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Evaluation Agreement

By clicking accept you are bound by the terms of this agreement.

This agreement is made between the Licensee and McLaren Limited. ("McLaren"), a Limited Company having its principal place of business at 95 Bothwell Street, Glasgow, G2 7HX.

This agreement the schedules and any addenda attached hereto (collectively referred to herein as "the Schedules"), constitute the entire agreement ("Agreement") between the parties concerning Licensee's use of the Software (as defined). No purchase order, other ordering document or any hand written or typewritten text which purports to modify or supplement the printed text of this Agreement or any Schedule shall add to or vary the terms of this Agreement unless signed by both parties. The pre-printed terms and conditions of a Licensee's purchase order shall not apply. This Agreement replaces and supersedes any prior verbal understandings, written communications or representations; and incorporates the terms and conditions set overleaf. This agreement is subject to the conditions set out in the schedule hereto, which are expressly incorporated into this agreement.

This is the Schedule of Conditions referred to in the foregoing agreement


TERMS AND CONDITIONS

1. Definitions

"Additional User" shall mean Licensee's customer, vendor, agent, subcontractor or consultant.

"Confidential Information" shall mean the Software, Documentation, and all information which is marked as confidential or proprietary or which is disclosed verbally and identified as confidential or proprietary.

"McLaren Licensors" shall mean third parties from whom McLaren has licensed software.

"Documentation" shall mean the user manuals relating to the use of the Software delivered by McLaren to Licensee in electronic form.

"Evaluation Period" means the period during which the Licensee may evaluate the Software in accordance with this Agreement.

"Evaluation Schedule" means the completed evaluation schedule set out in the Schedule.

"Licensee" shall mean the company wishing to evaluate the Software.

"Schedule" shall mean any schedule attached hereto or which specifically references this Agreement and which has been executed by both parties.

"Seat" shall mean a user designated by Licensee who is authorized to use the applicable Software licensed hereunder."

"Software" shall mean a machine executable copy of the software products and applications licensed by McLaren to Licensee under this Agreement, together with any supporting Documentation.



2. Licence

2.1 Subject to the terms and conditions of this Agreement, McLaren grants Licensee a non-exclusive, and nontransferable licence (without the right to sub licence) to use, solely at the Licensee site specified in the Evaluation Schedule for Licensee's one (or where a greater number is set out in the Evaluation Schedule, that number) copy of the Software.

2.2 The licence granted hereunder is limited to the operating environment and the maximum number of Seats, users, or copies specified in the Evaluation Schedule.

2.3 Licensee shall use its best endeavors to ensure that it does not exceed the maximum number of Seats, users, or copies licensed. McLaren reserves the right to include means within the Software to limit Licensee's use of the Software to the licensed number of Seats, users, or copies. McLaren reserves the right to audit, at its expense, Licensee's deployment and use of the Software for compliance with the terms of this Section 2 at any mutually agreeable time during Licensee's normal business hours.

2.4 The Software is licensed to the Licensee solely for the purpose of evaluating whether or not to purchase a standard product licence for the Software on McLaren's standard end user purchase and licence terms and conditions.

2.5 Upon the expiry of the Evaluation Period (which shall be 30 days from the date of execution of this Agreement unless specified to the contrary in the Evaluation Schedule) the Licensee shall remove all copies and elements of the Software from its systems and return all copies of the Software and supporting Documentation to McLaren within 7 (seven) days of the end of such period.



3. Licence Exclusions

Licensee shall not cause or permit any:

a. copying or modification of the Software or Documentation;

b. reverse engineering, decompilation, translation, disassembly, or discovery of the source code of all or any portion of the Software, except to the extent expressly permitted by applicable law;

c. distribution, disclosure, marketing, rental, leasing or transfer to any third party of the Software or the Documentation, or use of the Software for any dial-up, remote access, interactive or other on-line service from which Licensee receives compensation from subscription fees;

d. disclosure of the results of Software performance benchmarks to any third party without McLaren's prior written consent;

e. transfer of the Software except in accordance with Section 4 below; or

f. export of the Software in violation of UN embargoes or US laws and regulations, including the Export Administration Action of 1979, as amended, and successor issued by the Department of Commerce.



4. Platform Transfer Rights

4.1 The Software may only be installed, used and accessed from the Licensee's site specified in the Evaluation Schedule.



5. Fees and Payment Terms

5.1 Licensee shall pay (or cause a mutually agreed upon third party to pay) McLaren the fees specified in each applicable Schedule or purchase order and all associated shipping costs.

5.2 All fees shall be due and payable within thirty (30) days of the date of invoice. Licensee is responsible for all taxes concerning the Software and/or services, excluding taxes based on McLaren income. Overdue payments shall bear interest at the lesser of twelve percent (12%) per annum or the maximum rate allowed under applicable law.



6. Title, Protection and Equitable Relief

6.1 McLaren (or its any relevant McLaren Licensor) retains all right, title and interest in the Software and Documentation (including the intellectual property therein) and any copies thereof, provided, however, that risk of loss to the Software media shall pass to Licensee upon delivery of the media to Licensee at the address specified in the Evaluation Schedule. Title to the Software shall at all times remain with McLaren (or any relevant McLaren Licensor). Except as otherwise expressly granted in this Agreement, no licence, right or interest in any McLaren or third party trademark, copyright, trade name or service mark is granted hereunder.

6.2 Licensee shall affix, to each full or partial copy of the Software or Documentation made by Licensee, all copyright and proprietary information notices as were affixed to the original.

6.3 Each party acknowledges that any breach of its obligations with respect to the proprietary rights of the other party or such party's licensors may cause such other party irreparable injury for which there may be inadequate remedies at law and that such other party and its licensors will be entitled to equitable relief, in addition to all other remedies available to it.



7. Indemnity

7.1 As the Software is licensed for evaluation purposes only, no warranty or undertaking of any kind is given by McLaren that the Software does not infringe and copyright, patent or other intellectual or industrial property. No warranty is given that the Software is fit for any purpose or of satisfactory quality. McLaren excludes all liability for any loss whatsoever or however arising (other than liability for death or personal injury) as a consequence of any use of the Software, including any liability for losses attributed to loss or corruption of any data.

7.2 The undertakings in Clause 7.1 above are exclusive and in lieu of all other warranties or conditions whether express or implied, including any implied conditions of merchantle quality and fitness for purpose.



8. Default and Termination

8.1 An event of default shall be deemed to have occurred if Licensee fails to perform any material obligation under this Agreement and such failure remains uncured for more than fifteen days after receipt of written notice thereof.

8.2 If an event of default occurs, McLaren, in addition to any other rights available to it under law or equity, may terminate this Agreement and all licenses granted hereunder by written notice to the defaulting party. Remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.

8.3 Within fifteen (15) days after termination of this Agreement, Licensee shall certify in writing to McLaren that all copies of the Software and Documentation in any form, including partial copies within modified versions, have been destroyed or returned to McLaren.

8.4 The parties' rights and obligations under Sections 6, 7, 8, 10, 11, and 17 shall survive termination of this Agreement.



9. Limitation of Liability

9.1 MCLAREN'S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR THAT OF ITS SERVANTS OR AGENTS IS NOT EXCLUDED OR LIMITED.

9.2 SUBJECT TO SECTIONS 9.1 AND 9.3, MCLAREN'S LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT (WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE) SHALL BE LIMITED AS FOLLOWS: (I) FOR PHYSICAL DAMAGE TO PHYSICAL PROPERTY (NOT INCLUDING THE SOFTWARE) CAUSED BY THE NEGLIGENCE OF MCLAREN OR ITS SERVANTS OR AGENTS, TO THE SUM OF £1,000,000; AND (II) FOR ALL OTHER LOSS OR DAMAGE, TO AN AMOUNT EQUAL TO THE AMOUNT PAID OR PAYABLE BY LICENSEE UNDER THE TERMS OF THIS AGREEMENT FOR THE SOFTWARE OR SERVICES AS TO WHICH THE CLAIM AROSE.

9.3 SUBJECT TO SECTION 10.1, NEITHER MCLAREN NOR ITS LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE (HOWEVER ARISING) INCLUDING LOSS OF PROFITS, LOSS OF SALES, LOSS OF TURNOVER, LOSS OF BARGAIN, LOSS OF OPPORTUNITY, LOSS OF COMPUTER EQUIPMENT, SOFTWARE OR DATA OR LOSS OF TIME ON THE PART OF MANAGEMENT OR OTHER STAFF.



10. Confidentiality

10.1 The parties acknowledge that by virtue of their licensing or support services the parties may have access to Confidential Information. The parties agree, both during the term of this Agreement and for a period of three years after termination, to hold each other's Confidential Information in confidence. The parties agree not to make each other's Confidential Information available in any form to any third party (other than those of its employees or consultants under nondisclosure obligations) or to use each other's Confidential Information for any purpose other than as contemplated by this Agreement. Each party agrees to take commercially reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Section 10.

10.2 Notwithstanding any provision contained in this Agreement, neither party shall be required to maintain in confidence any of the following information:

a. information which, at the time of disclosure to the receiving party, is in the public domain;

b. information which, after disclosure, becomes part of the public domain, except by breach of this Agreement;

c. information which was in the receiving party's possession at the time of disclosure, and which was not acquired, directly or indirectly, from the disclosing party

d. information which the receiving party can demonstrate resulted from its own research and development, independent of disclosure from the disclosing party;

e. information which the receiving party receives from third parties, provided such information was not obtained by such third parties from the disclosing party on a confidential basis; or

f. information which is produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.



11. Support Services

11.1 McLaren may at it's sole discretion provide support services for any Software being evaluated.



12. Restricted Release

12.1 the Software IS LICENSED SOLELY FOR THE PURPOSE OF ALLOWING EVALUATION OF THE SOFTWARE BY THE LICENSEE. Any use of the Software by the Licensee for other purposes, including any commercial purpose, is expressly prohibited and shall entitle McLaren payment of a licence fee calculated by reference to McLaren's standard terms of business for each installation of the Software for such prohibited purpose, in addition to any other rights or remedies available to McLaren at law.

12.2 As the Software is licensed for evaluation purposes only, (i) McLaren shall have no obligation to correct errors in, deliver updates to, or otherwise support Software, and (ii) Licensee will promptly report to McLaren any error discovered in the Software and provide McLaren with appropriate test data for the Software if necessary to resolve problems in the Software encountered by Licensee, and (iii) the Software is experimental, may contain problems and errors and is being provided to Licensee on an as-is basis with no warranty of any kind, express or implied, and (iv) neither party will be responsible or liable to the other for any losses, claims or damages of whatever nature, arising out of or in connection with the performance or nonperformance of the Software, and (v) Licensee will not use the Software in production applications without the prior written approval of McLaren, and (vi) Licensee will promptly install each later version and any production version of the Software received from McLaren and upon such receipt shall stop use of the Software.



13 Developments

If Licensee elects to purchase consulting or software services, any ideas, know-how, or techniques which may be developed by McLaren as a result of such consulting services, including any enhancements or modifications made to McLaren Software or Documentation (collectively, "Developments") shall be the property of McLaren. McLaren may in its sole discretion develop, use, market, and licence any software or data processing material that is similar or related to that which was developed by McLaren for Licensee. McLaren shall not be required to disclose information concerning any Developments which McLaren deems to be proprietary and confidential.



14. Notices

All notices shall be in writing and sent by first class mail, overnight mail, courier, or transmitted by facsimile and confirmed by mailing, to the addresses indicated on the first page of this Agreement, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party. Notices to McLaren shall be sent to the Managing Director. Notice shall be deemed to have been given upon personal delivery (in the case of overnight mail, courier or facsimile) or five (5) business days after being sent by first class mail.



15. Assignment

Licensee may not assign this Agreement (by operation of law or otherwise) or sublicense the Software without the prior written consent of McLaren. Any prohibited assignment or sublicense shall be null and void.



16. Governing Law and Jurisdiction

This Agreement shall be governed and construed under the laws of Scotland. Any dispute between the parties concerning this Agreement shall be determined by the Scottish courts, and the parties hereby submit to the nonexclusive jurisdiction of the Scottish courts for that purpose.

17. General

17.1 The parties acknowledge that the Software may include software licensed by McLaren from McLaren Licensors. McLaren Licensors are direct and intended third party beneficiaries of this Agreement and shall be entitled to enforce it directly against Licensee to the extent (i) this Agreement relates to the licensing of McLaren Licensors' software products, and (ii) McLaren fails to enforce the terms of this Agreement on McLaren Licensors' behalf.

17.2 The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. Except for Licensee's obligation to pay McLaren, neither party shall be liable for any failure to perform due to causes beyond its reasonable control.

17.3 If any provision of this Agreement is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision, which approximates the intent and economic effect to the affected provision.

17.4 The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future.

17.5 This Agreement may be amended only by a written document executed by a duly authorised representative of each of the parties.

17.6 This Agreement may be executed in counterparts.

17.7 A facsimile of a signed copy of this Agreement received from Licensee may be relied upon as an original.