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Public Evaluation Agreement

Acquia Document Number: GA-00004-20090217-00

EVALUATION AGREEMENT


IMPORTANT. READ CAREFULLY. By using the software or services being tested, you (on behalf of yourself or as an authorized representative of an entity) as the “Evaluator” agree to the terms of this Evaluation Agreement (“Agreement”) with Acquia Inc. (“Acquia”). If you do not agree, navigate away from this page without clicking the “I Agree” button.

  1. Definitions.

    “Acquia Authored Modules” means certain Acquia modules that are written by, and for which copyright is retained by Acquia and licensed under the terms of this Agreement.

    “Acquia Services” means certain electronic services as described in Acquia’s services description available at http://acquia.com/product-matrix as updated from time to time. For avoidance of doubt, Acquia Services does not include Third-Party Services. Acquia Services includes Acquia Beta Services.

    “Acquia Beta Technology” means either Acquia Services or Licensed Software as described in Exhibit A.

    “Drupal” means the open source content management platform available for download at drupal.org.

    “Drupal Core Modules” means those certain software modules that comprise the core and mandatory functionality of Drupal, all of which are available for download at drupal.org.

    “Drupal Optional Modules” means those certain software modules that provide additional enhancements and optional features of Drupal, all of which are available for download at drupal.org. For the avoidance of doubt, Drupal Optional Modules do not include Drupal Core Modules.

    “Effective Date” means the day the Evaluator first installs the Software or uses the Acquia Services.

    “Licensed Software” means the Acquia Authored Modules and the Third-Party Non-Drupal Software.

    “Software” means collectively all of the following: Acquia Authored Modules, Third-Party Drupal Software and Third-Party Non-Drupal Software, all as identified on Exhibit A.

    “Services” means Acquia Services and Third-Party Services together, and which are described in Acquia’s Service Policy as updated from time to time.

    “Support” means the technical support on the use of the Software and Services as described in Acquia’s Support Policy as updated from time to time.

    “Third Party Services” means certain electronic services described on Exhibit A which are supplied by third parties and are redistributed to the Evaluator by Acquia in conjunction with the Services.

    “Third-Party Software” means Third-Party Drupal Software and Third-Party Non-Drupal Software.

    “Third-Party Drupal Software” means the Drupal Core Modules and the Drupal Optional Modules.

    “Third-Party Non-Drupal Software” means certain software licensed by Acquia from third parties that is provided in conjunction with the Software but is not part of the set of Acquia Authored Modules.

  2. License Grant.

    Subject to the terms and conditions of this Agreement, Acquia hereby grants to Evaluator a limited, non-transferable, non-exclusive right to install and use the Licensed Software and use the Acquia Services solely for evaluation and testing purposes, and not for general production or business use, during an evaluation period beginning on the Effective Date and ending at such time as Acquia makes the Licensed Software and Acquia Services generally available to users other than Evaluators utilizing the Licensed Software or Acquia Services subject to the terms of an evaluation agreement such as this Agreement (the "Evaluation Period").

  3. Third-party Software and Third-Party Service License Compliance.

    The Third-Party Software and Third-Party Services are subject to various other terms and conditions imposed by the licensors of the Third-Party Software and Third-Party Services, which terms are set forth in Exhibit A attached hereto. The terms of Evaluator’s use of the Third-Party Software and Third-Party Services is subject to and governed by their respective licenses except that this Section 3 and Section 14 of this Agreement also govern Evaluator’s use of the Third-Party Software and Third-Party Services. Evaluator agrees to comply with such terms and conditions with respect to the applicable Third-Party Software and Third-Party Services.

  4. License Restrictions.

    The purpose of the grant in Section 2 above is for Acquia to secure confidential evaluation of the Licensed Software and Acquia Services, and whether the Licensed Software or Acquia Services are appropriate or stable enough for general release and broad distribution. At the end of the Evaluation Period Acquia may elect to not distribute Licensed Software or Acquia Services broadly. Therefore, during the Evaluation Period Evaluator may not, nor permit anyone else to: (a) alter, merge, modify, translate, adapt in any way or prepare any derivative work based upon the Acquia Services, or (b) reverse engineer or otherwise attempt to reconstruct or discover the source code of the Acquia Services.

  5. Services and Support.

    Acquia will provide Evaluator with the Services in accordance with the terms and conditions of the Services Policy and the Support in accordance with the terms and conditions of the Support Policy.

  6. Acceptance.

    The Software will be deemed accepted upon Evaluator’s download or upon first use of any of the Acquia Services.

  7. Proprietary Rights.

    Except for the limited licenses granted under Section 2 above, Acquia or its licensors retain all right, title and interest in and to the Licensed Software and the Services. Evaluator shall do nothing inconsistent with Acquia’s title to the Licensed Software and the intellectual property rights embodied therein. The Licensed Software and Services contain copyrighted material, trade secrets and other proprietary material of Acquia, and the Third-Party Drupal Software is subject to licensing as described in Exhibit A.

  8. Term.

    This Agreement will terminate at the end of the Evaluation Period.

  9. Termination.

    Either party may terminate this Agreement at any time, with or without cause, upon notice to the other party. This Agreement will terminate immediately without notice from Acquia if Evaluator fails to comply with any provision of this Agreement.

  10. Effects of Termination.

    Upon the termination or expiration of this Agreement for any reason: (i) all licenses granted to the Licensed Software and rights to use Acquia Services under this Agreement shall be terminated; (ii) upon Acquia’s request, Evaluator shall immediately cease use of the Acquia Authored Modules, Third-Party Non-Drupal Software, and the Services; (iii) Evaluator shall, at Acquia’s sole discretion, either promptly return to Acquia all copies of the Acquia Authored Modules and Third-Party Non-Drupal Software or destroy all copies of the Acquia Authored Modules and Third-Party Non-Drupal Software in its possession and/or control, and certify in writing to Acquia that all copies of the Acquia Authored Modules and Third-Party Non-Drupal Software have been destroyed or returned to Acquia, as applicable, within five (5) days after such termination or expiration; and (iv) Acquia will no longer be obligated to provide the Services or the Support. The provisions of this Agreement, except for Sections 2, 5, 8 and 9, shall survive termination or expiration of this Agreement.

  11. Confidential Information.

    Evaluator agrees not to disclose Acquia confidential information or any information about the Acquia Beta Technology, including but not limited to availability or features, or use the Acquia Beta Technology for any purpose not specified in this Agreement. Evaluator warrants that all employees of Evaluator having access to the Acquia Beta Technology under this Agreement will abide by the obligations set forth in this Section 11.

  12. Feedback.

    At Acquia’s request, Evaluator will provide Acquia with written or oral report(s) of the results of Evaluator’s evaluation of the Software and Services, including, but not limited to, a report of any errors which Evaluator has discovered in the Software or related documentation. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by Evaluator to Acquia concerning the Software or Services (“Evaluations”) will be the property of Acquia. Evaluator agrees to assign, and hereby assigns, all right, title and interest worldwide in the Evaluations, and the related intellectual property rights, to Acquia and agrees to assist Acquia, at Acquia’s expense, in perfecting and enforcing such rights.

  13. Warranty Disclaimer.

    EVALUATOR UNDERSTANDS THAT THE SOFTWARE AND SERVICES ARE AT A PRELIMINARY STAGE OF DEVELOPMENT AND ARE BEING PROVIDED SOLELY FOR EVALUATION AND TEST PURPOSES. THUS, COMPANY AGREES THAT NEITHER ACQUIA NOR ITS AGENTS OR REPRESENTATIVES SHALL BE RESPONSIBLE FOR LOSS, DESTRUCTION, OR ALTERATION OF PROGRAMS, DATA AND OTHER INFORMATION RESULTING FROM USE OF THE SOFTWARE AND SERVICES. EVALUATOR EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SOFTWARE AND SERVICES IS AT EVALUATOR’S OWN RISK. THE SOFTWARE, THE SERVICES AND THE SUPPORT ARE PROVIDED TO EVALUATOR ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND. ACQUIA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. ACQUIA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR SERVICES OR SUPPORT WILL MEET EVALUATOR’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ACQUIA OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY IMPLY ANY WARRANTY.

  14. Limitation of Liability

    (a) Consequential Damages Waiver. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL EITHER PARTY OR ACQUIA’S LICENSORS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE THE SOFTWARE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    (b) Limitation of Damages. IN NO EVENT SHALL ACQUIA’S TOTAL LIABILITY TO EVALUATOR FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) EXCEED FIVE HUNDRED DOLLARS (US$500.00). ADDITIONALLY, IN NO EVENT SHALL ACQUIA’S LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND.

    (c) Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
    (d) Allocation of Risk. The sections on limitation of liability and disclaimer of warranties allocate the risks in the Agreement between the parties. This allocation is an essential element of the basis of the bargain between the parties.

  15. Government Rights.

    The Licensed Software is licensed to Evaluator under this Agreement are "commercial computer software" as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.

  16. Export.

    Evaluator acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin, including the Licensed Software. Evaluator agrees that it will not export or re-export the Licensed Software without the appropriate United States or foreign government licenses.

  17. Date.

    The date of this agreement is the date Evaluator accepts this agreement by clicking “I Agree.”

  18. General Provisions.

    All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, telecopier, facsimile transmission, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission, and addressed to the party to whom notice is given to Acquia at its corporate headquarters and to Evaluator at its address set forth in the registration page (or such other address as either party may specify in writing). Evaluator shall not assign this Agreement or transfer any of the rights, duties, or obligations arising under this Agreement, whether by merger, operation of law, or otherwise, without the prior written consent of Acquia. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. This Agreement will be governed by and construed according to the laws of the Commonwealth of Massachusetts without regard to that body of law controlling conflicts of law. In the event of any dispute or claim arising out of this Agreement, the parties hereby submit to the jurisdiction of the federal and state courts located in Suffolk County, Commonwealth of Massachusetts, as applicable. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found invalid or unenforceable that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior and/or contemporaneous representations, discussions, negotiations and agreements, whether written or oral.

 

Exhibit A

Acquia Beta Technology

Acquia Search, as described here.

Third-Party Drupal Software

This Beta test includes the use of the Drupal Apache Solr Search Integration modules.

Acquia Drupal Modules

No Acquia Drupal Modules (other than those already used in the currently-released version of Acquia Drupal) are being used in the test.

Third-Party Non-Drupal Software

The Drupal Apache Solr Search Integration project includes code from the Solr PHP client library, which is dual-licensed under both Apache and BSD license.

Third-Party Services

No Third-Party Services (other than those already used in the production Acquia Network Services) are being used in the test.

Software

The Software subject to this test is the Third-Party Drupal Software and Third-Party Non-Drupal Software described here.