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Trial Use Agreement
TRIAL USE AGREEMENT
This Trial Use Agreement (“Agreement”) sets forth the terms and conditions under which CartoFusion Technologies, Inc. (“CartoFusion”) will grant you (“Licensee”) a limited right and license to evaluate the SituMap application and any documentation contained therein (“Software”).
Terms and Conditions
- Grant of License. Subject to the terms of this Agreement and payment of relevant fees, if applicable, CartoFusion grants to Licensee a non-exclusive, worldwide license to:
- Use the Software for its own internal purposes so that Licensee may evaluate the use of the Software for Licensee’s requirements. Licensee may not use the Software for any commercial benefit or purpose.
- Demonstrate the Software to Licensee’s customers and potential customers in conjunction with Licensee’s products.
- CartoFusion reserves the right to replace, modify or upgrade the Software at any time. Any such replacement or modified software code or upgrade to the Software offered to Licensee by CartoFusion shall be considered part of the Software and subject to the terms of this Agreement (unless this Agreement is superseded by a further Agreement accompanying such replacement or modified version of or upgrade to the Software). In the event that CartoFusion offers a replacement or modified version of or any upgrade to the Software, (i) Licensee’s continued use of the Software is conditioned on Licensee’s acceptance of such replacement or modified version of or upgrade to the Software and any accompanying superseding Agreement and (ii) in the case of the replacement or modified Software, Licensee’s use of all prior versions of the Software is terminated.
- Use Restrictions. Licensee, directly or indirectly, alone or with any other party, may not:
- modify, change, create derivative works of, disassemble, decompile or otherwise reverse engineer the Software, or remove proprietary legends in the Software.
- distribute, transfer, resell, rent, lease, or loan the Software to any other party, except as described above.
- make the Software available to others in a service bureau arrangement or for any similar commercial time-sharing or third party training use.
- transfer the Software to any third party for outsourcing or any other purpose without the express prior written consent of CartoFusion.
- Licensee Content. Licensee hereby represents and warrants that any Licensee content provided to CartoFusion or through the Software is owned by Licensee or Licensee has the right to access and use such content as contemplated herein. Furthermore, Licensee represents and warrants that the Licensee content does not violate the intellectual property or other rights of a third party. Licensee agrees not to submit, deliver, distribute or otherwise upload or download content that (i) infringes upon the rights of any third party or (ii) creates liability for CartoFusion.
- Ownership. The Software is owned or licensed by CartoFusion. The Software is protected by copyright and other laws of the United States. Except as expressly provided herein, CartoFusion does not grant any express or implied right to Licensee under CartoFusion patents, copyrights, trademarks, trade secret or other proprietary rights. CartoFusion reserves all rights not specifically granted herein.
- Support. CartoFusion may, in its sole discretion, provide to Licensee updates to the Software. CartoFusion is under no obligation to provide Licensee with any updates, support, or maintenance of the Software. Any support shall be provided pursuant to a separate written agreement.
- Disclaimer of Warranty.
- The Software is provided without warranty in its current “AS IS” condition. CartoFusion MAKES NO WARRANTY OF ANY KIND WHATSOEVER, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
- In addition to the disclaimer of warranties set forth above, it is understood that CartoFusion makes no representations concerning the completeness, accuracy or operation of the Software. Furthermore, Licensee shall have the sole responsibility for adequate protection and backup of its data used in connection with the Software, and Licensee shall not make any claim against CartoFusion for lost data, re-run time, inaccurate input, work delays or lost profits resulting from the use of the Software.
- Limitation of Liability. IN NO EVENT SHALL CARTOFUSION BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH EXCEED THE FEES PAID BY LICENSEE FOR THE SOFTWARE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL CARTOFUSION BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOOD WILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
- Termination. This Agreement shall remain in effect for fifteen (15) days from delivery of the Software (the “Evaluation Period”). Licensee may terminate this Agreement at any time by destroying all copies of the Software. This Agreement and the rights granted hereunder will terminate automatically if Licensee fails to comply with terms herein and fails to cure such breach within five (5) days of becoming aware of the breach. Upon termination of this Agreement, Licensee will remove, or certify in writing to the destruction of, the Software from its computer systems. This Agreement shall terminate immediately with respect to any person or entity asserting or threatening to assert any intellectual property right against CartoFusion.
- Links. CartoFusion may link to other web sites within the Software, for example, to the CartoFusion support site or other informational sites. CartoFusion will make a reasonable effort to link only to sites that meet similar standards for maintaining each individual’s right to privacy. CartoFusion cannot control these links and is not responsible for any content appearing on these sites.
- Suggestions and Feedback. If Licensee suggests any new features, functionality, new use, or change for the Software, Licensee hereby grants and agrees to grant to CartoFusion all rights needed for CartoFusion to incorporate and commercialize the new feature, functionality, new use, or change at no charge, royalty or other encumbrance to CartoFusion. Licensee agrees that CartoFusion has the ability to sublicense all feedback in any form to any third party without restriction.
- Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties relating to the subject matter hereof. This Agreement may not be amended except by a written document signed by both parties.
- No waiver. The failure of CartoFusion to enforce any rights granted hereunder or to take action against Licensee in the event of any breach hereunder shall not be deemed a waiver by CartoFusion as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
- Governing Law. This Agreement shall be governed by and construed and interpreted by the laws of the State of Texas, without regard to any conflict of laws provisions of any state or jurisdiction. Each party submits to the jurisdiction of the state and federal courts of Brazos County and the Southern District of Texas for the purposes of all legal proceedings arising out of or relating to this Agreement or the subject matter hereof. Licensee waives any objection that it may have to contest such forum.
- Import/Export. Licensee shall comply with all then-current export and import laws and regulations of the United States and such other governments as are applicable when distributing or using the Software. Licensee hereby certifies that it will not directly or indirectly export, re-export, transship, or transmit the Software, or any portion thereof, or related information, media, or products in violation of United States laws and regulations.
- Severability. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
- Verification. Licensee agrees that CartoFusion may, upon five (5) days prior written notice, enter Licensee’s premises to verify Licensee’s compliance with the provisions of this Agreement. CartoFusion’s inspections shall be limited to (i) normal business hours; and (ii) those records pertaining to the Software licensed hereunder. CartoFusion’s rights of inspection shall remain in effect through the period ending one (1) year from the termination or expiration of this Agreement and any applicable license hereunder.
- Government Licensees. Licensee agrees that the Software are provided with “RESTRICTED RIGHTS” as set forth in subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-14 or subparagraph (c) (1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.277-7013, as applicable.