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    Evaluation Agreement

    CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY CLICKING “I ACCEPT” OR BY INSTALLING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE SOFTWARE IN ANY MANNER, YOU ARE AGREEING ON YOUR OWN BEHALF AND IF APPLICABLE, THE ENTITY YOU REPRESENT’S BEHALF THAT YOU BOTH SHALL BE BOUND BY THESE TERMS AND CONDITIONS AND THE ACCOMPANYING STATEMENT OF WORK, AND THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO LICENSE THE SOFTWARE (“LICENSEE”). LICENSEE WARRANTS THAT THE IDENTIFICATION DETAILS THAT ARE PROVIDED TO LICENSOR TO ACCESS THE SOFTWARE (INCLUDING BUT NOT LIMITED TO NAME, EMAIL ADDRESS, LOCATION AND ORGANISATION OR ENTITY INFORMATION) IS TRUE AND CORRECT. LICENSEE ACCEPTS AND AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED AND IS LEGALLY BINDING. IF LICENSEE DOES NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD THE SOFTWARE. DO NOT ACCESS THE SOFTWARE IF LICENSEE IS A DIRECT COMPETITOR OF LICENSOR.

    1. Definitions

    Cloud Provider means the third party that sells or leases use or partial use of computers that are under the Cloud Provider’s control. A third party may be considered a Cloud Provider only if (i) the Software is installed on the Cloud Provider’s computers so that access is controlled to ensure that only employees of the Licensor or Licensee (as applicable) are able to access and use the Software; and (ii) the Cloud Provider must be a publicly held company incorporated in the United States, United Kingdom or a European Union country member unless otherwise agreed in the SOW.
    Location means the Location as detailed in the SOW.
    Hosting Services means where Licensor makes the Software available to Licensee via Licensor’s public Cloud Provider account.
    Licence Period means the License Period as detailed in the SOW.
    License Key means a confidential security code or electronic file that may be provided by Licensor to Licensee that enables the Software to be accessed by Licensee.
    Licensee’s Equipment means either: (i) the Licensee’s designated standalone or shared file servers for the purposes of using the Software; or, (ii) where the Software is being deployed on Licensee’s Cloud Provider servers, the standalone or shared file servers that are under the control of Licensee’s Cloud Provider.
    Services means the Services as detailed in the SOW.
    Software means the Software as detailed in the SOW.
    Statement of Work means the Statement of Work (“SOW”) entered in to separately by the parties, detailing the scope of evaluation, and which forms part of this Agreement.

    Unless otherwise defined herein, capitalized terms shall have the meaning attributed in the Statement of Work.

    2. Scope. This Evaluation Agreement and the Statement of Work agreed by the parties (the “Agreement”) is made between Licensor and Licensee (as such parties are identified in the SOW) with respect to Licensee’s access and use of the Software. Licensee acknowledges and agrees that the SOW forms part of this Agreement.

    3. Software Usage. (A) Licensor hereby grants Licensee a non-transferable, non-exclusive limited license, without right of sublicense, to access and use the Software for the License Period for Licensee’s internal business purposes solely in connection with the Permitted Use. The SOW shall detail whether the Licensee is provided access to the Software via Hosting Services or deployed on Licensee’s Equipment. (B) Licensee shall not, and shall not permit any third party in any circumstances to: (i) view, access, or use the Software in any manner for any purpose other than the Permitted Use; (ii) use the Software for commercial, production, or quality assurance purposes; (iii) modify the Software or create derivative works; (iv) sell, lease, license or distribute the Software to any third party; (v) attempt to decompile or reverse engineer the Software; (vi) copy the Software (in whole or in part); or (vii) distribute or otherwise make available to any third party any report regarding the performance of the Software, Software benchmarks or any information from such a report. Licensee shall put the necessary controls in place to give effect to the foregoing obligations and shall carry out regular due diligence to ensure Licensee’s compliance with this Agreement. Licensor does not warrant or guarantee the correctness and completeness of the Software and Licensee will use Software at its own risk. Licensee understands that the Software will, or Licensor may automatically cause the Software to time-out at the end of the Licence Period.

    4. Access. (A) Deployment. Where the Software is deployed on Licensee’s Equipment, Licensor will initially deliver a License Key to Licensee that allows Licensee to run the Licensed Software for the License Period. The License Key limits the Software to running on the named server and/or domain name at the Location. Licensee shall not attempt to circumvent these restrictions. (B) Hosting Services. Where Licensor is providing Hosting Services, subject to Licensee’s compliance with the terms of this Agreement, Licensor hereby agrees to provide Hosting Services for the License Period. In accessing the Hosting Services, Licensee shall not introduce any illegal data, nor any malicious code or other viruses that may impact the Software. Failure to use reasonable care may result in a security compromise to the Software and to Licensor and to Licensor’s other customers and may result in Licensee being disconnected from the Software for which Licensor accepts no liability. Furthermore, Licensor shall not be liable for outages resulting from disconnection due to breached security. Any violation of Licensee’s obligations under this Agreement may result in suspension or termination of the Hosting Services. Licensor may be required to terminate the Hosting Services upon the request of Licensor’s Cloud Provider or where it could subject Licensor, its affiliates, or any third party to liability. Licensor accepts no liability for Licensee’s non-compliance with the terms detailed herein. Details of Licensor’s current Cloud Provider standard terms and conditions can be found at https://aws.amazon.com/legal/; https://azure.microsoft.com/en-gb/support/legal/; or https://cloud.google.com/terms (which may be updated from time to time) as applicable. Licensee accepts and agrees to comply with the foregoing terms contained therein and to the extent Licensee does not comply with the Cloud Provider terms, they shall notify Licensor immediately in writing. Licensee shall indemnify Licensor against any loss or damage sustained or incurred by Licensor as a result of Licensee’s misuse of the Hosting Services (including any activities under Licensor’s Cloud Provider’s account).

    5. Services. Where detailed in the SOW, Licensor will provide Services in accordance with this Agreement. Licensor shall perform the Services in accordance with the timetable set out in the SOW (if any). Licensor shall use all reasonable endeavours to meet the performance dates set out in the SOW, but any such dates shall be estimates only. In the event of any delays in the Licensee’s provision of such assistance as agreed by the parties, Licensor may adjust any timetable or delivery schedule set out in the SOW as reasonably necessary. Licensee shall provide Licensor with all necessary co-operation in relation to this Agreement and all necessary access to such information and systems, and shall timely furnish documentation, instructions, approvals or responses as may be required by Licensor in order to render the Services. Licensee shall be fully responsible for all applications, data, interfaces, hardware and equipment within its care, custody or control. The Licensee shall be responsible for obtaining all authorizations required by it to access and use all communications facilities, software, hardware and data feed services and distribution systems from its content providers and to obtain all necessary rights for Licensor as its service provider to access and/or use the foregoing in order to provide the Services contemplated in this Agreement..

    6. Warranties. The Software is provided “As Is.” LICENSOR expressly disclaims and negates all warranties for the Software, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, AND LICENSOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET END USER REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THE SOFTWARE MAY INCLUDE VERSIONS FOR WHICH NO COMMERCIAL OR PRODUCTION VERSION IS AVAILABLE CURRENTLY OR IN THE FUTURE.

    7. Indemnity. Licensor shall indemnify the Licensee against any claim in the Location that the normal use of possession of the Software infringes the Intellectual Property Rights of any third party provided that (A) Licensee promptly furnishes Licensor with written notice of any claim upon becoming aware of the same; and (B) Licensor is given immediate and complete control of such claim; and (C) Licensee makes no admissions or settlements or does not otherwise prejudice Licensor’s defence of such claim; and (D) Licensee gives Licensor all reasonable assistance with such claim and acts in accordance with Licensor’s reasonable instructions with such claim. Licensor shall not have any liability under this Section 7 for any claim resulting from the combination of the Software with other software or hardware products that were neither supplied nor combined with the Software by Licensor, or if the same results from any breach of the Licensee’s obligations under this Agreement.

    8. Limitation of Liability. Licensor shall have no liability for any negligence or tortious losses (regardless if the event is caused by Hosting Services) nor for loss of profits, loss of use, loss corruption of software, cyber security incidents, malfunction downtime or shutdown, loss damage to or corruption of data, or failure to store any data, system incompatibility, failure to accurately transfer, read, or transmit information business interruption, nor for punitive, incidental, consequential, or special damages of any kind, even if advised of the possibility of such damages. In the event that Licensor shall be found liable to the Licensee for direct damages, the sums payable to the Licensee in respect of such liability shall not in any circumstances exceed GBP £100,000 in the aggregate. The foregoing limitations and exclusions of liability will not apply to the extent such liability cannot be limited or excluded by applicable law.

    9. Intellectual Property. (A) Each party shall retain all of its rights, title and interest to any Intellectual Property Rights which were developed by a party either prior to or independently of this Agreement including without limitation all inventions, customizations, enhancements, improvements, updates and other modifications by whomsoever made. (B) Licensee acknowledges and agrees that Licensor owns all rights, title and interest in the Software (including without limitation all inventions, customizations, enhancements, improvements, updates and other modifications by whomsoever made) and the Intellectual Property Rights of whatever nature in the foregoing are and shall remain the property of Licensor. The use by Licensee of such proprietary rights is authorized only for the purposes set forth herein, and upon termination of this Agreement for any reason, such authorization will cease and Licensee will promptly return the Software to Licensor or erase all copies then in its possession and certify that it has complied with the foregoing requirements. Licensee acknowledges that the Software is proprietary and contains confidential and valuable trade secrets of Licensor, which Licensee agrees to safeguard as provided for under Section 10 (“Confidentiality”) below. Any rights not expressly granted herein are reserved to Licensor. For the purposes of this Agreement, “Intellectual Property Rights” means the (a) copyright, database right, patent, trade mark, service mark, certification mark, trade or business name, design or other proprietary rights in any country, regardless of whether registerable, registered or otherwise; and (b) rights in connection with any applications, registrations or renewals in any country in connection with any of the foregoing. Licensee acknowledges that, in the course of providing the Software to Licensee, Licensor and its employees may develop and share with Licensee ideas, know-how, teaching techniques and other Intellectual Property Rights it develops under this Agreement. Ownership to those Intellectual Property Rights will remain with Licensor. As long as Licensor at all times observes the confidentiality provisions of this Agreement, Licensor will be entitled to use those Intellectual Property Rights for whatever purposes it sees fit, including in the services or software it provides to other customers.

    10. Confidentiality. As used in this Agreement, the term “Confidential Information” means (a) information disclosed in writing by one party to the other and marked confidential, (b) information disclosed orally by one party to the other and summarized in writing by the discloser and marked confidential, and (c) the Software, Licence Key, materials , including without limitation, any computer software, benchmark results, technical information, algorithms, processes, data structures, schematics, trade secrets, inventions and know-how and documentation. Each party agrees that during the term of this Agreement and for a period of five (5) years thereafter, it will treat as confidential all Confidential Information of the other party, will not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, will implement reasonable procedures to prohibit the disclosure, duplication, misuse or removal of the other party’s Confidential Information and will not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each party will use at least the same procedures and degree of care that it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement, but in no event less than reasonable care. The provisions of this Section 10 shall not apply to information which (i) is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors; (ii) is lawfully received from a third party free of any obligation of confidence at the time of its disclosure; (iii) is independently developed by the recipient, its officers, employees, agents or contractors; or (iv) is required by law, by regulatory authority, securities exchange, by court or governmental order to be disclosed provided that, to the extent permitted by law, prior to any disclosure, the recipient notifies the disclosing party. Each party agrees not to refer to the other party, or to the existence or subject matter of this Agreement, in any marketing or publicity material (or other communications of a similar nature) without the other party’s prior written consent except that Licensor may name Licensee as a customer.

    11. Term and Termination. (A) This Agreement shall commence on the date Licensee accepts these terms and subject to Section 11(B), shall terminate at the end of the Licence Period, unless terminated earlier by Licensor at any time for any reason (including if, in Licensor’s sole discretion, it deems Licensee to have breached Export Laws and/or become a restricted party (i.e., Licensee has been identified by any government or legal authority under applicable trade sanctions, export controls, anti-money laundering, non-proliferation, anti-terrorism or similar laws as a person or entity with whom trade or financial dealings and transactions by it or its affiliates are prohibited or restricted). (B) Forthwith upon the termination or expiration of this Agreement (howsoever arising) the Licensee shall discontinue use of the Software, License Keys, materials, and any log ins or authorisations provided by Licensor. Where Licensor is providing Hosting Services, Licensee shall make no attempts to access or use the Hosting Services, nor Licensor Cloud Provider’s account and Licensee acknowledges and agrees that all Software and data within Licensor Hosting shall be deleted (regardless if it contains any Licensee data). Within five (5) business days after expiration or termination of this Agreement (howsoever arising), the Licensee shall destroy or return all copies of the Software, the License Keys, log ins, authorisations or materials in their possession or return to Licensor their access to the Software, in ease case, where applicable, by erasing them from the media on which they are stored and certify in writing to Licensor that they have been destroyed. (C) Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. For the avoidance of doubt the following Sections shall survive termination of this Agreement: 1, 2, 3, 6, 8,  9, 10, 11, 12, 13, 14, 15, 16, 17 and 18.

    12. Complete and Exclusive Agreement. This Agreement, the Statement of Work and any attachments specifically incorporated therein forms the complete agreement and exclusive statement of the agreement between the parties thereto in relation to the subject matter and supersedes all prior agreements and undertakings whether written or oral in connection with this Agreement. Licensee hereby acknowledges that it has not been induced to enter into this Agreement by reason of any representation made by or on behalf of Licensor. The terms and conditions of this Agreement shall take precedence in the event of any conflict with any Licensee document or purchase order. Any modifications proposed by Licensee and any Licensee terms and conditions are hereby expressly rejected by Licensor and will not become part of the Agreement in the absence of Licensor’s written acceptance.

    13. Conflict. In the event of any conflict or inconsistency between a provision of the main terms in this Agreement and any provision in the SOW, unless the SOW expressly provides otherwise, the terms of this main Agreement will take precedence.

    14. Third Party Software. The Software may contain or be provided with components which are subject to the terms and conditions of “open source” software licenses or where applicable third party software licenses (“Third Party Software”) which may be identified by Licensor from time to time. The terms of such licenses will apply in lieu of the terms of this Agreement with respect to such Third Party Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.

    15. Dependencies. Licensee accepts and agrees that certain Software may require Licensee to have certain third party software and web services installed for Software to operate which may be identified by Licensor. Such third party software is made available by third parties and are subject to terms and conditions between Licensee and those third parties. Third party software and services licensed by Licensee are not part of the Software and the Agreement does not apply to them (regardless if Licensor recommends or references such software). Licensee shall at all times ensure that they are compliant with the terms of the Agreement with the third party software and that they are using the version of the Software recommended by Licensor in the documentation.

    16. Feedback. Licensee may provide Licensor with input, comments or suggestions, regarding Licensor’s business and technology and/or the possible creation, modification, correction, improvement or enhancement of the Software, products and/or services of Licensor, (collectively “Feedback”). The Licensee acknowledges and agrees that all Feedback will be the sole and exclusive property of Licensor and the Licensee hereby irrevocably assigns to Licensor and agrees to irrevocably assign to Licensor all of its right, title, and interest in and to all Feedback, including without limitation all worldwide Intellectual Property Rights and proprietary rights therein. At Licensor’s request and expense, the Licensee will execute documents and take such further acts as Licensor may reasonably request to assist Licensor to acquire, perfect, and maintain its Intellectual Property Rights and other legal protections for Feedback and materials incorporating same. Licensor accepts and agrees that Licensee has no liability for any Feedback which it provides to Licensor which Licensor acts upon.

    17. Export. Licensee acknowledges that the Software is subject to US export control and economic sanctions laws and regulations and to import laws, regulations and requirements of certain foreign governments (“Export Laws”). Licensee agrees to fully comply with those Export Laws in connection with the Software. Without prejudice to the generality of this Section 17, Licensee shall not, and shall not allow any third party to acquire the Software, export or allow the re-export or re-transfer, directly or indirectly, of any part of the Software in violation of any Export Laws. Licensee shall not use the Software for any purpose other than the Permitted Use, and shall ensure (i) the Software will not be used for any purposes associated with chemical, biological or nuclear weapons or missiles capable of delivering such weapons, nor will it be resold if Licensee knows or suspects that it is intended or likely to be used for such a purpose; and (ii) the Software will not be re-exported or otherwise re-sold or transferred to a destination subject to US, UN, EU or OSCE embargo where that act would be in breach of the terms of that embargo; and (iii) that the Software or any copy or replica of the Software, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle. The classification of Software for export purposes can be found at https://Licensor.com/export-statement/. Any dispute in relation to this Section 17 shall be governed in accordance with Section 18(E) below unless Export Laws determine otherwise.

    18. General. (A) Neither party shall be entitled to assign, sub-licence, lease or otherwise transfer the benefit or burden of any part of its rights under this Agreement. (B) No person other than the parties to this Agreement shall have the right to enforce any term of this Agreement. In particular, a person who is not a party to this Agreement shall not derive the right to enforce any of the terms of this Agreement including by virtue of the Contracts (Rights of Third Parties) Act 1999 and the rights of any third party under that act are hereby expressly excluded. (C) The terms of this Agreement shall not be waived or amended except by written agreement between Licensor and the Licensee and as set out in the SOW. (D) This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement. (E) This Agreement shall be governed by and construed by the laws of England and the parties submit to the exclusive jurisdiction of the courts of England. Each party hereby waives any disputes it may have with respect to proper venue except that nothing shall prevent Licensor from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of the dispute as is necessary to protect Licensor’s name, proprietary information, trade secrets, know-how, or any other Intellectual Property rights. (F) Licensee acknowledges and agrees that Licensor and its affiliates may process personal data of the Licensee in connection with this Agreement in accordance with applicable laws. The Privacy Notice of Licensor and its affiliates is available at https://firstderivatives.com/privacy-notice/.

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