Software Evaluation Agreement

SOFTWARE EVALUATION AGREEMENT

This Software Evaluation Agreement ( “Agreement”), effective as of ____________, 202___ (“Effective Date”), is made and entered into between ___________________, a ____________ corporation with principal offices at ____________________, California (“Licensor”) and a __________________ corporation, with offices at (“Evaluator”). In consideration of the foregoing and the promises and conditions contained herein, the parties do hereby agree as follows:

1. Right to Use. Subject to the terms and conditions of this Agreement, Licensor grants Evaluator a royalty-free, nonexclusive, non transferable, non-assignable license (without right of sublicense) to use the Licensor computer software product(s) set forth in Exhibit A attached hereto, in machine executable object code form, and any supporting documentation provided by Licensor to Evaluator (collectively, the “Software”) only for the purpose of internal evaluation by Evaluator. Evaluator shall use the Software only at Evaluator's designated site set forth in Exhibit A.

1.1. License Restrictions. Evaluator will have no right to copy (except for one backup copy), modify or create derivative works of the Software nor to reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from the Software. In addition, Evaluator shall not:

1.1.1. merge the Software with another program for any purpose whatsoever; or

1.1.2. sublicense, distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Software; or

1.1.3. transfer or reexport, directly or indirectly, the Software to any person or entity outside of the United States without the prior written consent of Licensor.

1.2. Rights in Software. The Software is owned by Licensor and is protected by United States and international copyright laws and treaty provisions. Licensor may at any time and at its sole election replace, modify, alter, improve, enhance, or change the Software. This Software license is not a sale and does not transfer to Evaluator any title or ownership interest in or to the Software or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related to the Software. Except for the rights expressly granted herein, Licensor retains all of its right, title and interest in and to the Software. Evaluator shall not remove, alter, or obscure any proprietary notices contained on or within the Software and shall reproduce such notices on any backup copy of the Software.

2. Bug Reports and Feedback. Evaluator shall promptly provide Licensor with a report of any actual or potential error or bug in the Software. Licensor will have no obligation to correct Software errors or bugs in the Software. Evaluator may from time to time provide suggestions, comments or other feedback on the Software (together with bug reports, “Feedback”). Both parties agree that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by Evaluator, shall not, absent a separate written agreement, create any confidentiality obligation for Licensor. Licensor shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

3. Confidential Information. Evaluator agrees that neither it nor any of its employees will use for their own account (except as expressly permitted under the license granted in Section 1) or for the account of any third party or disclose to any third party (i) the Software, (ii) any information regarding the content, purpose, design or function of the Software, or (iii) any know-how, technical data or other information, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, developments, inventions, processes, marketing or finances (collectively, “Confidential Information”). The parties understand, however, that Confidential Information will not include any information (x) that is generally known and available in the public domain at the time of disclosure without fault of Evaluator, or (y) that was 1 known to Evaluator prior to its negotiations with Licensor, or (z) that is hereafter rightfully furnished to Evaluator by a third party without restrictions on disclosure and without breach of confidentiality restriction. Evaluator agrees to require every Evaluator employee who will have access to, use of, or knowledge of the Software to execute (in advance of and as a condition to such access, use or knowledge) a confidentiality agreement including terms similar to those contained herein. Evaluator shall protect the secrecy of and avoid disclosure or unauthorized use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures must include the highest degree of care that Evaluator utilizes to protect its own confidential information of a similar nature. Evaluator shall notify Licensor in writing of any misuse or misappropriation of Confidential Information which may come to Evaluator's attention.

4. Warranty. THE SOFTWARE IS LICENSED “AS IS.” LICENSOR MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOFTWARE OR THE USE OR OPERATION THEREOF, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

5. Term and Termination. The term of this Agreement and the license granted herein will commence on the Effective Date and continue for a period of _____ (__) days, unless earlier terminated in accordance with this Section 5. Licensor may terminate this Agreement and the license granted hereunder at any time, immediately upon written notice, in the event Evaluator fails to comply with any of the terms and conditions of this Agreement. Within 10 days after termination or expiration of this Agreement, Evaluator shall return or destroy and provide written certification of destruction, at Licensor's discretion, all copies of the Software and any related materials. The provisions of Sections 1.2, 2, 3, 4, 6, 7, and 8 will survive any termination or expiration of this Agreement.

6. Limitation of Liability. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES, INCLUDING LOSS OF DATA, LOSS OF SYSTEM AVAILABILITY, LOSS OF COMPUTER RUN TIME, LOST PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT OR INDIRECT DAMAGES ARISING FROM THE USE OF THE SOFTWARE OR ACCOMPANYING MATERIALS, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK.

7. Remedies. Evaluator agrees that the obligations of Evaluator provided herein are necessary and reasonable in order to protect Licensor and its business, and Evaluator expressly agrees that monetary damages would be inadequate to compensate Licensor for any breach by Evaluator of its covenants and agreements set forth herein. Accordingly, Evaluator agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to Licensor and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Licensor will be entitled to obtain injunctive relief against the breach or threatened breach of this Agreement or the continuation of any such breach by Evaluator, without the necessity of proving actual damages.

8. Miscellaneous. Evaluator may not assign or sublicense or otherwise transfer the rights or license granted hereunder, by agreement or by operation of law, without the prior written consent of Licensor, and all assignments in violation of this prohibition will be null and void. This Agreement is the entire agreement between the parties relating to the subject matter hereof and may only be modified in writing signed by both parties. This Agreement will be governed by the laws of the State of California without reference to conflicts of law principles. In any dispute arising out of this Agreement, Licensor and Evaluator each consent to the jurisdiction of both the state and federal courts of Santa Clara County, California and agree to bring any actions arising out of this Agreement in such court. If any provision or clause of this Agreement is held unenforceable, the remainder of this Agreement will continue in full force and effect.

The parties have signed below to indicate their acceptance of the above terms and conditions:

(“Evaluator”)

By: _________________________________________________

Title: _________________________________________________

Date: _________________________________________________

(“Licensor”)

By: _________________________________________________

Title: _________________________________________________

Date: _________________________________________________

Exhibit A

SOFTWARE

Software:_________________________________________________

Designated Public Cloud Provider :_____________________

Designated region: _____________________

____________________________ Evaluator

____________________________ Street Address

____________________________ City, State, Zip Code