Untitled Document

BY CLICKING ON THE “ACCEPT” BUTTON (IN ORDER TO DOWNLOAD THE PRODUCT ONTO YOUR COMPUTER) OR BY INSTALLING THE PRODUCT ONTO YOUR COMPUTER, YOU ARE AGREEING TO BE BOUND BY (AND BECOME A PARTY TO) ALL PROVISIONS OF THIS SOFTWARE EVALUATION AGREEMENT (“AGREEMENT”) AS SET FORTH IN DETAIL BELOW. IF YOU DO NOT AGREE TO BE BOUND BY (OR BECOME A PARTY TO) ALL PROVISIONS OF THIS AGREEMENT, THEN PERFORM THE FOLLOWING ACTIONS (AS APPLICABLE) WITHOUT INSTALLING THE PRODUCT ONTO YOUR COMPUTER AND WITHOUT RETAINING ANY COPY (INCLUDING BUT NOT LIMITED TO ANY COPY ON ELECTRONIC MEDIA) OF THE PRODUCT: CLICK ON THE “DO NOT ACCEPT” BUTTON.

1. DEFINITIONS
"Product" means only Exsedia’s software program(s) and/or third party software programs, in each case, supplied by Exsedia herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation that are provided to you. "Effective Date" means the date on which the acceptance actions above were taken.

2. GRANT OF LICENSE.
Exsedia grants to you a nontransferable, nonexclusive license to use the Product solely for your internal testing and evaluation of the Product at the location to which the Product is downloaded only.

3. PROPERTY RIGHTS.
The Product you are installing, downloading, or have acquired with this Agreement are copyrighted, trade secret and confidential information of Exsedia or its licensors who maintain exclusive title to all the Product and retain all rights not expressly granted by this Agreement. This Agreement does not grant you any rights in connection with any trademarks or service marks of Exsedia and its licensor.

4. RESTRICTIONS ON USE.
You shall not copy or permit any other party to copy or have access to the Product. You shall not disclose, provide or otherwise make the Product available in any form to any person other than employees and contractors, excluding Exsedia’s competitors, whose job performance requires access. You shall take appropriate action to protect the confidentiality of the Product and ensure that any person permitted access to the Product does not disclose it or use it except as permitted by this Agreement. Except as otherwise permitted for purposes of interoperability as specified by applicable and mandatory local law, you shall not modify, translate, reverse-assemble, reverse-compile, reverse-engineer or in any way derive from the Product any source code or create derivative works based upon the Product. You shall not use the Product to develop any software or other technology having the same primary function as the Product, including but not limited to using the Product in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in similar manner as the Product.

You may not rent, lease, sell, sublicense, assign or otherwise transfer the Product, this Agreement or the rights under it, whether by operation of law or otherwise (“attempted transfer”) without Exsedia’s prior written consent and payment of Exsedia then-current applicable transfer charges. Any attempted transfer without Exsedia’s prior written consent shall be a material breach of this Agreement and may, at Exsedia’s option, result in the immediate termination of the Agreement and licenses granted under this Agreement. The provisions of this section 4 shall survive the termination or expiration of this Agreement.

5. TERM AND TERMINATION.
This Agreement is effective until: (a) the license keys temporarily provided to you by Exsedia expire (thirty days (30) days after you install the Product), or (b) you acquire a regular license from Exsedia, or (c) the Agreement is terminated as further below, whichever is earlier. You may terminate the Agreement at any time by destroying and disposing of the Product with all copies and merged portions in any form. The Agreement will immediately and automatically terminate without notice if you fail to comply with any term or condition of this Agreement. You further agree upon termination to promptly destroy the Product with all copies and merged portions in any form.

6. LIMITED WARRANTY.
Exsedia provides the Software to you "as is" with no warranty provisions.
THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE EXCLUSIVE. NEITHER EXSEDIA NOR ITS LICENSORS MAKE ANY OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE PRODUCT OR OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT. EXSEDIA AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.

7. LIMITATION OF LIABILITY.
EXCEPT WHERE THIS EXCLUSION OR RESTRICTION OF LIABILITY WOULD BE VOID OR INEFFECTIVE UNDER APPLICABLE LAW, IN NO EVENT SHALL EXSEDIA OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF EXSEDIA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EXSEDIA OR ITS LICENSOR’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID, EXSEDIA AND ITS LICENSORS SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER.

NEITHER EXSEDIA NOR ITS LICENSORS SHALL BE LIABLE FOR ANY DAMAGES RESULTING FROM OR IN CONNECTION WITH THE USE OF THE PRODUCT IN ANY APPLICATION WHERE THE FAILURE OR INACCURACY OF THE PRODUCT MIGHT RESULT IN DEATH OR PERSONAL INJURY.

8. INDEMNIFICATION.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EXSEDIA AND ITS LICENSORS FROM ANY CLAIMS, LOSS, COST, DAMAGE, EXPENSE, OR LIABILITY, INCLUDING ATTORNEYS' FEES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF PRODUCT AS DESCRIBED IN SECTION 7.

9. CONTROLLING LAW AND JURISDICTION.
This Agreement shall be governed by and construed under the laws of Malaysia. All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of Selangor when the laws of Malaysia apply. This section shall not restrict Exsedia’s right to bring an action against you in the jurisdiction where your place of business is located.

10. WAIVER.
The waiver by either party of a breach of any term of this Agreement shall not constitute a waiver of any subsequent breach of this Agreement.

11. ENTIRE AGREEMENT.
This Agreement contains the parties' entire understanding relating to its subject matter and supersedes all prior or contemporaneous agreements, including but not limited to any purchase order terms and conditions, except valid license agreements related to the subject matter of this Agreement (which are physically signed by you and an authorized agent of Exsedia) either referenced in the purchase order or otherwise governing this subject matter. By clicking on the “ACCEPT” button (in order to download the Product onto your computer) or by installing the Product onto your computer, you acknowledge that you have read, understood and agreed to this Agreement as being effective for all purpose as of the Effective Date.