PANVIVA, INC. EVALUATION LICENSE AGREEMENT

PANVIVA, INC. ("PANVIVA") IS WILLING TO GRANT TO YOU (AS AN INDIVIDUAL, COMPANY, CORPORATION OR ENTITY WHICH HAS THE AUTHORITY TO BE BOUND UNDER THIS AGREEMENT, HEREINAFTER REFERRED TO AS "YOU") A TEMPORARY, LIMITED RIGHT AND LICENSE TO USE THE PRODUCT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT. READ THE TERMS AND CONDITIONS OF THIS LICENSE CAREFULLY BEFORE USING THE PRODUCT. BY ACCESSING THE PRODUCT OVER THE INTERNET OR CONNECTING PRODUCT TO YOUR NETWORK, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACCESS PRODUCT OVER THE INTERNET OR CONNECT THE PRODUCT TO YOUR NETWORK.

  1. License to Use.

    Panviva grants You a non-exclusive, non-transferable, temporary and revocable license (the "License") to access and use Panviva's SupportPoint hosted software as a service accessed by you over the Internet and accompanying documentation (the "Product"). The term of the license shall be for 30 days from the Effective Date, although Panviva may, in its discretion, terminate this License at any time.
  2. Proprietary Rights and Restrictions.

    Panviva and/or its licensors retains all right, title, and interest in the Product and in all derivatives thereof, and no title to the Product or any intellectual property or other rights therein, are transferred to You by virtue of this Agreement other than as specified herein. No right, title or interest to any trademarks, service marks or trade names of Panviva or its licensors is granted by this Agreement. Product is copyrighted and contains proprietary information and trade secrets belonging to Panviva and/or its licensors. You will not use Product for any purpose other than in connection with Your evaluation of the Product. You agree not to cause or permit the reverse engineering, reverse assembly, or reverse compilation of the Product or otherwise attempt to derive source code from the Product. You may not create derivative works based upon all or part of Product. You may not transfer, lend, lease, assign, sublicense, and/or make available through timesharing or through managed services Product, in whole or in part.
  3. Confidentiality.

    The parties agree that when disclosing information under this Agreement, the disclosing party will be the "Disclosing Party" and the receiving party with be the "Receiving Party." The term "Confidential Information" includes: (a) technical, financial, commercial or other proprietary information including without limitation product roadmaps, pricing, software code and documentation, Product, techniques or systems of the Protected Party and (b) information or data that is confidential and proprietary to a third party and which is in the possession, custody or control of the Disclosing Party. The Receiving Party will not use the Confidential Information of the other party for any purpose other than the evaluation contemplated herein nor disclose any of the Disclosing Party's Confidential Information to any third party except to the extent it can be documented that any such Confidential Information is in the public domain and generally available for use by and disclosure to the general public without any charge, restriction or license, or is required to be disclosed by any authority having jurisdiction so long as the Disclosing Party is provided reasonable notice of such disclosure prior to its release by the Receiving Party. Each party's respective Confidential Information shall remain their own property. Upon termination of this Agreement, each party shall promptly return to the other party or destroy any and all Confidential Information (which shall include, but is not limited to, your data) received from the other party, or created or received by a party on behalf of the other party, which are in such party's possession, custody or control.
  4. Warranty.

    provides no warranties for the Product under evaluation. Product is provided "as is" and You take all risks associated therewith.
  5. Limitations.

    PANVIVA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PANVIVA SHALL HAVE NO LIABILITY WITH RESPECT TO THE PRODUCT WITHOUT REGARD TO WHETHER A CLAIM IS BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE. IN NO EVENT SHALL PANVIVA OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF PROFITS, DATA, OR BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF PANVIVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  6. Data Classification.

    It shall be Your obligation to determine the suitability of the Product for your data based on the sensitivity of such data and any applicable law. You acknowledge and agree that the Product has not been designed to be used in connection with data that may be classified as highly sensitive and personal, including, but not limited to any data subject to laws governing the storage and transmission of personally identifiable information, protected health information or information subject to the Payment Card Industry Data Security Standard. Panviva shall have no liability with respect thereto.
  7. Export Regulation and Government Rights.

    You agree to comply strictly with all US export control laws, including the US Export Administration Act and its associated regulations. Product is prohibited for export or re-export to the list of terrorist supporting countries or to any person or entity on the U.S. Department of Commerce Denied Persons List or on the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers or Specially Designated Terrorists. If Product is being shipped by Panviva, then it is exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited. If You are licensing Product or its accompanying documentation on behalf of the US Government, it is classified as "Commercial Computer Product" and "Commercial Computer Documentation" developed at private expense, contains confidential information and trade secrets of Panviva and its licensors, and is subject to "Restricted Rights" as that term is defined in the Federal Acquisition Regulations.
  8. General.

    This Agreement is made under the laws of the Commonwealth of Massachusetts, USA, excluding the choice of law and conflict of law provisions, and You expressly consent to sole jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate federal or state court located in Massachusetts. This Agreement is the entire agreement between You and Panviva relating to Product and supersedes all prior, contemporaneous and future or other oral or written communications, proposals, and representations with respect to its subject matter, as well as without limitation terms and conditions of any past, present or future purchase order. No modification to this Agreement is binding unless in writing and signed by a duly authorized representative of each party. The waiver or failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is held invalid, all other provisions shall remain valid unless such validity would frustrate the purpose of this Agreement, and this Agreement shall be enforced to the full extent allowable under applicable law. All licenses granted hereunder shall terminate upon expiration of the term or Your breach of this Agreement. Neither party may assign its rights, duties or obligations under this Agreement without the prior written consent of the other party and any attempt to do so shall be void and of no effect; except to a successor by merger, acquisition or restructuring that assumes the right and duties of this Agreement. The following sections survive termination or expiration of this Agreement: Proprietary Rights and Restrictions, Confidentiality, Limitations, Export and Government Rights, and General.