Background. Licensee has requested a limited period within which Licensee may borrow and have access to the Product in order to evaluate the Product, as described on the cover page to this Agreement. In the event that the evaluation is satisfactory to Licensee, the parties may negotiate in good faith a commercial relationship in respect of the Product, but this Agreement does not obligate either party to enter into such relationship.
Use of Product and License.
2.1. License. Subject to the terms and conditions of this Agreement, RedMarlin grants to Licensee a nonsublicensable, nontransferable, nonexclusive limited license to use the computer software listed above in object code form (“Software” or the “Product”) during the evaluation term noted above (“Evaluation Term”). Licensee shall use the Product and any documentation or other information related thereto that is received from RedMarlin or its representatives solely for Licensee’s internal use of the Product and testing and evaluation thereof and for no other purpose. Licensee acknowledges and agrees that the Product is not generally commercially available, may not have obtained any required certifications or approvals and may incorporate functions that will inhibit Licensee from exceeding the scope of this license.
2.2. Restrictions. Licensee shall not: (a) use the Product, any documentation or other information provided by RedMarlin hereunder, to create any similar software or documentation; (b) reproduce or modify the Product or any portion thereof, or embed the Product or any portion thereof into any commercial product of Licensee; (c) sublicense, rent, sell, loan, lease, disclose, display, distribute, or otherwise transfer the Product, or any portion thereof, or use it for timesharing, rental or service bureau purposes, or for the benefit of a third party; (d) copy, reverse assemble, reverse compile or reverse engineer the Software, or any portion thereof, or otherwise attempt to discover any Software source code, or underlying Confidential Information (as defined in Section 3 below), or otherwise circumvent any technological measure that controls access to the Software; or (e) disclose any performance or benchmarking information to any third party, including without limitation licensors of any products that compete with or provide similar functionality to the Product.
2.3. Licensee Responsibilities. Licensee shall provide to RedMarlin Internet access to the Product for installation, configuration, delivery, provision of support and other remote services. If necessary, such access shall include a conduit through the firewall of Licensee’s network, with proper security features, to allow computers specified by RedMarlin to exchange data and information with the Product.
Confidentiality. Each party agrees that all code, inventions, algorithms, know-how and ideas and all other business, and technical information obtained from the other is the confidential property of the disclosing party (“Confidential Information”). Except as allowed herein, during the term of this Agreement and after any termination hereof, the receiving party will hold in confidence and not use or disclose any Confidential Information of the disclosing party and shall similarly bind its employees and independent contractors in writing. Confidential Information shall not include information the receiving party can document: (a) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; or (b) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; or (c) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (d) was independently developed by employees or consultants of the receiving party without use of or reference to the Confidential Information of the disclosing party. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party, and the receiving party will make no further use of such materials. Money damages will not be an adequate remedy if this Section 3 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.
Term and Termination. Unless earlier terminated as provided below, this Agreement shall commence on the Effective Date and shall continue for the Evaluation Term. Licensee may request subsequent thirty (30) day extensions of the Evaluation Term, which RedMarlin may grant in its sole discretion. The Product may incorporate automatic shutdown features which make it inoperable after the Evaluation Term. This Agreement may be terminated by either party for any reason or no reason upon ten (10) days written notice to the other party at the address listed above, or immediately upon written notice of any breach or threatened breach by the other party of any provision of this Agreement. Upon termination or expiration of this Agreement, Licensee’s license to use the Product will automatically terminate. Sections 2.2, 3 and 8 through 11, as well as this sentence, shall survive any termination or expiration of this Agreement for any reason.
Reports. During the Evaluation Term, Licensee agrees to use good faith efforts to provide regular reports (“Reports”) commencing one week after the Effective Date, which reports shall disclose: (a) which portions of the Product have been utilized, (b) the nature of that utilization, (c) the extent or amount of utilization, (d) the errors or difficulties discovered, (e) the characteristic conditions and symptoms of the errors and difficulties, so that RedMarlin may recreate the errors and difficulties itself, and (f) recommendations for improvement of the Product. A final summary Report shall be provided to RedMarlin within ten (10) days following the end of the Evaluation Term, which Report will include a final evaluation of the Product.
Product Support. Licensee shall notify RedMarlin by telephone or electronic mail to the contact designated from time to time by RedMarlin upon the discovery of a material error or difficulty in respect of use of the Product. RedMarlin may in its discretion attempt to resolve such error (including sending RedMarlin personnel to Licensee’s facilities to learn about the problem or implement a resolution), but shall be under no obligation to do so.
Fees and Expenses. Licensee shall pay to RedMarlin all fees, in U.S. dollars. All amounts are due and payable within 30 days after invoice date. Any amounts payable hereunder are exclusive of, and Licensee shall be responsible for, all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of RedMarlin.
Ownership. Title to and ownership of the Product and all copies thereof shall be and at all times remain in RedMarlin. No ownership of the Product or Confidential Information is transferred by this Agreement. Any Reports, developments, feedback, recommendations or modifications made during the Evaluation Term by RedMarlin or Licensee relating to the Product, whether or not influenced or suggested by Licensee, are the sole property of RedMarlin. Licensee hereby assigns and agrees to assign to RedMarlin any interest Licensee has or may acquire in any of the foregoing, as well as all related intellectual property rights; and Licensee will cooperate to perfect or further evidence such assignments.
Warranty Disclaimer. The parties acknowledge that the Product is provided “AS IS” and may not be functional on any machine or in any environment. REDMARLIN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND REDMARLIN EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, FREEDOM FROM ERRORS, FREEDOM FROM PROGRAMMING DEFECTS, NONINTERFERENCE AND NONINFRINGEMENT, AND ALL IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE.
Limitation of Remedies and Damages. REDMARLIN SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND LOSS OF PROFITS TO LICENSEE OR ANY THIRD PARTIES, OR (C) FOR ANY DIRECT DAMAGES IN EXCESS OF THE GREATER OF (1) THE AMOUNTS ACTUALLY PAID TO REDMARLIN HEREUNDER OR (2) $100.00, EVEN IF REDMARLIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REDMARLIN SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
11.1. Governing Law. This Agreement shall be governed by and construed in accordance with, the laws of California without regard to conflicts of law provisions thereof.
11.2. Waiver. No provision of right, power or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing signed by an authorized representative of each party.
11.3. Severability. 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.
11.4. Publicity. Neither party shall publicly announce the existence of this Agreement, or advertise or release any publicity in regard thereto, without the prior written consent of the other party.
11.5. Entire Agreement. This Agreement, including any referenced attachments and/or incorporated documents, shall constitute the entire understanding between the parties regarding the subject matter described herein and supersedes any previous communications, representations or agreements whether oral or written regarding such subject matter.
11.6. Modification. No change or modifications of any of the terms or conditions hereof shall be valid or binding on either party unless made in writing and signed by an authorized representative of each party making specific reference to this Agreement and the clause to be modified. No modification of this Agreement shall be effected by either party’s use of any order form, purchase order, acknowledgement, license, shrinkwrap, boxtop, or clickwrap license, or other form containing additional or different terms.
11.7. Relationship of the Parties. The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
11.8. Attorneys’ Fees. In any action to enforce this Agreement the substantially prevailing party will be entitled to costs and attorneys’ fees.
11.9. Assignment. Licensee may not assign or transfer any of its rights or obligations hereunder without the prior written consent of RedMarlin, which consent shall not be unreasonably withheld, and any such attempted assignment shall be void. RedMarlin may freely assign this Agreement. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
11.10. Notices. All notices hereunder shall be in writing and sent to the address specified above, as may be amended by notice pursuant to this subsection, by (a) personal delivery, (b) certified or registered mail, return receipt requested, (c) overnight courier, or (d) confirmed facsimile; notices shall be deemed given upon receipt.
11.11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
11.12. Acknowledgement. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.