This is a legal agreement for the use of Software (defined below) between the company acquiring the license (“Evaluator”), and Tripwire, Inc. (“Tripwire”). If you are using the Software as an employee, the legal entity that employs you is the “Evaluator.” Your employer may have already accepted a version of these terms and conditions by signing a license agreement. In all other circumstances, you are binding your employer and yourself as an employee, to this Agreement by using the Software. Unless Evaluator and Tripwire have signed a license agreement for the Software, this Agreement and any applicable quotation contain the parties' entire understanding relating to the subject matter and supersede all prior or contemporaneous agreements. IF YOU DO NOT, OR THE EVALUATOR DOES NOT, AGREE TO THESE TERMS AND CONDITIONS, IMMEDIATELY REMOVE AND DESTROY ALL COPIES OF THE SOFTWARE.
1. Definition. “Pre-GA Software” means the pre-General Availability version(s) of the Software which Tripwire provides to Evaluator under this Agreement. “GA Date” means the date when Tripwire makes the Software generally available.
2. License. Tripwire grants to Evaluator a non-exclusive, non-transferrable, limited-term license to use the Pre-GA Software at no charge solely for the purpose of testing and evaluating within the Evaluator’s environment. This license will automatically expire 60 days after the GA Date. Tripwire will notify Evaluator if and when the GA Date occurs, to allow Evaluator to acquire a commercial license.
3. Protection and Security of Product. The Pre-GA Software is trade secret, confidential and proprietary information of Tripwire or its licensors. Evaluator will not make the Pre-GA Software available in any form to any person other than its employees and contractors who will be performing the testing and evaluation in Evaluator’s environment. Evaluator will take appropriate action to protect the confidentiality of the Pre-GA Software and to ensure that any person permitted access to the Pre-GA Software does not disclose or provide it to others. Evaluator shall not reverse-assemble, reverse-compile, or otherwise reverse-engineer the Pre-GA Software, in whole or in part. This paragraph survives the expiration or termination of this Agreement.
4. Feedback. From time to time Evaluator may provide feedback to Tripwire regarding the Pre-GA Software, including its strengths, weaknesses, malfunctions and any recommended improvements. Evaluator acknowledges that the Pre-GA Software has not completed the general availability release process, and that the code may be substantially modified prior to first commercial shipment. Tripwire makes no commitment and has no obligation to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop specified or unspecified features, functionality, upgrades or enhancements in the future, including the new features and functionality included in the Pre-GA Software. Any discussion of timelines and planned enhancements are estimates and are subject to change without notice. THE PRE-GA SOFTWARE HAS NOT UNDERGONE FINAL TESTING BY TRIPWIRE AND MAY CONTAIN DEFECTS. EVALUATOR IS ADVISED TO SAFEGUARD IMPORTANT DATA, AND TO VALIDATE THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SOFTWARE AND/OR ACCOMPANYING MATERIALS.
5. Expiration or Termination of Agreement. Either party may terminate this Agreement with 15 days prior written notice to the other party. On termination or expiration of this Agreement, Evaluator will promptly delete and destroy the Pre-GA Software from its environment, and, at Tripwire’s request, certify its compliance with this section.
6. Tripwire’s Property. Evaluator’s feedback and all inventions, product improvements, modifications, or developments that Tripwire conceives or makes during or subsequent to this Agreement including those inventions, product improvements, modifications and developments that may be based partly or wholly on Evaluator’s feedback, will be the exclusive property of Tripwire and Tripwire will have exclusive rights to all patents, copyrights, property rights, title and interest in those inventions, product improvements, modifications or developments.
7. Disclaimer of Warranty. PRE-GA SOFTWARE IS PROVIDED "AS IS." TRIPWIRE MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability. The Pre-GA Software is provided at no charge. TRIPWIRE DISCLAIMS ALL LIABILITY FOR DAMAGES INCURRED BY EVALUATOR OR ANY THIRD PARTY CLAIMING THROUGH EVALUATOR, INCLUDING PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF PROFITS, INTERRUPTION OF BUSINESS, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
9. General Terms. No term of this Agreement will be considered waived and no breach excused by either party unless made in writing by the other party. No consent, waiver, or excuse by either party, express or implied, will constitute a subsequent consent, waiver or excuse. Evaluator shall not sublicense the Pre-GA Software or assign or otherwise transfer this Agreement or the rights under it. This Agreement shall be governed by and construed under the laws of the State of Oregon.