Evaluation Agreement

Threater, Inc.

Whereas, Licensee has expressed an interest in evaluating certain product(s) of Threater; and
Whereas, Threater is willing to grant a license for such evaluation on the terms and conditions described below, and as further detailed in the information submitted by Licensee and accepted by Threater (“Evaluation Information”).

NOW, THEREFORE, the parties hereby agree as follows:

1. License Grant.
(a) Threater grants to Licensee, during the term of this Agreement, a temporary, non-exclusive license to use the Product, and related documentation as provided by Threater to Licensee, for evaluation purposes only, all as defined and limited by the Evaluation Information.
(b) This license does not include any rights to copy, alter, modify, reverse engineer, decompile, disassemble, make derivative works, rent, lease, disclose, sublicense, or otherwise transfer the Product, related documentation, or other proprietary information of Threater.

2. Ownership.
The Product, the related documentation, and all authorized copies thereof, shall remain the exclusive property of Threater, and shall not be used in any way other than as allowed by this Agreement. Licensee acknowledges that, as between Threater and Licensee, the Product and its related documentation and all copyrights, trade secret rights and other intellectual property rights with respect thereto, are and will at all times be the property of Threater, even if suggestions made by Licensee are incorporated into current or subsequent versions of the Product or related documentation.

3. Confidentiality.
(a) Licensee acknowledges that the Product, related documentation and other related materials provided by Threater, and any beta test (“Beta Test”) results compiled by Licensee, are confidential information of Threater except to the extent any Beta Tests include confidential information of Licensee, and Threater acknowledges that information regarding Licensee’s business and network are confidential information of Licensee (such confidential information of both parties (“Confidential Information”). Each party (“Receiving Party”) as recipient of the other party’s (“Disclosing Party”) Confidential Information agrees to use such Confidential Information only for the Term and solely for the purpose of evaluation, and to take all steps reasonably necessary to maintain and protect the Confidential Information from use for any other purpose. Receiving Party agrees that it will not, at any time without the express written permission of Disclosing Party, disclose the Confidential Information directly or indirectly to any third person, excepting employees of Disclosing Party who have expressly agreed in writing to be bound by obligations of confidentiality no less protective that those stated herein. This obligation of confidentiality set forth in this Section will survive the termination of this Agreement for a period of three years.
(b) The definition of Confidential Information shall not include information that is (1) already in the public domain; (2) becomes generally known or available by publication, commercial use, or general sale of copies of the Product; (3) discovered or created by Receiving Party independently of any involvement with Disclosing Party or the Product; or (4) otherwise learned by Receiving Party through lawful means other than from Disclosing Party or its affiliates.

4. Disclaimer of Warranty.
LICENSEE AGREES AND ACKNOWLEDGES THAT THREATER SHALL HAVE NO RESPONSIBILITIES TO LICENSEE TO CORRECT ANY DEFECTS OR PROBLEMS IN THE PRODUCT OR THE RELATED DOCUMENTATION, OR TO ASSURE THAT THE PRODUCT OPERATES PROPERLY. THREATER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE PRODUCT AND THE RELATED DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PRODUCT AND THE RELATED DOCUMENTATION ARE PROVIDED “AS IS”, AND LICENSEE UNDERSTANDS THAT IT ASSUMES ALL RISKS OF ITS USE, QUALITY, AND PERFORMANCE.

5. Liability.
(a) Threater shall have no liability whatsoever to Licensee in connection with this Agreement, including without limitation, liability for any problems in or caused by the Product or the related documentation, whether direct, indirect, special or consequential (including lost profits).
(b) Licensee shall be liable to Threater for any losses, costs or damages arising from damage to the Product that occurs while the Product is in Licensee’s possession.

6. Term and Termination.
(a) The term (“Term”) of this Agreement shall be fifteen (15) days from the date of submission by Licensee of the Evaluation Information, unless sooner terminated as provided herein. Threater may terminate this agreement immediately upon notice to Licensee in the case of breach of this Agreement by Licensee. The parties may extend the Term by mutual written agreement, including via email.
(b) Unless Threater and Licensee agree to a sale, license or subscription of the Product to Licensee, Licensee agrees to return all hardware components of the Product (if any) to Threater, to be received by Threater within ten (10) days of the end of the Term. Licensee shall destroy or erase all copies of software components of the Product in its possession at the end of the Term and Licensee shall have no license rights to use, copy or distribute such software. If the hardware portion of the Product is not returned to Threater within ten (10) days of the end of the Term, provided Threater provided a written demand of return to Licensee with ten days opportunity for Licensee to cure, Threater may invoice and Licensee shall pay for the hardware component of the Product by Purchase Order or credit card.

7. Export.
Licensee warrants that it will not use the Product outside of the country of receipt, and that Licensee will not export or re-export, directly or indirectly, in any manner, any portion of the Product to any country for which the U.S. federal government or any agency thereof, at the time of export, requires an export license or other approval without first obtaining such license or approval.

8. General.
(a) This Agreement may not be assigned by Licensee or by operation of law to any other person, persons, firms, or corporations without the express written approval of Threater.
(b) All notices and demands hereunder shall be in writing and shall be served by personal service or by mail at the address of the receiving party set forth above (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier, and shall be deemed complete upon receipt.
(c) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to any conflict of laws that might otherwise apply. The parties hereto submit to the exclusive jurisdiction of courts residing in the Commonwealth of Virginia and agree that any disputes hereunder shall be litigated in such courts.
(d) Each party is acting as an independent contractor and not as an agent, partner, or joint venturer with the other party for any purpose. Except as provided in this Agreement, neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.
(e) No provisions in either party’s purchase orders, or in any other business forms employed by either party will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by a duly authorized representative of each party to this Agreement.
(f) The parties have read this Agreement and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the license and to the subject matter hereof. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party.