MODACTA EVALUATION AGREEMENT
PLEASE CAREFULLY READ THE TERMS AND CONDITIONS SET FORTH IN THIS EVALUATION AGREEMENT (“AGREEMENT”) THAT GOVERNS THE USE OF MODACTA’S PROPRIETARY SOFTWARE PLATFORM (WHICH INCLUDES ANY AND ALL UNDERLYING SOFTWARE AND TECHNOLOGY) (THE “PLATFORM”). THIS IS A LEGAL AGREEMENT THAT SETS FORTH THE RIGHTS AND OBLIGATIONS CONCERNING THE EVALUATION CUSTOMER’S (DEFINED BELOW) EVALUATION OF THE PLATFORM. BY CLICKING ON THE “I ACCEPT” BUTTON, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) ON BEHALF OF THE ENTITY OR PERSON AS DESIGNATED ON THE APPLICABEL PURCHASE ORDER (SUCH ENTITY OR PERONS, “EVALUATION CUSTOMER”) AND TO BIND SUCH EVALUATION CUSTOMER TO THE TERMS OF THIS AGREEMENT, AND (3) YOU AGREE THAT THE EVALUATION CUSTOMER IS ENTERING INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) WITH MODACTA, INC (“MODACTA”). IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD CLICK ON THE “CANCEL” BUTTON TO DISCONTINUE ACCESS TO THE PLATFORM. THIS AGREEMENT IS ENTERED INTO AS OF THE DATE YOU CLICK ON THE “I AGREE” BUTTON (“EFFECTIVE DATE”). IF YOU ARE A COMPETITOR OF MODACTA, YOU MAY NOT ACCESS OR USE THE PLATFORM WITHOUT MODACTA’S PRIOR WRITTEN CONSENT.
1. License; Limitations
1.1. Limited License. Subject to the Evaluation Customer’s compliance with the terms and conditions of this Agreement, Modacta hereby grants Evaluation Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license, for a period of thirty (30) days from the Effective Date, unless extended by mutual written agreement (email okay) (such period, the “Evaluation Period”) to: (a) access and use the Platform, over the internet, solely for Evaluation Customer’s internal evaluation purposes and in accordance with any written or “online” documentation or instructions provided by Modacta (such written instructions, the “Documentation”); and (b) to reproduce (no more than a reasonable number of copies of), and use, the Documentation solely in support of Evaluation Customer’s internal evaluation.
1.2. Limitations. Evaluation Customer will not, and will not permit others to: (a) reproduce the Platform or Documentation except as provided in in Section 1.1; (b) use the Platform or Documentation for any purpose or in any manner other than as expressly provided in this Agreement; (c) modify, translate, or create derivative works of the Platform or decompile, disassemble, reverse engineer, or otherwise attempt to derive the structure or source code form of the Platform; (d) assign, share, timeshare, sell, rent, lease, sublicense, distribute, grant a security interest in, or otherwise transfer the Platform, or Evaluation Customer’s limited right to use the Platform; (e) export the Platform; or (f) remove, alter, or obscure any proprietary notices or labels on the Platform or Documentation.
2. Evaluation Customer Data. Evaluation Customer grants to Modacta, during the term of this Agreement, a non-exclusive, royalty-free, fully-paid, worldwide license, under all of Evaluation Customer’s intellectual property and proprietary rights, to any and all Evaluation Customer Data reasonably necessary for Modacta to provide Evaluation Customer the Platform and other services hereunder. Evaluation Customer represents and warrants that it has all the rights necessary to grant the licenses granted herein to Modacta in and to such Evaluation Customer Data. “Evaluation Customer Data” means any and all data or information of Evaluation Customer, including without limitation personally identifiable information such as account profile information, usernames, passwords, and other information provided by Evaluation Customer, in connection with the Platform or any services provided hereunder.
3. No Fees. There shall be no payment from Evaluation Customer to Modacta under this Agreement for the use of the Platform during the Evaluation Period.
4.2. By Modacta. All right, title and interest, including all intellectual property rights, in and to the Platform, Documentation, and Modacta’s Confidential Information (defined below), including, any and all modifications, updates, and enhancements to the foregoing items shall be owned and retained by Modacta. Any and all feedback, including any flaws, errors, bugs, anomalies, and problems with and/or suggestions for the Platform and/or Documentation, provided to Modacta by Evaluation Customer or its employees or agents (collectively, the “Feedback”) is hereby unconditionally and irrevocably assigned by Evaluation Customer to Modacta, including any and all worldwide intellectual property rights relating thereto. Evaluation Customer hereby licenses to Modacta Anonymous Data (defined below) on a worldwide, perpetual, irrevocable, non-exclusive, freely-transferable, fully paid, and royalty-free basis, for Modacta to use and exploit in any manner and for any purpose. “Anonymous Data” means any and all aggregated non-personally identifiable data or information resulting from Evaluation Customer’s use of the Platform or services provided by Modacta. Modacta reserves all rights and licenses not expressly granted in this Agreement and no implied license is granted by Modacta.
4.2. By Evaluation Customer. Evaluation Customer retains all right, title and interest, including all intellectual property rights, in and to Evaluation Customer Data, subject to the license granted to Modacta to Anonymous Data.
5.1. Confidential Information. “Confidential Information” means, with respect to (a) Modacta, (i) the Platform, Documentation, and Feedback, and (ii) all materials and information disclosed under this Agreement that are marked “confidential” by Modacta or that Evaluation Customer knows or should have known, under the circumstances, are considered confidential by Modacta; and with respect to (b) Evaluation Customer Data.
5.2. Protection. Each party receiving (the “Receiving Party”) Confidential Information of the other party (the “Disclosing Party”) will: (a) not disclose to any third party or cause to be disclosed any of the Disclosing Party’s Confidential Information unless authorized in writing by the Disclosing Party; (b) refrain from using the Disclosing Party’s Confidential Information except to the extent authorized under this Agreement; and (c) preserve and protect the confidentiality of the Disclosing Party’s Confidential Information with the same degree of care the Receiving Party uses to protect its own Confidential Information, but in no event less than reasonable care.
5.3. Exceptions. Confidential Information does not include information that is: (a) publicly available through no fault of the Receiving Party; (b) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party; (c) disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; or (d) independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.
5.4. Required Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party without violating Section 6.2 to the extent that such Confidential Information is required to be disclosed by law or court order; provided, however, that the Receiving Party shall first give the Disclosing Party prompt notice of such order so that the Disclosing Party may take appropriate actions to protect its rights, including seeking a protective order or other appropriate remedy.
6. Term and Termination
6.1. Termination. This Agreement shall commence on the Effective Date and shall expire at the end of the Evaluation Period, unless earlier terminated by either party upon five (5) days’ written notice to the other party. If Evaluation Customer breaches any term of this Agreement, Modacta may immediately terminate this Agreement upon written notice to Evaluation Customer. If the Platform or the Documentation becomes, or Modacta believes may become, the subject of any claim, suit or proceeding alleging infringement of any intellectual property right, or otherwise restricted or prohibited, Modacta may terminate this Agreement immediately upon written notice to Evaluation Customer.
6.2. Effects of Termination or Expiration. Upon expiration or termination of this Agreement, the licenses granted hereunder shall terminate effective immediately and Evaluation Customer shall promptly (a) discontinue use of the Platform, the Documentation, and any other Modacta Confidential Information; (b) return or destroy, at Modacta’s option and Evaluation Customer’s expense, Modacta’s Confidential Information (including all print copies thereof) in Evaluation Customer’s possession or control; (c) destroy all electronic copies of the Platform, Documentation and Modacta Confidential Information; and (d) at Modacta’s request, certify that Evaluation Customer has complied with the foregoing requirements. Sections 1.2, 4, 5, 6.2, 7, 8, 9, and 10 will survive any expiration or termination of this Agreement.
7. Disclaimer. MODACTA DOES NOT WARRANT THAT THE PLATFORM OR DOCUMENTATION WILL MEET EVALUATION CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR BE ERROR FREE. THE PLATFORM AND DOCUMENTATION ARE “AS-IS” (WITH ALL FAULTS) AND THE ENTIRE RISK AS TO THE SATISFACTORY PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE EVALUATION CUSTOMER. WITHOUT LIMITING THE FOREGOING, MODACTA SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. EVALUATION CUSTOMER ACKNOWLEDGES THAT THE PLATFORM AND ASSOCIATED TECHNOLOGY HAS NOT BEEN COMMERCIALLY RELEASED BY MODACTA AND IS SUBJECT TO FURTHER TESTING AND DEVELOPMENT BY MODACTA. EVALUATION CUSTOMER FURTHER ACKNOWLEDGES THAT THE INFORMATION PROVIDED IN THE PLATFORM CONSISTS OF THIRD PARTY DATA AND CONTRIBUTIONS, THAT THERE ARE CERTAIN INHERENT LIMITATIONS TO THE ACCURACY OR CURRENCY OF SUCH INFORMATION, THAT THE INFORMATION MAY BE INCOMPLETE, MAY OTHERWISE CONTAIN INACCURACIES, OR MAY BE BASED ON OPINION, AND THAT MODACTA DOES NOT SCREEN OR PREVIEW SUCH INFORMATION FOR ACCURACY OR RELIABILITY. EVALUATION CUSTOMER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT OR OTHERWISE OBLIGATES MODACTA TO PROVIDE SUPPORT OR ANY OTHER SERVICES TO EVALUATION CUSTOMER.
8. Limitation of Liability. IN NO EVENT WILL MODACTA BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE DAMAGES OR INDIRECT DAMAGES OF ANY KIND OR FOR ANY INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST DATA, LOST PROFITS, OR THE LIKE) FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PLATFORM, THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES PROVIDED BY MODACTA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MODACTA’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PLATFORM, DOCUMENTATION, AND THE SERVICES PROVIDED BY MODACTA, EXCEED ONE HUNDRED U.S. DOLLARS ($100.00) OR THE AMOUNT ACTUALLY PAID TO MODACTA BY EVALUATION CUSTOMER UNDER THIS AGREEMENT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9. Governing Law. This Agreement shall be governed in all respects by California law, excluding any conflict of laws principles that would require the application of the laws of another jurisdiction. The parties hereby submit to exclusive venue in, and the personal jurisdiction of, the state and federal courts located in San Francisco, California, except that either party may seek relief from any court of competent jurisdiction to protect its intellectual property and proprietary rights.
10. General. The parties are independent contractors. Evaluation Customer may not assign this Agreement without the prior written consent of Modacta. Any purported assignment in violation of the foregoing shall be null and void. Any notice to Evaluation Customer may be provided by email. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties with respect to the subject matter hereof are expressly canceled. Except as otherwise expressly provided in this Agreement, any modifications of this Agreement must be in writing and agreed to by both parties. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Evaluation Customer agrees that this Agreement will not be construed against Modacta by virtue of having drafted them. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party. If any provision of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, such provision will be deemed modified so as to be valid and enforceable to the greatest extent possible under applicable law and the validity of the remaining provisions hereof shall not be affected thereby. No amendment to, or waiver of rights under, this Agreement shall be effective unless in a writing signed by authorized representatives of each party.
11. Questions. If Evaluation Customer has questions regarding this Agreement, please send an email to [email protected]