ITSM BRIDGE
SOFTWARE EVALUATION LICENCE AGREEMENT
PLEASE READ THE FOLLOWING
TERMS CAREFULLY BEFORE USING THIS SOFTWARE.
YOU INDICATE ACCEPTANCE OF AND AGREE TO BE BOUND BY THE TERMS OF THIS
AGREEMENT BY INSTALLING OR USING THIS SOFTWARE.
IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR
USE THIS SOFTWARE.
Subject to the terms below,
you are hereby licensed to use this Software for evaluation purposes only
without charge for a period of ten (10) days.
DEFINITIONS
‘'SMIL'' means Service Management Integrations
Limited of 48 Holywell Road, Studham, Bedfordshire,
LU6 2PD, United Kingdom.
''Customer'' or ''You'' means
your company or organisation.
''Evaluation Period'' means a
period of ten (10) days from receipt of the Software.
''Software'' means all object
code, encrypted source code or password-protected code provided by SMIL for the
purpose of evaluation along with any supporting documentation.
PROPRIETARY RIGHTS
All proprietary rights in the
Software, and any modifications or copies thereof, are and shall remain vested
in SMIL or its licensors. All
proprietary notices incorporated in, marked on, or affixed to any of the
Software shall be duplicated by Customer on all copies of all or any part of those Software and shall not be altered, removed or
obliterated.
SMIL, its Affiliates or
licensors retain all right, title and interest to the Product and all related
intellectual property and proprietary rights.
The Software and any third party software provided with the Software are
protected by applicable copyright, trade secret, industrial and other
intellectual property laws. Customer may
not remove any product identification, copyright, trademark or other notice
from the Software. SMIL reserves any
rights not expressly granted to Customer.
LICENCE
SMIL grants to Customer a
non-exclusive, non transferable licence
to use the Software for its internal evaluation purposes only for the
Evaluation Period. For the avoidance of
doubt, Customer does not have a right to use the Software for time sharing,
rental, sub-licensing, service bureau or third party training purposes. The Software may not be used on a production
environment or for the purpose of preparing, formatting or migrating
any data to or from a production environment.
Within thirty (30) days from
the end of the Evaluation Period, Customer shall either:
a) Raise an order for the purchase of the
Software at the current list price for the same OR
b) Return the Software to SMIL and remove all
Software from the platform on which it was installed.
Customer will not modify the
Software. Customer will not reverse engineer, disassemble or decompile the
Software except and in so far as is necessary to achieve inter-operability with
another independently created computer program and provided that SMIL was asked
in writing to provide the information necessary to achieve the interoperability
of an independently created computer program with the Software and failed to do
so within twenty eight (28) days.
Copying or use of the
Software other than as expressly authorised by this
Agreement is not permitted.
CONFIDENTIALITY
Each party shall hold
Confidential Information of the other in confidence. "Confidential Information" includes
without limitation the terms of this Agreement, the Software, any benchmark of
the Software, all Documentation, and all methods or concepts utilised therein, plus all information identified by the
disclosing party as proprietary or confidential.
All Confidential Information
shall remain the sole property of the disclosing party. Information will not be considered to be
Confidential Information if (i) available to the
public other than by a breach of this Agreement; (ii) rightfully received from
a third party not in breach of any obligation of confidentiality; (iii)
independently developed by a party without access to Confidential Information
of the other; (iv) known to the recipient at the time of disclosure; (v)
produced in compliance with applicable law or a court order, provided the other
party is given notice and opportunity to intervene; or (vi) it does not
constitute a trade secret and five (5) or more years have elapsed since the
date of disclosure. In the event of a breach of this Clause, the damaged party
will be entitled to injunctive relief and/or a decree for specific performance
and such further relief as may be proper.
DISCLAIMER
The Software is supplied “as is” and without
warranties as to performance or merchantability or any other warranties or
representations whether expressed or implied of any kind.
Customer will fully indemnify
and hold SMIL harmless against any breach of this Agreement including without
limitation any claims for breach of warranty and/or representation or
infringements of third party intellectual property rights.
LIMITED LIABILITY
Neither SMIL nor its
licensors shall be liable in any way whatsoever for any loss of business or
goodwill, loss of income or profit, loss of, or damage to or corruption of
data, or for any indirect or consequential loss or damage of any kind howsoever
arising and howsoever caused.
Good data processing
procedure dictates that any Software be thoroughly tested with non-critical
data before relying on it. Customer
accepts the entire risk of using the Software.
SUPPORT
SMIL will provide support for
the Software at its discretion for the Evaluation Period only.
SMIL shall have no obligation
to provide such support or to respond to any communication with SMIL during the
Evaluation Period.
INFRINGEMENT INDEMNITY
As long as Customer provides
SMIL with prompt written notice of such claim or action, offers SMIL sole
control and authority over the defence or settlement
of such claim or action, including all appeals, and provides complete
information and reasonable assistance to defend or settle such claim, SMIL
shall, at SMIL’s own expense,
defend or settle, at SMIL’s option, any claim or action brought against Customer based on a claim
that any of the Software, as used by Customer strictly within the scope
contemplated by this Agreement, infringes a copyright or trade secret or a
patent issued no later than 60 days prior to the date of the Order and shall
indemnify Customer to the extent resulting from any such claim or action.
SMIL shall have no liability for any claim of
patent, copyright or trade secret infringement that is based on i) the Use of other than the latest version of the
Software, if such infringement could have been avoided by the Use of the latest
version; ii) the Use or combination of the Software with software, hardware or
other materials not provided by SMIL, iii) Use of the Software in a manner
other than that for which it was designed or contemplated as evidenced by the
relevant documentation; iv) any unauthorised
modification by Customer or a third party of the Software; or v) any compliance
with designs, plans or specifications furnished by Customer or on Customer’s behalf.
THIS CLAUSE STATES THE ENTIRE
LIABILITY OF SMIL AND THE CUSTOMER’S SOLE AND EXCLUSIVE RIGHT TO RECOVER, WITH RESPECT TO
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT, AND SMIL SHALL HAVE NO
ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVED INFRINGEMENT.
GENERAL
SMIL will not be liable for
any failure to fulfil its obligations hereunder caused by circumstances outside
its control. There shall be no extension
to the Evaluation period if such circumstances occur.
No delay by SMIL in enforcing
any of the terms or conditions of this Agreement will affect or restrict its
rights and powers arising under this Agreement.
No waiver of any term or condition of this Agreement will be effective
unless made in writing.
If any of the provisions of
this Agreement is judged to be illegal or unenforceable, the continuation in
full force and effect of the remainder of them will not be prejudiced.
GOVERNING LAW
This Agreement will be
governed by and interpreted in accordance with the laws of England (without
reference to its conflict of laws principles) and the parties agree to submit
to the exclusive jurisdiction of the English Courts.