THIS AGREEMENT is made and entered into by and between CAERE CORPORATION, a Delaware corporation having its principal office at 100 Cooper Court, Los Gatos, California 95030 ("CAERE"), and the end user ("Licensee"). By striking the acceptance key, Licensee hereby accepts and agrees to the terms and conditions of this Agreement.
RECITALS
CAERE is developing a new software program known herein as the Pre-Release Software (as defined below);
Licensee desires to license the Pre-Release Software on the terms contained herein for the limited purposes of evaluation and internal testing;
CAERE desires to license the Pre-Release Software to Licensee for these limited purposes.
In consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:
1. Definitions.
a. "Pre-Release Software" means that software listed on Exhibit A attached hereto which is under development by CAERE and which is being licensed to Licensee in object code form only.
2. License Grant and Restrictions.
a. Pre-Release Software. CAERE hereby grants to Licensee a nonexclusive, nontransferable, royalty-free limited license during the term of this Agreement to use the Pre-Release Software internally for the limited purpose of testing and evaluating the Pre-Release Software.
b. Restrictions. Licensee shall not: (i) distribute the Pre-Release Software; (ii) modify, translate, decompile, disassemble or reverse engineer the Pre-Release Software; or (iii) assign, transfer or distribute the Pre-Release Software
4. Ownership. CAERE retains ownership of the Pre-Release Software, including any modifications, in any form, including partial copies.
5. Confidential Information. Confidential Information means and includes: (i) any and all code and documentation disclosed by CAERE, which includes but is not limited to the Pre-Release Software; (ii) CAERE's development, distribution and product marketing plans regarding the Pre-Release Software; (iii) the terms and existence of this Agreement; and (iv) performance information related to the Pre-Release Software derived by Licensee in the course of this Agreement. Licensee agrees to use and disclose Confidential Information only to those Licensee employees who have a need to know such Confidential Information and in accordance with and for the limited purposes of this Agreement.
6.Support/Maintenance. CAERE may provide to Licensee ordinary bug fixes, corrections and telephone support and any maintenance release updates to the Pre-Release Software as may be made available from time to time by CAERE to licensees of the Pre-Release Software
7. Trademarks. Licensee may not use any of CAERE's trademarks or trade names without the advance written permission of CAERE.
8. Limited Warranty; Limitation of Liability.
a. Limited Warranty. The Pre-Release Software is provided "AS IS" and without any warranty, whether express or implied, as to its performance, accuracy or completeness. CAERE EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. CAERE does not warrant that the Pre-Release Software provided under this Agreement will meet Licensee's requirements or that the operation will be uninterrupted or error-free. Licensee acknowledges that CAERE has not publicly announced the availability of the Pre-Release Software and that any research or development that Licensee performs is done entirely at Licensee's own risk.
b. Limited Liability. IN NO EVENT WILL CAERE BE LIABLE TO LICENSEE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF INFORMATION, BUSINESS INTERRUPTION OR OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, THAT STEM FROM ANY USE OF THE PRE-RELEASE SOFTWARE OR CAERE'S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF CAERE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITED WARRANTY AND LIMITED REMEDIES ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CAERE AND LICENSEE. CAERE WOULD NOT BE ABLE TO PROVIDE THE PRE-RELEASE SOFTWARE WITHOUT SUCH LIMITATIONS.
9. Indemnity. Licensee will indemnify, defend and hold CAERE harmless from all claims, judgments, costs and expenses (including reasonable attorneys' fees) arising out of (i) Licensee's use or distribution of the Pre-Release Software including without limitation, infringement or third parties' intellectual property rights or (ii) any breach or negligence of Licensee in carrying out its obligations under this Agreement.
10. Term and Termination.
a. Term and Termination. Unless terminated earlier in accordance with this section, this Agreement will continue until CAERE releases the first commercial version of the Pre-Release Software. Either party may terminate this Agreement: (i) for material breach if that breach is not cured within 30 days after receipt of written notice of the breach (such termination shall be effective on receipt of the notice of termination following expiration of the cure period) or (ii) for its convenience by giving the other party 60 days' prior written notice.
b.Effect of Termination. Immediately upon termination or expiration: (i) Licensee shall return or destroy all copies of the Pre-Release Software; and (ii) all licenses granted to Licensee under Sections 3a. and 3b. shall cease
11. General. This Agreement shall be governed by the laws of the State of California, excluding any conflict of laws principles. Any suit hereunder shall be brought in the federal or state courts in Santa Clara County, California and Licensee hereby submits to the jurisdiction thereof. If any provision of this Agreement is found to be void or otherwise unenforceable, all other provisions of this Agreement shall nonetheless remain in effect. This Agreement constitutes the entire agreement and understanding between the parties and supersedes all prior agreements or understandings (oral or written). This Agreement may only be modified in writing signed by an authorized representative of both parties. Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such provision or right with respect to any subsequent breach or a continuance of any existing breach after demand for strict performance. This Agreement may not be assigned by Licensee without the prior written consent of CAERE.
EXHIBIT A
PRE-RELEASE SOFTWARE
The Pre-Release Software is Caere's software known as OmniForm Filler Plug-In.
