Software Evaluation Agreement

1. Definitions

   1. Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
   2. Customer means the legal entity and its Affiliate that executes or otherwise accepts the Agreement and supplementary Schedules or uses the Software.
   3. Documentation means the Symmetry user guides, training manuals, schema descriptions, and other similar documentation, as updated or revised from time to time, which Symmetry provides to Customer.
   4. Evaluation Period means a time-limited trial period as defined on a Schedule.
   5. Intellectual Property Rights means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights and other similar rights, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Software is used or offered.
   6. Schedule means a schedule attached hereto, and any Schedule(s) or other form of ordering documentation signed by both parties that references this Agreement. Each Schedule is incorporated into this Agreement by this reference.
   7. Software means Symmetry proprietary software applications, embedded third-party software and any copies, translations, derivations, adaptations or modifications thereof, and includes any portion of the foregoing.

   Capitalized terms used in this Agreement and not otherwise defined shall have the meaning indicated on the applicable Schedule.

2. Limited License And Exclusions

   1. Evaluation License. In consideration of the Evaluation Fee described on the Schedule and subject to the terms of this Agreement, Symmetry grants Customer a nonexclusive, nonsublicenseable, nontransferable license to use the Software described on the Schedule during the Evaluation Period. Customer may use the Software or incorporate it in Customer’s software product solely for evaluation and testing purposes. Customer may not use the Software for commercial use, in a production environment, or with any production data. Customer may not copy, translate, rent, or sublicense the Software for any purpose nor modify the Software in any way, nor cause or permit reverse compilation or reverse assembly of all or any portion of the Software. Customer may not make the Software available to any third party (including any of Customer’s business clients), for any purpose.
   2. Term. This Agreement will automatically terminate upon expiration of the Evaluation Period. At its sole discretion and for an additional fee, Symmetry may grant a single short-term extension of the Evaluation Period under a separate invoice at the time of the extension. If Customer retains the Software after the Evaluation Period expires, Customer must enter into an agreement with Symmetry for Customer’s continued use of the Software.
   3. No Assignment or Other Rights. Customer may not assign or transfer the whole or any part of this Agreement, by operation of law or otherwise. For avoidance of doubt, except as expressly set forth herein, no other rights are granted to Customer by Symmetry with respect to the Software, Documentation or Symmetry’s Intellectual Property Rights. There are no implied rights.
   4. Export. Customer acknowledges and agrees that it shall not import, export, or re-export, directly or indirectly, the Software, Documentation, or any other item provided by Symmetry to any country in violation of the regulations of the United States or any other applicable law.

3. Ownership And Confidentiality

   1. Title and Protection. The Software, including all improvement, modifications, customizations, enhancements, derivative works, and/or other materials based on the Software, are owned by Symmetry. Customer shall respect and will not remove or conceal any copyright, trademark, or other proprietary and confidential notices that may appear on the Software or Documentation. Customer or its users may provide ideas, feedback, suggestions, requests, questions, comments, and results of Customer’s testing and evaluation of the Software (“Feedback”). Feedback will not be considered Customer’s Confidential Information, and Symmetry is free to use, profit from, disclose, and otherwise exploit Feedback without compensation or attribution to Customer. Customer is under no obligation to provide, and Symmetry is under no obligation to implement, Feedback.
   2. Confidentiality Obligations. Confidential Information includes, without limitation: (a) nonpublic information relating to the disclosing party’s technology, prices, Intellectual Property Rights, specifications, manuals, business plans, product roadmaps, results of benchmark tests, promotional and marketing activities, finances, and other business affairs; (b) the Symmetry Application, Documentation, and any other software, technology or components of a Subscription Service; (c) Customer Data; (d) third-party information that the disclosing party is obligated to keep confidential, including but not limited to data, names, contacts or information regarding any customers or prospective customers; (e) the discussions, negotiations, and proposals between the parties leading to this Agreement and any Schedules; and (f) the terms of this Agreement and any Schedules. Confidential Information does not include information that (i) is or becomes available without breach of the Agreement; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) is independently developed by receiving party after disclosure without breach of the Agreement; or (iv) is rightfully obtained by the receiving party without any confidentiality obligation.
   3. Protection and Use. Receiving party will use disclosing party’s Confidential Information solely to perform its obligations under this Agreement and will adopt and use measure to safeguard the disclosing party’s Confidential Information that it uses to protect its own Confidential Information, but in no event less than reasonable measures. Receiving party must not disclose disclosing party’s Confidential Information except to its employees, Affiliates, and agents who (a) have a need to know Confidential Information in connection with this Agreement, and (b) are bound by written confidentiality obligations no less restrictive than these terms. Receiving party must promptly notify disclosing party in writing of unauthorized use or disclosure of Confidential Information of which it becomes aware and take all reasonable action to recover Confidential Information and prevent further unauthorized use or disclosure, including action for seizure and injunctive relief. Upon termination or expiration of this Agreement, each party will promptly return to the other or destroy all Confidential Information of the other party.
   4. Required Disclosure. Receiving party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party (a) gives the disclosing party reasonable written notice to allow the disclosing party to seek a protective order or other appropriate confidential treatment to protect any Confidential Information disclosed; and (b) discloses only such information as is required by the governmental entity or otherwise required by law.

4. Representations, Warranties And Disclaimers

   1. No Professional Tax Opinion and Advice. Symmetry does not provide professional tax opinions or tax management advice specific to the facts and circumstances of Customer’s business. Customer’s use of the Application or the Deliverables does not create any fiduciary obligations on the part of Symmetry. Although Symmetry strives to ensure that data and information contained in the Application are current and accurate, Symmetry depends on third parties not acting under Symmetry’s direction or control, including but not limited to state and local governmental agencies, to timely update and provide information that affect such data and information. Due to rapidly changing tax rates and regulations that require interpretation by qualified tax professionals, Customer bears full responsibility to determine the applicability and accuracy of the output generated by the Software. AS SUCH, CUSTOMER AGREES THAT IT USES AND RELIES UPON HE SOFTWARE AT ITS OWN RISK AND ACKNOWLEDGES THAT SYMMETRY WILL NOT BE LIABLE FOR ANY DATA AND INFORMATION CONTAINED IN THE SOFTWARE THAT IS INACCURATE OR NOT CURRENT AS A RESULT OF AN ACT OR OMISSION OF THESE THIRD PARTIES. Customer shall conduct due diligence and seek the assistance of qualified tax counsel or accounting professionals on matters requiring professional advice.
   2. No Warranty. The Software is provided to Customer solely for the purpose of evaluation and use on an “AS IS” basis and without warranty. THERE ARE NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NONINFRINGEMENT.

5. Limitations Of Liability

   1. Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) SYMMETRY IS NOT LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES ARISING OUT OF THIS AGREEMENT OR THE SOFTWARE, EVEN IF SYMMETRY WAS ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, OR FOR ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PARTY AND (B) SYMMETRY’S AGGREGATE LIABILITY FOR ALL LOSSES WILL BE LIMITED TO THE GREATER OF THE AMOUNT OF FEES PAID FOR THE USE OF THE SOFTWARE DURING THE EVALUATION PERIOD OR $500. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement.

6. Indemnification

   1. Indemnification by Symmetry. Symmetry will defend, indemnify, and hold Customer harmless against an unaffiliated third-party claim or legal action alleging that the Subscription Service as delivered by Symmetry to Customer directly infringes any patent, copyright or trademark. Symmetry has no obligation or liability under this Section 6.1 for any infringement claim arising from (a) Customer’s breach of this Agreement or use of the Subscription Service in a manner contrary to the Documentation; (b) modification of the Subscription Service by anyone other than Symmetry, or modification by Symmetry for non-standard features or functionality for Customer or according to Customer’s specifications; (c) use of a Subscription Service in combination with hardware, software, method, or process not provided by Symmetry or authorized in the Documentation, if infringement would not occur without the combination; (d) any content, information, or data (including Customer Data) provided by Customer or other third parties; or (e) Customer’s failure to cooperate or allow Symmetry to install a revision, update, or release provided by Symmetry that would have eliminated the infringement. If Symmetry believes the Subscription Service infringes or may infringe a third-party’s Intellectual Property Rights, then Symmetry shall either (i) obtain the right for Customer, at Symmetry’s expense, to continue using that Subscription Service; (ii) provide a non-infringing, functionally equivalent replacement; or (iii) modify the Subscription Service or create a workaround so that the Subscription Service no longer infringes. If options (i)-(iii) are not commercially reasonable, then Symmetry may terminate Customer’s use of the Subscription Service (with a pro-rata refund of any prepaid fees for the terminated Subscription Service). This Section 6.1 states Symmetry’s sole liabilities and Customer’s exclusive remedies for infringement claims.
   2. Indemnification by Customer. Customer shall defend, indemnify and hold harmless Symmetry, its officers, directors and employees from any claims or causes of action related to or resulting from a breach by Customer of any of its obligations under this agreement, including any claim that an unauthorized modification or improvement to the Software misappropriates or otherwise infringes the intellectual property rights of any third-party.
   3. Indemnified Party Obligations. As a condition of the indemnifying party’s obligations under this Section 6, the indemnified party must (a) notify the indemnifying party promptly in writing of such action or claim (provided that a failure to provide such notice will only relieve the indemnifying party of its obligations to the extent its ability to defend such claim is materially prejudiced by the delay); (b) cooperate and, at the indemnifying party’s request and expense, assist in the defense of such claim; and (c) give the indemnifying party sole control of the defense thereof and any related settlement negotiations; provided that any settlement which admits liability or fault or which imposes any obligation on the indemnified party (other than the payment of sums that are indemnified hereunder) will require the prior written consent of the indemnified party.

7. Effect Of Termination

   1. Effect Of Termination. Symmetry may terminate this Agreement immediately upon written notice to Customer if Customer breaches any term of this Agreement. Upon the termination or expiration of this Agreement, unless the parties have entered into a license agreement permitting Customer’s continued use of the Software, Symmetry will have the right to take immediate possession of the Software and Customer will (a) discontinue exercising any rights granted hereunder and stop any and all use of the Software immediately, (b) delete the Software from its computer system, and (c) and deliver to Symmetry all Software then in its possession or control, including, without limitation, all copies and duplicates in whatever form, and (d) upon request, certify in writing that all materials required to be delivered to Symmetry have been delivered to Symmetry. Sections 3, 4, 5, 6, 7, and 8 shall survive any termination or expiration of this Agreement.

8. Miscellaneous

   1. Third-Party Software. The Software may contain or include third-party software that is available under and is subject to open source or free software licenses, as detailed in the open source license file that accompanies the Software. The terms of such open source licenses are incorporated by reference into this Agreement.
   2. Governing Law; Dispute Resolution. The Agreement is governed by the internal laws of the State of Delaware, without regard to its conflict of laws principles. Any action or proceeding arising from or relating to this Agreement shall be finally resolved by binding arbitration before a single arbitrator and administered according to the commercial arbitration rules of the American Arbitration Association in effect at the time the action is brought (“AAA Rules”). The arbitrator shall be a person with experience and knowledge in the computer software business and will not have any authority to make any ruling, finding or award that is not consistent with this Agreement. Judgment on the arbitration award may be entered and enforceable by any court of competent jurisdiction. The location of the arbitration will be determined in accordance with the AAA Rules.
   3. Injunctive Relief. Customer acknowledges that any breach of its obligations under this Agreement (including by violating the restriction on use of the Software or its breach of Section 3 (Ownership and Confidentiality), will cause irreparable injury to Symmetry for which the remedies at law are inadequate. Therefore, Symmetry is entitled to immediate equitable relief for any such breach, without requirement of posting bond and without the necessity of showing actual money damages.
   4. Entire Agreement. The Agreement, Schedules, and any amendments contain the entire agreement with respect to the subject matter of this Agreement and supersede and replace all prior or contemporaneous proposals, understandings, agreements, negotiations and representations, oral or written. Any pricing, payment and term length conditions in a Schedule that are inconsistent with the Agreement will control for that Schedule only. Any inconsistent or additional terms of Customer’s purchase order are excluded regardless of Symmetry’s accepting the purchase order for payment purposes. All headings are for reference purposes only and must not affect the interpretation of the Agreement.

If you have questions, we can be reached at:
Symmetry Software LLC
14350 N 87th Street, Suite 310
Scottsdale, Arizona 85260
480-596-1500
legal@symmetry.com