ADARA Networks, Inc. Evaluation Agreement

  1. Please mark which ADARA products the Evaluation Agreement will apply to (will become Exhibit 1 in the Evaluation Agreement)
  2. Please enter the addresses where the ADARA products will be evaluated (will become Exhibit 2 in the Evaluation Agreement)
  3. Review the Evaluation Agreement and Exhibit 3 End User License Agreement
  4. Include the email address of your ADARA Value Added Reseller, a copy of the Agreement will be sent to them
  5. Accept the terms of the Agreement
SKU ADARA Part No. Description Quantity Evaluated
10012842 A-SR-B-A APOLLO BRANCH A
10012843 A-SR-E-A APOLLO ENT A
10012845 A-SR-W-A APOLLO WAN A
10012846 C-FE-B ADARA FEDERATION ENG BRN CONSTELLATION F
10012847 C-FE-E ADARA FEDERATION ENG ENT CONSTELLATION F
10012848 C-FE-W ADARA FEDERATION ENG WAN CONSTELLATION F
10012849 C-FSE-B ADARA FULL STACK ENG BRN CONSTELLATION F
10012850 C-FSE-E ADARA FULL STACK ENG ENT CONSTELLATION F
10012851 C-FSE-W ADARA FULL STACK ENG WAN CONSTELLATION F
10012852 C-TOG-B ADARA TCP OPT GTW BRN CONSTELLATION TOG
10012853 C-TOG-E ADARA TCP OPT GTW ENT CONSTELLATION TOG
10012854 C-TOG-W ADARA TCP OPT GTW WAN CONSTELLATION TOG
10012855 C-VE-B ADARA VIRTUALZTN ENG BRN CONSTELLATION V
10012856 C-VE-E ADARA VIRTUALZTN ENG ENT CONSTELLATION V
10012857 C-VE-W ADARA VIRTUALZTN ENG WAN CONSTELLATION V
10012858 C-WAG-B ADARA WEB ACCEL GTW BRN CONSTELLATION WA
10012859 C-WAG-E ADARA WEB ACCEL GTW ENT CONSTELLATION WA
10012860 C-WAG-W ADARA WEB ACCEL GTW WAN CONSTELLATION WA
10012861 C-WE-B ADARA WORKFLOW ENG BRN CONSTELLATION WE
10012862 C-WE-E ADARA WORKFLOW ENG ENT CONSTELLATION WE
10012863 C-WE-W ADARA WORKFLOW ENG WAN CONSTELLATION WE
10012864 C-WOE-B ADARA WAN OPT ENGINE BRN CONSTELLATION W
10012865 C-WOE-E ADARA WAN OPT ENGINE ENT CONSTELLATION W
10012866 C-WOE-W ADARA WAN OPT ENGINE WAN CONSTELLATION W
10012867 CO-TAE-B-A COMET BRANCH A
10012868 CO-TAE-E-A COMET ENT A
10012870 CO-TAE-W-A COMET WAN A
10012871 E-UI-B ADARA USER I/F BRN ECHO UI BRN
10012872 E-UI-E ADARA USER I/F ENT ECHO UI ENT
10012873 E-UI-W ADARA USER I/F WAN ECHO UI WAN
10012874 G-MCR-B ADARA MULTICAST RTR BRN GEMINI MCR BRN
10012875 G-MCR-E ADARA MULTICAST RTR ENT GEMINI MCR ENT
10012876 G-MCR-W ADARA MULTICAST RTR WAN GEMINI MCR WAN
10012877 M-ADC-B ADARA APP DEL CTRL WAN MERCURY ADC BRN
10012878 M-ADC-E ADARA APP DEL CTRL WAN MERCURY ADC ENT
10012879 M-ADC-W ADARA APP DEL CTRL WAN MERCURY ADC WAN
10012880 M-AR-B ADARA APP RTR BRN MERCURY AR BRN
10012881 M-AR-E ADARA APP RTR ENT MERCURY AR ENT
10012882 M-AR-W ADARA APP RTR WAN MERCURY AR WAN
10012883 M-GLB-B ADARA GLBL LOAD BAL BRN MERCURY GLB BRN
10012884 M-GLB-E ADARA GLBL LOAD BAL ENT MERCURY GLB ENT
10012885 M-GLB-W ADARA GLBL LOAD BAL WAN MERCURY GLB WAN
10012886 M-LLB-B ADARA LCL LOAD BAL BRN MERCURY LLB BRN
10012887 M-LLB-E ADARA LCL LOAD BAL ENT MERCURY LLB ENT
10012888 M-LLB-W ADARA LCL LOAD BAL WAN MERCURY LLB WAN
10012889 M-VPNC-B ADARA VPN CONCENTRATR BRN MERCURY VPNC B
10012890 M-VPNC-E ADARA VPN CONCENTRATR ENT MERCURY VPNC E
10012891 M-VPNC-W ADARA VPN CONCENTRATR WAN MERCURY VPNC W
10012892 O-CCE-B ADARA CLOUD CMPT ENG BRN ORION CCE BRN
10012893 O-CCE-E ADARA CLOUD CMPT ENG ENT ORION CCE ENT
10012894 O-CCE-W ADARA CLOUD CMPT ENG WAN ORION CCE WAN
10012895 O-SE-B ADARA SOA ENGINE BRN ORION SE BRN
10012896 O-SE-E ADARA SOA ENGINE ENT ORION SE ENT
10012897 O-SE-W ADARA SOA ENGINE WAN ORION SE WAN
10012898 S-DR-B ADARA DATABASE RTR BRN SIRIUS DR BRN
10012900 S-DR-E ADARA DATABASE RTR ENT SIRIUS DR ENT
10012902 S-DR-W ADARA DATABASE RTR WAN SIRIUS DR WAN
10012904 S-MPR-B ADARA MULTIPATH RTR BRN SIRIUS MPR BRN
10012906 S-MPR-E ADARA MULTIPATH RTR ENT SIRIUS MPR ENT
10012909 S-MPR-W ADARA MULTIPATH RTR WAN SIRIUS MPR WAN
10012911 S-NR-B ADARA NTWK RTR BRN SIRIUS NR BRN
10012913 S-NR-E ADARA NTWK RTR ENT SIRIUS NR ENT
10012915 S-NR-W ADARA NTWK RTR WAN SIRIUS NR WAN
10012917 S-QR-B ADARA QOS RTR BRN SIRIUS QR BRN
10012919 S-QR-E ADARA QOS RTR ENT SIRIUS QR ENT
10012921 S-QR-W ADARA QOS RTR WAN SIRIUS QR WAN
10012923 T-FW-B ADARA FW BRN TAURUS FW BRN
10012925 T-FW-E ADARA FW ENT TAURUS FW ENT
10012927 T-FW-W ADARA FW WAN TAURUS FW WAN
10012929 T-SCG-B ADARA SECURE COM GTW BRN TAURUS SCG BRN
10012931 T-SCG-E ADARA SECURE COM GTW ENT TAURUS SCG ENT
10012933 T-SCG-W ADARA SECURE COM GTW WAN TAURUS SCG WAN
10918858 H-CVS-B ADARA HORIZON W CNTRLER / VSWITCH - BRN
10918856 H-CVS-E ADARA HORIZON W CNTRLER / VSWITCH - ENT
10918857 H-CVS-W ADARA HORIZON W CNTRLER / VSWITCH - WAN

This Evaluation Agreement (“Agreement”) is entered into between ADARA Networks, Inc. (“ADARA”), with its principal place of business at 1731 Technology Drive, San Jose, CA 95110; and you (the Evaluators”).

1. Evaluation

a. ADARA agrees to loan to Evaluators certain hardware and/or software listed on Exhibit 1 (the “Licensed Products”) for the Evaluators’ evaluation of the Products (the “Purpose”) in accordance with the terms of this Agreement.

b. Neither this Agreement nor the Licensed Products may be sold, leased, assigned, sublicensed or otherwise transferred by Customer, in whole or in part.

b. The evaluation will be for thirty (30) days starting five (5) business days from the receipt of the Licensed Products (the “Evaluation Period”). The Evaluators and ADARA may, upon mutual written agreement (including by confirmed email), extend the Evaluation Period.

c. Evaluators agrees: (a) to use the Products only for the Purpose; (b) to assume liability for any damages to the Products from misuse, neglect, or abuse; (c) to maintain the Products only at the location specified on Exhibit 2 (unless prior written permission is given by ADARA); and (d) not to alter or modify the Products.

d. Upon the expiration of the Evaluation Period (the “Termination Date”), Evaluators will return to ADARA, at Evaluators’ expense and risk of loss, the Products and all copies of the Licensed Products in the same condition as at the time of delivery and the license granted under this Agreement shall automatically terminate.

2. Purchase

a. If the Licensed Products are not received by ADARA within two (2) business days of the Termination Date, Evaluators shall be deemed to have jointly and severally purchased the Licensed Products and Evaluators will no longer have the right to return the Licensed Products to ADARA (a “Deemed Purchase”).

b. In the event of a Deemed Purchase, ADARA will send Evaluators an invoice for the Licensed Products at the prices listed in Exhibit 1. Payment will be due within ten (10) days of the date on the invoice. Late payments will accrue a finance charge of 1.5% per month. All of the terms and conditions contained in ADARA’s End-User License Agreement, attached as Exhibit 3, will apply (and the fact that it may not be signed is immaterial). In the event of a conflict between this Agreement and the End-User License Agreement, the terms of this Agreement shall apply.

3. License

a. ADARA grants to Evaluators a personal, nonexclusive and nontransferable license to use the Licensed Products at the location(s) identified on Exhibit 2 for the Purpose of this Agreement. Except as expressly set forth in this Agreement, no other right or license to all or any part of the License Products is granted to Evaluators by ADARA. All Licensed Products and all copies made by Evaluators, including translations, compilations and partial copies, are and shall remain the property of ADARA.

b. Evaluators agrees:

  1. During the Evaluation Period, to use the Licensed Products solely for the Purpose of internal evaluation towards the purchase and/or license of the Licensed Products and for no other purpose without the express written agreement of ADARA;
  2. to assume liability for any damages to the Licensed Products from misuse, neglect, or abuse while in the possession and/or control of Evaluators;
  3. not to alter or modify the Licensed Products;
  4. not to make any copies of any Licensed Products except as may be necessary for Evaluators to exercise its rights under this Agreement;
  5. not to publicly distribute, transmit, sell, lease, license or rent the Licensed Products or the results of any evaluation of the Licensed Products, in whole or in part, to any third party;
  6. not to reverse engineer, decompile, disassemble or circumvent copy protection of the Licensed Products or any part thereof, except as may be permitted by applicable local law;
  7. not to export the Licensed Products for any purpose;
  8. not to use or evaluate the Licensed Products for the benefit of any third party; and
  9. not to use the Licensed Products for any unlawful purpose.

4. Title

a. The Products shall at all times remain the property of ADARA.

b. Evaluators shall not pledge, loan, mortgage or dispose of the Licensed Products or permit any liens to be placed on the Licensed Products.

5. Termination

a. ADARA may, at its option, terminate this Agreement upon two (2) days’ written notice if Evaluators: (i) fail to comply with any terms and conditions of this Agreement or (ii) use the Products other than as authorized.

b. Upon termination of this Agreement, Evaluators shall return to ADARA the Licensed Products and all copies within five (5) days, at Evaluators’ expense and risk of loss and in the same condition as at the time of delivery. Evaluators shall not be entitled to any refund.

6. Warranty

THE LICENSED PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND WHATSOEVER.

ADARA HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE TO THE EXTENT ALLOWED BY APPLICABLE LAW.

ADARA DOES NOT WARRANT THAT THE LICENSED PRODUCTS ARE ERROR FREE OR THAT THE USE THEREOF WILL BE UNINTERRUPTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR DISCLAIMER OF IMPLIED WARRANTIES OR LIMITATION ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATION MAY NOT APPLY TO EVALUATORS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

7. LIMITATION OF LIABILITY

IN NO EVENT WILL ADARA BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE OR INJURY TO PROPERTY, OR DAMAGES BASED ON LOST PROFITS, REVENUE, DATA, BUSINESS OPPORTUNITIES OR GOODWILL OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED PRODUCTS EVEN IF ADARA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL ADARA’S LIABILITY TO EVALUATORS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE PRICE PAID BY EVALUATORS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY OR CONSEQUENTIAL OR INCIDENTAL DAMAGES.

8. Confidentiality

a. Evaluators agree to retain in confidence all information disclosed by ADARA pursuant to this Agreement. Evaluators acknowledge and agree that the Licensed Products and all information provided to Evaluators in accordance with this Agreement shall be ADARA’s confidential information without the need for any marking. Evaluators agree to: (a) strictly preserve and protect the confidentiality of ADARA’s confidential information; and (b) refrain from using ADARA’s confidential information except as contemplated in this Agreement.

b. Evaluators will not disclose to or use in cooperation with any third party the results of the evaluation of the Licensed Products or other performance or functional evaluation of the Licensed Products without prior written approval of ADARA. ADARA shall have the right to use for any purpose any information regarding the Licensed Products gained as a result of Evaluators’ use and evaluation of the Licensed Products. Such information shall include but not be limited to changes, modifications, corrections and improvements to the Licensed Products suggested by Evaluators.

c. The provisions of this Section shall survive the termination or expiration of this Agreement until the provisions of this Section are terminated in writing by ADARA.

9. General Provisions

a. The parties are independent contractors, and nothing in this Agreement is intended to or shall create any agency, partnership, or joint venture relationship between them.

b. The laws of California shall govern this Agreement without reference to conflicts of laws principles.

c. The provisions of this Agreement are severable. If any provision of this Agreement shall be held invalid, illegal, or unenforceable, the remaining provisions shall remain valid, legal and enforceable.

d. In any dispute or legal proceeding arising out of or relating to this Agreement, including the failure of Evaluators to pay any amounts due under this Agreement, the prevailing party will be entitled to an award of its attorneys’ fees and costs.

e. Evaluators may not assign this Agreement or any of its rights or obligations under it, by operation of law or otherwise, without ADARA’s prior written consent. Any purported assignment by Evaluators shall be null and void.

f. The failure of any party to exercise any right granted herein or to require any performance of any term of this Agreement or the waiver by any party of any breach of this Agreement shall not prevent a subsequent exercise or enforcement of, or be deemed a waiver of any subsequent breach of, the same or any other term of this Agreement.

g. This Agreement constitutes the entire Agreement between ADARA and Evaluators with respect to its subject matter, merges all prior negotiations and drafts of the parties, and supersedes any and all other written or oral agreements existing between the parties regarding the subject matter of this Agreement.

h. This Agreement may not be modified without the prior written consent of the parties.

i. This Agreement may be executed in one or more counterparts, each of which shall be an original and together constitute one and the same instrument. This agreement may be executed with facsimile signatures, which shall constitute original signatures for all purposes.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.

EXHIBIT 1:
LICENSED PRODUCTS

EXHIBIT 2:
Addresses where Licensed Products will be Evaluated

EXHIBIT 3:
ADARA End-User License Agreement

This END-USER LICENSE AGREEMENT (the “Agreement”) is a legal agreement between you (the “Customer”) and ADARA Networks, Inc. (“ADARA”), with its principal place of business at 2150 North First Street, San Jose, CA 95110. Customer must sign this Agreement prior to or contemporaneously with placing an order for the purchase of ADARA products with any ADARA Value Added Reseller.

1. LICENSE

a. ADARA makes appliances which include software object code deployed on hardware, together with any business process libraries delivered with and any related documentation. ADARA grants to Customer a personal, nonexclusive and nontransferable license to use the ADARA hardware and/or software listed on Exhibit 1 (the “Licensed Products”).

b. Neither this Agreement nor the Licensed Products may be sold, leased, assigned, sublicensed or otherwise transferred by Customer, in whole or in part.

2. SCOPE OF USE

a. Customer may not make copies of the Licensed Products.

b. Customer has the right to develop interfaces to the Licensed Products strictly for its use in conjunction with its use of the Licensed Products. Such Customer-developed software interfaces shall be the property of Customer.

c. Except for any Customer user interfaces developed pursuant to Section 2(b) above, any changes or modifications to the Licensed Products shall be the property of ADARA. Any changes or modifications will mean that the limited warranty set forth below will no longer apply and ADARA shall have the right to charge Customer for additional support services at ADARA’s then prevailing service rate, but ADARA shall have no obligation to provide such services.

3. DELIVERY; INSTALLATION

a. The Licensed Products shall be delivered in an appliance form which includes executable object code deployed on hardware. ADARA shall deliver any related documentation to Customer (the “Documentation”). ADARA shall be under no obligation to provide any updates, enhancements, modifications, revisions, additions, replacements, conversions or maintenance to the Licensed Products, unless Customer and ADARA have agreed to do so in a separate Licensed Products Support and Maintenance Agreement.

4. PROPRIETARY INFORMATION

a. The Licensed Products and the pricing and terms of this Agreement (collectively “Information”) are the proprietary and confidential information of ADARA and/or a third party which has granted marketing and licensing rights to ADARA (hereinafter “Business Associate”). Customer agrees to maintain the Information in strict confidence and not to disclose, duplicate or otherwise reproduce, directly or indirectly, the Information in whole or in part.

b. Customer agrees not to modify, create derivative works of, translate, disassemble, reverse engineer, de-compile or derive the source code of the Licensed Products in whole or in part. Customer agrees to take all reasonable steps to ensure that no unauthorized persons shall have access to the Information and that all authorized persons having access to the Information shall refrain from any such disclosure, duplication or reproduction. Customer agrees not to remove any copyright notice or other proprietary markings from the Information, and any copy of the Information made by Customer for backup purposes shall contain the same copyright notice and proprietary markings contained on the copies of the Licensed Products furnished by ADARA to Customer under this Agreement.

c. Customer’s failure to comply with the provisions of this Agreement shall result in irreparable harm to ADARA and/or its Business Associates for which a remedy at law would be inadequate. Accordingly, in the event of the breach or threatened breach by Customer of its obligations under this Section, ADARA shall be entitled to equitable relief in the form of specific performance and/or an injunction for any actual or threatened breach, in addition to the exercise of any other remedies at law or in equity.

d. If Customer is required to produce Information by any governmental agency having jurisdiction pursuant to an order to produce or in the course of a legal proceeding pursuant to a lawful request for discovery, then Customer shall promptly notify ADARA of the order or request in discovery and reasonably cooperate with ADARA if ADARA elects (at ADARA’s expense ) to seek to limit or to avoid such disclosure by any lawful means and, if information is disclosed, Customer shall only disclose such information as it, in good faith, reasonably believes must be disclosed to comply with Customer’s disclosure obligation.

e. Customer agrees not to challenge, directly or indirectly, the right, title and interest of ADARA in and to the Licensed Products or the Information. Customers agrees not to directly or indirectly, register, apply for registration or attempt to acquire any legal protection for any of the Licensed Products, the Information, or any proprietary rights in them.

f. Customer agrees to provide immediate, written notification to ADARA of all circumstances surrounding the unauthorized possession or use of the Licensed Products by any person or entity. Customer agrees to cooperate fully with ADARA in any litigation relating to or arising from such unauthorized possession or use.

g. ADARA reserves all proprietary and commercial rights regarding the Licensed Products not expressly granted to Customer in this Agreement.

h. Notwithstanding any other provision of this Agreement, the obligations set forth in this Section will survive the termination of this Agreement for any reason.

5. LIMITED WARRANTY; ALL SALES ARE FINAL

a. ADARA represents and warrants that it owns or otherwise has the rights in the Licensed Products and has the right to grant a license to use the Licensed Products provided under this Agreement.

b. ALL SALES ARE FINAL. THE WARRANTY SET FORTH ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY ADARA.

c. ADARA EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ADARA DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE AND/OR ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE, IF ANY, WILL BE CORRECTED.

d. ADARA’S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF ADARA FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY OF THE SOFTWARE OR RELATED SERVICES. EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH THE CUSTOMER. The warranties set forth in this Section are subject to the limitations set forth below.

6. INDEMNIFICATION

a. By ADARA.

i. ADARA shall indemnify, defend, and hold Customer harmless from any action against Customer to the extent that it is based on an allegation that the software contained in the Licensed Products licensed under this Agreement have infringed an intellectual property right or trade secret, provided that Customer (i) promptly notifies ADARA of any such action; (ii) gives ADARA full authority, information and assistance to defend such claim; and (iii) gives ADARA sole control of the defense of such claim and all negotiations for the compromise or settlement of the claim. Customer’s failure to perform these conditions will excuse ADARA from all its indemnification obligations, whether provided by law or this Agreement.

ii. Notwithstanding the above, ADARA shall have no liability to indemnify, defend, or hold Customer harmless with respect to any claim based upon (a) Licensed Products that have been modified by anyone other than ADARA; (b) use of other than the then-current release of the Licensed Products, if infringement could have been avoided by use of the then-current release and such current release has been made available to Customer; (c) use of the Licensed Products in conjunction with Customer data where use with such data gave rise to the infringement claim; (d) use of the Licensed Products with other software or hardware, where use with such other software or hardware gave rise to the infringement claim; (e) use of the Licensed Products in a manner inconsistent with its Documentation, and/or (f) use of the Licensed Products which breaches this Agreement.

iii. If ADARA determines that the Licensed Products are or are likely to be the subject of a claim of infringement, ADARA shall have the right (i) to replace Customer’s copy of the Licensed Products with non-infringing Licensed Products that have substantially equivalent functionality; (ii) to modify the Licensed Products so they are free of infringement; (iii) to procure the right to continue to use the Licensed Products; or (iv) to terminate the license to use the Licensed Products and associated documentation.

iv. THE PROVISIONS OF THIS SECTION STATE THE EXCLUSIVE LIABILITY OF ADARA AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY OR TRADE SECRET INFRINGEMENT BY THE SOFTWARE OR ANY PART THEREOF, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF NON-INFRINGEMENT, AND INDEMNITIES WITH RESPECT THERETO.

b. By Customer.

i. Customer will indemnify, defend, and hold ADARA harmless from any action against ADARA involving the Licensed Products that is not based on an allegation that the Licensed Products licensed under this Agreement has infringed an intellectual property right or trade secret. This includes, but is not limited to, claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses (including attorneys’ fees) arising out of injury or death to persons, or damage to property, resulting from or pertaining to the use or operation of the Licensed Products, whether or not occasioned by the negligence or misconduct of Customer or anyone that Customer has allowed to use the Licensed Products. Customer will indemnify and promptly reimburse ADARA for any expenses, including attorneys’ fees, incurred by ADARA for its own defense.

7. LIMITATION OF LIABILITY

a. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, NEITHER ADARA NOR ITS BUSINESS ASSOCIATES SHALL BE LIABLE FOR ANY LOSS OR DAMAGE THAT MAY ARISE IN CONNECTION WITH CUSTOMER’S USE OF THE SOFTWARE. IN NO EVENT SHALL ADARA OR ITS BUSINESS ASSOCIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADARA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND. IN NO EVENT SHALL CUSTOMER BE ENTITLED TO ANY MONETARY DAMAGE AGAINST ADARA FOR THE PRODUCT TO WHICH CUSTOMER’S CLAIM RELATES.

8. DEFAULT AND REMEDIES

a. ADARA may, at its sole discretion, upon twenty-four (24) hours’ written notice to Customer, terminate all Licenses granted under this Agreement under the following circumstances: (i) Customer threatens to breach its obligations under Section 4 (Proprietary Information) and this threat remains for a period of five (5) days after ADARA provides written notice of this threatened breach; (ii) Customer breaches its obligations under Section 4 (Proprietary Information) and this breach remains uncured for a period of five (5) days after ADARA provides written notice of this breach; (iii) Customer fails to pay any amounts due under this Agreement;, (iv) Customer otherwise fails to comply with any or all covenants, agreements or conditions in this Agreement and such failure continues for thirty (30) days after written notification from ADARA; and (v) in the case of export, Customer is in violation of any laws or regulations of any applicable government authority in connection with the Licensed Products or its use. b. In the event of ADARA terminates the License granted to Customer, Customer shall have no further right to use the Licensed Products, including any copies, and shall, within ten (10) days after the effective date of any such termination, certify in writing and under penalty of perjury under the laws of California to ADARA that such Licensed Products and all materials relating thereto, including all copies, in the possession of Customer have been removed from Customer’s system and destroyed.

9. GENERAL

a. Announcements. Customer agrees that ADARA may make public announcements from time to time, through the issuance of press release(s), on ADARA’s websites or otherwise that refer to the existence of this Agreement, the nature of the relationship between the parties created by this Agreement and/or the nature of the Licensed Products. ADARA shall also have the right to use Customer’s name, trademarks, and logos, to refer to the existence of this Agreement, and the nature of the relationship between the parties created by this Agreement and/or the nature of the Licensed Products in customer lists, collateral and presentation materials, on ADARA’s websites, in interviews with press, at trade shows, and for other general publicity purposes.

b. Reference Customer. If a price discount has been negotiated and accepted by Customer and ADARA, Customer shall be a “Reference Customer.” At ADARA’s request from time to time, Reference Customer will serve as a reference with respect to the Licensed Products, as well as any services that may be performed by ADARA by meeting or conferring by telephone with at least three potential clients of ADARA during each calendar quarter during the period of time that the Customer uses the Licensed Products (the “Reference Term”). Each such meeting or telephone call shall be scheduled after consultation with Reference Customer. In addition, Reference Customer will work with ADARA and a member of the press to develop a feature article for a business or trade publication that illustrates the use and benefits of the Licensed Products and Reference Customer’s business process. At ADARA’s request, Reference Customer will speak at two formal events (tradeshows or press/analyst conferences) per year during the Reference Term on ADARA’s behalf. ADARA will pay all reasonable travel and conference expenses of Reference Customer.

c. No Waiver. The failure of either party to exercise any right granted in this Agreement, or to require the performance by the other party of any provision if this Agreement, or the waiver by either party of any breach of this Agreement will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement.

d. Assignment. Customer may not assign this Agreement or any license granted under this Agreement, whether by operation of law, change of control, or in any other manner, without the prior written consent of ADARA, which consent may be granted or withheld in ADARA’s sole discretion. ADARA may assign this Agreement to any third party, provided that such third party assumes the obligations of ADARA under this Agreement. ADARA may also assign its right to payments under this Agreement or grant a security interest in this Agreement or such payment right to any third party without requiring that such third party be liable for the obligations of ADARA under this Agreement.

e. Benefit. Subject to provisions hereof restricting assignment, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. f. Force Majeure. If the performance of this Agreement or any obligation hereunder, except for the making of payments, is prevented, restricted, or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident, strikes or labor disputes affecting third-party vendors, inability to procure or obtain delivery of parts, supplies or power, war or other violence, any law, order, proclamation, regulation, ordinance, demand or requirements of any governmental agency, or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected will take all commercially reasonable steps to avoid or remove such cause of nonperformance and will resume performance hereunder with dispatch whenever such causes are removed.

g. Export. Customer shall not export, re-export or transfer, whether directly or indirectly, the Licensed Products or any system containing the Licensed Products outside the United States of America without first complying with the applicable export laws of the United States of America and the import laws of the country in which the Licensed Products is to be used.

h. Survival. All provisions of this Agreement relating to proprietary, confidentiality, and non-disclosure rights shall survive the termination of this Agreement.

i. Remedies. Unless otherwise specified herein, the rights and remedies of both parties set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

j. Attorneys’ Fees. In any dispute or legal proceeding arising out of or relating to this Agreement, including the failure of Customer to pay any amounts due under this Agreement, the prevailing party will be entitled to an award of its attorneys’ fees and costs.

k. Governing Law and Jurisdiction. This Agreement is made and will be governed by and construed in accordance with the laws of California, without giving effect to its conflicts-of-laws provisions. All litigation or other proceedings under this Agreement shall be brought in any federal or state court located within California, and ADARA and Customer y consent to the exclusive personal and subject matter jurisdiction and venue of these courts.

l. Integration. This Agreement sets forth the entire Agreement and understanding between the parties with respect to its subject matter. This Agreement merges all previous discussions and negotiations between the parties and supersedes and replaces any other agreement which may have existed between ADARA and Customer with respect to its subject matter.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.

Evaluation Agreement