This Evaluation Agreement and the evaluation terms contained herein (collectively, the “Agreement” or “Evaluation Terms”) apply to Products provided to you (“Evaluator”) for use on a “test,” “evaluation,” “lab,” “NFR,” “proof of concept,” “temporary” or similar basis (each an “Evaluation”). These Evaluation Terms apply in addition to the Netgate terms posted on https://www.netgate.com/company/legal.html (“Netgate Terms”). If there is a material conflict between these Evaluation Terms and the other Netgate Terms, these Evaluation Terms apply. The Evaluation Terms shall be effective as of the last date of signature indicated below.
1. General. These Evaluation Terms apply to Products that have been, as well as those that have not yet been, made Generally Available and that Netgate has provided in connection with an Evaluation. Evaluator may not conduct an evaluation of any Netgate Product except as authorized by Netgate. With respect to any Beta Product provided to Evaluator, Evaluator agrees to act as a test site for such Product and provide feedback as to the operational and functional capabilities of the Product.
2. Definitions. Capitalized terms (except headings) are defined as follows:
2.1. “Netgate” refers to Rubicon Communications LLC with a principal office at 4616 West Howard Lane Suite 900, Austin, Texas 78728 or its affiliates.
2.2. “Beta” refers to Products that are not production level or Generally Available.
2.3. “Generally Available” refers to Products that are generally available for purchase or license.
2.4. “Evaluation Period” refers to the time frame agreed to in writing by Netgate for Evaluator’s Evaluation of a Product, or if Netgate has not agreed to a period of time in writing, thirty (30) days from the date a Product is provided to you.
2.5. “Pre-release” refers to Products that may be production level, but are not Generally Available.
2.6. “Product(s)” refers to Netgate technology, whether hardware, software, or services, and related documentation, as it may be updated, modified, or enhanced, and all derivatives thereof, provided in connection with an Evaluation. Products provided under these Evaluation Terms may be Beta, Pre-release or Generally Available versions.
3. License. Subject to the terms and conditions of this Agreement, Netgate grants Evaluator a non-exclusive, non-transferable, royalty-free license, without the right to sublicense, to examine and use the Products solely for the purpose of an Evaluation of the Products solely for the Evaluation Period. The Product may include software that is licensed under the terms of open source software licenses. License terms, notices, attributions and other information about the open source licensed software included in the Product are available at the Open Source Code page, or in the licensing file distributed with Products, or in the header files and/or release notes. If and to the extent there is a material conflict between the Evaluation Terms and the license terms for any open source software, the open source license terms control as to the software covered by those terms. Netgate disclaims all liability and warranties with respect to open source software.
4. Restrictions. Evaluator acknowledges it has no rights in the Products except for the limited licensed use explicitly granted in the License Section of these Evaluation Terms. Evaluator shall not, and shall not allow any third party to, decompile, reverse engineer, disassemble or otherwise reduce the Products to a humanly readable form (if not already provided by Netgate in human readable form), except and to the extent that this limitation is expressly prohibited by applicable law. Additionally, except as otherwise set forth in the Third Party Testing Section of these Evaluation Terms, the Evaluator shall not prepare any derivative works to the Product, or reproduce, copy, disclose, transfer, publicly display, publicly perform, or distribute Product to any entity other than Netgate or an authorized representative of Netgate. Evaluator may not remove, alter, or use any Netgate trademarks, copyright notices, restricted rights legends, proprietary marks or other notices from the Products. Evaluator will not take any action that exposes Evaluator to obligations that would conflict with Evaluator’s obligations hereunder, such as combining Products with code licensed under the General Public License (“GPL”) or similar license. All worldwide right, title, and interest in and to the Products, and all intellectual property and proprietary rights therein, shall remain exclusively owned by and vested in Netgate, or if applicable, its licensors. The terms of this section 4 shall survive the expiration or termination of the Evaluation Period.
5. Term and Termination.
5.1. Evaluation Period. The Evaluation Period and any extensions thereof, shall be agreed in writing by the parties hereto.
5.2. Termination. Netgate may, on written notice, and at any time, terminate any Evaluation Period prior to expiration, with or without cause, in Netgate’s sole discretion. Evaluator’s license to use any Product terminates automatically on expiration of the Evaluation Period, on Evaluator’s breach of the license conditions or restrictions stated in these Evaluation Terms, or upon Netgate’s written termination notice.
5.3. Effect of Termination or Expiration. Upon termination or expiration of the Evaluation Period, Evaluator shall immediately discontinue using Products and at Netgate’s request, uninstall and/or destroy all copies of the Product. If Products have been provided in tangible form, Evaluator shall ship the Products for return to Netgate within three (3) business days of termination or expiration. Further, Evaluator will certify to Netgate, upon request, that Evaluator is no longer in possession of Products or any copies of the Products.
5.4. If Evaluator continues to use the Product beyond the Evaluation Period without the prior written permission of Netgate, Evaluator agrees that this Evaluation Agreement shall automatically be converted to a one (1) year license agreement (which shall automatically terminate at the end of such one year period unless the parties agree in writing otherwise), obligating Evaluator to pay to Netgate a license fee that is the same amount as that paid by other similar licensees to Netgate at that time for use of the Products for a one (1) year licensed period. If this Evaluation Agreement is converted to a one (1) year license agreement, the Netgate Terms shall control over the terms of this Evaluation Agreement in the event of any material conflict between the Netgate Terms and the Evaluation Terms. The parties agree that because quantifying the losses from Evaluator’s continued unauthorized use of the Product is inherently difficult, the conversion of the Evaluation Agreement into a one (1) year license is not a penalty, but a reasonable measure of estimating potential revenue and damages, based on the parties’ experience in the software industry. The terms of this section 5.4 shall survive the expiration or termination of the Evaluation Period.
6. Netgate Responsibilities.
6.1. Netgate will be responsible for shipping costs and risk of loss for delivery of the Products to Evaluator. For shipments to locations outside of the U.S., Evaluator will be responsible for acting as importer of record and for payment of all applicable import duties, taxes, and similar fees.
6.2. All worldwide rights, titles and interests in and to the Product(s), including the intellectual property rights therein, shall always remain solely and exclusively with Netgate.
6.3. All activities, including problem resolution, upgrading or exchange (if any), will be scheduled at a mutually convenient time between the parties. Any updates, corrective action, repairs, or modifications to the Product(s) shall be at the sole discretion of Netgate.
6.4. If support is specified for a Product, during the Evaluation Period, Netgate’s Technical Support Organization will endeavor to provide remote support. Evaluator will be required to register and provide information required by Netgate in order to receive support as provided herein.
6.5. Netgate makes no commitment to release a generally available version of a Beta Product or Pre-release Product. If Netgate does release a Generally Available version of a Beta Product or Pre-release Product, it may differ materially from a Product evaluated under these Evaluation Terms and there may not be an automated update path from a Beta Product or Pre-release Product to the Generally Available Product.
7. Evaluator’s Responsibilities.
7.1. Evaluator agrees that it will only use Products in a non-production environment and not in a live environment. Evaluator shall install and uninstall the Product as instructed by Netgate. Evaluator shall not relocate Products without the prior written consent of Netgate. Evaluator shall provide the necessary test equipment for performing any Product evaluation as agreed by the parties. Software provided by Netgate may contain tracking and/or disabling features.
7.2. Evaluator agrees to provide Netgate personnel full and free access to the Product, including remote access, subject to the Evaluator’s security regulations, for the purpose of observing the testing and performance of the Product.
7.3. Evaluator shall, at no cost to Netgate, cooperate with and assist Netgate personnel in the testing process, including providing information regarding the functions and operation of the Product, test results, and the verification of Product documentation. This information will be provided to Netgate through Evaluator’s participation in regularly scheduled meetings with Netgate that may be conducted by telephone, in person, or other means mutually agreed upon by the parties.
7.4. Evaluator will use reasonable efforts to provide detailed reports and data derived from the test results on Products, including without limitation, use of the Products in the Evaluator’s test environment at an agreed upon frequency. At the conclusion of the evaluation, Evaluator will use reasonable efforts to provide Netgate with a detailed written summary report of tests performed and the results of those tests. Netgate shall own all rights, title and interest in and to such reports and data.
7.5. Evaluator will return the Product to Netgate at Evaluator’s expense, and Evaluator will bear the risk of loss until the Product is received by Netgate. In all cases, Evaluator will be responsible for loss or damage to the Product from the time the Product is delivered to Evaluator until the time the Product is received by Netgate. Evaluator agrees to return all Product, shipped freight collect, within fourteen (14) days of the conclusion, expiration or termination of the Evaluation, early access or Beta, whichever occurs first.
7.6. All worldwide rights, title, and interest to, and all intellectual property rights in, the Products provided by Netgate under these Evaluation Terms and all information relating to the Products including but not limited to any feedback, suggestions, improvements or other information provided by Evaluator are proprietary to, and shall be and will remain the sole and exclusive property of, Netgate. No license in the Products is or shall be deemed (whether by implication or otherwise) granted to Evaluator, except for the limited license to use the Products solely during the Evaluation Period, subject to the terms hereof. All rights not specifically granted to Evaluator are reserved to Netgate. The terms of this section 7.6 shall survive the expiration or termination of the Evaluation Period.
8. WARRANTY DISCLAIMER. EVALUATION, BETA AND PRE-RELEASE PRODUCTS ARE NOT YET PRODUCTION STANDARD. NETGATE PROVIDES THE PRODUCTS “AS IS” AND GRANTS NO WARRANTY, EXPRESS OR IMPLIED, BY STATUTE, CONDUCT, OR OTHERWISE AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND/OR FITNESS FOR ANY PARTICULAR PURPOSE. NO PERSON OR ENTITY IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PRODUCTS.
9. Confidentiality. Evaluator agrees that Products, the test environment, test results, pricing, technical materials, performance of the Product alone or in conjunction with third party products and any other information (if such other information is identified as confidential or should be reasonably recognized as confidential under the circumstances) provided to Evaluator by Netgate hereunder (collectively, “Confidential Information”), constitute the confidential and proprietary information of Netgate and that Evaluator’s protection thereof is an essential condition to Evaluator’s possession and use of the Product. Evaluator shall retain all Confidential Information in strict confidence and not disclose it to any third party or use it in any way except as permitted by these Evaluation Terms, unless Netgate provides prior express written consent thereto. Evaluator shall employ the same degree of care as it takes to preserve and safeguard its own confidential information of like nature, but in no event less than reasonable diligence. Information shall not be considered Confidential Information if and to the extent that it (i) was in the public domain at the time it was disclosed to Evaluator by Netgate or has entered the public domain through no fault of Evaluator; (ii) was known by Evaluator, without restriction, at the time of disclosure by Netgate, as proven by the files of Evaluator in existence prior to the time of disclosure; or (iii) becomes known to Evaluator, without restriction, from a source other than Netgate without breach of these Evaluation Terms by Evaluator and otherwise is not in violation of Netgate’s rights. The terms outlined in this section 9 shall survive termination or expiration of the Evaluation Period.
10. Limitation of Liability.
10.1. Netgate shall have no liability to Evaluator for damages from any cause whatsoever, whether related to the Products or otherwise, regardless of the form of action, whether in contract, warranty or tort.
10.2. Each party agrees to maintain adequate Worker’s Compensation or other applicable insurance on all of its employees, subcontractors, suppliers and agents having access to the other party’s premises under this these Evaluation Terms and to indemnify and hold the other harmless from any personal injury claims asserted by the indemnifying party’s employees, subcontractors, suppliers and agents, based on injuries sustained during performance of the terms of this agreement while on such premises.
10.3. Evaluator is responsible for ensuring that all data and program files are adequately duplicated and documented. Netgate will not be liable for the Evaluator’s failure to do so, nor for the cost of reconstructing data lost during the course of evaluating the Products.
10.4. IN NO EVENT WILL NETGATE OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND INCLUDING LOSS OF PROFITS OR REVENUE, LOST BUSINESS, AND LOST DATA OR GOODWILL ARISING OUT OF OR RELATED TO AN EVALUATION OR THESE EVALUATION TERMS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
10.5. IN NO EVENT SHALL NETGATE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY EVALUATOR FOR THE PRODUCT DURING THE EVALUATION PERIOD OR ONE HUNDRED U.S. DOLLARS ($100.00), WHICHEVER IS GREATER.
11. Notices. All notices required under the Evaluation Terms shall be in writing and will be deemed delivered when deposited with an express delivery service with guaranteed third day delivery, prepaid. A change of address of either party may be made in the same manner as for the giving of any other notice.
12. Assignment. Evaluator shall not, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or transfer these Evaluation Terms, without Netgate’s prior written consent, and any attempted assignment, transfer or delegation without such prior written consent shall be voidable at the sole option of Netgate. Netgate or its successors may assign these Evaluation Terms, in whole or in part, and any of its rights and obligations hereunder, in its discretion. Without limiting the foregoing, these Evaluation Terms will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
13. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation hereunder if such delay or failure is due to any act of God, acts of civil or military authority, labor disputes, fire, riots, civil commotions, sabotage, war, embargo, blockage, floods, epidemics, delays in transportation, inability beyond such party’s reasonable control to obtain necessary labor, materials, or manufacturing facilities, or when due to governmental restrictions. In the event of any such delay or failure, the parties shall have an additional period of time equal to the time lost by reason of the foregoing in which to perform.
14. Controlling Law. These Evaluation Terms shall be governed and interpreted by the laws of the State of Texas without reference to conflict of law principles, and any action or proceeding arising from or relating to these Evaluation Terms shall be governed exclusively by the state or federal courts having jurisdiction in Austin, Texas. Evaluator agrees to personal jurisdiction over it in such state or federal courts in Austin, Texas. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. The U.N. Convention on the International Sale of Goods shall not apply to these Evaluation Terms.
15. Export. Evaluator agrees to comply with all applicable U.S. export control laws and regulations. Evaluator shall not export, re-export or otherwise transmit, directly or indirectly, in whole or in part, any Products, or any combination of such products or technology without Netgate’s written consent. Any obligation of Netgate under these Evaluation Terms is conditioned upon Netgate’s ability to obtain required U.S. export licenses or authorizations. Evaluator acknowledges that any Product, alone or in combination with other products or technology may be subject to export and import regulations in countries outside the U.S., and agrees to comply with all such applicable laws and regulations, as required.
16. Exercise of Remedies. Any delay or omission by either party to exercise any right or remedy under these Evaluation Terms shall not be construed to be a waiver of any such right or remedy or any other right or remedy. Evaluator hereby acknowledges that unauthorized disclosure or use of information related to the Products could cause irreparable harm and significant injury to Netgate that may be difficult to ascertain. Accordingly, Evaluator agrees that Netgate will have the right to obtain immediate injunctive relief to enforce obligations under these Evaluation Terms in addition to any other rights and remedies it may have.
17. Attorneys’ Fees. If any dispute arises between the parties with respect to the matters covered by these Evaluation Terms that leads to a proceeding to resolve such dispute, the prevailing party shall be entitled to receive its reasonable attorneys’ fees and out of pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
18. Third Party Testing. In the event that the Evaluator desires to have a third party perform some or all of the evaluations hereunder, the Evaluator shall obtain Netgate’s prior written consent and have such third party execute an agreement with terms and conditions substantially the same as those set forth in these Evaluation Terms. Evaluator shall be responsible for such third party’s compliance with the provisions of these Evaluation Terms.
19. Miscellaneous. This Agreement, in conjunction with the Netgate Terms, sets forth the entire understanding between the parties and merges and supersedes all prior oral or written agreements, discussions and understandings, express or implied, between the parties. This Agreement shall take precedence over any additional or conflicting terms which may be contained in any of Evaluator’s purchase order or other acknowledgement forms. Evaluator and Netgate are independent contractors and nothing contained in these Evaluation Terms is intended or shall be construed as creating a relationship of principal and agent, employer or employee, or joint venture between the parties. In the event of material conflict between these Evaluation Terms and the other Netgate Terms, these Evaluation Terms shall prevail. This Agreement shall not be deemed or construed to be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment by the parties hereto. In the event that any one or more provisions contained in this these Evaluation Terms should for any reason be held to be unenforceable in any respect, such unenforceability shall not affect any other provisions hereof, and these Evaluation Terms shall be construed as if such unenforceable provision had not been contained herein. Sections 10-19 of this Agreement shall survive any expiration or termination of the Evaluation Period.
Last updated on February 26, 2019