Evaluation License Agreement

Evaluation License Agreement

“WaveMaker” : WaveMaker, Inc., 1975 W. EI Camino Real #301, Mountain View, CA 94040, United States
“Company” : Company accepting the Terms of this Agreement
“Effective Date” : Start Date of Agreement
“End Date” : 30 days from Effective Date
This Evaluation License Agreement (“Agreement”) is effective on the “Effective Date” (as above), by and between the “Company” (as above) and “WaveMaker” (as above).

RECITALS

WHEREAS, WaveMaker is the owner and provider of certain Licensed Materials defined in Section 1 below;
WHEREAS, Company wishes to evaluate the Licensed Materials for their feasibility of use by Company;
WHEREAS, WaveMaker agrees to provide the Licensed Materials to Company for such evaluation purposes under the following terms and conditions.
NOW, THEREFORE, in consideration of the promises, and of the obligations herein made and undertaken, the parties hereto do hereby covenant and agree as follows:

1. DEFINITIONS.For the purposes of this Agreement, the definitions set forth in this section shall apply to the respective terms below:
   1. “Company Product” mean any products, services or technology that belong to the Company or are licensed from third parties by the Company, including any future versions or derivatives of the same, whether tested, used, created, run or deployed using the Licensed Materials or otherwise.
   2. “Licensed Materials” means the software, services and materials described on one or more Exhibit A to be furnished by WaveMaker as reasonably necessary for Company to use and evaluate under the terms of this Agreement. Licensed Materials may be delivered ormade available on any or all current or future delivery methods, mediums and platforms now known or later developed, including, but not limited to, as a web hosted application or service, tablet or mobile application, or by means of electronic download.
   3. “Viral Open Source Software” shall mean software licensed under the GNU or any other license terms that could impose any condition or requirement on Company with respect to the use, disclosure or exploitation of any Company Product.
2. DELIVERY AND ACCEPTANCE.
   1. Delivery and Acceptance of Licensed Material. WaveMaker shall deliver or make available within ten (10) business days of the signing of this Agreement, the Licensed Materials to Company at no cost and WaveMaker shall optionally assist the Company in the installation and proper configuration of the Licensed Material prior to Company’s commencement of its evaluation. Acceptance of Licensed Material is automatic unless a more detailed Acceptance Criteria is given in EXHIBIT A.
3. GRANT OF LICENSE.
   1. License Grant. WaveMaker hereby grants to Company, a non-exclusive, worldwide, royalty-free, license solely to use the Licensed Material for the limited purpose of internal evaluation of the Licensed Materials during the term of this Agreement. No commercial or other use of the Licensed Materials will be made by Company except pursuant to the terms of a further written agreement of the parties. This License grant does not restrict Company from evaluating or developing technologies and products now or in the future that have design and functionality similar to the Licensed Materials.
4. VIRAL OPEN SOURCE SOFTWARE.
   WaveMaker agrees that it has not integrated or included any Viral Open Source Software in the Licensed Materials under this Agreement, or otherwise taken any action that could require disclosure, distribution, or licensing of all or any part of a Company Product in source code form, for the purpose of making derivative works, or at no charge. Further, WaveMaker agrees in the event of any conflict that the terms of this Agreement supersede any other license terms that may be contained in the Licensed Materials.
5. REPRESENTATIONS AND WARRANTIES.
   1. Harmful Code.WaveMaker represents and warrants to Company that WaveMaker has taken commercially reasonable measures to ensure the Licensed Material:
      1. does not contain any Harmful Code and
      2. has been processed by one or more industry-standard virus detection programs prior to delivery to Company and that it is free of Harmful Code that were detected by such programs. The term “Harmful Code” means code that is not a normal feature of the Licensed Materials that is designed or intended to have any of the following functions:
         1. disrupting, disabling, harming or otherwise substantially impeding the normal operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored and installed; or
         2. damaging or destroying any data file without the user’s consent.
   2. Proprietary Rights. WaveMaker hereby represents and warrants with respect to the Licensed Materials that WaveMaker has the power and authority to
      1. grant the rights and licenses granted to Company under this Agreement; and
      2. deliver the Licensed Materials as described in Section 2 (Delivery and Acceptance). Further, WaveMaker hereby represents and warrants that the Licensed Materials as provided to Company do not
         1. infringe any copyright or trademark of any third party; and
         2. include or integrate any Viral Open Source Software.
   3. Information Privacy / Tracking.WaveMaker represents and warrants that the Licensed Materials do not contain technologies that are capable of collecting and transmitting to WaveMaker or other parties, personal information about an end user or the use of Licensed Materials by an end user.
   4. Privacy.Except as necessary to fulfill its evaluation of Licensed Materials, Company represents and warrants that it will not transmit, provide, or otherwise make available information of WaveMaker employees, products, customers, partners or other third parties, which includes but is not limited to technical information, financial information, to other Company employees or third party personnel.
6. INDEMNIFICATION Company shall indemnify and hold WaveMaker harmless from any and all liabilities, losses, damages, costs and expenses including, but not limited to, legal fees and expenses, arising out of or in connection with any third party claims, demands, actions, proceedings (“Proceeding”) based upon Company’s use of the Licensed Materials in violation of this Agreement, applicable law or third party rights, except to the extent such violation is attributable to WaveMaker’s breach of this Agreement, negligence or willful misconduct.
7. LIMITATION OF LIABILITY.WAVEMAKER SHALL NOT BE LIABLE TO COMPANY FOR ANY LOSS OF REVENUE OR PROFIT OR FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES, WHETHER BASED ON TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), CONTRACT OR OTHER LEGAL OR EQUITABLE GROUNDS EVEN IF WAVEMAKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WAVEMAKER BE LIABLE TO COMPANY FOR ANY DAMAGES OR CLAIMS IN EXCESS OF THE GREATER OF THE AMOUNT PAID BY COMPANY TO WAVEMAKER FOR ACCESS TO AND USE OF THE LICENSED MATERIALS OR $100.
8. OWNERSHIP, TERMS AND ATTRIBUTION.
   1. Ownership. It is expressly understood by Company and agreed that, as between WaveMaker and Company, except for the licenses granted under this Agreement, all right, title, and interest in and to the Licensed Materials vests solely and exclusively in WaveMaker.
   2. Further, WaveMaker acknowledges and agrees that as between the parties, the Company Products belong exclusively to Company and that no Company Product shall be deemed to be part of the Licensed Materials.
   3. Proprietary Notices. Company shall not remove or mask, and shall include in any copies any copyright or other notices included in the Licensed Materials delivered to Company.
9. TERM AND TERMINATION.
   1. Term. This Agreement shall continue in effect from the Effective Date till the End Date, unless otherwise mutually extended in writing or through electronic communication from WaveMaker.
   2. Termination Without Cause. This Agreement may be terminated by WaveMaker at any time upon seven (7) days written notice or through electronic communication from WaveMaker to the Company.
   3. Effect of Termination. Upon termination or expiration of this Agreement, the Licenses (Section 3) granted to Company under this Agreement shall be terminated and Company shall delete all the copies of Licensed Material in its possession and shall cease using the Licensed Material.
   4. Survival. Sections 5 (Representations and Warranties), 6 (Indemnification), 7 (LIMITATION OF LIABILITY), 8 (Ownership), 9.3 (Effect of Termination), 10 (Confidentiality), 11 (Miscellaneous) shall survive termination of this Agreement.
10. CONFIDENTIALITY.
    1. Confidential Information. “CI” means Discloser’s non-public written information, in any form, and all copies, summaries and extracts, which is identified in writing as confidential at the time of disclosure, and any information disclosed in non-tangible form that is identified as confidential at the time of disclosure and summarized in a writing labeled as “confidential” delivered to Recipient within 30 days after disclosure. WaveMaker CI shall be deemed to include the Licensed Materials and Company CI shall be deemed to include any Company Product made available to WaveMaker in connection with this Agreement. Notwithstanding the foregoing, CI does not include information that
       1. is or becomes generally publicly available at the time of disclosure or subsequently through no fault of Recipient,
       2. was known to Recipient, free of any confidentiality obligations, before its disclosure by Discloser,
       3. becomes known to Recipient, free of any confidentiality obligations, from a source other than Discloser, or
       4. is independently developed by Recipient without use of CI of the Discloser. The party disclosing CI is referred to as “Discloser” and the party receiving CI is referred to as “Recipient”.
    2. Confidentiality Obligations. Recipient will not reproduce, use, disseminate, or disclose CI to any person or entity, except to its employees and authorized representatives (i.e., temporary employees, consultants, and contractors) who need to know the CI to further the purpose of this Agreement and are bound by confidentiality obligations at least as restrictive as in this Agreement before having access to the CI. Recipient is responsible for any breach of this Agreement by any of its representatives. Recipient will not modify, reverse engineer, create other works from, or disassemble any software programs contained in the CI without Discloser’s prior written consent. Recipient will treat all CI with at least the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care. Recipient may disclose CI
       1. as approved in a writing signed by Discloser or
       2. as necessary to respond to a valid order by a court or other governmental body, as required by law, or as necessary to establish the rights of either party, provided that Recipient promptly notifies Discloser upon receipt of the disclosure order and requests confidential treatment of any affected CI
    3. No Other Rights. All Discloser CI remains the property of Discloser. Unless expressly set forth in this Agreement, Recipient does not receive any license or intellectual property rights to Discloser’s CI.
    4. General. Except as otherwise expressly provided in this Agreement, all CI is provided “AS IS” and all warranties, express, implied, or otherwise are disclaimed. Any attempt to transfer all or part of a party’s rights or obligations under this Agreement without the prior written consent of the other party will be null and void. The parties will comply with all applicable export laws and regulations in their use and disclosure of CI.
11. MISCELLANEOUS.
    1. Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, by nationally recognized overnight certified or registered mail, with tracking and delivery confirmation.
    2. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of network or telecommunication system outages, acts of terrorism, war, fires, flood, storm, earthquakes, or any other acts of God which is beyond the reasonable control of such party.
    3. Assignment. This Agreement may not be assigned by Company without the prior written approval of WaveMaker. Any attempted assignment, transfer, or delegation of duties or obligation without WaveMaker’s prior written consent shall be null and void.
    4. Waiver. The waiver by either party of a breach of any provisions contained herein shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself.
    5. Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objective of such provision within the limits of applicable law or applicable court decisions.
    6. Injunctive Relief. It is expressly agreed that any breach or threatened breach of Section 3, 8 or 10 of this Agreement may cause irreparable harm to a party and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, each party will be entitled to seek an injunction or other equitable remedies in the event of any threatened or actual violation of any or all of the above provisions from any court of competent jurisdiction without the need for posting a bond.
    7. Controlling Law and Jurisdiction. This Agreement shall be governed in all respects by the laws of the United States of America and the State of California. Any and all disputes arising under or relating to this Agreement shall be brought in the state or federal courts located in Santa Clara County, California.
    8. No Agency. The parties hereto are independent contractors and nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties
    9. Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
    10. Attorneys’ Fees. In the event any proceeding or lawsuit is brought by Company or WaveMaker in connection with this Agreement, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.
    11. Entire Agreement. This Agreement, together with the exhibits completely and exclusively states the agreement of the parties regarding its subject matter. It supersedes, and its terms govern, all prior and contemporaneous proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of Company and WaveMaker by their duly authorized representative and any provision of a purchase order purporting to supplement or vary the provisions hereof shall be void.IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by respective duly authorized representatives as set forth below.

EXHIBIT-A

LICENSED MATERIALS

1. 1. 1. 1. DESCRIPTION
            
            

            Milestone	Licensed Materials
            Effective Date	WaveMaker Enterprise (WME) software with following quantitative limits: -10 developers, -5 applications (Company Products)

         2. DELIVERY OF LICENSED MATERIALSSoftware provided as a VM image and License Key transmitted separately. No additional or special infrastructure (hardware or software) requirements other than that recommended by WaveMaker for the standard product.

Template: 142-0000 Evaluation License Agreement