This Evaluation Agreement (this “Agreement”) is entered into by and between SearchStax, Inc., including its subsidiaries and affiliates involved in providing the Services (together, "SearchStax" or “Company”) and you, the individual or legal entity (“Customer” or “you”) that wishes to access and use SearchStax's services. Your use of and access to the Service is governed by this Agreement.
This Agreement constitutes a legally binding contract between SearchStax and Customers. By signing up for the service or checking the “I Accept” checkbox, you are indicating that you have read, understand, and agree to be bound by the terms and conditions of this Agreement. If Customer is an individual, you represent and warrant that you have the legal right to enter into this Agreement. If Customer is a legal entity, you represent and warrant that you have the authority to bind the Customer. If you
do not have the authority to bind the Customer; or
do not agree to be bound by all the terms and conditions of this Agreement,
then neither you nor the legal entity you may represent are permitted to purchase, access, or use the Services and you should not check the “I Accept” button. Your permission to access and use the Services is conditioned on your continued and uninterrupted compliance with the terms and conditions of this Agreement.
Scope of License and Related Terms.
On-Demand Services. Company will make the Company Product available to Customer for evaluation via Company’s online, Web-based platform and applications that are hosted by Company, or a third party hosting facility designated by Company and provided as a service (known as the “on-demand” model).
License Grant. During the Evaluation Period, Company grants to Customer a non-exclusive, revocable and non-transferable right to use the Company Product solely for the purpose of internally evaluating the suitability of the Company Product for Customer’s internal business purposes. Customer may, using the functionality within the Company Product, configure and, modify certain available features and functionality of the Company Product offered as part of its evaluation process.
Customer Responsibilities. Customer shall: (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Company Product, and (b) notify Company in writing immediately of any unauthorized use of, or access to, the Company Product or any user account or password thereof.
Use Restrictions. Customer shall not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Company Product or any modified version or derivative work of the Company Product created by or for Customer, (b) provide the Company Product, or any modified version or derivative work of the Company Product created by or for Customer, on a timesharing, service bureau or other similar basis, (c) remove or alter any copyright, trademark or proprietary notice in the Company Product, (d) develop Forked Software, (e) copy any features, functions or graphics of the Company Product for any purpose other than what is expressly authorized in this Agreement, (f) use or modify the Company Product in any way that would subject the Company Product, in whole in or in part, to a Copyleft License, (g) send, store, or authorize a third party to send or store spam, unlawful, infringing, obscene or libelous material, or malicious code, (h) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Company Product, (i) use any intellectual property rights protected by applicable laws and contained in or accessible through the Company Product for the purpose of building a competitive product or service or copying its features or user interface, (j) use the Company Product, or permit it to be used, for purposes of product benchmarking or other comparative analysis intended for publication without Company's prior written consent; or (k) use the Company Product to develop or enhance any (i) open source version of Company software (such as Sugar Community Edition), (ii) derivative works of any open source version of Company software, or (iii) any software code made to work with any open source version of Company software.
Suggestions. Customer may, from time to time, provide suggestions, enhancement or feature requests or other feedback to Company with respect to the Company Property (as defined below) or other Company products, services or related documentation (whether or not such is disclosed or delivered by Company to Customer under this Agreement) (collectively, “Feedback”). Customer agrees that all Feedback is and shall be given by Customer entirely voluntarily. Company shall be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback in its discretion, without restriction or obligation of any kind or nature. Feedback, even if designated as confidential by Customer, shall not create any obligation of confidentiality for Company, unless Company expressly agrees so in writing.
Proprietary Rights and Data.
Ownership. Company owns all right, title and interest, including all intellectual property rights, in and to the Company Product, and all Modifications thereto (collectively, the “Company Property”). Customer hereby does and will assign to Company all right, title and interest worldwide in the intellectual property rights embodied in any and all Modifications. To the extent any of the rights, title and interest are not assignable by Customer to Company, Customer grants and agrees to grant to Company an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) under Customer’s intellectual property rights to use, disclose, reproduce, license, sell, offer for sale, distribute, import and otherwise exploit the Modifications in its discretion, without restriction or obligation of any kind or nature. Except as expressly stated otherwise in this Agreement, Company retains all of its right, title and ownership interest in and to the Company Property, and no other intellectual property rights or license rights are granted by Company to Customer under this Agreement, either expressly or by implication, estoppel or otherwise, including, but not limited to, any rights under any of Company’s or its affiliates patents.
Business Information; Customer Data. Customer agrees to allow Company and its Affiliates to store and use Customer business contact information, including names, business phone numbers, and business e-mail addresses, anywhere it does business that is provided by Customer to Company. Such information will be processed and used in connection with Company’s business relationship, and may be provided to contractors acting on Company’s behalf for uses consistent with Company’s business relationship. To the extent that (i) Customer data is input into or resides in the Company Product as part of this evaluation (the “Customer Data”) and (ii) the Customer Data contains personal data about any living individual (“Data”), Company will process that Data only as a Data Processor acting on behalf of Customer (as the Data Controller) and in accordance with the requirements of this Agreement.
Customer's Compliance with Privacy Laws; Purpose Limitation. Customer will at all times comply in full with the requirements of any applicable privacy and data protection laws (including where applicable, European Union Directives 95/46/EC and 2002/58/EC and any national implementation(s) of them) to which it is subject as a Data Controller (“Applicable Privacy Law(s)”). Company will process the Data in accordance with Customer's instructions under Applicable Privacy Law(s) and will not: (a) assume any responsibility for determining the purposes for which and the manner in which the Data is processed, or (b) process the Data for its own purposes.
Usage Data. In the course of providing Customer with the services contemplated in the Agreement, Company may collect, use, process and store diagnostic and usage related content from the computer, mobile phone or other devices the Customer uses to access the Company Product or service. This may include, but is not limited to, IP addresses and other information like internet service, location, the type of browser and modules that are used and/or accessed (the “Usage Data”). Usage Data does not, however, include Customer Data. Customer agrees that Company may process Usage Data to create and compile anonymized, aggregated datasets and/or statistics about the Company products or services in order to: (a) maintain and improve the performance and integrity of Company products or services, (b) understand which Company products or services are most commonly deployed and preferred by customers and how customers interact with Company products or services, (c) identify the types of Company services that may require additional maintenance or support, and (d) comply with all regulatory, legislative and/or contractual requirements, provided in each case that such aggregated datasets and statistics will not enable Customer or any living individual to be identified.
Term and Termination.
Term. This Agreement commences on the Effective Date and continues for a period of fourteen (14) days thereafter (“Evaluation Period”), unless terminated sooner pursuant to Section 3.2.
Termination. Either party may terminate this Agreement at any time by providing a minimum of two (2) days written notice to the other party. Additionally, either party may terminate this Agreement if the other party: (a) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for two (2) days following written notice of the breach, or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
Effect of Termination or Expiration. Upon any expiration termination of this Agreement, whichever occurs first, (a) the rights granted under this Agreement will be immediately revoked and Company may immediately deactivate Customer’s free trial account; (b) the Customer Data will be deleted by Company from the Company Product; and (c) the return or destruction of Confidential Information will be handled as contemplated in the final sentence of Section 4. Sections 1.5, 1.6, 2, 3.3, 4, 5 and 6 survive termination or expiration of this Agreement.
The parties acknowledge that in the course of performing their obligations under this Agreement, each may receive Confidential Information. Each party covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information: (i) previously known to it without obligation of confidence, (ii) independently developed by or for it without use of or access to the Disclosing Party’s Confidential Information, (iii) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. The terms of this Agreement, Original Code and the structure, sequence and organization of the Company Product are Confidential Information of Company or its licensors. Within five (5) days after a Disclosing Party’s request, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information; provided, however, that the Receiving Party shall be entitled to retain archival copies of the Confidential Information of the Disclosing Party solely for legal, regulatory or compliance purposes unless otherwise prohibited by law.
Disclaimer of Warranties; Limitation of Liability.
Disclaimer of Warranties. THE COMPANY PRODUCT IS PROVIDED TO CUSTOMER ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY'S PRODUCT OR SERVICE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND COMPANY IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.
Limitation on Damages. EXCEPT FOR A BREACH BY CUSTOMER OF SECTIONS 1.2, 1.5 OR 4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER THIS AGREEMENT AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW & IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE AMOUNT OF $100.
Attorney’s Fees. In any action related to this Agreement, if any party is successful in obtaining some or all of the relief it is seeking or in defending against the action, the other party shall pay, on demand, the prevailing party’s reasonable attorneys’ fees and reasonable costs.
Relationship of the Parties. Company and Customer are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
Choice of Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its conflicts of law provisions. Customer and Company agree to submit to the personal and non-exclusive jurisdiction of the courts located in Los Angeles County, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
Entire Agreement; Other Terms. This Agreement and any URLs referenced herein represent the entire agreement of the parties and supersede all prior discussions, emails and/or agreements between the parties and is intended to be the final expression of their Agreement. To the extent there is a conflict between this Agreement and any additional or inconsistent terms, the terms of this Agreement shall prevail, unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in any other order document (other than an Evaluation Order Form expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. The Agreement, including any related Evaluation Order Form may not be modified or altered except by written instrument, and no amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of Customer and Company. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. Except as otherwise provided, remedies specified herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.