BY USING THE SERVICES ON APPTHORITY'S SITE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS SOFTWARE TEST AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE THIS SOFTWARE ON APPTHORITY'S SITE.
WHEREAS, Appthority Inc., a Delaware corporation (“Appthority”), is willing to supply, within the protection of a confidential relationship, the computer software and related materials listed You are accessing through Appthority’s site (“Evaluation Service(s)”) to You solely for testing:
WHEREAS, You desire to have access to the Evaluation Service(s) and are willing to enter a confidential relationship and to test the Evaluation Service(s) and report to Appthority on the performance of the Evaluation Service(s);
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, the parties agree as follows:
1. Use of Evaluation Service(s). Subject to the terms of this Agreement, Appthority grants to You non-sublicensable, nonexclusive license to use the Evaluation Service(s) in accordance with the documentation or instructions supplied by Appthority. Appthority shall at all times retain all title to and ownership of the Evaluation Service(s), and all enhancements, modifications and improvements thereto. You hereby make all assignments necessary to accomplish the foregoing. You agree to use the Evaluation Service(s) only in the ordinary course of usage, and You will not modify the Evaluation Service(s) or any portion thereof and shall not rent, sell, lease or otherwise transfer the Evaluation Service(s) or any part thereof or use it for the benefit of a third party. You shall not reverse assemble, reverse compile or reverse engineer the Evaluation Service(s), or otherwise attempt to discover any Evaluation Service(s) source code or underlying proprietary information.
2. Confidentiality. The parties agree to abide by the terms of the Nondisclosure Agreement attached as Exhibit A. You acknowledge that the Evaluation Service(s), its features and mode of operation, as well as all internal documentation, specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data relating to the Evaluation Service(s) are the proprietary information of Appthority.
3. Reports. You agree to notify Appthority by electronic mail within two business days of the discovery of an error or difficulty in the Evaluation Service(s), which notifications shall disclose sufficient detail to allow Appthority to recreate the errors and difficulties itself.
4. WARRANTY DISCLAIMER; WARNING. The parties acknowledge that the Evaluation Service(s) provided “AS IS” and may not be functional on any machine or in any environment. APPTHORITY DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION SERVICE(S), EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WARNING: THE EVALUATION COPY OF THE SERVICES MAY CONTAIN INSTRUCTIONS THAT MAY CAUSE THE EVALUATION SERVICES TO CEASE PROPER FUNCTIONING AFTER A CERTAIN PERIOD OF TIME. THIS MAY OCCUR BEFORE OR AFTER TERMINATION OF THIS AGREEMENT, SO YOU MUST BE PREPARED FOR SUCH EVENT AT ALL TIMES AND MAY NOT RELY ON THE EVALUATION SERVICE.
5. Limitation of Remedies and Damages. APPTHORITY SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. APPTHORITY SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
6. Nonassignability. Although fully assignable and transferable by Appthority, this Agreement is not assignable or transferable by You, and any such attempted assignment or transfer shall be void and without effect. Any affiliate of Yours which acquires access to the Evaluation Service(s) agrees to be bound by the terms and conditions of this Agreement.
7. Execution of Agreement, Controlling Law, Attorneys’ Fees and Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of California, County of San Francisco, without regard to the conflicts of laws provisions therein. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Each party has the necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby.
8. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. Any modifications of this Agreement must be in writing and signed by both parties.
9. Termination. This Agreement may be terminated by Appthority for any reason or no reason upon ten (10) days’ written notice to You at the address listed above, or immediately upon notice if You breach any of the provisions of this Agreement, and in any case will terminate thirty days after the Effective Date. Upon termination, the license granted hereunder shall terminate and you shall immediately cease using the Evaluation Service(s), together with any and all documents, notes and other materials regarding the Evaluation Service(s) (including, without limitation, any reports or other information which you received from Appthority as a result of the Evaluation Services) to Appthority, including, without limitation, all proprietary information of Appthority and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect.
You understand that Appthority has disclosed or may disclose information relating to Appthority or to Appthority’s business (including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information), which to the extent previously, presently, or subsequently disclosed to You is hereinafter referred to as “Proprietary Information” of Appthority. Notwithstanding the foregoing, nothing will be considered “Proprietary Information” of Appthority unless either (1) it is or was disclosed in tangible form and is conspicuously marked “Confidential”, “Proprietary” or the like or (2) it is or was disclosed in non-tangible form, identified as confidential at the time of disclosure and summarized in tangible form conspicuously marked “Confidential”, “Proprietary” or the like within 30 days of the original disclosure, or
(3) it would reasonably be presumed to be confidential to Appthority. In consideration of the parties’ discussions and Your access to Proprietary Information of Appthority, You hereby agree as follows:
1. You agree (i) to hold Appthority’s Proprietary Information in confidence and to take reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions You employ with respect to Your confidential materials), (ii) not to divulge any such Proprietary Information or any information derived therefrom to any third person, (iii) not to make any use whatsoever at any time of such Proprietary Information except to evaluate internally its relationship with Appthority, (iv) not to copy or reverse engineer any such Proprietary Information and (v) not to export or re-export (within the meaning of U.S. or other export control laws or regulations) any such Proprietary Information or product thereof. Without granting any right or license, Appthority agrees that the foregoing shall not apply with respect to any information after five years following the disclosure thereof or any information that You can document (i) is or becomes (through no improper action or inaction by You or any of Your affiliate, agent, consultant or employee) generally available to the public, or (ii) was in its possession or known by You, without restriction, prior to receipt from Appthority, provided You comply with restrictions imposed thereon by third parties, or (iii) was rightfully disclosed to You by a third party, provided You comply with restrictions imposed thereon by third parties, or (iv) was independently developed by You (x) without use or reference to of any Proprietary Information of Appthority and (y) by employees and/or contractors of Yours who have had no access to such information. You may make disclosures required by law or court order provided You use diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed Appthority to participate in the proceeding.
2. Immediately upon a request by Appthority at any time, You will turn over to Appthority all Proprietary Information of Appthority and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof. You understand that nothing herein (i) requires the disclosure of any Proprietary Information of Appthority or (ii) requires Appthority to proceed with any transaction or relationship.
3. This Agreement applies only to disclosures made before the first anniversary of this Agreement. You acknowledge and agree that due to the unique nature of Appthority’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to Appthority, and therefore, that upon any such breach or any threat thereof, Appthority shall be entitled to appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies it might have at law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement shall be governed by the law of the State of California, County of San Francisco, without regard to the conflicts of law provisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to costs and attorneys’ fees. No waiver or modification of this Agreement will be binding upon a party unless made in writing and signed by a duly authorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.
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