Software Evaluation Agreement
1. Preamble and Recitals.
1.1 The Effective Date of this Agreement is the effective date of the initial Order for Software evaluation and/or Services to which this Agreement is linked.
1.2 This Agreement shall apply to all orders for Materials, including Software, and Services (“Orders”) executed by Customer, including Customer’s Affiliates where applicable, with respect to Materials, including Software, Maintenance and Support, Services, Professional Services, and all Statements of Work executed by the parties.
2. Definitions. In addition to the terms defined elsewhere in the Agreement, capitalized terms shall have the meaning set forth in Schedules B and C of this Agreement.
3.1. Grant of License
3.1.1. Subject to the terms and conditions of this Agreement, Eradani hereby grants to Customer and Customer accepts a limited, non-exclusive, non-transferable, non-sublicensable, revocable license, to install and use the Software, for Customer’s evaluation purposes, in the quantities described in an Order in accordance with the applicable Documentation.
3.1.2. The Software furnished to Customer is Evaluation Software, its license shall be for a term of thirty (30) days from delivery, and shall be used by Customer solely for purposes of internal evaluation and development, and not for production. Notwithstanding anything in this Agreement to the contrary, Evaluation Software is provided “AS-IS,” without warranty or indemnification of any kind.
3.1.3. If Customer wishes to license the Software for production use or for use beyond the evaluation period, Customer will be required to pay license fees to Eradani, as set forth in an applicable Order, and any valid amendment or addendum to this Agreement.
3.2 Reservation of Rights. The Software and the Documentation, are provided as an evaluation license and not a sale. Customer has no ownership interest in the Software or the Documentation. Eradani reserves all rights not expressly granted herein. Customer shall not use or copy the Software or the Documentation except as is expressly authorized in this Agreement. The Software and the Documentation are protected by United States copyright laws and international treaty provisions. Customer must treat the Software and Documentation like any other copyrighted material. Customer shall not knowingly take any action that would cause the Software or the Documentation to be placed in the public domain. Without limiting the generality of the foregoing, Customer has no right to receive or access any source code except where necessary for the operation of the Software. No implied licenses are granted hereunder.
3.3. Restrictions and Compliance. Customer shall not, and shall not permit others to (i) make unauthorized copies, modify, reverse-engineer, distribute, sublicense, decompile or disassemble any Materials or create any derivative works thereof; (ii) create any derivative works, functionally equivalent works, or translations based upon the Materials; (iii) access or use the Materials in order to compete with Eradani or to assist someone else to compete with Eradani; (iv) use the Materials for any purposes in any manner directly or indirectly in violation of any law, including Customer-Specific Laws, regulation, mandate or court order or in the aid of any unlawful act or undertaking; (v) take any action that jeopardizes Eradani’s rights or the rights of its Third Party Suppliers, licensors or partners in any Materials; (vi) use the Materials in a manner that is defamatory, harassing, infringing or otherwise causes damage or injury to any person or property; (vii) transmit viruses or other deleterious code; or (viii) damage, disable or impair the Materials or any other party’s use of Eradani’s or its Third Party Suppliers’, licensors’, or partners’ products or services. Customer may not encumber, transfer, sell, time share, assign, rent, lease any of its rights granted in this Agreement. Customer represents and warrants that (a) neither Customer, any Affiliate, nor any user are on any government-issued list of restricted persons or entities including the Commerce Department Entity List, Denied Persons List or Unverified List, the Treasury Department Specially Designated Nationals and Blocked Persons List, and the State Department Debarred Parties List; and (b) Customer will not export or re-export, directly or indirectly, any Materials of any kind provided by Eradani to any countries outside the United States except as permitted under the U.S. Commerce Department’s Export Administration Regulations.
3.4. Documentation. By downloading, installing, or copying the Software or any update, fix or patch thereto, Customer accepts the then-current Documentation that governs the use of the product.
3.5. Ownership of Software and related intellectual property. As between Eradani and Customer, all intellectual property rights in the Materials are and will remain the sole and exclusive property of Eradani or its Third-Party Suppliers, licensors or partners as applicable. Eradani and its licensors, Third Party Suppliers, or partners retain full ownership of all intellectual property rights in the Materials and in all copies, modifications, adaptations, enhancements, modifications and Derivative Works (including any improvement or development) thereof. To the extent that any right, title or interest in or to any Eradani intellectual property may not automatically vest in Eradani by operation of law, Customer irrevocably transfers, assigns and conveys all right, title, and interest therein to Eradani. At Eradani’s request and expense Customer will promptly take any action and execute any documents necessary to vest full title in Eradani or its licensor
3.6. Feedback. Customer hereby assigns ownership of all intellectual property rights in any report, feedback or other information concerning the Software provided by Customer to Eradani hereunder.
3.6. Evaluation Software Warranty Disclaimer. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, EVALUATION SOFTWARE IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND.
4. Payments; Taxes.
4.1. Payments. Customer shall pay any and all fees and other charges within thirty (30) days of the invoice date. All payments shall be made in United States dollars.
4.2. Sales and Other Taxes. All fees billed by Eradani do not include taxes. Customer shall pay all sales tax, use tax, value added tax, goods and services tax, transaction tax or similar excise tax due to any taxing authority with respect to transactions related to this Agreement. If Eradani is required by any taxing authority to collect and remit any such taxes to a taxing authority, Eradani shall invoice any those taxes to Customer and Customer shall pay Eradani for those taxes.
5. Effect of Termination or Expiration. Upon termination or expiration of the Agreement, Customer shall immediately cease all use of the Software and Licensor will delete, destroy, and/or return all Customer Confidential Information and/or
6. LIMITATION OF LIABILITY. EVALUATION SOFTWARE IS PROVIDED GRATUITOUSLY AND, THEREFORE NEITHER ERADANI NOR ITS THIRD PARTY LICENORS SHALL BE LIABLE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY CUSTOMER RELATED TO THE EVALUATION SOFTWARE.
7.1. Indemnification by Eradani for Infringement of Third-Party Intellectual Property Rights. To the maximum extent allowed by law, Licensor (the “Indemnitor”) will indemnify and hold harmless the Customer and their respective directors, officers, employees, and agents (the “Indemnitees”), from and against any and all third party claims, losses, damages, suits, fees, judgments, costs and expenses (collectively referred to as “Claims”), including reasonable attorneys’ fees incurred in responding to such Claims, that the Indemnitees may suffer or incur arising out of or in connection with the Indemnitor’s infringement or violation of any patent, copyright, trade secret, trademark, or other third party intellectual property right. The Indemnitees will give prompt notice of any Claim to the Indemnitor, and the Indemnitor will defend the Indemnitees at the Indemnitees’ request.
8.1. “Confidential Information” means the non-public information that is exchanged between the parties, provided that such information is: (a) identified as confidential at the time of disclosure by the disclosing party (“Discloser”), or (b) disclosed under circumstances that would indicate to a reasonable person that the information ought to be treated as confidential by the party receiving such information (“Recipient”). For the avoidance of doubt, Eradani Confidential Information includes the Software, Materials, Services and technical information relating to the Software, Materials and Services.
8.2. Usage and Obligations. A Recipient may use the Confidential Information that it receives from the other party solely for the purpose of performing activities contemplated under this Agreement. Recipient shall not disclose the Confidential Information to any third party. A Recipient shall protect it by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication as the Recipient uses to protect its own confidential information of a like nature. The Recipient may disclose the Confidential Information to its employees with a need to know in order to fulfill the purpose of this Agreement, who are bound by nondisclosure obligations at least as protective of the Discloser’s rights as this Agreement.
8.3. Exclusions. This provision imposes no obligation upon a Recipient with respect to Confidential Information that: (i) is or becomes public knowledge through no fault of such Recipient; (ii) was in the rightful possession of Recipient before receipt from the Discloser and was not subject to a duty of confidentiality; (iii) is rightfully received by the Recipient without any duty of confidentiality; (iv) is disclosed generally to a third party by the Discloser without a duty of confidentiality on the third party; or (v) is independently developed by the Recipient without use of the Confidential Information.
8.4. Required Disclosures. The Recipient may disclose the Discloser’s Confidential Information as required by law or court order provided: (i) Recipient promptly notifies the Discloser in writing of the requirement for disclosure affording opportunity for Discloser to take protective actions; and (ii) discloses only as much of the Confidential Information as is required, maintaining all proprietary notices affixed to such Confidential Information. Upon request from the Discloser or upon termination of the Agreement, the Recipient shall return all Confidential Information.
9. Assistance/Support. During the Evaluation, Licensor will provide Customer with reasonable technical support and assistance at no cost to Customer.
10. Audit and Verification.
10.1. Audit. Customer agrees that Eradani may audit the Customer’s use of the Software solely for the purpose of determining Customer’s compliance with the provisions of this Agreement.
10.2. Remedy. If any such examination conducted by Eradani or its representatives determines the Customer has used any Software beyond its authorized use or is otherwise not in compliance with the terms and conditions of the Agreement, then in addition to any legal remedies or equitable relief that may be available to Eradani, Customer shall be subject to charge for all expenses incurred by Eradani for any such examination. Without, prejudice to the foregoing, if shortfall in payment to Eradani is so disclosed, Eradani will notify the Customer in writing of the shortfall and Customer shall pay directly to Eradani all amounts specified, within thirty (30) days of Eradani notification to Customer of such shortfall.
11.1. Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party has any authority to bind the other party.
11.2. Governing Law; Jurisdiction; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to its conflicts of law provisions, and, where applicable, with the federal law of the United States. Any dispute arising out of or related to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts for Alameda County, California, and the parties hereby consent to the personal jurisdiction of those courts.
11.3. Notices. All notices and consents will be in writing and will be sent pre-paid by first class mail or by overnight delivery using a nationally recognized and reputable overnight courier. Such notices and consents will be deemed received five (5) business days after deposit if sent by mail and one (1) business day after deposit if sent by overnight courier. Notices to Eradani and to Customer will be sent to the following addresses or such other address as a party may notify the other party in writing:
If to Eradani:
833 Mendocino Avenue
Berkeley, CA 94707
If to Customer:
The Customer Contact at the Billing Address listed on the Services Order.
11.4. Entire Agreement. The Orders for Software and/or Services, this Agreement, including its Schedules, any Statements of Work, and any executed Amendment(s) and Addendum(s) are the complete and entire Agreement between the parties concerning the subject matter hereof. The provisions of this Agreement shall supersede any conflicting or additional provisions on any purchase order or Order, including any entire agreement clause or other clause on any such Order which generally purports to supersede all previous agreements.