BY CLICKING ON THE "START TRIAL" BUTTON, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS EVALUATION AGREEMENT ("AGREEMENT"). YOUR AND YOUR COMPANY'S (COLLECTIVELY, "COMPANY" OR "YOU") CONTINUED USE OF THE SYSTEM (AS DEFINED BELOW) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU DO NOT QUALIFY TO PARTICIPATE IN THE EVALUATION. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. YOU REPRESENT AND WARRANT THAT THE INDIVIDUAL WHO AGREES AND/OR ENTERS INTO THIS AGREEMENT HAS AUTHORITY TO AGREE AND/OR ENTER INTO THIS AGREEMENT AND BIND YOU TO THE TERMS OF THIS AGREEMENT.
- Use of System and Software License. Subject to terms of this Agreement, Company wishes to obtain from Xirrus, and Xirrus grants to Company a personal, non-sub licensable, non-exclusive license to use the computer software and/or computer hardware listed on Exhibit A below (the "System") without modification only in accordance with the documentation supplied by Xirrus solely for Company's internal testing and evaluation of the System during the term of this Agreement. Company shall not reverse engineer, decompile, create other works from, or disassemble any software provided in the System, or otherwise attempt to discover any System source code or underlying Confidential Information (as that term is defined below), nor shall Company allow any third party to conduct such activities. Company shall comply with all applicable laws including any import/export control regulations. You agree that you will not knowingly, without prior authorization if required, export or re-export the Product in any medium without the appropriate United States and foreign government licenses. Any additional computer software and/or computer hardware provided subsequent to this Agreement pursuant to a quote indicating that it is for evaluation or otherwise provided for evaluation purposes shall automatically be subject to this Agreement and added to the System.
- Maintenance. Company shall bear all risk of loss in relation to the System after delivery of the System by Xirrus. Company shall maintain the System in an undamaged condition and in a setting and in a configuration appropriate, in the sole opinion of Xirrus, for the use and proper functioning of the System. Company shall not remove from the System any legend attached to it, stating it to be the property of Xirrus. Notwithstanding anything else herein, Xirrus shall be entitled to enter upon the Company's property at any time and take possession of System if it believes the System is being misused or used in breach of this Agreement or is possessed by others or is in danger of being seized by others.
- Confidentiality. Company acknowledges that, in the course of using the System and performing its duties under this Agreement, it may obtain or develop information relating to the System and/or to Xirrus ("Confidential Information"), including, but not limited to the System, code, technology, algorithms, schematics, testing procedures, documentation, problem reports, analysis and performance information, inventions (whether patentable or not), and other technical, business, product, marketing, financial and customer information, plans and data. During and after the term of this Agreement, Company shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Confidential Information, unless such Confidential Information becomes part of the public domain without breach of this Agreement by Company, its officers, directors, employees or agents. During or after the term of this Agreement, Company will disclose the System and Confidential Information only to those of its employees as are necessary for the use expressly and unambiguously granted hereunder and who are bound by the provisions of this Agreement or terms similar to and at least as protective as the terms herein as a condition of employment. Company shall not, without the prior written consent of Xirrus, disclose or otherwise make available the System, including any information relating to the performance or operation of the System (including any benchmarking or other testing results), or copies thereof to any third party. Company will not remove or export the System or any Confidential Information without Xirrus’ prior written permission. Company acknowledges and agrees that due to the unique nature of Xirrus’ Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Company or third parties to unfairly compete with Xirrus resulting in irreparable harm to Xirrus, and therefore, that upon any such breach or threat thereof, Xirrus shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
- Ownership. Title to and ownership of the System and all copies thereof shall be and at all times remain in Xirrus. All reports and information contained in such reports are the sole property of Xirrus. Any developments or modifications made during the term of this Agreement by Xirrus or the Company, either independently or at Xirrus’ direction, in any way relating to the System, whether or not influenced or suggested by the Company, are the sole property of Xirrus. Company hereby assigns to Xirrus any interest it has or may acquire in any of the foregoing, as well as all related intellectual property rights; and will cooperate to perfect or further evidence such assignments.
- Warranty Disclaimer. The parties acknowledge that the System is experimental in nature and that the System is provided "AS IS" and may not be functional on any machine or in any environment. TO THE EXTENT PERMITTED BY APPLICABLE LAW, XIRRUS DISCLAIMS ALL WARRANTIES RELATING TO THE SYSTEM, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Remedies and Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, XIRRUS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES, AND LOSS OF PROFITS. XIRRUS SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
- Nonassignability. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Company, and any such attempted assignment or transfer shall be void and without effect.
- Controlling Law, Attorneys' Fee and Severability. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California, without applying conflicts of law rules. Any action or proceeding arising from or relating to this Agreement must be resolved exclusively in U.S. federal court in the Central District of California, or in the state courts located in Ventura County, California. In any action to enforce this Agreement the prevailing party will be entitled to reasonable costs and attorneys' fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto are expressly cancelled. Any modifications or waivers of this Agreement must be in writing and signed by both parties hereto.
- Termination. This Agreement may be terminated by either party for any reason or no reason upon three (3) days' prior written notice to the other party, or immediately upon notice of any breach by the other party of the provisions of this Agreement, and in any case will terminate thirty (30) days after the date of delivery. Upon termination, the license granted hereunder shall terminate and Company shall immediately return the System, together with any and all documents, notes and other materials associated with the System to Xirrus, including, without limitation, all Confidential Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect. Unless otherwise agreed to in writing by the parties, Company's failure to return the System within thirty days (30) of termination of this Agreement shall constitute an agreement to purchase the System at Xirrus’ then current list price and Xirrus will invoice accordingly. Standard payment terms are net thirty (30) days from the date of invoice, but Xirrus reserves the right to require alternative payment terms, including payment in advance, irrevocable letter of credit, or C.O.D. Payment is not conditioned upon the Products meeting any acceptance testing procedures that Company may have. Xirrus reserves the right to charge Company interest on any delinquent balance, computed on a daily basis for each day that the payment is delinquent at the lessor of eighteen percent (18%) per year or the maximum rate permitted by applicable law.
- Indemnification. Company agrees to defend, indemnify and hold Xirrus and its affiliates harmless from any and all liabilities, costs and expenses, including reasonable attorney’s fees, related to or arising from Company’s misuse of the Product, or in any manner inconsistent with the terms and conditions of this Evaluation Agreement.
