| FILES2LINKS TRIAL PERIOD TERMS AND CONDITIONS
PLEASE READ THESE TRIAL PERIOD TERMS AND CONDITIONS (“TRIAL PERIOD TERMS”) CAREFULLY. FILES2LINKS IS WILLING TO PROVIDE THE FILES2LINKS PRODUCTS TO YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT ("LICENSEE") FOR TRIAL PERIOD PURPOSES ONLY UPON THE CONDITION THAT LICENSEE ACCEPTS ALL THE TERMS CONTAINED HEREIN. BY SUBMITTING THE
TRIAL PERIOD ORDER FORM LICENSEE ACKNOWLEDGES AND AGREES THAT IT (I) UNCONDITIONALLY CONSENTS TO BE BOUND BY AND IS BECOMING A PARTY TO THE TRIAL PERIOD TERMS; AND (II) THE TRIAL PERIOD ORDER FORM AND THESE TRIAL PERIOD TERMS CONSTITUTE A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN FILES2LINKS AND LICENSEE AND IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY LICENSEE. LICENSEE'S CONTINUED USE OF THE FILES2LINKS PRODUCTS SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT.
1.0 Definitions
1.1 “Appliance(s)” means the hardware appliance(s) containing the Software made available to Licensee under this Agreement.
1.2 “Documentation” means the information relating to the use of the Appliance and Software provided on-line.
1.3 “Effective Date” is the date Licensee signs the Trial Period Order Form.
1.4 “Trial Period Order Form” means Files2Links’s standard Trial Period Order Form or other ordering document that (i) specifies the Files2Links Products or Services provided to Licensee for Trial Period purposes; (ii) references this Agreement; and
(iii) is submitted to Files2Links by an authorized representatives of Licensee.
1.5 “Term” means the Trial Period term specified on the Trial Period Order Form, commencing on the Effective Date.
1.6 “Files2Links Products” means collectively and individually, the Appliance, Software, Services and Documentation provided to Licensee under this Agreement.
1.7 “Software” means the proprietary Software products owned by Files2Links and provided by Files2Links to Licensee under this Agreement.
2. License Grant. Subject to the terms and conditions of this Agreement, Files2Links hereby grants to Licensee, during the Term, a non exclusive, non-transferable, no fee, and limited term license to use the Files2Links Products solely for the purpose of evaluating whether or not to purchase and/or license the Files2Links Products. Files2Links acknowledges that Licensee is under no obligation to enter into any business relationship with Files2Links. Files2Links will provide the Technical Support described on the Trial Period Order Form.
3. License Restrictions. The Software and Documentation may not be copied by Licensee. Except as otherwise expressly granted in this Agreement or agreed to in writing by Files2Links, no license, right or interest in any Files2Links trademark, copyright, trade name or service mark is granted hereunder. Except as expressly authorized herein, Licensee shall not engage in or permit any: (i) copying or modification of the Software or Documentation; (ii) reverse engineering, decompilation, translation, disassembly, or discovery of the source code of all or any portion of the Software; or (iii) distribution, disclosure, marketing, rental, leasing or service bureau use or transfer to any third party of the Files2Links Products.
4. Ownership. Files2Links (or its licensors) retains all right, title and interest in (i) the Files2Links Products; and (ii) all patent rights, copyrights, trademarks, trade secrets, service marks, and trade names related to the Files2Links Products. Licensee may not use any of the foregoing except as expressly provided herein.
5. Copyright and Patent Indemnity. Files2Links will defend or settle any action brought against Licensee to the extent that it is based upon a claim that the Product, as provided by Files2Links to Licensee under this Agreement and used within the scope of this Agreement, infringes any U.S. patent or any copyright or misappropriates any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against or payable in settlement by Licensee, provided that Licensee: (i) promptly notifies Files2Links in writing of the claim; (ii) grants Files2Links sole control of the defense and settlement of the claim; and (iii) provides Files2Links, at Files2Links’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.
6. Term and Termination. The term of this Agreement shall begin on the Effective Date and terminate upon expiration of the Term. Upon the expiration of the Term, Licensee shall not have access to the Appliance or data stored thereon without submitting a Files2links Product Order Form including any payment due therewith.
9. Disclaimer of Warranty. THE FILES2LINKS PRODUCTS ARE SUPPLIED UNDER THIS AGREEMENT ON A STRICT “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND OR NATURE. FILES2LINKS DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES RELATIVE TO THE FILES2LINKS PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability. IN NO EVENT SHALL FILES2LINKS OR ITS LICENSORS BE LIABLE TO LICENSEE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE, WHICH IN ANY WAY ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE USE OF THE PRODUCT OR SERVICES EXCEPT FOR ANY VIOLATION OF PARAGRAPH 13.
11.Ownership and Control of Content. All content stored by Licensee on Files2Links’s server computers shall at all times remain the property of Licensee. Licensee agrees to and be bound by the following provisions:
11.1 Lawful Purpose. Licensee will only use Files2Link’s Product for lawful purposes and Licensee will not store or provide any content or link to any material that violates foreign, federal, state or local law.
11.2 Remedy for Violation. Should Files2Links become aware that Licensee has violated Part 11.1, Files2Links may, at its option, remove the content in violation, immediately terminate this Agreement, and/or notify authorities.
12. Indemnity. Licensee shall defend and indemnify Files2Links against any third party claim, action, suit or proceeding arising as a result of Licensee's use of Files2Links’s Product and indemnify Files2Links for all losses, damages, expenses, and costs incurred by Files2Links as a result of a final judgment entered against Files2Links in any such claim, action, suit or proceeding.
13. Confidentiality. Files2Links agrees that, in connection with this Agreement, all data of any kind stored by Licensee on Files2Link’s Appliance shall be deemed Confidential Information and shall at all times be owned by Licensee. Files2Links shall protect the Confidential Information with the same degree of care that it regularly uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than a reasonable degree of care. Confidential Information shall not be provided or disclosed to anyone except those employees or contractors of Files2Links with a need to know under this Agreement or used in any way by Files2Links.
14. General. This Agreement represents the complete agreement regarding the subject matter of this Agreement. This Agreement may be amended only by a written document executed by a duly authorized representative of each party. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement may not be assigned or transferred by Licensee for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without Files2Links's written consent and any assignment in violation of the foregoing shall be void and without effect. Each party acknowledges that any breach of its obligations with respect to the proprietary rights of the other party or such party's licensors may cause such other party irreparable injury for which there may be inadequate remedies at law and that such other party and its licensors will be entitled to seek injunctive relief, in addition to all other remedies available to it. Neither party shall be liable for any failure to perform due to force majeure causes beyond its reasonable control. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, without reference to conflict of law principles.
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