30-DAY TRIAL SOFTWARE LICENSE
AGREEMENT for dba/m database manager
GENUS SOFTWARE, INC., a California corporation ("Genus")
has developed and markets a Database Administration Tool known
as dba/m for HP NonStop SQL Database. Any one who(Licensee)
is desirous of evaluating the Product for the usefulness and
feasibility of purchasing a production use license from Genus.
The parties do agree as follow:
A. Licensee and Genus understand that this agreement creates
no obligation to purchase a production license for dba/m
B. The term of evaluation period shall be for 30 days from
the date of successful installation.
C. At the expiration of this 30 days evaluation period, upon
prior verbal or written notice, Genus shall issue a standard
invoice. Licensee shall either (i) accept such invoice as a
regular production license fee and execute Genus Standard Production
License Agreement or (ii) return all evaluation material and
destroy all copies of the dba/m in Licensee computer system.
1 License Rights.
(a) Subject to the terms and conditions of this Agreement,
Genus hereby grants to Licensee a restricted, non-exclusive,
nontransferable, revocable right and license, during the term
of this Agreement, to use the Products only (i) in object code
form, (ii) at Licensee's facility at the address on the last
page hereof, or such other site as Genus and Licensee may designate
(the "Processing Site") and (iii) on the Designated
Computer, solely for Licensee's own internal evaluation and
testing of the Products' design functionality. Licensee acknowledges
and agrees that it shall have no right to use the Products for
the benefit of any customer or third party, nor shall it use
the Products at more than one Processing Site at any one time.
(b) Licensee hereby acknowledges Genus's or Genus's licensor's
copyright and other proprietary rights in and to the Products,
and Genus's title to the Designated Computer(s). Licensee shall
not duplicate all or any portion of the Products. In no event
shall Licensee attempt to reverse engineer, decompile, disassemble,
or otherwise reduce the Products or any component thereof to
human-readable form, modify the Products or incorporate any
portion of the Products into, or use the Products in connection
with the development of, any other program or product. The Products
and any other information provided by Genus to Licensee and
any rights granted hereunder may not be sold, assigned, subcontracted,
sublicensed, pledged, charged or otherwise transferred, in whole
or in part, by Licensee.
2. Deliverables. Within thirty (30) days of the date of this
Agreement, Genus shall deliver the Products, as well as copies
of the user documentation portion of the Products, to Licensee
3 Support. Genus is under no obligation to support the Products
in any way, nor to provide modifications, updates, bug fixes,
or error corrections. In the event Genus, in its sole discretion,
supplies modifications, updates, bug fixes or error corrections
to Licensee, such modifications, updates, bug fixes and error
corrections shall be deemed Products hereunder and shall be
licensed to Licensee under the terms and conditions of this
4. Licensee's Duties. Licensee agrees, during the term of
this Agreement, to evaluate and test the Products in accordance
with the terms of this Agreement. Licensee shall provide Genus
with a report to Genus at the conclusion of the term of this
Agreement, setting forth the tests performed by Licensee, the
results of such tests, and any recommended action for modification
of the Products based on the results of such tests.
5. Limited Warranty and Liability.
(a) THE PRODUCTS ARE PROVIDED "AS IS" AND GENUS
DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS
OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT
LIMITATION, THE WARRANTIES OF DESIGN, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM A COURSE OF
DEALING, USAGE OR TRADE PRACTICE, OR WARRANTIES CONCERNING THE
NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DIRECT,
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE
WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR
OTHER ECONOMIC LOSS ARISING OUT OF THE DELIVERY, INSTALLATION,
FURNISHING, MAINTAINING OR USE OF THE PRODUCTS OR ARISING OUT
OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6. Termination. Either party may terminate this Agreement
upon five (5) days' written notice to the other party. Genus
may terminate this Agreement immediately in the event that Licensee
shall materially breach any of its provisions or take any action
in derogation of Genus's, or Genus's licensor's, rights to the
Products. Within ten (10) days of any termination of this Agreement,
Licensee shall return to Genus the Designated Computer(s) and
the originals of the Products, and shall further either return
or destroy and account for all copies thereof at Licensee's
expense. The provisions of Sections 1(b), 5, 6 and 7 shall survive
the expiration or any termination of this Agreement.
7 Confidentiality; Non-Disclosure.
(a) Licensee hereby agrees to keep as confidential, and not
to discuss with or disclose to any third party, the nature of
the Products and the results of Licensee's evaluation thereof.
(b) Licensee acknowledges that Genus may use the results of
licensees recommendations and tests in future releases/enhancements
and literature. Licensee acknowledges no ownership in same or
requirements of confidentiality on the part of Genus.
(c) Licensee hereby acknowledges and agrees that: (i) the
Products constitute and contain valuable Proprietary Information
of Genus and its licensors, embodying substantial creative efforts
and confidential information, ideas and expressions; (ii) Licensee
shall instruct and require all of its employees, agents, and
contractors who have access to the Proprietary Information to
maintain the confidentiality thereof; (iii) Licensee shall exercise
at least the same degree of care (but no less than reasonable
care) to safeguard the confidentiality of the Proprietary Information
as Licensee would exercise to safeguard the confidentiality
of Licensee's own confidential property; and (iv) Licensee shall
not disclose Genus's Proprietary Information, or any part or
parts thereof, to any of its employees, agents, or contractors
except on a "need to know" basis. Licensee agrees
not to disclose or otherwise provide to any third party, without
the prior written consent of Genus, any data or other information
produced, obtained or created by Licensee in connection with
Licensee's evaluation of the Products. Licensee agrees to undertake
whatever action is necessary to remedy any breach of its confidentiality
obligations herein set forth or any other unauthorized disclosure
of the Proprietary Information by Licensee, or its employees,
agents or contractors. Licensee further agrees not to remove
or destroy any proprietary or confidential legends or marking
placed upon or contained within Genus's Proprietary Information.
The obligations of this Section 7(a) shall survive for a period
of five (5) years from the termination or expiration of this
(d) The provisions of this Section 7 shall not apply to any
Proprietary Information of Genus that: (i) is known by Licensee
prior to the time of disclosure as shown by the files of Licensee
in existence at the time of the disclosure; (ii) is generally
known and available in the public domain; (iii) becomes part
of the public domain through no fault of Licensee; (iv) is independently
developed by the Licensee; (v) is rightfully received by Licensee
from a third party without a duty of confidentiality on the
third party; (vi) is disclosed by Genus to a third party without
a duty of confidentiality on the third party, Licensee; or (vii)
is disclosed by Licensee with Genus's prior written approval.
Additionally, Licensee may disclose Proprietary Information
of Genus to the extent required by law or regulation, under
confidentiality obligations to the extent reasonably possible.
Before making any such disclosure, Licensee shall notify Genus
of the circumstances requiring such disclosure and the confidentiality
(e) "Proprietary Information" means information
and data of Genus and Licensee in written, graphic or machine-readable
form which is furnished to one party by the other hereunder
and which is marked "confidential" or otherwise contains
a proprietary legend. Without limiting the generality of the
foregoing, "Proprietary Information" of Genus shall
include, without the necessity of the "confidential"
marking or other proprietary legend, the Products and all other
technical manuals and computer software relating to the Products,
and all know-how and technology required to utilize the Products
and such other manuals and software.
THE FOREGOING IS AN AGREEMENT WITH THE GENUS SOFTWARE, INC.
BY CLICKING ON THE "I ACCEPT" BUTTON YOU ARE (I) REPRESENTING
AND WARRANTING THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY
YOU REPRESENT AND (II) CONSENTING TO BE BOUND BY, AND ARE BECOMING
A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT
COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, CLICK ON THE
"I DO NOT ACCEPT" BUTTON AND YOU WILL NOT ASSENT TO