This Software  Evaluation Agreement (“Agreement”) specifies the terms pursuant to which an “Evaluation User” accesses the Skyland PIMS® software (“Software”) which is hereby licensed by Skyland Analytics, Inc., (“Skyland”) for a limited scope and duration. By the signatures of their duly authorized representatives set forth herein, Skyland and Evaluation User, intending to be legally bound, agree as follows:

  1. Access
    1. Grant. Skyland grants to Evaluation User a revocable, nonexclusive, nontransferable license solely for the purpose of evaluating Software for possible integration into Evaluation User’s business processes. This license grant shall automatically commence upon the full execution of this agreement (the “Effective Date”) and terminate upon the Evaluation User’s breach of any portion of this Agreement.
    2. Obligations. Evaluation User will use the Software only for its own data management and agrees to take all reasonable precautions to protect the Software from unauthorized copying or use.  Evaluation User shall not disable any license key or encryption provided with Software.
    3. Restrictions on Use. Evaluation User and its employees will not: (i) disassemble, decompile, or reverse engineer the Software or attempt to discover the source code for the Software; (ii) prepare any derivative works based on the Software; (iii) use the Software in any manner or for any purpose that violates any law or regulation; (iv) use the Software directly to operate applications where human life may be at stake; (v) provide access to the Software to any third party; (vi) model its own software or products off of the functionality of the Software; or (vii) cause, assist, or permit any third party to do any of the foregoing.
    4. Compliance with Terms. The failure of Evaluation User to comply with any of the terms and conditions herein shall constitute sufficient cause for Skyland to terminate this Agreement.
  2. Ownership
    1. Ownership of Software. Skyland owns all proprietary rights, including all worldwide patent, copyright, in and to the Software and any bug fixes, enhancements, error corrections, updates, or other modifications, to the Software, whether made by Skyland, the Evaluation User, or any third party. Under no circumstances shall Evaluation User sell, lease, license, publish, display, distribute, or otherwise transfer to a third party, including without limitation, individuals Affiliated with the Evaluation User, the Software or any copy thereof, in whole or in part, without Skyland’s prior written consent.
    2. Ownership of Evaluation User Content. Evaluation User acknowledges that information entered into Software will be sample data for the purposes of evaluation, and not enter the following information including (i) any government-issued personal identification number (such as a passport number, Social Security number in the U.S., national identification number, health insurance number, or taxpayer ID number); (ii) personal financial data (compensation, benefits, banking) when they are, or could be, connected to other personal information, in addition to personal financial data (e.g., credit card numbers) that allow access to an account are sensitive; (iii) personally identifiable information protected by law, such as Personal Data as defined by the EU General Data Protection Regulation or Personal Information as defined by the California Consumer Privacy Act; or (iv) medical information or related records, including all Protected Health Information (as defined by the Health Insurance Portability and Accountability Act, as amended)  (collectively “Sensitive Personal Information”).
  3. Hosted Solution
    1. Restrictions on Use. Evaluation User will not use the Software in a manner that constitutes excessive or abusive usage (in Skyland’s sole determination), or otherwise fails to comply or is inconsistent with any part of the documentation provided to Evaluation User.
    2. Data Security. Evaluation User agrees that information entered into the Software is sample data. Nevertheless, Skyland shall implement reasonable and appropriate security procedures consistent with prevailing industry standards for sample data to protect information entered by Evaluation User from unauthorized access by physical and electronic intrusion. Unless Skyland fails to perform the foregoing obligations, the parties agree that Skyland shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means; or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to Skyland.  Skyland will, as soon as practically possible, report to Evaluation User any unauthorized disclosure of sample data.
  4. Fees and Payment Terms
    1. Fees. Evaluation User shall be granted access for the specified Term as noted in 5.a.
  5. Term and Termination
    1. Term. The “Term” of this Agreement will begin on the Effective Date and shall continue thereafter for a period as agreed upon between Skyland and Evaluation User.
    2. Termination. Upon the expiration or termination of this Agreement: (i) the access rights granted under this Agreement with respect to all Software will immediately terminate; (ii) Evaluation User will immediately cease all use of all Software; (iii) Skyland will deactivate all access codes and license keys for the Software if any were provided to Evaluation User prior to expiration; (iv) each of Skyland and Evaluation User shall destroy all Confidential Information of the other party in its respective possession or control and certify the destruction of the same. Termination of this Agreement shall not affect any obligation owed by one party to the other party that has accrued prior to such termination.
  6. Evaluation User Obligations
    1. Product Feedback. Any product feedback provided by Evaluation User to Skyland relating to the Software shall be solely owned by Skyland.
    2. Use of Logo. Evaluation User may not remove or interfere with the display of logos, including any links to Skyland web sites, which are embedded in Software.
    3. Confidential Information. Each party agrees that in the performance of this Agreement, each party may disclose (the “Disclosing Party”) to the other party (the “Receiving Party”), or the Receiving Party may have access to the confidential or proprietary information owned or provided by the other party. “Confidential Information” shall include, but not be limited to, software computer programs including the Software, object code, source code, marketing plans, educational instruction, business plans, customer lists, financial information, product specifications, business practices, pricing, and other data. For the avoidance of doubt, Software and any related documentation shall be Skyland’s Confidential Information. During the Term and at all times after termination of this Agreement (for whatever reason), the Receiving Party and  shall maintain the confidentiality of and not disclose to any third parties, all Confidential Information and not sell, license, publish,  distribute, disclose, or otherwise make available any Confidential Information to any third party nor use such information except as expressly authorized by this Agreement. The Receiving Party shall not have any obligations with respect to Confidential Information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the Receiving Party; (ii) was previously known to the Receiving Party or rightly received by the Recipient from a third party; or (iii) is independently developed by the Receiving Party as evidenced by written records.
  7. Warranty
    1. Disclaimer of Warranty. SKYLAND MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, SECURE, VIRUS FREE, OR FREE FROM INTERRUPTIONS, DEFECTS, OR OTHER FAILURES OR HARMFUL COMPONENTS OR THAT THE SOFTWARE, ANY AFFILIATED SITE AND/OR THEIR CONTENT WILL SATISFY SPECIFIC REQUIREMENTS OR BE COMPATIBLE WITH EQUIPMENT, HARDWARE, SOFTWARE, OR BROWSER CONFIGURATIONS OR THAT INACCURACIES OR ERRORS WILL BE CORRECTED. THE SOFTWARE, ITS CONTENT, AND ANY INFORMATION INCLUDED ON OR PROVIDED THROUGH THE SOFTWARE ARE PRESENTED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.  SKYLAND DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND LACK OF WORKMANLIKE EFFORT. THE SOFTWARE IS NOT DESIGNED, INTENDED, OR LICENSED FOR USE IN SITUATIONS WHERE FAILURE COULD LEAD TO SIGNIFICANT BODILY HARM OR DEATH, IN HAZARDOUS ENVIRONMENTS, OR IN ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS.
  8. Limitation of Liability and Indemnification
    1. Indemnification of Skyland. Evaluation User shall indemnify, defend, and hold harmless Skyland and its employees, Affiliates, contractors, and directors from and against all cost, loss, liability, damage, and expense incurred or suffered by any of them arising out or related to (i) Evaluation User’s use of the Software in violation of this Agreement or the Software’s documentation; (ii) misappropriation or infringement of any patent, trademark, trade secret, copyright, or other intellectual property right of the Software; (iii) its breach of any terms in this Agreement; (iv) third party suits alleging liability for any Evaluation User’s products; or (v) Evaluation User’s breach of any applicable laws.
    2. Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. SKYLAND’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED $5,000.
  9. Governing Law. This agreement is governed by the laws of the State of Colorado.
  10. Assignment. Evaluation User shall not assign or otherwise transfer the Software access or this Agreement to anyone, including any affiliated entities or third parties.
  11. Entire Agreement. The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior understandings and all other agreements, oral or written, between the parties.

v1.5