HAKKIRI CONSULTING LLC (“HAKKIRI”) IS PROVIDING YOU THE OPPORTUNITY TO EVALUATE (THE “EVALUATION”) CERTAIN PRODUCTS AND RELATED SERVICES (COLLECTIVELY, THE “PRODUCT”). USE OF THE PRODUCT AND THE CONDUCT OF THE EVALUATION ARE SUBJECT TO THIS EVALUATION AGREEMENT (“AGREEMENT”). PLEASE READ THE FOLLOWING INFORMATION CAREFULLY. YOUR USE OF THE PRODUCT AND PARTICIPATION IN THE EVALUATION WILL INDICATE YOUR AGREEMENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT HAKKIRI CONSULTING LLC (“HAKKIRI”) IS PROVIDING YOU THE OPPORTUNITY TO EVALUATE (THE “EVALUATION”) CERTAIN PRODUCTS AND RELATED SERVICES (COLLECTIVELY, THE “PRODUCT”). USE OF THE PRODUCT AND THE CONDUCT OF THE EVALUATION ARE SUBJECT TO THIS EVALUATION AGREEMENT (“AGREEMENT”). PLEASE READ THE FOLLOWING INFORMATION CAREFULLY. YOUR USE OF THE PRODUCT AND PARTICIPATION IN THE EVALUATION WILL INDICATE YOUR AGREEMENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT PARTICIPATE IN THE EVALUATION OR MAKE ANY USE OF THE PRODUCT. TO THIS AGREEMENT, YOU MAY NOT PARTICIPATE IN THE EVALUATION OR MAKE ANY USE OF THE PRODUCT.
1. EVALUATION; GRANT OF LICENSE. From time-to-time, Hakkiri may provide Company with the Products for purposes of evaluating such Products for potential use by Company (the “Evaluation”). The Products are furnished without charge by Hakkiri. All such Products shall be identified in Exhibit A and subject to the terms of this Agreement and Exhibit A. Company desires to participate the Evaluation for purposes of assessing the performance, interoperability, and functionality of the Products and determining whether the Products meet Company’s requirements. The parties agree and acknowledge that participation in the Evaluation, whether or not successful, will not obligate either party to enter into any other or additional agreements. If the Products are in the form of software, during the Evaluation, Hakkiri grants Company a revocable, nontransferable, nonexclusive, as-is license to use the object code version of the Products for Company’s internal use in conducting the Evaluation. Company shall use the Products in accordance with the applicable documentation provided by Hakkiri (“Documentation”) and for no other purpose. The Products are licensed, not sold. Except for the limited license granted above, Hakkiri and its licensors retain all right, title and interest in the Products, all copies thereof, and all proprietary rights in the Products, including copyrights, patents, trademarks and trade secret rights. Company shall not use any information disclosed by Hakkiri in connection with this Agreement to contest the validity of any Hakkiri intellectual property, including the Products. Any such use of Hakkiri’s information and data shall constitute a material, non-curable breach of this Agreement. To the extent Company provides Hakkiri with any content (e.g., graphics, logos, artwork, text, data) for use in connection with the Product (collectively, the “Company Content”), Company hereby grants Hakkiri a non-exclusive, world-wide, royalty-free license to use the Company Content for purposes of performing this Agreement. The parties acknowledge and agree that, to the maximum extent permitted by applicable law, Hakkiri shall own all rights, title, and interest, in the Aggregated Data that is derived, aggregated, or generated from Company’s of the Product. “Aggregated Data” means all data and other information provided by Company to Hakkiri or otherwise transmitted to Hakkiri (or the Product) for use in connection with the Product, which is combined with other similar data of customers. Aggregated Data shall not include (directly or by inference) any: (i) information identifying the Company or any identifiable customer or individual; or (ii) Company’s intellectual property.
2. LIMITATIONS ON LICENSE. Company shall not (i) copy or distribute the Products except to the extent that copying is necessary (ii) reverse engineer, decompile, disassemble, modify or create derivativary to use the Products for the Evaluation;e works of the Products; (iii) assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Products, or directly or indirectly permit any unauthorized third party to use or copy the Products; (iv) use the Products for the benefit of any third party; (v) use the Products in excess of the limited rights granted herein; or (vi) remove any proprietary notices (e.g., copyright and trademark notices) from the Products.
3. BETA AND NEW FUNCTIONALITY. Certain Products will be at an early stage of development. With regard to such Products, Company acknowledges and agrees that: (i) the Products are experimental and will not have been fully tested; (ii) the use or operation of the Products may not be uninterrupted or error free and data stored in the Products may be lost or destroyed; and (iii) the Products are not intended or designed for use in a production environment
4. TERM AND TERMINATION. The Evaluation shall commence on the Effective Date and continue for the period set forth in Exhibit A thereafter, unless earlier terminated as provided herein. Either party may terminate this Agreement, without cause, at any time on written notice to the other party. On termination or expiration of this Agreement, the license granted in Section 1(Evaluation; Grant of License) shall automatically terminate, and Company shall, at its own cost, (i) promptly return all hardware, Products, and accompanying Documentation to Hakkiri; and (ii) delete all copies of the software Products and electronic Documentation from its systems and destroy or irretrievably erase any associated media. The following provisions shall survive any termination or expiration of this Agreement: Sections 2 (Limitations on License), 4 (Termination), 5 (Warranty Disclaimer), 5 (Confidentiality), 8 (Limitation of Liability), and 12 (General).
5. CONFIDENTIALITY. In connection with the Evaluation, Hakkiri may disclose to Company certain non-public information or materials, intellectual property, and other confidential and proprietary content (“Confidential Information”). Confidential Information includes, but is not limited to, the Products and all Documentation. Confidential Information does not include information that: (a) is or becomes publicly available through no breach by Company of this Agreement; (b) was previously known to Company prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third party without any breach of any obligation of confidentiality; (d) was independently developed by Company without reference to the Confidential Information; or (e) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that Company shall promptly inform Hakkiri in writing and provide a copy of the subpoena or order to Hakkiri, and shall only disclose that Confidential Information necessary to comply with such subpoena or order. Except as expressly provided herein, Company will not use or disclose any Confidential Information without Hakkiri’s prior written consent, except disclosure to and subsequent uses Company’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as those in this Section. Company will use at least the same care and precaution in protecting the Confidential Information as it uses to protect its own most confidential information, and in no event less than reasonable care. Company acknowledges that due to the unique nature of the Confidential Information, Hakkiri will have no adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise,Hakkiri shall be entitled to injunctive relief, without bond, to prevent any unauthorized use or disclosure of its Confidential Information.
6. COMPANY WARRANTY. Company represents and warrants that it is not currently developing and has no plans to develop products substantially similar to the Product
7. WARRANTY DISCLAIMER. THE PRODUCTS ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HAKKIRI AND ITS SUPPLIERS/LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUITE ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL HAKKIRI, ITS AFFILIATES, OR ANY OF ITS LICENSORS AND VENDORS BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THIS AGREEMENT OR THE PRODUCTS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN ANY EVENT, THE MAXIMUM LIABILITY OF HAKKIRI, ITS AFFILIATES, OR ANY OF ITS LICENSORS AND VENDORS FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) OF EVERY KIND ARISING OUT OF THIS AGREEMENT OR THE PRODUCTS WILL IN NO EVENT EXCEED TEN DOLLARS ($10). Company hereby waives any and all claims, now known or later discovered, that it may have against Hakkiri, its affiliates, and its licensors and vendors arising out of this Agreement and the Products.
9. EXPORT. Company shall not export, directly or indirectly, the Products to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval. It shall be Company’s responsibility to comply with such export laws, rules, and regulations. Company shall defend and indemnify Hakkiri from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of any claim the Hakkiri Products were exported or otherwise shipped or transported by Company or its agents in violation of applicable laws, rules and regulations.
10. FEEDBACK. Company may provide suggestions, comments or other feedback (collectively, “Feedback”) to Hakkiri with respect to its products and services, including the Products. Feedback is voluntary and Hakkiri is not required to hold it in confidence. Hakkiri may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Company’s intellectual property rights to make use of the Feedback, Company hereby grants Hakkiri an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with Hakkiri’s business, including the enhancement of the Products.
11. THIRD PARTY HOSTING. The parties agree and acknowledge that: (a) Hakkiri uses Amazon Web Services (“AWS”) for the performance of its hosted services under this Agreement; (b) Hakkiri does not control or otherwise direct certain operations of AWS; and (c) as a result, Hakkiri makes no warranties or representations regarding the equipment, systems, and networks not within Hakkiri’s control, including those owned, operated, and controlled by AWS.
12. GENERAL. Company may not assign or transfer any rights or obligations under this Agreement without the prior written consent of Hakkiri. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. Any action at law or in equity arising out of or directly or indirectly relating to this Agreement may be instituted only in the federal or state courts located in Boston, Massachusetts. The parties consent and submit to the personal jurisdiction of those courts for the purposes of any action related to this Agreement, and to extra-territorial service of process. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The provisions of this Agreement shall be deemed severable. If any provision of this Agreement shall be held unenforceable by any court of content jurisdiction, it shall be severed from this Agreement and the remaining provisions shall remain in full force and effect. No course of dealing or usage of trade by or between the parties shall be deemed to effect any such amendment or modification. Any consent by any party to, or waiver of, a breach by the other, whether express or implied , shall not constitute a consent to, or a waiver of any other, different, or subsequent breach. Neither Company nor Hakkiri shall represent that its relationship with respect to the other party is other than as an independent contractor. Nothing in this Agreement shall create in either party any right or authority to incur any obligations on behalf of, or to bind in any respect, the other party and nothing in this Agreement shall be construed to create any agency, joint venture, or partnership. This Agreement, and all attached Exhibits, as may be amended in accordance with the provisions herein, sets forth the entire Agreement between the parties and supersedes prior proposals, agreements, and representations between them related to the subject matter hereof, whether written or oral. No modifications or amendments to this Agreement will be binding upon the parties unless made in writing and duly executed by duly authorized representatives of Hakkiri and Company. Hakkiri may assign any of its rights or obligations hereunder as it deems necessary.