EVALUATION LICENSE AGREEMENT

IMPORTANT-READ CAREFULLY BEFORE DOWNLOADING, COPYING OR OTHERWISE USING THE ABOVE ALL SOFTWARE, INC. (“ABOVE ALL”) SOFTWARE FOR WHICH YOU ARE ISSUED A LICENSE KEY, WHICH INCLUDES COMPUTER SOFTWARE (THE “SOFTWARE”) AND THE CORRESPONDING DOCUMENTATION (THE “DOCUMENTATION”).  BY USING THE SOFTWARE, YOU, ON BEHALF OF YOURSELF OR YOUR COMPANY (“YOU”), AGREE TO BE BOUND BY THIS EVALUATION AGREEMENT (“AGREEMENT”).  IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT DOWNLOAD, COPY OR OTHERWISE USE THE SOFTWARE OR DOCUMENTATION AND IN THE CASE WHERE YOU OBTAIN A COPY OF THE SOFTWARE ON ANY FORM OF MEDIA, YOU SHALL PROMPTLY RETURN THE UNUSED SOFTWARE AND PACKAGE TO WHERE YOU OBTAINED IT.

1.                    Trial License.  Subject to the terms and conditions of this Agreement, Above All grants to You a limited, non-exclusive, royalty-free, non-transferable, personal license to use the Software in object code and the Documentation for internal use only and solely for evaluation purposes and not for general production or business use.  You may make one (1) backup or archival copy of the Software.

2.                    Production License.  In the event You desire to receive a production license for the Software, You should contact Above All, and if the parties agree, the terms and conditions for such production license will be set forth in a separate agreement. 

3.                    Third-Party Software.  To the extent that the use of any third-party software or applications is necessary to make use of the Software, You shall have sole responsibility for obtaining such software at its own cost.  You further agree to indemnify, defend and hold Above All harmless from and against any claims, liabilities, damages, proceedings, costs and expenses, (including but not limited to attorneys’ fees) for use of any such third-party software without the appropriate licenses.

4.                    Restrictions and Obligations.  You may not: (i) distribute the Software, including by electronic transfer from one computer to another over a network or otherwise; (ii) decompile, reverse engineer, disassemble, design around or otherwise reduce the Software to a human perceivable form; (iii) modify, adapt, translate, rent, lease, loan, resell, distribute, or create derivative works based upon the Software; (iv) make copies of the Software, except as expressly provided herein; (v) use run-time versions of third-party products embedded in the Software, if any, for any use other than the intended use of the Software and/or release the results of any benchmark tests of the Software to any third party without the prior written approval of Above All for each such release.  You shall comply with all laws that are applicable to the Software and use of the Software, including, without limitation, export laws.   

5.                    Title.  All right, title and interest in and to the Software and any and all intellectual property embodied therein shall at all times remain exclusively vested in Above All and/or its licensors. 

6.                    Non-Disclosure Obligation.  You acknowledge and agree that the Software and Documentation is confidential information of Above All.  You shall not publish, disseminate or disclose to any other person, firm, organization or corporation, and shall protect against disclosure and unauthorized use (and assist the other party in remedying the same) of the Software and Documentation.  You agree to use the Software and Documentation only in connection with Your obligations to be performed and rights to be exercised under this Agreement, and shall disclose the same to Your employees or contractors only on a need to know basis and provided such employees and contractors have agreed to be bound by the terms of this Agreement either by virtue of their employment or by a written agreement.   

7.                    Disclaimer of Warranty.  ABOVE ALL PROVIDES THE SOFTWARE “AS IS” AND MAKES NO WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, CONCERNING THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR ERROR-FREE OPERATION OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.  YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS AND LIMITATIONS ON LIABILITY SET FORTH IN THE AGREEMENT ARE ESSENTIAL ELEMENTS OF THIS AGREEMENT.  You acknowledge and agree that the Software made available pursuant to this Agreement may have defects or deficiencies that Above All cannot or will not correct. 

8.                    Consequential Damages.  IN NO EVENT SHALL ABOVE ALL, ITS SUBSIDIARIES OR ITS LICENSORS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA OR OTHER INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ABOVE ALL IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.                    Limitation of Liability.  ABOVE ALL, ITS SUBSIDIARIES AND ITS LICENSORS’ LIABILITY TO YOU FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00).  Some jurisdictions do not allow excluding or limiting implied warranties or limiting liability for incidental or consequential damages, and some jurisdictions have special statutory consumer protection provisions which may supersede these limitations.  As a result, this limitation of liability may not apply to You if prohibited by law.

10.                 Support.  Above All may, but has no obligation under this Agreement to, provide any updates, error corrections, upgrades or other support or maintenance materials with respect to the Software.

11.                 No Indemnity.  Above All provides no indemnification for the Software made available pursuant to this Agreement.

12.                 Term and Termination.  The term of this Agreement shall be for the period of time enabled by the license key(s) that Above All makes available to You, unless terminated sooner as set forth below.  Either party may terminate this Agreement at any time upon written notice to the other party.  This Agreement shall automatically terminate in the event of any unauthorized use, copying, disclosure, distribution or sublicensing of the Software or Documentation.  Upon any termination of this Agreement You shall (a) cease use of the Software; (b) remove the Software from Your systems; and (c) destroy all copies of the same (whether such copies are in tangible or electronic form), and certify such destruction in writing to Above All.  The Software may contain a mechanism which (x) disables their functionality at the end of the term of this Agreement and/or (y) advises You that the limited license has expired or been terminated.  The restrictions in Section 1 (“Trial License”) and the following sections in their entirety shall survive termination or expiration of this Agreement:  5 (“Title”), 6 (“Non-Disclosure Obligations”), 7 (“Disclaimer of Warranty”), 8 (“Consequential Damages”), 9 (“Limitation of Liability”), 12 (“Term and Termination”), 13 (“General”) and 14 (“Government Use”).

13.                 General. 

13.1              Waiver/Amendment.  No waiver, amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced.  No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall be deemed as a waiver of any such right, power or remedy. 

13.2              Assignment.  You may not assign any of Your rights or delegate any of Your obligations under this Agreement to any party without the express written consent of Above All.  Any attempted assignment in violation of the foregoing shall be void and of no effect.  Subject to the above, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. 

13.3              Disputes.  The rights of the parties hereunder shall be governed by the laws of the State of California without giving effect to principles of conflicts of laws.  Any suits brought hereunder must be brought in the federal or state courts in San Mateo County, California, and You submit to the jurisdiction thereof.  The parties agree that  the International Convention on Contracts for the Sale of Goods shall not apply to this Agreement.

13.4              Injunctive Relief.  You acknowledge that the Software and Documentation contains trade secrets, the disclosure of which would cause substantial harm to Above All that could not be remedied by the payment of damages alone.  Accordingly, Above All will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of Above All's intellectual property rights in the Software and Documentation. 

13.5              Severability.  If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. 

13.6              Export.  The Software and Documentation, including technical data, are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You agree to comply fully with all such laws and regulations of the United States and other countries ("Export Laws") to ensure that neither the Software, Documentation, technical data, nor any other materials received under this Agreement thereof are (1) exported, directly or indirectly, in violation of Export Laws, either to any countries that are subject to U.S. export restrictions or to any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government, or (2) intended to be used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical or biological weapons proliferation or foreign government end-users/military or to known military uses.

13.7              Notice.  Any notice, consent or other communication hereunder shall be in writing, and shall be given personally, by confirmed fax or express delivery to Above All, Attn: President, One Lagoon Drive, Suite 110, Redwood City, CA 94065, or such other address as may be designated by written notice of Above All. Notices shall be deemed given when delivered or transmitted, or seven (7) days after deposit in the mail.  

13.8              Independent Contractors.  The parties’ relationship shall be solely that of independent contractor and nothing contained in this Agreement shall be construed to make either party an agent, partner, joint venturer or representative of the other for any purpose.

13.9              Interpretation.  The use of the singular in this Agreement  shall include the plural, where appropriate.  This Agreement is written, and shall be interpreted, in the English language.

13.10           Entire Agreement.  This Agreement constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals, negotiations and all other communications between the parties with respect to the subject matter hereof.  All Software and Documentation delivered by Above All to You are subject to the terms of this Agreement, unless specifically addressed in a separate agreement.

14.                             Government Use.  For purposes of this Agreement, "commercial computer software" means software developed or regularly used for nongovernmental purposes which (a) has been sold, leased, or licensed to the public; (b) has been offered for sale, lease or license to the public; (c) has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this Agreement; or (d) satisfied a criterion expressed in (a), (b), or (c) of this clause and would require only minor modification to meet the requirements of this Agreement.  If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation (“FAR”) and its successors.  If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFAR”) and its successors.  This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFAR, or other clause or provision that addresses Government rights in computer software or technical data under this Agreement.

Copyright  © 2006 Above All Software, Inc.  All Rights Reserved.  The Above All Software logo and Above All Software are trademarks or registered trademarks of Above All Software, Inc. in the United States and other countries.