This Technology Evaluation License Agreement (the “Agreement”), effective as of the Account Creation Date (the “Effective Date”), is entered into by and between Acante, Inc., a Delaware corporation, having its principal place of business at 14435C Big Basin Way #223, Saratoga, CA 95070 and “Customer”
WHEREAS, Customer wishes to evaluate the Evaluation Technology for purposes of considering entering into a Acante SaaS License Agreement with Acante, and is willing to test and evaluate the Evaluation Technology in accordance with the terms and conditions of this Agreement; and WHEREAS, Acante is willing to grant to Customer the Evaluation License (as defined below) herein in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions.
“Affiliate” means, with respect to a party, any entity that now or in the future, directly controls, is controlled with or by, or is under common control with a party. For purposes of the foregoing, “control” will mean:
“Documentation” means all manuals, instructions, or other documents or materials that Acante
provides or makes available to Customer in any form or medium and that describe the functionality, components, features, or requirements of the Evaluation Technology, including any aspect of the installation, configuration, integration, testing, operation, use, support, or maintenance thereof. “Evaluation Materials” means the Evaluation Technology and Documentation, and all (a) copies, reproductions, modifications, enhancements, adaptations, translations, and other derivative works of, and (b) inventions, improvements, know-how, specifications, performance characteristics, designs, plans, methods, procedures, processes, techniques, software, technology, concepts, information, or materials whatsoever comprising, relating to, based on, or arising out of, the Evaluation Technology or Documentation, in whole or in part and however and by whomever originated, including, without limitation, by any technology or device or by Acante.
“Evaluation Period” means the period that begins on the Effective Date and ends thirty (30) days after the Effective Date or on such earlier date as may result from the termination of this Agreement in accordance with this Agreement.
“Evaluation Technology” means Acante’s Cloud Service software, and all copies of the foregoing permitted under this Agreement.
“Intellectual Property Rights” means all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Permitted Use” means the internal testing, demonstration, trial, and other evaluative or backup use (but not developmental, commercial, or productive).
2. No Technical Support.
Acante has no obligation under this Agreement to provide any maintenance, support or other services relating to the Evaluation Technology. Customer is solely responsible for taking appropriate measures to back up their system and data and all other necessary measures to prevent any file or data loss.
3. Use Restrictions.
Except as and to the extent expressly permitted, or as reasonably necessary for the Permitted Use, Customer and shall not, and shall not permit others to: (a) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Evaluation Technology; (b) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code, in whole or in part; or (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Evaluation Materials to any third party.
4. Ownership.
Subject solely to the express license granted by Acante under this Agreement, as between the parties, Acante reserves, owns, and retains all right, title, and interest in and to the Evaluation Materials.
5. No Implied Rights.
Other than as expressly granted in this Agreement, nothing in this Agreement grants by implication, waiver, estoppel, or otherwise: (a) Customer or any third party any Intellectual Property Rights to other right, title, or interest in or to the Evaluation Materials or any Confidential Information of Acante.
6. Proprietary Notices.
Customer and its Affiliates shall not remove from and shall cause to be affixed to or otherwise displayed in connection with, any copies of the Evaluation Materials made by Acante.
7. Termination.
Either party may terminate this Agreement at any time with or without cause, and without incurring any obligation, liability, or penalty by reason of such termination, upon giving the other party written notice.
8. Effect of Expiration or Termination.
Unless the parties have duly executed a Acante SaaS License Agreement that allows for Customer’s continued us of the Evaluation Materials, upon the expiration of the Term or the termination of this Agreement: (a) Customer shall immediately discontinue all use of and permanently erase or cause to be erased from its computer systems, files, and storage media all copies of the Evaluation Materials and any other Confidential Information pursuant to this Agreement;
9. Representations and Warranties.
9.1 Disclaimer of Warranties.
EVALUATION MATERIALS ARE PROVIDED “AS IS” AND ACANTE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ACANTE MAKES NO WARRANTY OF ANY KIND THAT THE EVALUATION MATERIALS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, OR ERROR-FREE.
10. Limitations of Liability.
IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, CONTRACTS, REVENUE, OR PROFIT; (b) BUSINESS INTERRUPTION OR IMPAIRMENT, OR ANY USE OF OR INABILITY TO USE THE EVALUATION MATERIALS, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE EXCLUSIONS OF DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION DO NOT APPLY TO A PARTY’S OBLIGATIONS REGARDING OWNERSHIP, CONFIDENTIALITY, OR A PARTY’S GROSS NEGLIGENCE OR MORE CULPABLE ACTS OR OMISSIONS.
11. Miscellaneous.
11.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
11.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and addressed to the respective parties noted in the signature block.
11.3 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
11.4 Assignment. Neither party may assign or otherwise transfer this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign or otherwise transfer this Agreement in connection with a merger, acquisition, sale of assets, or other such corporate reorganization. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
11.5 Amendment and Modification; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.6 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.7 Governing Law and Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California, without giving effect to any choice or conflict of law provisions or rules. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal or state courts located in the County of Santa Clara, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
11.8 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
11.9 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date above.
