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 license to use and access the Software during the Term (defined below) solely (i) in connection with Company’s internal testing of the Software to determine whether to purchase licenses to the Software and (ii) in accordance with the documentation provided with the Software (the “Documentation”). If the Software is provided on a SecureLink server then the Software may only be used on the server on which it is provided. Only employees or authorized independent contractors of Company may use the Software; provided that: (i) all such use shall be solely for the benefit of Company and in accordance with the terms and conditions of this Agreement, and (ii) Company ensures that its independent contractors comply with the terms and conditions of 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. The term “Software” as used in this Agreement includes the Documentation.
2.2 Limitations. Except as otherwise authorized in writing by SecureLink, Company may not (and may not permit any third party to): (i) decompile, reverse engineer, disassemble, print, copy, or display 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) publish, release, rent, lease, loan, sell, distribute, or transfer the Software to another person or entity; (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) reproduce the Software for the use or benefit of anyone other than Company; (vii) alter, modify, adapt, translate, or create derivative works based upon the Software either in whole or in part; (viii) remove any copyright notice or other proprietary rights notices that may appear in or on the Software; or (ix) distribute any virus, trojan horse, or other malicious code via the Software. Where Company has other rights under statute that makes 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 will use the Software 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.
2.3 Reservation of Rights. The Software provided under this Agreement are licensed, and not sold. SecureLink (and its licensors) retain all title, interest, and ownership rights in and to the Software. SecureLink reserves all rights not expressly granted to Company in this Agreement. If Company provides any feedback to SecureLink concerning the functionality or performance of the Software (including identifying potential errors and improvements), then SecureLink may use the feedback without payment or restriction.
3.1 Term. The term of this Agreement will begin on the Effective Date and continue for ninety 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 2.2 and 2.3 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” or (ii) under the circumstances of disclosure should reasonably be considered as confidential or proprietary information. “Confidential Information” shall include the features and functionality of the Software. Recipient shall not disclose Discloser’s Confidential Information to any third party without Discloser’s prior written approval. 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 4.1 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 by a third party who is not required to maintain its confidentiality; or (iv) is approved for release by Discloser.
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 (iii) 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, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SECURELINK DISCLAIMS ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, SECURELINK DOES NOT WARRANT (I) THAT THE SOFTWARE OR ANY SERVICES WILL BE free from any interruptions, delays, inaccuracies, server down-time, errors, or omissions OR (II) THE PERFORMANCE OR RESULTS COMPANY MAY OBTAIN BY USING THE SOFTWARE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE SOFTWARE OR ANY SERVICES, SHALL BE DEEMED TO BE A WARRANTY BY SECURELINK.
5.3 Company Data. Without limiting the generality of the foregoing, Company shall be solely responsible for maintaining all appropriate backups of its files and data. SecureLink will not be responsible for any corruption, deletion, destruction or loss of any such Company files or data. Company agrees that SecureLink may, in its sole discretion, delete any Company data maintained by SecureLink at any time with or without notice.
6.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL SECURELINK BE LIABILE TO COMPANY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, LOSS OF DATA, OR LOST PROFITS DAMAGES (INCLUDING ANY LOST REVENUE, LOST PROFITS, LOST SAVINGS, LOST BUSINESS, LOSS OF USE, OR LOSS OF GOODWILL) OF ANY KIND HOWEVER ARISING, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT SECURELINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SECURELINK’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $100. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
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; denial of service attacks; or power failures.
7.3 Notices. Any notices or other communications required to be given in writing under this Agreement will be effective when received by email by the designated contact of either party, or upon personal or courier delivery, or three days after deposit into the U.S. mail (certified mail, return receipt requested), addressed to the party at the address set forth above, or at another address as a party may indicate by written notice to the other party.
7.4 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.
7.5 Invalidity. If any provision of this Agreement is determined to be illegal or unenforceable, then such 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.
7.6 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. 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 effect an assignment in breach of this Section 7.6 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.
7.7 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 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.
7.8 Entire Agreement; Amendment. This Agreement 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 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 any conflict between this Agreement and a Statement of Work or Exhibit, this Agreement shall control unless the Statement of Work or Exhibit expressly states otherwise by setting forth the provisions of this Agreement that are superceded. 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.
7.9 Export. This Agreement is expressly made subject to all applicable export or import laws, regulations, orders, or other restrictions. 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 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, at SecureLink’s option, SecureLink from any third party claim against SecureLink arising from Company’s failure to comply with this Section 7.9.
7.10 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 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).