BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, EXECUTING ANY ORDER FORM OR ONLINE REGISTRATION REFERENCING THIS AGREEMENT, OR INSTALLING OR USING THE PAXATA SOFTWARE (“SOFTWARE”), YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE, ACCESS OR INSTALL THE SOFTWARE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCEPT THIS AGREEMENT AND DO NOT INSTALL, ACCESS OR USE THE SOFTWARE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
1. License Grant. Subject to the terms and conditions of this Agreement, Paxata grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the Evaluation Period specified above to use the object code form of the software products specified above (“Software”) internally at the Evaluation Site specified above but only in accordance with any scope of use restrictions set forth above and solely for the purpose of evaluating whether to license the Software on an ongoing basis.
2. License Restrictions. Customer shall not (i) copy the Software or any portion thereof, except for one permitted backup copy; (ii) rent, sublicense or transfer any copies of the Software, or portions thereof, to a third party or allow a third party to use the Software; (iii) modify, decompile, disassemble or reverse engineer the Software; (iv) use the Software to develop services or products for sale or include any components of the Software in any product; (v) use any portion of the Software to create a competitive service, product or technology; (vi) export the Software from the United States; (vii) make the functionality of the Software available to the public in any manner; (viii) use the Software in a production environment; or (ix) use the Software if Customer is a direct competitor of Paxata, except with Paxata’s prior written consent.
3. Fees. Customer shall pay Paxata the fees specified on the cover page within thirty (30) days of the date of applicable invoice. All fees are non-refundable unless expressly otherwise set forth in this Agreement. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Paxata.
4. Term and Termination. This Agreement starts on the Effective Date and will continue until expiration of the Evaluation Period unless earlier terminated as provided herein. Upon any termination or expiration of this Agreement, Customer must cease all use of the Software and return or destroy all copies, including the backup copy, if made. Unless Customer purchases an ongoing subscription to the Software, the Software may become inoperable and, in any event, Customer’s right to use the Software automatically expires at the end of the Evaluation Period. Either party may terminate this Agreement (and any SOW) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). In addition, for unpaid evaluations, Paxata may terminate this Agreement at any time for any or no reason upon written notice to Customer. Nothing herein obligates either party to enter into any further agreement with the other party. Sections 2 (License Restrictions), 3 (Fees), 5 (Ownership and Feedback), 8 (Confidential Information), 9 (No Warranty), 10 (Limitation of Liability), 12 (Governing Law; Jurisdiction and Venue), 13 (Dispute Resolution) and 14 (General) shall survive any expiration or termination of this Agreement.
5. Ownership and Feedback. Except for the limited license rights expressly provided herein, Paxata and its suppliers have and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights). Customer acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase,” “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise. All copies, improvements, updates, modifications or enhancements of the Software (including any modifications to sample files) shall remain the property of Paxata. If Customer elects to provide any suggestions, comments, improvements, ideas or other feedback to Paxata related to the Software (collectively, “Feedback”), Customer agrees that Paxata will be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as Paxata sees fit, entirely without obligation or restriction of any kind. All rights not granted by Paxata are reserved.
6. No Maintenance. Paxata is not obligated to provide any support or maintenance for the Software during the Evaluation Period.
7. Professional Services. Paxata will provide the professional services, if any, specified on the cover page or any SOW (“Professional Services”) to assist Customer with its implementation, deployment and/or usage of the Software under this Agreement. Customer shall have a license right to use anything delivered as part of the Professional Services subject to the terms of its license to use the Software, but Paxata shall retain all right, title and interest in and to any such work product, code or Software and any derivative, enhancement or modification thereof created by Paxata (or its agents). Professional Services may be ordered by Customer pursuant to a Statement of Work (“SOW”) describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before Paxata shall commence work under such SOW. If the parties do not execute a separate SOW, the Professional Services shall be provided as described above. Customer will reimburse Paxata for reasonable travel and lodging expenses as incurred.
8. Confidential Information. In the course of their relationship, the parties may disclose to each other information identified at the time of disclosure as confidential (“Confidential Information”), which may include information concerning their respective businesses and technology. The Software (including the performance characteristics and pricing information of the Software) and all related documentation are Confidential Information of Paxata. All Confidential Information shall remain the property of the disclosing party, and the receiving party shall have no interest in or rights in such except as expressly set forth in this Agreement. Except as authorized herein, each party agrees to maintain all Confidential Information of the other party in confidence, to not use or disclose any Confidential Information and to take all reasonable precautions to prevent any unauthorized disclosure of such information. These restrictions on disclosure will not apply to any information which (i) becomes generally known or publicly available through no act or failure to act on the part of the receiving party; (ii) is furnished to others by the disclosing party without restriction on disclosure; (iii) is known by the receiving party at the time of receiving such information as evidenced by its records; or (iv) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure.
9. No Warranty. THE SOFTWARE AND ALL RELATED SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE MAY INCLUDE BETA RELEASES THAT ARE NOT COMPLETE OR FULLY FUNCTIONAL AND SUCH BETA RELEASES MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES, DATA LOSS OR OTHER PROBLEMS. PAXATA MAKES NO GUARANTEE THAT THE BETA RELEASES WILL EVER BE MADE GENERALLY AVAILABLE OR THAT PAXATA WILL DEVELOP OR OFFER TO CUSTOMER ANY PRODUCTION OR COMMERCIAL VERSION OF THE BETA RELEASES. PAXATA DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT THE BETA RELEASES WILL MEET CUSTOMER’S EXPECTATIONS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. Limitation of Liability. IN NO EVENT SHALL Paxata BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, Paxata’s ENTIRE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO Paxata UNDER THIS AGREEMENT OR (II) $5,000.
11. Government End-Users. The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software were developed fully at private expense. All other use is prohibited.
12. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed under the laws of the State of California. Except as otherwise set forth in Section 13 (Dispute Resolution), any suit or proceeding arising out of or relating to this Agreement shall be commenced exclusively in the state or federal courts in San Francisco, California, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
13. Dispute Resolution. The parties agree that in the event any dispute arising out of or related to this Agreement (a “Dispute”) is not resolved in the ordinary course of business, the parties shall in good faith attempt to resolve the Dispute through Mediation (as defined below) in accordance with the following:
(a) Commencement of Mediation; Participation. Either party may commence mediation administrated by JAMS in San Francisco, California (“Mediation”) by providing JAMS and the other party a written request for Mediation. The parties may choose to appear by person, by phone, by another virtual means, or through the submission of documents.
(b) Selection of Mediator. The parties will cooperate with JAMS and one another in selecting a mediator and scheduling the Mediation. If the parties cannot agree on a mediator or a time for the Mediation, they agree that JAMS may appoint a mediator and time for them.
(c) Confidentiality. All offers, promises, conduct and statements, whether oral or written, made in the course of the Mediation by any of the parties, their agents, employees, experts, or attorneys, and by the mediator or any JAMS employees, are confidential, privileged, and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties.
(d) Costs. The parties agree that they will participate in the Mediation in good faith and that they will share equally its costs. Each party will bear their own attorneys’ fees and costs in connection with the Mediation and any pre-mediation negotiations.
(e) Timing. If the parties fail to resolve the Dispute within sixty (60) days of the commencement of the Mediation, then either party may commence legal action as permitted by law.
This Section shall not be construed to prevent a party from bringing a claim in court at any time to avoid the expiration of any applicable limitations period, preserve a superior creditor position, or seek injunctive relief to prevent irreparable harm as permitted in Section 14 (General), including without limitation, harm caused by a breach of confidentiality obligations under Section 8 (Confidential Information) or to protect a party’s intellectual property rights.
14. General. Customer acknowledges that Paxata would not make available the Software except on all the terms included herein, and accordingly Paxata may seek injunctive relief upon any breach. The parties are independent contractors and no employment, agency, or joint venture is created hereunder. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. This Agreement may not be assigned by Customer or amended without the prior written consent of both parties. Any purported assignment or amendment in violation of the foregoing shall be void. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written.