BY CLICKING ON THE “SUBMIT” BUTTON, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS EVALUATION AGREEMENT FOR ARUBA CENTRAL SERVICES (“AGREEMENT”). YOUR AND YOUR COMPANY’S (COLLECTIVELY, “COMPANY” OR “YOU”) CONTINUED USE OF THE ARUBA CENTRAL SERVICES (THE “SERVICES”) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU DO NOT QUALIFY TO PARTICIPATE IN THE EVALUATION. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. YOU REPRESENT AND WARRANT THAT THE INDIVIDUAL WHO AGREES AND/OR ENTERS INTO THIS AGREEMENT HAS AUTHORITY TO AGREE AND/OR ENTER INTO THIS AGREEMENT AND BIND YOU TO THE TERMS OF THIS AGREEMENT.
1. Use of the Services and Software License. Subject to terms of this Agreement, Company wishes to obtain from Aruba, and Aruba will make the Services available to Company in accordance with the documentation supplied by Aruba solely for Company’s internal testing and evaluation of the Services during the term of this Agreement. Company shall not reverse engineer, decompile, create other works from, or disassemble any software provided in the Services, or otherwise attempt to discover any Services source code or underlying Confidential Information (as that term is defined below), nor shall Company allow any third party to conduct such activities. Company shall comply with all applicable laws including any import/export control regulations. Any additional computer software and/or computer hardware provided pursuant to a quote indicating that it is for evaluation or otherwise provided for evaluation purposes shall be subject to a separate evaluation Agreement.
2. Confidentiality. Company acknowledges that, in the course of using the Services and performing its duties under this Agreement, it may obtain or develop information relating to the Services and/or to Aruba (“Confidential Information”), including, but not limited to the Services, code, technology, algorithms, schematics, testing procedures, documentation, problem reports, analysis and performance information, inventions (whether patentable or not), and other technical, business, product, marketing, financial and customer information, plans and data. During and after the term of this Agreement, Company shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Confidential Information, unless such Confidential Information becomes part of the public domain without breach of this Agreement by Company, its officers, directors, employees or agents. During the term of this Agreement, Company will disclose the Services and any Confidential Information only to those of its employees as are necessary for the use expressly and unambiguously granted hereunder and who are bound by the provisions of this Agreement or terms similar to and at least as protective as the terms herein as a condition of employment. Company shall not, without the prior written consent of Aruba, disclose or otherwise make available the Services, including any information relating to the performance or operation of the Services (including any benchmarking or other testing results), or copies thereof to any third party. Company will not remove or export the Services or any Confidential Information without Aruba’s prior written permission. Company acknowledges and agrees that due to the unique nature of Aruba’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Company or third parties to unfairly compete with Aruba resulting in irreparable harm to Aruba, and therefore, that upon any such breach or threat thereof, Aruba shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
3. Ownership. Title to and ownership of the Services and all copies thereof shall be and at all times remain in Aruba. All reports and information contained in such reports are the sole property of Aruba. Any developments or modifications made during the term of this Agreement by Aruba or the Company, either independently or at Aruba’s direction, in any way relating to the Services, whether or not influenced or suggested by the Company, are the sole property of Aruba. Company hereby assigns to Aruba any interest it has or may acquire in any of the foregoing, as well as all related intellectual property rights; and will cooperate to perfect or further evidence such assignments.
4. Warranty Disclaimer. The parties acknowledge that the Services are experimental in nature and that the Services are provided “AS IS” and may not function on any machine or in any environment. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ARUBA DISCLAIMS ALL WARRANTIES RELATING TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Limitation of Remedies and Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ARUBA SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES, AND LOSS OF PROFITS. ARUBA SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
6. Nonassignability. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Company, and any such attempted assignment or transfer shall be void and without effect.
7. Controlling Law, Attorneys’ Fee and Severability. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California, without applying conflicts of law rules. Any action or proceeding arising from or relating to this Agreement must be resolved exclusively in U.S. federal court in the Northern District of California, or in the state courts located in Santa Clara County, California. In any action to enforce this Agreement the prevailing party will be entitled to reasonable costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
8. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto are expressly cancelled. Any modifications or waivers of this Agreement must be in writing and signed by both parties hereto.
9. Termination. This Agreement may be terminated by either party for any reason or no reason upon three (3) days’ prior written notice to the other party, or immediately upon notice of any breach by the other party of the provisions of this Agreement, and in any case will terminate thirty (30) days after the date of delivery of the Services. Upon termination, the license granted hereunder shall terminate and Company shall immediately return any and all documents, notes and other materials associated with the Services to Aruba, including, without limitation, all Confidential Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect.