This Evaluation Agreement (“Agreement”) is a binding agreement between Operant AI, Inc. (“Operant”) and you (“Evaluator” or “You”).
OPERANT PROVIDES THE SERVICES (DEFINED BELOW) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND SOLELY ON THE CONDITION THAT EVALUATOR ACCEPTS AND COMPLIES WITH THEM. BY CHECKING THE “ACCEPT” BOX OR BY ACCESSING OR USING THE SERVICES, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT EVALUATOR IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF EVALUATOR AND BIND EVALUATOR TO ITS TERMS. IF EVALUATOR DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, OPERANT WILL NOT AND DOES NOT LICENSE THE SERVICES TO EVALUATOR AND YOU MUST NOT DOWNLOAD, INSTALL OR IN ANY WAY USE THE SERVICES OR ANY ACCOMPANYING DOCUMENTATION.
- Evaluation License. Subject to all terms and conditions of this Agreement, Operant grants Evaluator a royalty-free, nonsublicensable, nonexclusive, nontransferable, limited license to download, install, access and use the Operant Runtime Application Protection Platform (the “Services”), but only for Evaluator’s internal evaluation purposes during the term of this Agreement. All licensed activity under this Section 1 shall be strictly in accordance with and subject to Operant’s documentation. “Services” includes all updates, improvements and add-ons provided by Operant with respect thereto.
- Evaluation Fee. The evaluation fee shall be $0.
- Restrictions; Confidentiality. Evaluator will maintain the copyright notice and any other notices or product identifications that appear on or in the Services or any other media or documentation provided by Operant hereunder. Evaluator will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Services (except to the extent that applicable law expressly prohibits reverse engineering restrictions), (ii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Services for the benefit of any third party, (iii) list or otherwise display or copy any object or source code of any part of the Services, (iv) copy the Services (or any component thereof), develop any improvement, modification or derivative works thereof or include any portion thereof in any other equipment or item, or (v) allow the transfer, transmission, export, or re-export of the Services or any portion thereof or any technical data. All the limitations and restrictions on the Services in this Agreement also apply to all documentation. Any technical, financial or other information provided by Operant to Evaluator, including, but not limited to, the documentation, this Agreement, software design and architecture, and computer code (collectively, “Confidential Information”), shall be held in confidence and not disclosed or, except as expressly provided herein, used by Evaluator; these obligations will not apply to Confidential Information that is generally and freely publicly available through no fault of Evaluator, or that Evaluator otherwise rightfully obtains from third parties without restriction.
- Intellectual Property. As between the parties, Operant will own all intellectual property rights in the Services and anything else created pursuant to the Agreement, including but not limited to all copies, improvements, modifications and derivative works thereof, related documentation and materials. Evaluator may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Services (“Feedback”). All Feedback shall be solely owned by Operant (including with respect to all intellectual property rights) and shall be considered Operant “Confidential Information”. Evaluator shall and hereby does make all assignments necessary to achieve such ownership.
- Support Services. The parties may mutually agree upon support to be provided by Operant, but in the absence of such written agreement, no support services are provided under this Agreement.
- Term and Termination. This Agreement shall remain in effect except as specified below. The Services and all licenses and rights of Evaluator will terminate (i) seven (7) days from Evaluator’s acceptance of this Agreement, or (ii) immediately upon notice to Evaluator by Operant, whichever date occurs first. After termination, if Evaluator desires to continue using the Services, Evaluator should contact Operant to obtain pricing and other terms applicable to commercial use. Upon any termination, Evaluator shall immediately cease all use of the Services and return all Confidential Information to Operant (including all copies and extracts thereof) and, upon Operant’s request, so certify the foregoing to Operant. The following provisions will survive termination: 3, 4, 7 and 8, as well as all license/use restrictions and confidentiality obligations. Termination is not an exclusive remedy and all other remedies will remain available.
- Warranty Disclaimer; Limitation of Liability. THE SERVICES ARE PROVIDED “AS IS” AND OPERANT AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, RELATING TO THE SERVICES AND ANY OTHER PRODUCTS PROVIDED HEREUNDER OR SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NONNFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES MAY CONTAIN FUNCTIONALITY THAT WILL CAUSE THE SERVICES TO CEASE FUNCTIONING AFTER A CERTAIN PERIOD OF TIME. THIS MAY OCCUR BEFORE OR AFTER TERMINATION OF THE LICENSE, SO EVALUATOR MUST BE PREPARED FOR SUCH EVENT AT ALL TIMES AND MAY NOT RELY ON THE SERVICES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, NEITHER OPERANT NOR ITS LICENSORS SHALL BE LIABLE WITH RESPECT TO THE SERVICES OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY: (I) AMOUNTS IN EXCESS OF US1,000.00; (II) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF FORESEEABLE; (IV) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) MATTER BEYOND ITS REASONABLE CONTROL. FOR CLARITY, EVALUATOR ACKNOWLEDGES OPERANT SHALL HAVE NO LIABILITY FOR ISSUES CAUSED BY ANY THIRD PARTY CLOUD PROVIDER.
- Miscellaneous. Evaluator grants Operant a limited, non-transferable, non-exclusive license to use and display in any media Evaluator's name, logo, trademarks and tradenames in publicity releases, promotional material, customer lists, advertising, marketing and business generating efforts. Neither this Agreement nor the licenses granted hereunder are assignable or transferable; any attempt to do so shall be void. Operant may assign this Agreement in whole or in part. Any notice, report, approval, waiver, amendment or consent required or permitted hereunder shall be in writing. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California, without regard to conflicts of laws provisions thereof. All disputes arising in connection with this Agreement shall be subject to the sole and exclusive jurisdiction of, and venue in, the state and Federal courts located in the San Francisco County, California. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney’s fees and costs in connection with such action.