMPANY”), AND SECURELINK, INC. (“SECURELINK”). USE OF THE SECURELINK SERVICES AND SOFTWARE, INCLUDING WITHOUT LIMITATION ALL ASSOCIATED DOCUMENTATION, IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
BY USING THE SERVICES, INSTALLING OR USING THE SOFTWARE, OR OTHERWISE SIGNIFYING ACCEPTANCE OF THIS AGREEMENT, COMPANY AGREES TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE USING THE SERVICES OR SOFTWARE WITHIN THE SCOPE OF YOUR EMPLOYMENT, THEN YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND YOUR EMPLOYER TO THIS AGREEMENT.
All questions concerning this agreement should be directed to SecureLink, Inc., 11402 Bee Cave Road Austin, TX, 78738.
2.1 Software License. SecureLink hereby grants to Company, and Company hereby accepts, a limited, non-exclusive, term-limited, non-transferable, non-sublicensable, worldwide license to install a single instance of the Software and to use and access the Software during the Term (defined below) solely (i) in connection with Company’s internal evaluation of the Software to determine whether to purchase licenses to the Software and, and (ii) in accordance with the documentation provided with the Software (the “Documentation”).
2.2 Use by Employees and Contractors. Employees or authorized independent contractors of Company may use the Software provided that all such use shall be solely for the benefit of Company and in accordance with the terms and conditions of this Agreement. Company shall ensure that its employees and any independent contractors comply with the terms and conditions contained in this Agreement. Company shall remain fully liable for all acts and omissions of its employees and independent contractors, as if such acts and omissions had been committed by Company itself.
2.3 Limitations. Except as otherwise authorized in writing by SecureLink, Company shall not (and shall not permit any third party to): (i) decompile, reverse engineer, or disassemble the Software or otherwise reduce the Software to a human perceivable form in whole or in part; (ii) decrypt, circumvent or disable any security or other technological features or measures of the Software; (iii) access or attempt to access the Software in order to build a competitive product or service; (iv) copy, publish, release, rent, lease, loan, sell, distribute, or transfer the Software or Documentation; (iv) frame or mirror any content forming part of the Software; (v) use or permit the use of the Software for commercial time-sharing arrangements or providing service bureau, data processing, rental, or other services to any third party; (vi) alter, modify, adapt, translate, or create derivative works based upon the Software or Documentation either in whole or in part; (vii) remove any copyright notice or other proprietary rights notices that may appear in or on the Software or Documentation; (viii) perform any security or penetration testing of the Software; (ix) install or run an agent on any Securelink Software or device; or (x) distribute any virus, trojan horse, or other malicious code via the Software. Company will use the Software and Documentation in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of SecureLink. However, where Company has other rights under statute that make any portion of the foregoing contractual prohibition void, Company agrees to provide SecureLink with reasonably detailed information regarding any intended disassembly or de-compilation. Company may not access the Software if Company is a direct competitor of SecureLink. With any mission-critical activity, the Software should not be Company’s only means of receiving or providing remote support, and Company acknowledges and agrees that it is responsible for taking steps to protect against Software and system failures, including (without limitation) providing back-up remote access methods.
2.4 Reservation of Rights. The Software provided under this Agreement is licensed, and not sold. SecureLink (and its licensors) retains all title, interest, and ownership rights in and to the Software and Documentation and reserves all rights not expressly granted to Company in this Agreement. If Company provides any suggestions, ideas, enhancement requests, feedback (including identifying potential errors and improvements), recommendations or other information relating to the Software to SecureLink (collectively “Feedback”), then SecureLink may use the Feedback without payment or restriction. The SecureLink name, the SecureLink logo, and the product names associated with the Software are trademarks of SecureLink, and no right or license is granted to use them. Company will not accrue any residual rights to the SecureLink Software or any related technology, including any rights to the underlying intellectual property rights.
3.1 Term. The term of this Agreement will begin on the Effective Date and continue for [____] days (the “Term”). SecureLink reserves the right to terminate or suspend Company’s access to the Software and/or terminate Company’s license to the Software hereunder at any time with or without notice or cause. Either party may immediately terminate this Agreement by written notice if the other party materially breaches this Agreement. Sections 2.3 and 2.4 and Articles 4 through 7 shall survive any termination or expiration of this Agreement, regardless of the cause of termination.
4.1 Confidentiality. “Confidential Information” means any confidential or proprietary information of a Party (the “Discloser”) that is disclosed in any manner to the other Party (the “Recipient”) in connection with this Agreement and that at the time of disclosure either (i) is marked as being “Confidential” or “Proprietary,” (ii) is otherwise reasonably identifiable as the confidential or proprietary information of Discloser, or (iii) under the circumstances of disclosure should reasonably be considered as confidential or proprietary information. SecureLink’s “Confidential Information” shall include all features and functionality of the Software and Documentation and the results of any benchmark or other tests of the Software. Recipient shall not disclose Discloser’s Confidential Information to any third party without Discloser’s prior written approval; provided, that, Recipient may disclose the Confidential Information to its employees, contract personnel, subcontractors, officers, directors, shareholders, consultants, agents, attorneys, accountants, or advisors (collectively, “Representatives”) who need to know such information for the purposes of this Agreement, provided that such Representatives shall be informed by Recipient of the confidential nature of the Confidential Information and shall have agreed in writing to terms and conditions as protective of the Confidential Information as those in this Agreement. Recipient shall use the same procedures to protect Discloser’s Confidential Information as it uses to protect its own Confidential Information, but in any event no less than commercially reasonable procedures.
4.2 Exclusions. The restrictions under Section 7.1 above shall not apply to information that: (i) Recipient independently develops without use of Discloser’s Confidential Information; (ii) was, at the time of disclosure, already known to Recipient without restriction on use or disclosure and was not obtained from Discloser; (iii) is lawfully disclosed to Recipient without restriction on use or disclosure by a third party who is not required to maintain its confidentiality; or (iv) is publicly available through no fault of the Recipient.
4.3 Ownership of Confidential Information. The Confidential Information of Discloser is and will remain the property of Discloser. Nothing in this Agreement grants or confers any rights to Recipient by license or otherwise in Discloser’s Confidential Information, except as expressly provided in this Agreement.
4.4 Remedies Upon Breach. Recipient agrees that in the event of a breach or threatened breach of this Agreement, Discloser may have no adequate remedy in money damages and, accordingly, will be entitled to seek an injunction against such breach, in addition to any other legal or equitable remedies available to Discloser.
4.5 Legally Required Disclosure. If Recipient is legally required to disclose any of Discloser’s Confidential Information, then it may do so provided that Recipient (i) provides prompt written notice to Discloser (to the extent permitted by law), (ii) provides all reasonably requested assistance to Discloser in attempting to limit the scope of the disclosure, and (iii) only discloses Discloser’s Confidential Information to the extent actually required by law.
5.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the legal power to enter into this Agreement; (ii) the signatory hereto has the authority to bind the applicable organization; and (ii) when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization, or similar laws affecting the rights of creditors generally and the availability of equitable remedies.
5.2 DISCLAIMERS. COMPANY ASSUMES ALL RISKS AS TO THE USE OF THE SOFTWARE. THE SOFTWARE AND ANY TECHNICAL ASSISTANCE BY SECURELINK ARE PROVIDED FOR EVALUATION PURPOSES ONLY AND “AS IS WITH ALL FAULTS,” AND NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE MADE WITH RESPECT THERETO WHETHER ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SECURELINK DOES NOT WARRANT (I) THAT THE SOFTWARE, DOCUMENTATION, OR THE SERVICES WILL BE FREE FROM ANY INTERRUPTIONS, DELAYS, INACCURACIES, SERVER DOWN-TIME, ERRORS, OR OMISSIONS, (II) THE PERFORMANCE OR RESULTS COMPANY MAY OBTAIN BY RECEIVING THE SERVICES OR USING THE SOFTWARE OR DOCUMENTATION, OR (III) THE SOFTWARE, DOCUMENTATION, OR THE SERVICES WILL MEET COMPANY’S REQUIREMENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE SOFTWARE, DOCUMENTATION, OR ANY SERVICES, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY, CONDITION, REPRESENTATION, OR GUARANTY BY SECURELINK. COMPANY SHALL BE SOLELY RESPONSIBLE FOR MAINTAINING ALL APPROPRIATE BACKUPS OF ITS FILES AND DATA.
6.1 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE: (I) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SECURELINK PARTIES (DEFINED BELOW) EXCEED ONE HUNDRED DOLLARS; (II) IN NO EVENT SHALL ANY SECURELINK PARTY BE LIABLE TO ANY COMPANY PARTY (DEFINED BELOW) OR THIRD PARTY FOR, AND COMPANY AND EACH COMPANY PARTY HEREBY WAIVES ANY CLAIM AGAINST ANY SECURELINK PARTY FOR, ANY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, LOSS OF DATA, OR LOST PROFITS DAMAGES OF ANY KIND (INCLUDING ANY LOST REVENUE, PROFITS, SAVINGS, BUSINESS OPPORTUNITIES, USE, OR GOODWILL) HOWEVER ARISING, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE AND WHETHER SECURELINK HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
THE LIMITATIONS OF LIABILITY ABOVE SHALL APPLY: (A) TO ALL CLAIMS IN THE AGGREGATE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT; (B) REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UNDER WHICH THE CLAIM ARISES, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, OR OTHERWISE; (C) REGARDLESS OF WHETHER SECURELINK HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; AND (D) REGARDLESS OF IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY IS AN AGGREGATE LIMIT AND WILL NOT BE INCREASED BY THE EXISTANCE OF MORE THAN ONE CLAIM.
THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF SECURELINK’S BARGAIN HEREUNDER, AND COMPANY ACKNOWLEDGES THAT SUCH PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK. Company further acknowledges and agrees that SecureLink would not license the Software to Company absent additional monetary consideration without this allocation of risk and the assumption of the obligations by Company under this Agreement.
6.2 Jurisdictions Preventing Limitation or Exclusion of Warranty or Liability. Since some states do not allow certain limitations or exclusions of warranties or liability, some or all of the limitations and exclusions set forth in Sections 5.2 and 6.1 above may be held unenforceable as applied to Company. In such cases, SecureLink’s liability shall be limited to the greatest extent permitted under applicable law.
7.1 Relationship of the Parties; Third Party Beneficiaries. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
7.2 Force Majeure. Neither Party is responsible for delays or failures to perform its responsibilities under this Agreement (other than payment of money due) due to causes beyond its reasonable control, including: acts of God; acts of government; flood; fire; earthquakes; tornadoes; civil unrest; acts of terror; strikes or other labor problems; computer, telecommunications, internet service provider, or hosting facility failures or delays involving hardware, software, or power systems; pandemic; denial of service attacks; or power failures.
7.3 Attorney’s Fees. The prevailing Party in disputes concerning this Agreement shall be entitled to the costs of collections and enforcement, including but not limited to reasonable attorney’s fees, court costs and all necessary expenses. Notwithstanding anything in this Agreement to the contrary, in the event of Company’s bankruptcy or insolvency, SecureLink will be entitled to recover from Company SecureLink’s costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, that SecureLink incurs enforcing and/or otherwise protecting SecureLink’s rights and remedies under this Agreement or amendments and modifications thereto.
7.4 Notices. Any notices or other communications required to be given in writing under this Agreement (“Notices”) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). Notices must be delivered by personal or courier delivery (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only upon receipt by the receiving party.
7.5 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided are in addition to, and not exclusive of, any other remedies available at law or in equity.
7.6 Invalidity. If any provision of this Agreement is determined to be illegal or unenforceable, then the provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in a manner that complies with applicable law. The remainder of this Agreement, if capable of substantial performance, will remain in full force and effect.
7.7 Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, SecureLink may assign this Agreement in its entirety, without the consent of Company, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of SecureLink’s assets. Any attempt by a Party to affect an assignment in breach of this Section 11.8 shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, and permitted assigns.
7.8 GOVERNING LAW; VENUE. THIS AGREEMENT, AND ALL CLAIMS ARISING OUT OF OR RELATING TO ITS SUBJECT MATTER, SHALL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY DISCLAIMED. ANY ACTION, SUIT, OR OTHER LEGAL PROCEEDING THAT IS COMMENCED TO RESOLVE ANY MATTER ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE COMMENCED AND MAINTAINED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN TRAVIS COUNTY, TEXAS. COMPANY CONSENTS TO THE PERSONAL JURISDICTION OF SUCH COURTS AND HEREBY WAIVES ANY OBJECTION TO VENUE OF SUCH COURTS.
7.9 Entire Agreement; Amendment. This Agreement, including the Subscription Order, constitutes the entire agreement between the parties with respect to the subject matter set forth herein, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No terms, provisions, or conditions of any purchase order, acknowledgement, check, or other business form that Company may use in connection with the acquisition or licensing of the Service or Software will have any effect on the rights, duties, or obligations of the parties under this Agreement, regardless of any failure of SecureLink to object to such terms, provisions, or conditions. To the extent there is a direct conflict between this Agreement and the Subscription Order, the Subscription Order shall control. As used in this Agreement, the terms “including,” “include,” and “includes” are not limiting and shall be deemed to be followed by the phrase “without limitation.” Use of the terms “hereunder,” “herein,” “hereby,” and similar terms refer to this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties hereto.
7.10 Export. Company agrees to comply with all U.S. export and re-export control laws and regulations and the U.S. economic sanctions, including the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce, the laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) administered by the U.S. Department of State, and not cause SecureLink to violate the same. Notwithstanding anything contained in this Agreement to the contrary, Company shall not export or import, directly or indirectly, the Software or information pertaining thereto to or from any country (such as Cuba, Iran, North Korea, Sudan, or Syria), to which such export or import is restricted or prohibited or as to which such government or any agency thereof requires a license or other governmental approval at the time of export or import without first obtaining such license or approval. Furthermore, Company agrees to cooperate as requested by SecureLink to ensure compliance with any such export or import restrictions. Company agrees to hold harmless and defend, to the fullest extent permitted by law, at SecureLink’s option, SecureLink and its successors and assigns from and against any fines, penalties, judgments, settlements, and reasonable documented costs, including attorney’s fees, that may arise as a result of a failure to comply with this Section7.11 by Company’s agents, officers, directors or employees.
7.11 Governmental Use. If Company is a branch or agency of the United States Government or a contractor thereto, then the following provision applies. The Software and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (ii) for acquisition on behalf of the Department of Defense consistent with the policies set for the in 48 C.F.R. 227.7202-1 (Aug. 1995) and 227.7202-3 (Aug. 1995).