EVALUATION AGREEMENT
CUSTOMER IS
RESPONSIBLE FOR READING THE TERMS OF THIS EVALUATION AGREEMENT (THE
“AGREEMENT”) CAREFULLY BEFORE CLICKING “ACCEPT” (IF APPLICABLE) OR OTHERWISE
ACCEPTING THE TERMS OF THIS AGREEMENT, AND BEFORE ACCESSING OR USING THE
SOFTWARE. BY CLICKING “ACCEPT” (OR SIMILAR) AND/OR ACCESSING OR USING THE
SOFTWARE, YOU CONFIRM THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT
ON BEHALF OF THE CUSTOMER (DEFINED BELOW). THE INDIVIDUAL ACCEPTING THIS
AGREEMENT ALSO AGREES THAT BY REGISTERING FOR THIS EVALUATION, YOU GRANT
UNRAVEL PERMISSION TO CONTACT YOU WITH INFORMATION CONCERNING UNRAVEL’S
PRODUCTS AND SERVICES AND TO SEND YOU MARKETING COMMUNICATIONS (INCLUDING
EMAILS) WITH RESPECT THERETO. YOU MAY UNSUBSCRIBE TO EMAILS AT ANY TIME BY
FOLLOWING THE UNSUBSCRIBE PROCEDURES IN UNRAVEL’S EMAILS AND OUR INTERACTIONS
WILL OTHERWISE BE GOVERNED BY UNRAVEL’S THEN-CURRENT PRIVACY POLICY.
THIS EVALUATION AGREEMENT is by and
between Unravel Data Systems, Inc., a Delaware corporation with an address at
3000 El Camino Real, Building 2, Suite 120, Palo Alto,
CA 94306, on behalf of itself and its affiliates (collectively, “Unravel”), and
the Customer. This Agreement is effective immediately upon the earlier of
your acceptance hereof or the date that you first access or use the Software
(the “Effective Date”).
1.
Definitions. The following terms shall
have the following meanings when used in this Agreement:
1.1.
“Authorized User” means Customer’s employees, consultants or
contractors who are authorized by Customer to use the Software on Customer’s
behalf.
1.2.
“Documentation” means the end user manuals, guides, online
help files and other supporting materials that Unravel generally makes
available to its customers with the Software.
1.3.
“Feedback”
means any comments, feedback, potential errors and improvements, reports, or
ideas about the Software, Services or other Unravel IP (defined below) that
Customer may provide to Unravel during the Trial Period.
1.4.
“Services” means installation,
implementation, training or other professional services provided by Unravel to
Customer.
1.5.
“Software”
means the object-code version of Unravel’s
proprietary application performance management software program, including all
Documentation, as well as any Updates to the
Software that Unravel makes available to Customer during the Trial Period.
1.6.
“Trial Period” means the period
beginning on the first date Customer accesses or uses the Software and ending
thirty (30) days thereafter (but not to exceed sixty (60) days from the Effective
Date). The Trial Period may be extended by mutual written agreement of the
parties.
1.7.
“Update” means a Software release that
Unravel makes generally available to its customers, along with any corresponding
changes to Documentation.
2.
License Terms. Subject
to the terms and conditions of this Agreement, Unravel
hereby grants to Customer a non-exclusive, non-transferable, limited,
royalty-free license to permit its Authorized Users to install, execute and use
the Software during the Trial Period solely for Customer’s internal evaluation
purposes. The Software may contain open source components (“OSS Components”) that are governed
separately by certain open source licenses, in each case as further described
here: https://docs.unraveldata.com/en/oss_components.html. Customer is responsible for complying with
the terms of all applicable open source licenses in its use of the Software and
the OSS Components.
3.
Performance Information. Customer
acknowledges that the Software transmits certain electronic information to
Unravel regarding the usage and performance of the Software (the “Performance Information”). Customer may
turn off the functionality of the Software that transmits such Performance Information
back to Unravel. Customer hereby gives Unravel permission to use any
Performance Information received by Unravel to assist Unravel in providing support
to Customer and for internal purposes to improve Unravel’s
products and services.
4.
Services. Customer is responsible for installing the Software, and Unravel is under no obligation to provide any
Services under this Agreement. If Unravel and Customer mutually agree upon
Services to be performed by Unravel during the Trial Period, Unravel retains
all right, title and interest in and to
anything it uses, develops or delivers in connection with performing such
Services, including, among other things, software, tools, specifications,
ideas, concepts, inventions, processes, techniques, and know-how (collectively,
“Unravel Retained Property”).
Unravel grants to Customer a non-exclusive, non-transferable, royalty-free,
limited-term license for Customer and its Authorized Users to use the Unravel
Retained Property during the Trial Period solely in conjunction with Customer’s
use of the Software.
5.
IP Ownership. Except
for the limited rights expressly granted pursuant to this Agreement, Unravel
and its licensors own and retain all right, title, and interest, including all
intellectual property rights, in and to the Software, the Services and all
Unravel Retained Property (collectively, “Unravel IP”). Customer and its Authorized Users shall not, and shall
not allow or authorize any third party to: (a) modify, adapt, alter, translate,
or create derivative works of the Unravel IP; (b) sublicense, lease, rent,
loan, or otherwise transfer the Unravel IP to any third party, (c) use the
Unravel IP in any service bureau or time-sharing arrangement, (d) reverse
engineer, decompile, disassemble, or otherwise attempt to derive the source
code for the Unravel IP, in whole or in part; (e) hack or modify any license
key, or try to avoid or change any license registration process Unravel may
implement; or (f) otherwise use or copy the Unravel IP in violation of this
Agreement or the Documentation.
6.
Term.
Unless otherwise terminated in accordance with this section, this
Agreement will commence on the Effective Date will automatically terminate upon
expiration of the Trial Period. Either party may immediately terminate this
Agreement if the other party materially breaches this Agreement. In addition,
Customer may terminate this Agreement without cause written notice to Unravel.
Unless otherwise agreed by the parties, upon the expiration or termination of
the Trial Period: (a) all rights granted herein will automatically terminate, (b)
Unravel will cease providing the Services, and (c) Customer will discontinue all use of
the Software and any Unravel IP, and will return (or at Unravel’s
written direction, destroy) all of the foregoing within five (5) business days.
Sections 1, 3, 4, 5, 6, 7, 8 and 9 will survive any termination or expiration
of this Agreement.
7.
Confidentiality; Feedback. For
purposes of this Agreement, “Confidential
Information” means any business or technical information that either party
discloses to the other, in writing, orally, or by any other means, that is
designated, or that is reasonably expected under the circumstances to be,
confidential or proprietary, including but not limited to computer programs,
code, algorithms, data, know-how, formulas, processes, ideas, inventions,
schematics and other technical, business, financial, and product development
plans, names and expertise of employees and consultants, and customer lists,
and in all instances, the source code of the Software will be deemed to be Unravel’s Confidential Information, regardless of whether
it is marked as such. The restrictions set forth in Section will not apply with
respect to any Confidential Information that: (i) was
or becomes publicly known through no fault of the receiving party; (ii) was
rightfully known or becomes rightfully known to the receiving party without
confidential or proprietary restriction from a source other than the disclosing
party who has a right to disclose it; (iii) is approved by the disclosing party
for disclosure without restriction in a written document which is signed by a
duly authorized officer of such disclosing party; or (iv) the receiving party independently
develops without access to or use of the other party’s Confidential
Information. Upon the termination or expiration of this Agreement, the
receiving party shall, at the disclosing party’s option and request, promptly
destroy or return all Confidential Information, including all copies thereof in
whatever medium, in its possession or control, provided that the receiving
party may retain (a) any copies of such materials required to be retained to
comply with applicable laws or regulatory requirements and (b) any copies of
such materials contained in computer files maintained pursuant to the receiving
party’s customary archiving or back-up procedures. The receiving party
acknowledges that use or disclosure of any Confidential Information by it in
breach of this Section 7 will give rise to irreparable injury to the disclosing
party, not adequately compensated by damages, and as such, the disclosing party
will be entitled to seek equitable relief, including injunctive relief and
specific performance, in addition to any other legal remedies which may be
available. During the course of this Agreement, Customer may in its sole
discretion provide Feedback to Unravel, and in the event Customer does so, Customer
hereby assigns to Unravel all right, title, and interest in and to the
Feedback, if any. All Feedback is provided “as-is” without any warranties of
any kind, express or implied.
8.
No Warranties; Limitation of Liability. THE SOFTWARE AND SERVICES (IF ANY) ARE
PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED OR STATUTORY, AND EXPRESSLY EXCLUDING ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT.EXCLUDING
EACH PARTY’S OBLIGATION OF CONFIDENTIATLITY UNDER SECTION 7, AND CUSTOMER’S
BREACH OF SECTIONS 2 OR 5 OR OTHER VIOLATION OF UNRAVEL’S INTELLECTUAL PROPERTY
RIGHTS, (A) EACH PARTY, ITS AFFILIATES AND LICENSORS SHALL NOT BE LIABLE TO THE
OTHER PARTY OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL
CONSEQUENTIAL OR EXEMPLARY DAMAGES INCURRED BY SUCH PARTY, AND (B) THE TOTAL
LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT
EXCEED $1,000 IN THE AGGREGATE.
9.
Miscellaneous. Customer agrees to comply strictly with all
U.S. export laws and assume sole responsibility for obtaining United States
government export licenses to export or re-export as may be required. This
Agreement will be governed by the laws of the State of California without
reference to conflict of law principles. Each party agrees to submit to the
exclusive jurisdiction of the courts located within the county of San
Francisco, California to resolve any legal matter arising from this Agreement.
Neither party may assign any of its rights or obligations under this Agreement,
whether by operation of law or otherwise, without the prior written consent of
the other party (not to be unreasonably withheld). This Agreement is the entire
agreement between the parties relating to the subject matter hereof. Waivers
and amendments of any provision of this Agreement shall be effective only if signed
by both parties. The failure of either party to enforce its rights under this
Agreement at any time for any period shall not be construed as a waiver of such
rights. If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement will continue in full force and effect. Notices must be sent by first-class mail, overnight
courier, or prepaid post, to the address set forth in this Agreement, and will
be deemed delivered three (3) business days after mailing, or upon confirmed
delivery. This Agreement
may be delivered by electronic transmission, and electronic signatures shall be
binding as originals.
[End of Evaluation
Agreement]