This Pilot Agreement ("Agreement") IS A LEGAL AGREEMENT BETWEEN YOU ("TESTER") AND Tara Intelligence Inc. ("Company"). Company is developing a software platform product offering for managing product development lifecycles ("Company Platform"), and this agreement governs tester's use of the company platform. BY ACCESSING OR USING THE SERVICE OR BY CLICKING THE "I ACCEPT" BUTTON, TESTER ACKNOWLEDGES THAT TESTER HAS REVIEWED AND ACCEPTS THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT AS AN INDIVIDUAL "TESTER" REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND "TESTER" REFERS TO THAT ENTITY. IF TESTER DOES NOT AGREE WITH ALL OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE Company Platform.
1. LICENSE AND PILOT TERMS.
1.1 Grant of Rights. Subject to the terms of this Agreement, Company hereby grants Tester the right to access the Company Platform via the Internet solely for purposes of internally evaluating the Company Platform and determining whether to enter into a longer term commercial license agreement with the Company with respect to the Company Platform.
1.2 Pilot Terms. The Company Platform is being made available under this Agreement for experimental use only. The Company Platform shall be tested and evaluated under this Agreement. The performance and operation of the Company Platform and results of Tester's evaluation shall be deemed Confidential Information of Company. While Company intends to distribute a commercial release of the Company Platform, Company reserves the right at any time not to release a commercial version of the Company Platform or, if released, to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release.
2. RELATED TERMS.
2.1 Prohibitions. Tester shall not, directly or indirectly do any of the following: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Company Platform; (ii) modify, translate, or create derivative works based on any element of the Company Platform or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Company Platform; (iv) use the Company Platform for any purpose other than as expressly permitted by Section 1 above, or for the benefit of any person or entity other than Tester; (v) remove any proprietary notices from the Company Platform or other Company materials furnished or made available to Tester; (vi) publish or disclose to third parties any evaluation of the Company Platform without Company's prior written consent; or (vii) use the Company Platform for any purpose other than its intended purpose or in a manner other than in accordance with its documentation.
2.2 Tester Content. "Tester Content" means any and all materials, graphics, photos, text, data, information, and other content submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Tester in connection with the Company Platform. Tester grants to Company a non-exclusive transferable license to use, copy, modify, distribute, perform and display Tester Content to provide the functionality of the Company Platform to Tester. As between the parties, Tester is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Tester Content. Tester shall indemnify and hold harmless Company from and against any and all claims, suits, actions, demands and proceedings against Company and all losses, costs and liabilities related thereto arising out of or related to Tester Content.
3. No Implied Rights.
All rights not expressly granted to Tester by Company are reserved by Company. There are no implied rights.
4. Maintenance and Support.
Company has no obligation to support or maintain the Company Platform in any way, correct any bugs, errors or deficiencies or provide updates, new builds or error corrections ("Updates"). To the extent Company, in its sole discretion, makes available any Updates, the Update is deemed part of the Company Platform.
5. PROPRIETARY RIGHTS.
5.1 Ownership. As between the parties, Company and its licensors owns all right, title and interest, including all intellectual property rights, in and to the Company Platform.
5.2 Intellectual Property Notices. Tester shall not delete or alter in any manner the copyright, trademark, and other proprietary rights notices of Company and its licensors appearing on the Company Platform as made available to Tester.
5.3 Feedback. Tester may inform Company of bugs, errors, problems and issues encountered using the Company Platform and all suggestions, ideas, comments and feedback with respect to the Company Platform, including all ideas for improvements and enhancements to the Company Platform and for new product or service offerings (collectively, "Feedback"). Tester hereby assigns to Company all right, title and interest to the Feedback, including all related intellectual property rights. Company is under no obligation to use any Feedback.
6. WARRANTY DISCLAIMER.
The Company Platform is provided and made available to Tester on an 'as is' and 'with all faults' basis. COMPANY AND ITS LICENSORS HEREBY DISCLAIM AND EXCLUDE ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, AND USAGE OF TRADE. Company and its licensors do not warrant that (a) the Company Platform will meet Tester's needs or requirements, (b) access to or the operation of the Company Platform will be uninterrupted or error-free, (c) the Company Platform will be always available or operational or available or operational at any particular time, or (d) defects in the Company Platform will be corrected. Company and its licensors assume no responsibility, and will not be liable, for any action or inaction taken in reliance on the Company Platform. Company disclaims any indemnification obligation in connection with this Agreement.
7. LIMITATION OF LIABILITY.
7.1 Limitation of Liability. IN NO EVENT SHALL COMPANY'S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100), NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
7.2. Consequential Damages Waiver. IN NO EVENT WILL COMPANY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, EVEN IF COMPANY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
8. TERM AND TERMINATION.
8.1 Term and Termination. This Agreement shall begin on the date the parties entered into this Agreement and, unless terminated sooner as provided for herein, continues in full force and effect for a period of 120 days, terminating thereafter. The parties may extend this Agreement by mutual written agreement (including by the exchange of email).
8.2 Termination. A party may terminate this Agreement at any time upon written notice.
8.3 Effect of Termination. Upon termination or expiration of this Agreement, Tester shall cease all access to the Company Platform and return or destroy all Company materials in Tester's possession, custody or control.
8.4 Survival. The definitions in this Agreement and the rights, duties and obligations of the parties that, by their nature, continue and survive will survive termination or expiration of this Agreement.
9. CONFIDENTIAL INFORMATION.
9.1 Definition. "Confidential Information "Confidential Information" means all non-public information, whether in oral, written or other tangible or intangible form, of a party that is disclosed to the other party under this Agreement that the discloser designates as being confidential or which, under the circumstances surrounding disclosure, the recipient knows or reasonably should know is confidential to the discloser. Company Confidential Information includes, without limitation, the Company Platform (including all documentation included therein), all Company Platform support materials and any studies or reports concerning its features, performance or operation and the terms and conditions of this Agreement.
9.2 Obligations. Each party, as recipient, shall not use the other party's Confidential Information except as necessary to exercise rights under or perform this Agreement and shall not disclose Confidential Information to any third party. Without limiting the generality of the foregoing, Tester shall not disclose the existence, features, capabilities or performance of the Company Platform. A party shall promptly notify the other of any unauthorized disclosure or use of Confidential Information that comes to its attention. The recipient shall assist the discloser in remedying the unauthorized use or disclosure.
9.3 Exceptions. The obligations set forth in this Section 9 do not apply to Confidential Information which: (i) is already known to the recipient without a duty of confidentiality at the time of disclosure; (ii) is, or, through no act or failure to act of the recipient, becomes, publicly known; (iii) is received by the recipient from a third party without restriction on disclosure; or (iv) is independently developed by the recipient without the use of or reference to the discloser's Confidential Information. A disclosure of Confidential Information by the recipient pursuant to a proper order of a court of competent jurisdiction will not be a breach of this Section 9, on condition that the recipient uses diligent efforts to minimize the disclosure and consults with, and assists the discloser in obtaining, a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
10.1 Governing Law and Jurisdiction. The laws of the State of California govern all matters arising out of this Agreement. Any and all disputes between the parties arising under or in connection with this Agreement, which cannot amicably be resolved by the parties, shall be resolved solely and exclusively in the state and federal courts located in Santa Clara County, California, with the exception that Company shall have the right to seek a temporary or permanent injunction or other equitable remedy or relief in any court having subject matter jurisdiction anywhere in the world. Each party hereby expressly consents to the service of process in connection therewith and irrevocably waives any objections to the jurisdiction of such courts on any grounds, including, without limitation, forum non conveniens. Any judgment or award by such courts may be entered and enforced by any court having jurisdiction over the parties or their assets.
10.2 Assignment. Tester shall not, voluntarily, by operation of law, or otherwise, assign its rights under this Agreement or delegate any performance without the prior written consent of Company, and any attempt to assign or delegate in violation of the foregoing is void. Subject to the foregoing, this Agreement is binding on, and will inure to the benefit of, the parties of this Agreement and their respective successors and permitted assigns.
10.3 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision will be amended to achieve as closely as possible the economic effect of the original provision and all other provisions shall continue in full force and effect.
10.4 Amendment; Waiver. This Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties and identifies itself as an amendment to this Agreement. No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by a party to, or waiver of, a breach by the other party, whether express or implied, shall constitute that party's consent to, waiver of, or excuse of any other, different, or subsequent breach by the other party.
10.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral, with respect to such subject matter.
10.6 Force Majeure. Company will not be liable hereunder by reason of any failure or delay in the performance of this Agreement on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, acts of nature, war, governmental action, labor conditions, power outages, earthquakes, or any other cause which is beyond its reasonable control.
10.7 Remedies Cumulative. All remedies available to a party are cumulative and may be exercised concurrently or separately; the exercise of any remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
10.8 Marketing. Company may include and use Tester's name on a list of Company Platform pilot customers and may refer to Tester as a user of the Company Platform in its advertising, marketing, promotional and investor materials.
10.9 Relationship of the Parties. The relationship of the parties hereto is one of contract only, and in no event shall the parties be construed as partners, joint venturers, agents or principals of each other.
10.10 Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory hereto shall be bound until both the parties named below have duly executed or caused to be duly executed a counterpart of this Agreement.
10.11 Allocation of Risk. The sections on limitation of liability and disclaimer of warranties allocate the risks in the Agreement between the parties. This allocation is an essential element of the basis of the bargain between the parties.
10.12 Construction of Agreement. This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof shall not be construed for or against any party. The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole.