Aspen Mesh Evaluation Agreement

IMPORTANT: Please read this aspen mesh Evaluation Agreement (“Agreement”) before clicking the “accept” button, and/or using the f5 networks, inc. (“company”) aspen mesh product that accompanies or is provided in connection with this Agreement.  By clicking the “Accept” button, and/or using the Product in any way, you and the entity that you represent (“Evaluator”) is unconditionally consenting to be bound by and is becoming a party to this Agreement with Company and you represent and warrant that you have the authority to bind such entity to these terms. If Evaluator does not unconditionally agree to all of the terms of this Agreement, use of the Product is strictly prohibited. If Evaluator has executed, or subsequently executes, an Evaluation Agreement or an End User Agreement with Company, then the terms and conditions of such executed Evaluation Agreement or End User Agreement, as applicable, shall govern and control your use of the Product.

  1. Product. Company has developed proprietary software named Aspen Mesh (the “Product”).  Evaluator wishes to utilize the Product, and Company desires to make the Product available to Evaluator, subject to the following terms and conditions. Subject to the terms and conditions of this Agreement, Company hereby grants Evaluator, during the Term (as defined below), non-exclusive, non-transferable, non-sublicensable right and license to access and use the Product solely for the purpose of evaluating the performance and functionality of the Product (the “Limited Purpose”). Evaluator agrees to use and evaluate the Product for a period of thirty (30) days or such other period of time as mutually agreed by the parties in writing (the “Term”). Company’s products and services outside the scope of this Agreement, if any, shall be provided pursuant to Company’s then-current applicable services policies and procedures (“Other Terms”). Nothing in any of Company’s Other Terms or any other existing agreements that Evaluator may have with Company apply to or are applicable to this Agreement, or Evaluator’s use of the Product offered hereunder.
  2. Intellectual Property. The Product (excluding the Evaluator Content hosted thereon), Documentation, and all other materials provided by Company hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all intellectual property rights in each of the foregoing, are the exclusive property of Company and its suppliers. Evaluator agrees that it will not, and will not permit any other party to: (a) permit any party to access the Product or any accompanying documentation (“Documentation”); (b) modify, adapt, alter or translate the Product or Documentation; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Product or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Product; (e) use or copy the Product or Documentation except for the Limited Purpose; or (f) publish or disclose to any third party any performance benchmark tests or analyses or other non-public information relating to the Product or the use thereof.
  3. Feedback. Evaluator understands and agrees that the Product may contain bugs, defects, and errors. In exchange for the licenses granted to Evaluator to use such software, Evaluator agrees to promptly report to Company, either orally or in writing, any errors, problems, defects, or suggestions for changes and improvements to the Product (collectively, “Feedback”).  Evaluator acknowledges and agrees that all Feedback and all intellectual property rights therein are the exclusive property of Company, and hereby assigns to Company, all right, title and interest to any and all Feedback. Further, Evaluator acknowledges and agrees that Feedback may be used by Company in Company’s development of and be incorporated into other products and services that Company may make available for commercial distribution (“Commercial Release”) or any other software or intellectual property created by Company.  Without limiting the foregoing, Company may incorporate Feedback into its products and services and Evaluator will gain no rights in such products or services by virtue of having disclosed Feedback.  Evaluator agrees and acknowledges that the products and services incorporating such Feedback will be the sole and exclusive property of Company, and Evaluator will gain no right, title or interest in or to the Product, Documentation or any Commercial Release by virtue of Evaluator’s provision of Feedback to Company or for any other reason.  Company has no obligation to offer a commercial license to the Product to Evaluator at any discounted pricing schedules or special terms.    Evaluator acknowledges that any research or development performed, or business plans made, by Evaluator regarding or in reliance upon the Product are done entirely at Evaluator’s own risk.
  4. Disclaimers of Warranties. Evaluator acknowledges that the Product may contain bugs, errors, omissions and other problems that could cause system or other failures and data loss.  To the maximum extent permitted by law, the Product, and all other documentation and materials are provided “AS IS” AND WITH ALL FAULTS. COMPANY MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCT OR DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, ACCURACY, INTERFERENCE WITH EVALUATOR’S QUIET ENJOYMENT, SYSTEM INTEGRATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCT IS WITH EVALUATOR   NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
  5. Limitation of Liability. IN NO EVENT WILL COMPANY OR ITS LICENSORS (IF ANY) BE LIABLE TO EVALUATOR OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST PROFITS, LOST DATA, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT OR EVALUATOR’S USE OF THE PRODUCT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY, RELATED TO THIS AGREEMENT, OF COMPANY AND ITS LICENSORS (IF ANY) SHALL BE LIMITED TO FIVE HUNDRED DOLLARS (U.S. $ 500).The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.  The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
  6. Confidentiality. The structure, sequence, organization and code of the software used to provide the Product constitute valuable trade secrets of Company and its suppliers.  Evaluator will not disclose to any third party: any information about the Product, including its existence, design, performance characteristics, feedback, and test results.  Evaluator will use reasonable efforts to prevent any access to the Product by anyone other than its employees who are obligated to comply with the terms hereof.
  7. Product Diagnostic Reporting. Evaluator acknowledges that the Product may store certain diagnostic information about the routine operations of the Product (including, without limitation, its performance, data reduction ratios, configuration data, and any software faults) and may periodically transmit this diagnostic information to Company. Evaluator agrees that Company has a perpetual, irrevocable, worldwide, sublicenseable, and royalty-free right to use this diagnostic information in any manner and that Evaluator will not interfere with the collection or transmission of such information to Company.  For clarification, there is no actual user data of Evaluator that is transmitted or provided to Company.
  8. Term And Termination. This Agreement commences upon the Effective Date and will continue in effect until the end of the Term.  Either party may terminate this Agreement upon written notice to the other party.  Upon termination, Evaluator shall immediately cease all use of Product, and delete or destroy all copies of the Product and the Documentation in the possession or control of Evaluator.
  9. General Provisions. This Agreement will be governed by the laws of the State of Washington.  Evaluator submits to the exclusive jurisdiction and venue of the federal and state courts located in Seattle, Washington for any disputes arising out of or related to this Agreement.  Evaluator may not assign or transfer, by operation of law, change of control or otherwise, any of its rights under this Agreement to any third party without Company’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.  All waivers must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.