End User License Agreement

SOFTWARE EVALUATION AGREEMENT

IMPORTANT —READ CAREFULLY: This Evaluation User License Agreement (“EULA”) made as of today (the “Effective Date”) is a legal agreement between a prospective customer (a single entity) here by referred to as “Licensee” and Bristlecone Inc for the Bristlecone software that accompanies this EULA, which includes associated media and Bristlecone Internet-based services (“Software”). An amendment or addendum to this EULA may accompany the Software. LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR USING THE SOFTWARE.

Licensee desires to evaluate on a trial basis the “PlanalyzerTM” (the “Software”) from Bristlecone prior to making a decision on whether to procure the Software.  Bristlecone is willing to supply licensee, a copy of the Software described and attached hereto (the “Evaluation Software”) solely for the evaluation purposes set forth herein (the “Evaluation”).  Bristlecone will provide licensee the Evaluation Software in an executable form to test and evaluate for a period of FIFTEEN (15) DAYS (the “Evaluation Period”), beginning on the later of the effective date or the the day the product is installed and ending (i) fifteen days after that date, (ii) the effective date of the End User Licensing Agreement between licensee and Bristlecone relating to the licensing of the Software, or (iii) the termination by Bristlecone of this Agreement.

Use of Evaluation Software; License Exclusions; Sharing of Results

Subject to the terms and conditions of this Agreement, Bristlecone grants licensee a personal, non-sub-licensable, non-exclusive, and non-transferable license to use the Evaluation Software solely for licensee’s internal Evaluation and testing purposes during the Evaluation Period.  Any other use of the Evaluation Software is expressly prohibited.  At the end of the Evaluation Period, this Agreement and the license granted hereunder shall automatically terminate.

Bristlecone will provide licensee with one (1) copy of the executable object code of the Evaluation Software and one (1) set of documentations relating to the Evaluation Software (the “Documentation”).  Licensee may make copies of the Documentation solely for licensee’s internal use at its various business locations and for the limited Evaluation purpose set forth herein.

Bristlecone shall at all times retain all title to and ownership of the Evaluation Software and Documentation and all copies thereof.  Licensee agrees to use the Evaluation Software only in the ordinary course of its Evaluation and will not reproduce or modify the Evaluation Software or Documentation, or any portions thereof.  Licensee shall not permit any reverse engineering, de-compilation, translation, disassembly, or discovery of the source code of all or any portion of the Evaluation Software. Licensee shall not rent, sell, lease or otherwise transfer the Evaluation Software or Documentation, or any portions thereof, or use the Evaluation Software or Documentation for the benefit of a third party.  No license, right or interest in any Bristlecone trademark, copyright, trade name or service mark is granted hereunder.

Licensee agrees to share with Bristlecone any written and/or oral results from its evaluation of the Evaluation Software.

Term; Termination

This Agreement and the license of the Evaluation Software granted hereunder may be terminated by Bristlecone at any time upon notice to licensee.  Licensee may not assign this Agreement without the prior written consent of Bristlecone.

If licensee wish to proceed with the procurement of the Software at the end of the Evaluation Period, licensee shall sign a separate End User Licensing Agreement, which will provide for the terms of the license of the Software and the fees related to such license, as decided by Bristlecone.

Should licensee decide to not pursue procurement of the license of the Software at the end of the Evaluation Period, licensee shall promptly (i) cease all use of the Evaluation Software or Software, (ii) return to Bristlecone the Documentation and any and all other documents made available to licensee, (iii) destroy or delete any copies of Evaluation Software, Documentation or any other documents made available to licensee, and any extracts, compilations, analyses, summaries or the like and any electronic data made available to licensee and (iv) confirm in writing the non-possession, destruction or deletion by licensee of the Evaluation Software or Software, Documentation or any such other documents and data.

 

Confidentiality; Ownership

Licensee acknowledges that in the course of using the Evaluation Software it may obtain confidential and/or proprietary information relating to the Evaluation Software, Software and/or Bristlecone (“Proprietary Information”).  Licensee agrees, for the term of this Agreement and for a period of at least 4 years after termination hereafter, not to disclose any Proprietary Information of Bristlecone to any third parties (including any affiliated entities) without the prior written consent of Bristlecone. Licensee further agrees not to disclose Evaluation Software, the Software or Documentation to anyone other than those of licensee’s employees or consultants under nondisclosure obligations who have a need to know for the Evaluation or other purposes consistent with this Agreement.

Licensee hereby assigns to Bristlecone any invention, work of authorship, mask work, idea, information, feedback or know how that is conceived, learned or reduced to practice in the course of performance under this Agreement and any patent rights, copyrights, including moral rights (provided that any non-assignable moral rights are waived to the extent permitted by law), trade secret rights, mask work rights and all other intellectual and industrial property rights of any sort with respect thereto. Licensee agrees to take any action reasonably requested by Bristlecone to evidence, perfect, obtain, maintain, enforce or defend the foregoing.

Warranty Disclaimer; Limitation of Liability

LICENSEE ACKNOWLEDGES THAT THE EVALUATION SOFTWARE IS PROVIDED “AS IS” AND MAY NOT BE FUNCTIONAL ON ANY MACHINE OR IN ANY ENVIRONMENT.  BRISTLECONE DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

BRISTLECONE SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CLAIMED TO HAVE RESULTED FROM THE USE, OPERATION OR PERFORMANCE OF THE EVALUATION SOFTWARE, REGARDLESS OF THE FORM OF ACTION.  IN NO EVENT SHALL BRISTLECONE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOSS OF DATA, PROFIT OR USE, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

[No Maintenance or Support

Except as otherwise agreed in writing, Bristlecone has no obligation of any kind with respect to maintenance or support of the Evaluation Software, and no other maintenance or support of the Evaluation Software will be provided hereunder at any time.]