Software Evaluation
License Agreement

IMPORTANT READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS EVALUATION LICENSE AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE SOFTWARE UNUSED.

1. GRANT AND USE RIGHTS FOR SOFTWARE.

1.1 License. This Agreement grants You a non-transferable, non-exclusive, limited right to use one copy of the Software in object code form in a non-production environment on one server and for a limited time for the sole purpose of evaluating the Software for purchase. “Software” means software products that are licensed to you under this Agreement, including, but not limited to, any related components provided with the Software, application programming interfaces, associated media, printed materials, online or electronic documentation, and any updates and maintenance releases thereto. Open-source software components provided with the Software are licensed to you under the terms of the applicable license agreements included with such open-source software components. You are responsible for complying with all open-source software licenses within the Software.

1.2 License Limitations. You may not copy the Software or remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on the Software. You are not granted any rights to any trademarks or service marks of Kabeus. Kabeus retains all rights not expressly granted to you in this Agreement.

You may not:

(a)    Demonstrate, copy, sell or market the Software to any third party,

(b)   Publish or otherwise disclose information relating to the features, design or performance of the software to any third party,

(c)    Use the software for any purpose other than the Evaluation; or

(d)   Provide access to the Software to anyone other than employees of Licensee who are involved in the evaluation and who are legally bound by obligations of confidentiality to Licensee.

1.3 Restrictions. Except as expressly permitted by this Agreement or by applicable law, You may not (i) sell, lease, assign, license, sublicense, distribute or otherwise transfer in whole or in part the Software; (ii) permit any use of or access to the Software by any third party, or operate the Software on behalf of or for the benefit of any third party, including the operation of any service that is accessed by a third party; (iii) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code or other proprietary information from the Software; (iv) modify or create derivative works based upon the Software; or (v) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions in the Software. If You wish to exercise any rights to reverse engineer to ensure interoperability in accordance with applicable law, You must first provide Kabeus with written notice and all reasonably requested information to info@kabeus.com.au within 30 days and permit Kabeus to assess your claim and, at Kabeus’ sole discretion, to make an offer to provide alternatives that reduce any adverse impact on Kabeus’ intellectual property or other rights.

1.4 Licenses required for third-party software. You are responsible for separately obtaining and complying with any licenses necessary to operate third-party software, including but not limited to, Guest Operating Systems and application programs which the Software requires to run.

2. TITLE. Kabeus retains all right, title, and interest in and to the Software and in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights.

3. SUPPORT AND SUBSCRIPTION SERVICES NOT INCLUDED

Kabeus will not provide any support services under this Agreement. This Agreement does not give you any rights to any updates or upgrades to the Software or to any extensions or enhancements to the Software developed by Kabeus at any time in the future. Kabeus may use any technical information you provide to Kabeus for any Kabeus business purposes without restriction, including for product support and development. Kabeus will not use information in a form that personally identifies you.

4. TERM AND TERMINATION

The software will be available for download upon the receipt of this signed and dated agreement.  The evaluation period will commence on the date that the agreement has been downloaded.

The licensee is authorised to install and evaluate the Software for a 30-day evaluation period, commencing upon the download or delivery of the Software at Licensee’s location.

Unless earlier terminated in accordance with this Agreement, Kabeus may terminate this Agreement immediately upon notice if You fail to comply with any term of this Agreement.

In the event of termination, regardless of the event, you must remove and destroy all copies of the Software, including all backup copies, from the server and all computers and terminals You own, possess or control and on which the Software is stored or installed. The provisions regarding rights, title, exclusion of warranty, and limitation of liability will survive termination or expiration of this Agreement.

5. EXCLUSION OF WARRANTY AND LIMITATION OF LIABILITY

5.1 EXCLUSION OF WARRANTY. To the maximum extent permitted by applicable mandatory law, Kabeus and its licensors provide the software without any warranties of any kind, express, implied, statutory, or in any other provision of this agreement or communication with you, and Kabeus and its licensors specifically disclaim any implied warranties of merchantability, accuracy, completeness, performance, fitness for a particular purpose, and non-infringement.

5.2 LIMITATION OF LIABILITY. To the maximum extent mandated by law, in no event will Kabeus or its licensors be liable for any lost profits or business opportunities, loss of use, business interruption, loss of data, or any other indirect, special, incidental, or consequential damages under any theory of liability, whether based in contract, tort, negligence, product liability, or otherwise.  Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the preceding limitation may not apply to you.  Kabeus’ and its licensors’ liability under this agreement will not, in any event, exceed the license fees you paid for the software, if any. The foregoing limitations shall apply regardless of whether Kabeus or its licensors have been advised of the possibility of such damages and regardless of whether any remedy fails of its essential purpose.

No action, regardless of form, arising out of any transaction under this Software License Agreement may be brought by Licensee more than one year after the Licensee has, or by the exercise of reasonable diligence should have had, knowledge of the occurrence which gives rise to such action.

6. CHARGES AND PAYMENT

Any license fee or service fee applicable to this license must be paid in full prior to the delivery of the Software.  Any fee paid for this license, may be credited against the full purchase price for the Software.

All support that is provided, whether via telephone, email or other means during the evaluation period will be charged at Kabeus’ prevailing support rate.  All travel expenses include accommodation and transportation incurred by Kabeus or its agents on behalf of the Licensee during the evaluation period will be charged at cost.

All charges will be paid within 14 days of the delivery of an invoice from Kabeus.

7. GENERAL

7.1 Entire Agreement. This Agreement sets forth Kabeus entire liability and your exclusive remedy with respect to the Software and supersedes the terms of any communications or advertising with respect to the Software. You acknowledge that this Agreement is a complete statement of the agreement between you and Kabeus with respect to the Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software.

7.2 Headings. Headings under this Agreement are intended only for convenience and shall not affect the interpretation of this Agreement.

7.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights. This Agreement may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.

7.4 Severability. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.

7.5 Governing Law. This Agreement will be governed by Australian law, without regard to its choice of law principles. The United Nations Convention for the International Sale of Goods shall not apply.

7.6 Contact Information. If you have any questions about this Agreement, or if you want to contact Kabeus for any reason, please direct all correspondence to: Kabeus Pty Ltd, Suite 1904, 184 Forbes Street, Sydney NSW 2010, Australia or email info@kabeus.com.

YOU HEREBY AGREE THAT YOU ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND THAT YOU HAVE THE AUTHORITY TO BIND LICENSEE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.