08-25-2010 10:26 AM
***The below document is in regards to pre-release software testing. It does not apply to released products, or products in Public Beta***
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SYMANTEC CORPORATION AND ITS AFFILIATED ENTITIES ("LICENSOR"). LICENSOR AGREES TO LICENSE THE BETA SOFTWARE ("BETA SOFTWARE") TO YOU (PERSONALLY AND/OR ON BEHALF OF YOUR EMPLOYER) (“PARTICIPANT”) ONLY IF YOU ACCEPT ALL THE TERMS CONTAINED IN THIS AGREEMENT. BY CLICKING THE "I AGREE" BUTTON BELOW, YOU ARE (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18 AND HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF AND YOUR EMPLOYER, AS APPLICABLE, TO THE TERMS OF THIS LICENSE AND (2) CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER, AS APPLICABLE, TO BE BOUND BY THIS BETA LICENSE AGREEMENT ("AGREEMENT"). EACH TIME YOU OR YOUR AGENT ACCESS BETA SOFTWARE, YOU ACCEPT, ON EACH SUCH OCCASION, THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT THEN DO NOT INSTALL BETA SOFTWARE. WITHIN THIRTY (30) DAYS OF YOUR RECEIPT OF THE BETA SOFTWARE YOU MAY RETURN THEM, ALONG WITH ALL ACCOMPANYING DOCUMENTATION, PACKAGING MATERIALS AND PROOF OF PURCHASE, TO LICENSOR AT THE ADDRESS SPECIFIED BELOW. SHIPPING, HANDLING, INSURANCE FEES, AND FEES FOR SERVICES THAT HAVE BEEN PERFORMED (INCLUDING APPLICABLE SALES TAX) ARE NON-REFUNDABLE. Should you have any questions regarding this Agreement, or wish to contact LICENSOR, you may write to: Symantec Corporation, Attention: Legal Services Department, 20330 Stevens Creek Blvd., Cupertino, CA 95014.
This Beta License Agreement (“License”) is between Symantec Corporation (“Symantec”) and the participant identified below (“Participant”). This License sets forth the general terms and conditions under which Symantec may provide to Participant the software programs identified on the applicable exhibit (“Beta Software”) and is effective as of the date this agreement is accepted (“Effective Date”).
1. GRANT OF LICENSE. Symantec hereby grants Participant a nonexclusive, nontransferable license to use a binary version of the Beta Software solely for Participant’s internal, non-commercial testing and evaluation purposes (the “Purpose”), and solely in accordance with the terms and conditions of this License.
2. TESTING. Participant agrees to test and evaluate the Beta Software. In addition, Participant will promptly report to Symantec any problems or defects encountered in the Beta Software.
3. TERM AND TERMINATION. Participant will have the right to use the Beta Software for the Purpose for a period not to exceed 90 days from the Effective Date of the applicable exhibit (“Test Period”). This License will expire at the end of the Test Period unless terminated earlier at any time by Participant or Symantec for any reason. Upon expiration or termination of this License, Participant will destroy and erase from computer memory the Beta Software together with all copies, modifications and merged portions in any form. If requested by Symantec, Participant will certify in writing within three (3) days of the request that Participant has complied with the terms of this provision. THE BETA SOFTWARE MAY CONTAIN CODE THAT WILL DISABLE THE BETA SOFTWARE UPON EXPIRATION OF THE TEST PERIOD.
4. INSTALLATION AND USE. Participant may install the Beta Software onto the number of computers solely as specified in the applicable exhibit. Participant may make a limited number of copies of the Beta Software for backup purposes. Participant may not otherwise copy the Beta Software.
5. INTELLECTUAL PROPERTY RIGHTS. Symantec shall retain all right, title and interest in the Beta Software, including without limitation all intellectual property rights embodied therein. Participant does not acquire any rights, express or implied, in the Beta Software, other than those specified in this License. Participant shall reproduce all titles, trademarks, copyright, and restricted rights notices contained in the original Beta Software in any copies made, and all such copies shall be subject to the terms and conditions of this License.
6. OTHER LICENSE RESTRICTIONS. Participant may not distribute, sublicense, rent or lease the Beta Software or use the Beta Software provided under this License for internal production or commercial use. Participant agrees not to cause or permit the reverse engineering, disassembly, decompilation or other attempt (i) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in, or (ii) to derive the source code of the underlying ideas, algorithms, structure or organization from the Beta Software, except to the extent required by law.
7. FEEDBACK. Any comments or suggestions provided by Participant regarding the Beta Software (the "Feedback") shall be deemed non-confidential to Participant. By providing such Feedback, Participant grants to Symantec, under Participant’s intellectual property rights, a worldwide, royalty-free, irrevocable and non-exclusive license, with the right to sublicense to Symantec’s licensees and customers, the rights to use and disclose the Feedback in any manner Symantec chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of Symantec’s and its sublicensee’s products embodying such Feedback in any manner and via any media Symantec or its sublicensees choose, without reference or obligation to Participant. Participant will not give Symantec any Feedback (i) that Participant has reason to believe is subject to any patent, copyright, or other intellectual property claim or right of any third party; or (ii) subject to license terms that seek to require any Symantec product incorporating or derived from any Feedback, or other Symantec intellectual property, to be licensed to or otherwise shared with any third party. Unless otherwise set forth in the applicable exhibit or authorized by Participant in writing, Symantec shall not use or reference Participant’s name in its public use of such Feedback.
8. CONFIDENTIAL INFORMATION. The Beta Software, the Feedback, product-related information and any other proprietary technology or know how provided to Participant by Symantec as part of the beta program is the confidential information of Symantec (“Confidential Information”). Participant will hold all Confidential Information in confidence for a period of five (5) years from the date of termination or expiration of this License. Participant will use the Confidential Information only as expressly authorized in this License and Participant will protect the Confidential Information by using the same degree of care as Participant would use to protect its own Confidential Information, but no less than a reasonable degree of care, from the unauthorized use, dissemination or publication of the Confidential Information. Participant is not obligated with respect to Confidential Information that Participant can prove: (a) is or becomes a matter of public knowledge through no fault of Participant; (b) is rightfully received by Participant from a third party without a duty of confidentiality; (c) is independently developed by Participant (excluding the Feedback); (d) is disclosed under operation of law or (d) is disclosed by Participant with Symantec’s prior written consent. Unauthorized use or disclosure of Confidential Information may cause Symantec irreparable harm; therefore, Symantec will have the right to enforce this License and any of its provisions by injunctive or other equitable relief.
9. NO OBLIGATION. Symantec is under no obligation to develop, maintain or market the Beta Software or to release production or general availability versions. Future versions of the Beta Software, if any, may not be compatible with the current evaluation release of the Beta Software.
10. DISCLAIMER OF WARRANTY. PARTICIPANT ACKNOWLEDGES THAT THE BETA SOFTWARE IS EXPERIMENTAL IN NATURE AND IS PROVIDED “AS IS." SYMANTEC AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL CONDITIONS AND WARRANTIES, INCLUDING BUT NOT TO LIMITED WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL SYMANTEC OR ITS SUPPLIERS BE LIABLE TO COMPANY FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS LICENSE, EVEN IF SYMANTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. INDEMNIFICATION. Participant agrees to defend, indemnify and hold harmless Symantec from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of Participant’s use of the Beta Software or breach of any provision of this License. Symantec reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Participant. Participant will cooperate as fully as reasonably required in the defense of any claim.
12. GENERAL TERMS. This is the entire agreement between Participant and Symantec and supersedes any terms of any other license that may be included with the Beta Software, including any shrink-wrap or click wrap. This License will be governed by and construed under the laws of the State of California, without giving effect to such state’s conflict of laws principles. Any legal action or proceeding related to this License shall be instituted in a state or federal court in Santa Clara County, California. Symantec and Participant agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. Participant will not export the Beta Software or any direct product thereof, directly or indirectly, in violation of U.S. export control laws and other applicable export and import laws or use the Beta Software for any purpose prohibited by these laws. If any provision of this License is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this License. No amendment to this License will be binding unless evidenced by a writing signed by the party against whom it is sought to be enforced. No waiver by either Symantec or Participant of any breach or default under this License shall be deemed to be a waiver of any of any other breach or default under this License. This License is not an offer and will not be effective until executed by Symantec.
13. GOVERNMENT RESTRICTED RIGHTS. The Beta Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Beta Software and accompanying documentation by the U.S. Government shall be governed solely by the terms of this License and shall be prohibited except to the extent expressly permitted by the terms of this License. Participant must affix the following legend to each copy of the Beta Software: “Use, duplication, reproduction, or transfer of this commercial software and accompanying documentation is restricted in accordance with FAR 12.212 and DFARS 227.7202 and by a license. Contact Legal Department, Symantec Corporation, 350 Ellis Street, Mountain View, California 94043, U.S.A."
14. SURVIVING TERMS AND CONDITIONS. Section 5 (“Intellectual Property Rights”), 6 (“Other License Restrictions”), 8 (“Confidential Information”), 9 (“No Obligation”), 10 (“Disclaimer of Warranties”), 11 (“Indemnification”), 12 (“General Terms”) and 14 (“Surviving Terms and Conditions”) will survive expiration or termination of this License.
PARTICIPANT REPRESENTS THAT THE INDIVIDUAL SIGNING BELOW HAS THE AUTHORITY TO SIGN ON BEHALF OF THE COMPANY AND HEREBY CONSENTS TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE.