THIS SOFTWARE EVALUATION AGREEMENT (THE “AGREEMENT”) IS BETWEEN RESPOND SOFTWARE, INC. (“RESPOND”) AND ANY USER OF THE SOFTWARE (“EVALUATOR”) THAT ACCEPTS THE TERMS OF THIS AGREEMENT BY CLICKING ON THE ACCEPT BUTTON ASSOCIATED WITH THIS AGREEMENT OR BY USING OR ACCESSING THE SOFTWARE IN ANY WAY (THE “ACCEPT BUTTON”).
- Term. This Agreement will commence on the date on which Evaluator clicks on the Accept Button or uses or accesses the Software in any way (the “Effective Date”) and shall terminate six (6) months thereafter if not sooner terminated in accordance with this Section 1 (the “Term”). Either party may terminate this Agreement for any reason by discontinuing the use of the Software (in the case of Evaluator) or terminating access to the Software (in the case of Respond). Upon any termination or expiration of this Agreement, Sections 7 through 12 shall survive.
- Licensed Software. Respond shall deliver to Evaluator software (in object code form) or provide access to software that will interact with the Respond’s cloud service and documentation provided therewith (collectively, the “Software”). During the Term of this Agreement, Respond may, in its discretion, provide Evaluator with updates, upgrades and/or error corrections to the Software (collectively “Software Updates”). Upon delivery to Evaluator, the Software Updates shall become part of the Software, and shall be subject to the terms of this Agreement.
- Limited License. Respond grants to Evaluator a non-exclusive, non-transferable, non-sublicensable license during the Term to use the Software, solely for purposes of Evaluator’s internal evaluation and testing.
- License Restrictions to Software. Each license granted under Section 3 is subject to the restrictions below. Without limiting the foregoing Evaluator shall not: (i) modify, adapt, alter, publicly display, publicly perform, translate or create derivative works of the Software; (ii) distribute, sell, sublicense, lease, rent, loan or otherwise transfer the Software to any third party or use the Software for the benefit of any third party; (iii) reverse engineer, decompile, reverse compile, translate, adapt or disassemble or in any way attempt to reconstruct or discover any source code or algorithms of the Software; (iv) disclose, outside of Evaluator, any performance information or analysis (including without limitation benchmarks) from any source relating to the Software or publish any information derived from the Software; (v) use the Software for any timesharing or service bureau purposes; (vi) remove, alter or obscure any proprietary notices on the Software; (vii) use the Software in any manner other than as described in the documentation or this Agreement; (viii) use the Software or any component or any information derived therefrom to create a competitive product or service; or (ix) allow any third party (including any hosting service) to do any of the foregoing.
- Request for Destruction of Data. Respond shall permanently delete all copies of the Customer Data in Respond’s possession or control upon Customer’s request and certify in writing to Customer that it has fully complied with the requirements set forth herein.
- Access to Information from Evaluator’s Use of the Software. During the Term, Respond reserves the right to request from Evaluator any logs, reports, data or additional information in order for Respond to ensure the Software is functioning properly, improve the Software, and ensure Evaluator is using the Software only in environments supported by Respond. Respond may, upon Evaluator’s consent, access the foregoing information directly. In any event upon Respond’s request for such information, Evaluator will promptly supply such data or other information requested by Respond as it relates to this section.
- Fees. There are no fees for the evaluation, including any Software license, maintenance and support services provided during the Term.
- Confidentiality. Evaluator shall treat as confidential any information disclosed by Respond in connection with this Agreement, including but not limited to the Software, inventions, trade secrets, technical data, data compilations, processes, designs, drawings, methods, know-how, investigative models and other models related to the Software business plans, and pricing ( “Confidential Information”).
- Disclaimer. THE SOFTWARE, SERVICES, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS.” RESPOND MAKES NO WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, RESPOND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULT, EFFORT, TITLE AND NON-INFRINGEMENT. TO THE EXTENT THAT RESPOND CANNOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.
- Indemnification. Evaluator shall indemnify, defend, and hold harmless Respond from any action or claim arising from or relating to any use of the Software by Evaluator or any data provided by Evaluator that infringes or misappropriates any third party’s rights.
- Limitation of Liability. EXCEPT FOR THE OBLIGATIONS (OR BREACH THEREOF) ARISING UNDER SECTIONS 4, 7, 8, AND 10 OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF THIS AGREEMENT OR BY REASON OF ANY ALLEGED BREACH OF THIS AGREEMENT BASED ON ANY THEORY OF LIABILITY EVEN IF A PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL RESPOND’S LIABILITY TO EVALUATOR, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED ONE THOUSAND DOLLARS ($1,000).
- General Terms. Neither party has an obligation under this Agreement to sell or purchase any item from the other party. Nothing herein shall prevent Respond’s reassignment of its employees and contractors. Evaluator does not acquire any rights in and to the Software, except for the limited right to use the Software as described in the Agreement. In addition, the Agreement is not intended to prevent Respond from using ideas, concepts, know-how or techniques related to the Software that are retained in the unaided memories of Respond’s employees or contractors who have had access to the Software. An employee’s or contractor’s memory will be considered to be unaided if the employee or contractor has not intentionally memorized a concept for the purpose of retaining and subsequently using or disclosing it. This Agreement constitutes the parties’ entire agreement and supersedes all prior or contemporaneous oral or written communications, proposals, agreements and representations between them related to the subject matter contained herein. This Agreement may be changed only if agreed to in writing and signed by an authorized signatory of each party. Evaluator agrees to comply strictly with all applicable export control laws and regulations. In the event that any part of the Agreement is found to be unenforceable, the remainder shall continue in effect, to the extent permissible by law and consistent with the intent of the parties as of the Effective Date. Any action related to the Agreement will be governed by California law and applicable federal law. The venue for litigation will be the appropriate courts located in San Francisco or Santa Clara counties, California. Choice of law rules of any jurisdiction and the United Nations Convention on Contracts for the International Sale of Goods will not apply to any dispute arising out of or related to this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE OR SERVICES. BY CLICKING THE ACCEPT BUTTON OR BY USING OR ACCESSING THE SOFTWARE IN ANY WAY, YOU AS THE EVALUATOR AGREE TO THE TERMS AND CONDITIONS ABOVE AND SIGNIFY YOUR ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE OR SERVICES.
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