EVALUATION AGREEMENT

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This Evaluation Agreement (“Agreement”), effective as of the date that Licensee (defined below) accepts this Agreement (the “Effective Date”), is entered by and between Packetcraft, Inc., a Delaware corporation with offices at 10755 Scripps Poway Pkwy. #500, San Diego, CA 92131 (“Packetcraft”) and the customer obtaining a license hereunder (“Licensee”).  Packetcraft and Licensee may hereinafter also be referred to individually as “Party” and collectively as “Parties.” 

 

To access and use the Licensed Materials (defined below), Licensee must click to accept this Agreement. BY CLICKING TO ACCEPT THIS AGREEMENT, BY ELECTRONICALLY OR MANUALLY SIGNING THIS AGREEMENT, OR BY OTHERWISE ACCESSING OR USING THE LICENSED MATERIALS, LICENSEE SIGNIFIES ITS AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO SUCH TERMS, CONDITIONS AND/OR NOTICES, LICENSEE MAY NOT ACCESS OR USE THE LICENSED MATERIALS.

 

In consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each Party, the Parties agree as follows:

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1.              Evaluation 

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1.1.          During the Evaluation Period (defined below), Licensee desires to conduct an evaluation (the “Evaluation”) of Packetcraft’s software accompanied by this Agreement (“Software”), and the documentation provided by Packetcraft for such Software (the “Documentation,” and, collectively with the Software, the "Licensed Materials").  The Software will be in binary form only.  “Evaluation Period” means the period commencing on the Effective Date and continuing until the date terminated by either Party in accordance with this Agreement.

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1.2.          Subject to all the terms and conditions of this Agreement, Packetcraft shall provide Licensee with access to the Licensed Materials during the Evaluation Period to enable Licensee to carry out the Evaluation.  Licensee shall be exclusively responsible for the supervision, management and control of all use of, and access to, the Licensed Materials.

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1.3.          For the avoidance of doubt, the Parties are under no obligation or commitment whatsoever to pursue technical collaboration and/or any further commercial agreement.

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1.4.          Packetcraft will provide the Licensed Materials to Licensee for the Evaluation at no charge.

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2.              License; Restrictions

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2.1.          Subject to the terms and conditions of this Agreement, Packetcraft hereby grants to Licensee, during the Evaluation Period, a personal, non-exclusive, non-transferrable, non-sublicensable, revocable license to:

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(a)            access the Licensed Materials for use in the Evaluation;

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(b)            use, compile and test the Software in the Evaluation only for the purpose of internal evaluation in connection with Licensee’s products and services; and

 

(c)            if expressly approved by Packetcraft in advance in writing (email sufficient), publicly demonstrate the Software in connection with Licensee’s products or services, provided that, when providing any demonstration, Licensee shall provide an oral or written notice, as appropriate, that the Software is provided by Packetcraft.

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2.2.          Except for the licenses to the Licensed Materials specifically granted in Section 2.1, Packetcraft reserves all rights in and to the Licensed Materials, and Licensee shall have no rights of any nature whatsoever in or to the Software source code or object code created when such source code is compiled.

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2.3.          Notwithstanding the license granted in Section 2.1, Licensee shall not, and shall not assist or permit any third party to, directly or indirectly:  (a) use or permit the use of the Licensed Materials by any users other than its employees and subcontractors that have a need to use the Licensed Materials (including any source code, source code data files, and all related software and infrastructure architecture design, schema and logic) to perform the Evaluation on behalf of Licensee; (b) copy any of the Software source code through any means, or modify such source code or any portion of it; (c) reverse engineer, map, decompile, enhance, or make derivative works, translations, localized versions, or compilations or portions or otherwise derive the Software, internal structure, organization or any other aspect of the Software, any associated tools and libraries, or any part thereof; (d) analyze the Software for benchmarking purposes (including without limitation benchmarking memory or CPU usage); (e) share any benchmarking data or other information created from analysis or use of the Software with any third party; (f) use any Confidential Information of Packetcraft, including any trade secrets, in any manner to circumvent any restrictions herein or to otherwise attempt to exercise any license rights other than as expressly permitted herein; (g) sell, license, transfer, lease, give away, distribute or otherwise dispose of the Licensed Materials; (h) permit any third party to use or have access to the Licensed Materials, whether by timesharing, networking or any other means, or use the Software in any service bureau capacity including, without limitation, using such Software to process any data for any third party; (i) remove any copyright, trademark, patent or other proprietary notices from the Licensed Materials or any portion thereof; and/or (j) grant any sublicenses or any other subsidiary uses of any portion of the Licensed Materials. 

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2.4.          For the avoidance of doubt, Licensee shall have no right to create new features or other improvements to, or derivative works of, the Software (collectively, “Improvements”); provided, however, that, in the event any Improvements result from Licensee’s use of the Licensed Material, Packetcraft shall exclusively own all right, title and interest, including all associated Intellectual Property Rights (defined below), in and to such Improvements. 

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3.              Intellectual Property

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3.1.          Packetcraft or its licensors have and will retain all right, title, interest and ownership in and to the Licensed Materials and to all copyright, trademark, trade secret and all other intellectual and proprietary rights (“Intellectual Property Rights”) therein.  The Licensed Materials constitute the proprietary information and trade secrets of Packetcraft and its licensors, whether or not any portion thereof is or may be the subject of any registered copyright or patent.  To the extent Licensee integrates or combines any Licensed Materials with or into any Licensee product or service for the purposes of the Evaluation, no such action shall operate to create a new work, joint work, or compilation or in any way alter Packetcraft’s and its licensors’ exclusive ownership of the Licensed Materials as set forth in this Section, nor shall Licensee assert any such ownership claim.

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3.2.          Licensee agrees to provide Packetcraft all bug reports, performance measurements, log files, ideas for improvements, reports on issues discovered, and any and all other feedback relating to the evaluation of the Software (collectively, “Feedback”), and Packetcraft shall exclusively own all Feedback.

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4.              Confidentiality  

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4.1.          Licensee, as the receiving Party, shall maintain as confidential all proprietary and confidential information of Packetcraft disclosed or learned during the term of this Agreement (“Confidential Information”).  For purposes of this Agreement, the following shall be deemed to be Packetcraft’s Confidential Information, without limitation:  (a) the Software source code, binary code, and literary objects; (b) performance related results, including but not limited to defects in the License Materials; and (c) the terms and conditions of this Agreement.  All Confidential Information is the sole and exclusive property of the Packetcraft, and no right, title or interest thereto shall vest in or accrue to Licensee, by operation of law or otherwise.  

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4.2.          Licensee shall not use the Confidential Information except as necessary to perform its obligations or exercise its rights pursuant to this Agreement.  Licensee shall not disclose the Confidential Information to any third party without the prior written consent of Packetcraft or except as otherwise expressly permitted under this Agreement; provided, however, that Licensee may only disclose Confidential Information on a “need to know” basis to its employees who are bound by written, enforceable, confidentiality obligations at least as stringent as and no less protective of Packetcraft than those set forth in this Agreement.  Licensee agrees to take all appropriate steps to ensure that persons having access to the Confidential Information shall refrain from any unauthorized use, reproduction or disclosure of the Confidential Information or any portion thereof.  Any violation of the foregoing by any persons having access to the Confidential Information shall be deemed to be Licensee’s violation, and Licensee shall be responsible for all consequences arising from such breach.  Licensee will implement and use security measures that are generally accepted in the industry and are adequate to prevent the unauthorized access to, or use of, Confidential Information.  Promptly after any termination or expiration of this Agreement or receipt of any written demand from Packetcraft, Licensee will return to Packetcraft or securely destroy (as specified by Packetcraft) all Confidential Information.

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4.3.          The foregoing obligations of confidentiality and non-use shall continue in effect, with respect to each item of Confidential Information, for so long as none of the below exceptions apply thereto.  The foregoing obligations of confidentiality and nonuse shall not apply to information that Licensee can demonstrate:  (a) was lawfully in the possession of Licensee prior to the date that such information is disclosed or learned; (b) becomes public or available to the public through no fault or omission of Licensee; (c) has been lawfully obtained by Licensee from a third party which is in lawful possession of such information without any obligation of confidentiality; (d) is required to be disclosed by law, in which case Licensee will give the Packetcraft as much advance notice of the proposed disclosure as is practical, and will cooperate with Packetcraft in any effort to limit or restrict such disclosure, via a protective order or otherwise; or (e) is independently developed by Licensee without, direct or indirect use of the Confidential Information.

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4.4.          The unauthorized disclosure or use of the Confidential Information may cause irreparable harm to Packetcraft, which harm cannot be compensated by damages alone.  Therefore, in addition to all other rights and remedies at law and in equity, Packetcraft may seek an injunction to prevent a violation of the obligations of confidentiality or non-use.

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5.              Warranties and Covenants  

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5.1.          Each Party represents and warrants that it has the power to enter into this Agreement, and neither its execution nor performance of this Agreement will violate any agreement to which it is a party or by which it is otherwise bound.

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5.2.          EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 5, PACKETCRAFT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY LICENSED MATERIALS, THE EVALUATION OR OTHER MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND PACKETCRAFT HEREBY DISCLAIMS THE SAME.  PACKETCRAFT DOES NOT REPRESENT OR WARRANT THAT THE LICENSED MATERIALS OR THE EVALUATION WILL MEET THE NEEDS OR REQUIREMENTS OF LICENSEE OR ITS CUSTOMERS, THAT THE LICENSED MATERIALS OR THE EVALUATION WILL BE COMPLETE, ACCURATE OR RELIABLE, THAT USE OF THE LICENSED MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT DEFECTS IN THE LICENSED MATERIALS WILL BE CORRECTED.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE ORDER, LICENSEE ACKNOWLEDGES THAT PACKETCRAFT IS UNDER NO OBLIGATION TO PROVIDE SUPPORT TO LICENSEE OF ANY KIND; PROVIDED, HOWEVER THAT ANY SUPPORT PACKETCRAFT DOES PROVIDE IS ON AN “AS IS” BASIS AND WITH NO WARRANTY.  

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6.              Limitation of Liability 

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TO THE MAXIMUM EXTENT PERMITTED BY LAW:  (a) NEITHER PACKETCRAFT NOR ITS AFFILIATED COMPANIES OR LICENSORS SHALL BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING FOR ANY LOST REVENUES OR LOST PROFITS; AND (b) IN NO EVENT SHALL THE TOTAL LIABILITY OF PACKETCRAFT, ITS AFFILIATED COMPANIES AND LICENSORS UNDER THIS AGREEMENT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00) OR ANY FEES THAT LICENSE PAYS TO PACKETCRAFT IN CONNECTION WITH THE EVALUATION.

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7.              Term and Termination

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7.1.          Unless earlier terminated as set forth below, this Agreement shall commence on the Effective Date and continue until the end of the Evaluation Period.

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7.2.          Either Party may terminate this Agreement upon written notice to the other Party if:  (a) the other Party materially breaches this Agreement, which breach is not cured within five (5) days after written notice thereof from the terminating Party; or (b) the other Party becomes insolvent, or becomes a party or is subject to any case or proceeding under any bankruptcy, reorganization, insolvency, moratorium, or similar law, or the appointment of any receiver, trustee, assignee, or similar party to take possession of the properties of the other Party.  Notwithstanding the foregoing, either Party may terminate this Agreement for any reason upon five (5) days prior written notice to the other Party.

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7.3.          Upon the expiration or termination of this Agreement for any reason:  (a) all rights granted to Licensee hereunder will cease, and Licensee will immediately cease all access to and use of any Licensed Materials, and will either return to Packetcraft or destroy all copies of the License Materials; and (b) Sections 1.3, 2.2, 2.3, 2.4, 3, 4, 5.2, 6, 7.3 and 8 shall survive.  Neither Party will be liable for exercising any termination right in accordance with this Agreement.  Any expiration or termination of this Agreement shall not release either Party from any liability or obligation that had already accrued as of the effective date of expiration or termination.  The pursuit by either Party of any remedy to which it is entitled at any time shall not be deemed an election of remedies or waiver of the right to pursue any of the other remedies to which it may be entitled.

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8.              Miscellaneous.  

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8.1.          Export.  Each Party shall comply with all applicable laws, rules and regulations in the performance of this Agreement, including without limitation U.S. export control laws and regulations (collectively “Export Regulations”).  Without limiting the generality of the foregoing, Licensee shall:  (a) not export, re-export, or transfer any Software or Confidential Information of Packetcraft (i) to any countries that are subject to U.S. embargoes, (ii) to any individual or entity to whom exports are prohibited under any Export Regulations, or to any end user who controls or is controlled by any such individual person or entity, (iii) for any purpose prohibited by Export Regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation, or (iv) to any country for which an export or import license is required without first obtaining the license from the applicable governmental agency; and (b) refrain from taking any actions in connection with Software or Confidential Information of Packetcraft that would cause Packetcraft to violate any Export Regulations or other applicable law or regulations.  Licensee agrees that any delay, denial, or revocation of an export authorization that impacts delivery will not constitute a breach of contract by Packetcraft.  Packetcraft shall have the right to immediately terminate any performance under this Agreement upon notice to Licensee in order to comply with the applicable Export Regulations, or at the request of the relevant governmental authorities. Licensee shall indemnify, defend and hold harmless Packetcraft from and against all losses, liabilities, fines, penalties, costs and expenses (including reasonable legal expenses) and damages suffered or incurred by Packetcraft arising from violations, charges, investigations or enforcement actions concerning the Export Regulations, to the extent resulting from actions or omissions by Licensee.

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8.2.          Government Licensees.  The Licensed Materials provided under this Agreement consist solely of commercial items and are provided with the rights and subject to restrictions described elsewhere herein.  Licensee shall be responsible for ensuring that any Software or Documentation provided to the U.S. Government in accordance with the terms of this Agreement is provided with the rights and subject to restrictions described elsewhere herein.

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8.3.          Assignment.  Licensee shall not assign or otherwise transfer this Agreement or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of Packetcraft, such consent not to be unreasonably withheld, conditioned or delayed.  Any attempt by Licensee to assign other than in accordance with this provision shall be null and void.  

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8.4.          Notices.  Unless otherwise specified herein, all any notices, invoices and other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by email, first class certified or registered mail, return receipt requested, or by overnight courier, to the intended recipient thereof at such address of a Party set out herein or otherwise provided by a Party; provided, however, that any notice of breach, non-renewal or termination of this Agreement sent by email shall also be given by one of the other methods above.  

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8.5.          General Provisions.  Packetcraft and Licensee are independent contractors, and neither Party nor their employees, consultants, contractors or agents are agents, employees or joint venturers of the other Party, nor do they have the authority to bind the other Party by contract or otherwise to any obligation.  This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.  No amendment of any provision of this Agreement shall be effective unless set forth in a writing signed by a representative of Licensee and Packetcraft, and then only to the extent specifically set forth therein.  Failure or delay by either Party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision.  No waiver by either Party of any condition or the breach of any provision of this Agreement in any one or more instances shall be deemed a further or continuing waiver of the same or any other condition or provision.  Packetcraft shall not be liable for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, and Packetcraft’s time for performance or cure under this Agreement shall be extended for a period equal to the duration of the cause.  This Agreement shall be governed by the laws of the State of California, without regard to its conflict of law rules.  Any claims or litigation arising under this Agreement will be brought by the Parties solely in state and federal courts located in San Diego, California.  This Agreement embodies the entire agreement between the Parties with respect to the subject matter hereof and thereof, and supersedes all prior negotiations, discussions, agreements and understandings between the Parties relating to the subject matter hereof and thereof.  The terms and condition of this Agreement will prevail over the pre-printed or standard terms of any Licensee purchase order, which the Parties hereby reject.  If any term of this Agreement or part hereof not essential to the commercial purpose of this Agreement shall be held to be illegal, invalid or unenforceable, it is the intention of the Parties that the remaining terms hereof or part hereof shall constitute their agreement with respect to the subject matter hereof and thereof and all such remaining terms, or parts thereof, shall remain in full force and effect.  This Agreement and any SOW may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.  A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature.