Common use of Evaluation Version Clause in Contracts

Evaluation Version. If Customer has not placed an Order with Functionize for the commercial version of the Functionize Solution or an Order specifies that Customer only has rights to an Evaluation Version, then Customer’s use of the Functionize Solution shall be for evaluation purposes only (“Evaluation Version”), and Customer acknowledges and agrees that Customer will only access and use the Functionize Solution solely for Customer’s internal evaluation purposes to assess the capabilities of the Functionize Solution against their requirements in determining whether to license the commercial version of the Functionize Solution. All use of the Evaluation Version of the Functionize Solution must be in a non-production, non-commercial environment and not for general production use, subject to any additional limitations or restrictions provided by Functionize in writing when providing Customer with access to the Evaluation Version. Customer’s right to use such Evaluation Version shall only be for the duration of the Evaluation Period set forth in the applicable Order or if no such period is specified, fourteen (14) days (together with any extension of the Evaluation Period that may be expressly authorized by Functionize in writing). In addition and notwithstanding any other provision of these Terms of Service, Customer acknowledges and agrees that (i) the Evaluation Version of the Functionize Solution is provided to Customer “AS-IS,” with no warranties of any kind; (ii) Functionize shall have no indemnification obligations for the Evaluation Version; (iii) Functionize may terminate immediately in the event Functionize has reasonably determined that Customer has committed a breach of Section 2; and (iv) for Evaluation Versions provided to Customer for free, in addition to the termination rights under Section 6, either party may terminate the Evaluation Version license with or without cause effective ten (10) days after giving written notice of termination to the other party. Customer agrees to only provide simulation or historical Customer Data to the Evaluation Version of the Hosted Service, and no data related to current testing activities of Customer’s products or business. CUSTOMER ACKNOWLEDGES THAT ALL CUSTOMER DATA UPLOADED TO OR STORED IN THE EVALUATION VERSION OF THE FUNCTIONIZE SOLUTION DURING THE EVALUATION PERIOD WILL BE PERMANENTLY LOST IF CUSTOMER HAS NOT ENTERED INTO AN ORDER FOR THE COMMERCIAL VERSION OF THE FUNCTIONIZE SOLUTION WITH FUNCTIONIZE BEFORE EXPIRATION OF THE EVALUATION PERIOD. FUNCTIONIZE AND ITS LICENSORS AGGREGATE LIABILITY WITH RESPECT TO THE EVALUATION VERSION SHALL NOT EXCEED THE GREATER OF (I) FEES PAID BY CUSTOMER FOR SUCH EVALUATION VERSION UNDER THE APPLICABLE ORDER (IF ANY) OR (II) FIVE THOUSAND DOLLARS ($5,000).