This Beta Evaluation Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Software (as defined below) and is an agreement between SDL plc and/or its affiliates (also referred to “SDL”, ‘us”, “we” or “our”) and you or the entity you represent (“Client”, “you” or “your” ). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor).
If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Article 1 for definitions of certain capitalized terms used in this Agreement. If you do not agree to all of the terms and condition of this Agreement or do not have the authority to do so, do not access or use the Software and promptly return the Software to the SDL party from whom you obtained the Software.
1.1 “Evaluation Period” means the term for the beta evaluation of the Software, which shall be in SDL’s sole discretion and control.
1.2 “Software” means the object code of the SDL Content Assistant software as made available to Client through the issuing of license keys or by other means as determined by SDL, including all supporting documentation.
2.1 Grant of License. Subject to the terms and conditions set forth in this Agreement, SDL grants Client a non-exclusive, non-transferable, non-sublicensable, limited license to use the Software only (i) for internal evaluation by Client; (ii) on Clients’ premises as notified to SDL or as detailed under an Order Form; (iii) for the number of users as further specified in an Order Form or as notified to SDL; and (iv) for the duration of the Evaluation Period.
2.2 License Restrictions: Client shall not: (i) assign, lease, transfer or sublicense the Software licences or documentation to any third party for use in that third party’s business operations; (ii) cause or permit decompilation, disassembly or reverse engineering of the Software, in whole or in part, except to the extent as permitted by mandatory provisions of the applicable law; (iii) disclose or make available to, or permit use of the Software by persons other than Client’s employees or consultants; (iv) exceed the licensed use of the Software as specified as notified to Client by SDL; (v) use the Software for any other purpose than for Client’s own internal evaluation; (vi) write or develop derivative work or any other program based on SDL’s Confidential Information; (vii) remove or modify any Software markings or any notice
4.1 By virtue of this Agreement, Client may have access to information that is considered confidential to SDL (“Confidential Information”). Confidential Information includes the terms and pricing as set out in this Agreement, the object-code Software or source code derived there from, any related documentation, information, data sheets, benchmark tests, specifications, and any other proprietary information clearly marked or identified at the time of disclosure as "confidential information" or information which can reasonably be assumed to be confidential without being explicitly marked as such.
4.2 Confidential Information does not include information which (i) is or becomes publicly available through no act or omission of the Client, (ii) is developed independently without violation of this clause, (iii) is obtained from a third party without restrictions on disclosure, or (iv) is required to be disclosed by applicable law, order of a court or other governmental entity.
4.3 Client agrees to hold the Confidential Information in confidence for a period of three (3) years from the date of disclosure. Confidential Information will be used solely for the purpose of this Agreement and will not be directly or indirectly disclosed, by action or omission, to any third party without SDL’s prior written consent. Client agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.
6.1 This Agreement shall come into force on the Effective Date thereof and shall end upon the expiration of the Evaluation Period. SDL may terminate this Agreement and the license granted herein at any time if Client fails to comply with any of the material terms and conditions of this Agreement. Client may terminate this Agreement upon written notice to SDL.
6.2 Within ten (10) days after termination or expiration of this Agreement, Client shall return or destroy (at SDL’s sole discretion) and shall provide written certification of return or destruction of, ¬all copies of the Software (including without limitation copies contained in hardware memory or otherwise loaded on hardware) and any Confidential Information of SDL.
6.3 Termination or expiration of this Agreement will not affect the obligations regarding Confidential Information, payments, limitation of liability, license restrictions and/or applicable law, and other clauses which by their content or nature are intended to survive. These provisions will survive termination of this Agreement.
6.4 Upon termination of this Agreement or as otherwise requested by SDL, Client shall return to SDL (or destroy, as instructed by SDL) all Confidential Information (including Confidential Information stored in electronic format) that exists in any form on any of Client’s computers, networks, storage media, or other systems controlled by Client or any resource of Client. Upon the request of SDL, Client shall certify in a writing signed by an officer of Client that the Client has fully complied with the requirements of this Section.
7.1 IN NO EVENT WILL SDL BE LIABLE FOR ANY DAMAGES, INCLUDING LOSS OF DATA, LOST PROFITS, COST OF COVER OR OTHER SPECIAL, INCI¬DENTAL, CONSE¬QUENTIAL, DIRECT, ACTUAL, GENERAL OR INDIRECT DAMAGES ARISING FROM THE USE OF THE SOFTWARE OR ACCOMPANYING MATERIALS, HOWEVER CAUSED AND ON ANY THEORY OF LIABIL-ITY. THIS LIMITATION WILL APPLY EVEN IF SDL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK.
7.2 The obligations herein are necessary and reasonable in order to protect the parties and their business, and the parties expressly agree that monetary damages may be inadequate to compensate for any breach by the other party of its coven¬ants and agree¬ments set forth herein. Accordingly, the parties agree and acknowl¬edges that any such violation or threatened violation may cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, a party may be entitled to seek injunctive relief against the threatened breach of this Agreement or the con¬tinuation of any such breach by the other party, with¬out the necessity of proving actual damages.
8.1 Waiver. Any waiver of the provisions of this Agreement or of any of the rights of either party must be in made in writing by the waiving party to be effective. Failure or delay to enforce any such provisions of rights will not be construed as a waiver and will not affect the validity (in whole or in part) of this Agreement or prejudice such party's right to take subsequent action.
8.2 Non Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part, without the prior written consent of the other party.
8.3 Entire Agreement. This Agreement is the entire agreement between the parties relating to the subject matter hereof. This Software Evaluation Agreement may not be modified and the rights and restrictions may not be altered except by written amendment signed by authorized representatives of both parties.
8.4 Severability. If any provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties will in good faith agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, the invalid provision will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by applicable law.
8.5 No Representation. No employee, agent, representative or affiliate of SDL has authority to bind SDL to any oral representation or warranty concerning the Software and related services. Any written representation or warranty not expressly contained in this Agreement is unenforceable.
8.6 Applicable Law and Forum. This Agreement will be governed by and construed in accordance with the laws of England and Wales, excluding that body of laws known as conflicts of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the English Courts and the parties hereby irrevocably consent to the personal jurisdiction and venue The Vienna Convention on the International Sale of Goods of 11 April 1980 shall not be applicable to this Agreement.