Imprivata Evaluation Agreement for PAM Software

 

IMPORTANT-READ CAREFULLY: Prior to acknowledging your acceptance, be sure to carefully read and understand all of the rights and restrictions described in this Evaluation Agreement (“Agreement”). This Agreement is a legal agreement between you and Imprivata, Inc. (“Imprivata”) and applies to your use, test and evaluation of the Imprivata privileged access management software (“PAM Software” or “Software”). By installing any Imprivata PAM Software you (either you as an individual or, if the Software will be used by an entity, on behalf of that entity) represent and agree that you have the capacity and authority to bind yourself or, if applicable, the applicable entity, to the terms of this Agreement and agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you may not install the PAM Software. Your limited right to use the applicable PAM Software provided to you shall commence on delivery of the Software and terminate upon the expiration of the Software license or immediately upon notice by Imprivata in its sole discretion (the “Evaluation Period”).

1. Imprivata grants to you, and you accept, a non-exclusive, non-transferable, royalty-free license to use the Software during the Evaluation Period solely for internal evaluation purposes. To the extent the Software is bundled with third-party software programs; these third-party software programs are governed by their own license terms, which may include open source or free software licenses, and these terms will prevail over this Agreement as to your use of the third-party programs. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms of any such third-party software.

2. Imprivata retains all right, title and interest in and to the PAM Software, including all copyright, trademark and patent and other intellectual property rights embodied therein. You shall not permit use of the Software, or any portion thereof, by another party; permit any publication of the results of benchmark tests run on the Software; make any copies of the Software; or attempt to reverse compile, decompile, disassemble or reverse engineer or otherwise attempt to derive the source code for the Software.

3. Each party agrees to use the other party’s Information, as defined below, solely for the purposes of this Agreement and to keep the Information confidential using all reasonable precautions including, but not limited to, precautions no less stringent than those employed by the receiving party to protect its own Information. You shall not disclose to any third party or otherwise use or disclose Information without the prior written consent of Imprivata including, but not limited to, the fact that you are participating in the evaluation of the Software. Furthermore, You shall disclose Information to your authorized employees on a need-to-know basis only, and such employees, prior to gaining access to the Information, will have executed appropriate confidentiality agreements with you that protects the Information. The restrictions regarding the disclosure of Information do not extend to any item of Information which (a) is now or later becomes available in the public domain without the fault of the receiving party; (b) is disclosed or made available to the receiving party by a third party without restrictions and without breach of any relationship of confidentiality; or (c) was independently developed by the receiving party without access to the disclosing party’s Information. For purposes of this Agreement, "Information" shall mean all commercially valuable, proprietary and confidential information and trade secrets with respect to a party’s business and products, including all information regarding the Software, that is disclosed or is otherwise learned by a party, and that has been identified as being proprietary and/or confidential or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential.

4. You acknowledge that the Software is provided for evaluation purposes only and that Imprivata makes no representations or warranties regarding the Software or its use. IMPRIVATA IS PROVIDING THE SOFTWARE “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IMPRIVATA ASSUMES NO LIABILITY ASSOCIATED WITH YOUR USE OF THE SOFTWARE AND YOU EXPRESSLY DISCLAIM ANY REMEDIAL BENEFIT AS A RESULT OF THIS AGREEMENT. YOU ARE SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND BACKUP OF YOUR DATA USED IN CONNECTION WITH THE SOFTWARE. UNDER NO CIRCUMSTANCES DOES IMPRIVATA ASSUME ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR FAILURE TO PERFORM OF THE SOFTWARE AND IMPRIVATA SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, DIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY LOST BUSINESS PROFITS OR ANY LOSS, DAMAGE OR DESTRUCTION OF DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE. THESE EXCLUSIONS SHALL APPLY EVEN IF IMPRIVATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5. Except for paragraphs 3 and 4 above, this Agreement and the license granted herein shall terminate (i) immediately upon notice from Imprivata, (ii) automatically on any breach of this Agreement by you or (iii), unless extended by Imprivata, at the end of the Evaluation Period. The Software has been programmed to cease functioning at the end of the Evaluation Period.

6. US Government Restricted Rights Notice - The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting in part of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12,212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. Contractor/Manufacturer is: Imprivata, Inc., 20 CityPoint, 6th floor, 480 Totten Pond Rd., Waltham, MA 02451 U.S.A.

7. The Software is not fault-tolerant and is not developed or intended for evaluation or trial or use as on-line control or monitor in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, direct life support machines or weapons systems, in which the failure of the Software could lead to death, personal injury, or severe physical or environmental damages ("High Risk Activities"). Imprivata specifically excludes any express or implied warranty of fitness for High Risk Activities.

8. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and shall be governed by, and construed in accordance with, the substantive laws of the Commonwealth of Massachusetts without regard to its principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) as adopted by any state shall not apply to this Agreement. You shall not export or re-export the Software or other information or materials provided by Imprivata in violation of the import or export laws of the United States or any other relevant jurisdiction.

9. In the event you decide to purchase PAM Software for use in a production environment, the terms set forth on Exhibit A (End User License Agreement for Imprivata Software) shall govern your purchase of such Software.