PULSE EVALUATION SOFTWARE LICENSE AGREEMENT
ZUTUBI IS WILLING TO LICENSE PULSE AND ACCOMPANYING DOCUMENTATION (THE "SOFTWARE") TO YOU (THE "EVALUATOR") FOR EVALUATION PURPOSES ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT. PLEASE READ THESE TERMS CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. BY INSTALLING OR USING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.
The licensed Software is "Pulse Evaluation Edition".
2. Grant of License:
Zutubi Pty Ltd ("ZUTUBI") hereby grants to Evaluator, for 30 days (the "Evaluation Period") following the execution of this Agreement (the "Agreement"), a limited, nontransferable, nonexclusive, nonsublicensable, revocable, worldwide license to use the Software for the purposes of internal evaluation and testing for suitability for commercial licensing ("Evaluation") by Evaluator. Title to the Software shall remain with ZUTUBI at all times.
Evaluator shall not: (a) copy any part of the Software except to make one copy for back-up purposes only; (b) reverse compile or reverse assemble any portion of the Software where the source code is not freely accessible; (c) distribute, disclose, market, rent, lease, or transfer the Software; (d) export the Software; or (e) allow others to make or obtain copies of the Software.
ZUTUBI may, during the Evaluation Period, make available updates, enhancements, and/or modifications to the Software and may provide such updates to Evaluator, but is under no obligation to do so. The provision by ZUTUBI to Evaluator of such updates, enhancements, and/or modifications to the Software shall be subject to all terms and conditions of this Agreement and shall expire at the end of the Evaluation Period.
5. Specific Disclaimer of Warranty and Limitation of Liability:
THE SOFTWARE IS PROVIDED WITHOUT WARRANTY OF ANY KIND. ZUTUBI DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ZUTUBI WILL NOT BE LIABLE FOR ANY DAMAGES ASSOCIATED WITH THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ORDINARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES RELATING TO LOST DATA OR LOST PROFITS, EVEN IF ZUTUBI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Evaluator's license to use the Software shall terminate on the earlier of (i) written notice by either ZUTUBI or Evaluator, or (ii) expiration of the Evaluation Period. Upon termination of the license as provided above, Evaluator shall promptly destroy the Software and any back-up copy of the Software made during the Evaluation Period. Evaluator shall also promptly return all materials provided by ZUTUBI in connection with the Software.
7. Warranties and Representations;
Indemnification. Evaluator warrants and represents that Evaluator's actions with regard to the Software will be in compliance with all applicable laws; and Evaluator will indemnify, defend, and hold ZUTUBI harmless from and against any and all liabilities, damages, losses, claims, costs, and expenses (including legal fees) arising out of or resulting from Evaluator's failure to observe the use restrictions set forth herein.
8. Governing Law:
This Agreement shall be governed by the laws of New South Wales, Australia.
9. Independent Contractors; Assignment:
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. This Agreement is not assignable or transferable by Evaluator.
10. Entire Agreement:
This Agreement constitutes the entire agreement between the parties concerning Evaluator's use of the Software. This Agreement supersedes any prior verbal understanding between the parties and any Evaluator purchase order or other ordering document, regardless of whether such document is received by ZUTUBI before or after execution of this Agreement. This Agreement may be amended only in writing by ZUTUBI.