This Evaluation and Mutual Non-Disclosure Agreement (“Agreement”) and effective as of the date the Counterparty accepts the demo, trial, or pilot terms (“Proof of Concept”) and conditions presented through CloudEagle’s Order (the “Effective Date”). This Agreement governs the use of CloudEagle’s Services during the Proof of Concept and is binding upon CloudEagle Inc. (“CloudEagle”) and the entity or individual accepting the terms as specified in the Order (“Counterparty”).
1.Definition.
“Confidential Information” means any information relating to Discloser’s business to the extent it is identified as confidential at the time of disclosure or should be reasonably known by Recipient to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Despite the foregoing, each party’s product designs, product plans, software and technology, financial information, marketing plans, business opportunities, pricing information, discounts, customer lists, inventions and know-how shall be the Discloser’s Confidential Information whether or not so identified. Confidential Information also includes the terms and conditions of this Agreement.
2. Use of Confidential Information.
A party which receives Confidential Information under this Agreement (“Recipient”) may use the Confidential Information only for the purpose of determining whether to enter into a business relationship with the party which discloses Confidential Information (“Purpose”) under this Agreement (“Discloser”). Without limiting the foregoing, Recipient agrees that it will not (i) reverse compile, disassemble, decompile or engineer, copy, modify or adapt in whole or any part of the Confidential Information; (ii) copy the Confidential Information or any part thereof; or (iii) access or use any Confidential Information in order to build a competitive product or service.
3. Non-Disclosure of Confidential Information; Notice.
Recipient shall: (i) hold Confidential Information in strict confidence and not divulge any Confidential Information to any third party (other than to Representatives as set forth below); (ii) take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions Recipient employs with respect to its own confidential materials of similar nature); and (iii) not copy or reverse engineer any materials disclosed under this Agreement or remove any proprietary markings from any Confidential Information. Recipient may disclose Confidential Information to its employees, directors and officers, Affiliates, agents, contractors and other representatives (“Representatives”) having a legitimate need to know in furthering the Purpose, provided that such Representatives are bound to confidentiality obligations no less protective of Recipient than this Agreement and that Recipient remains responsible for compliance by any such Representative with the terms of this Agreement. Recipient shall promptly notify Discloser of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Discloser’s Confidential Information of which Recipient becomes aware.
4. Term and Termination.
This term of this Agreement shall continue in effect for a period of one (1) year from the Effective Date (“Term”). This Agreement may be terminated by either party upon notice if the other party (i) breaches any material term or condition of this Agreement and fails to remedy the breach within ten (10) days after being given notice thereof, or (ii) for convenience by providing a prior written notice of not less than ten (10) days.
5. Exclusions; Legally Required Disclosures.
This Agreement imposes no obligations with respect to information which: (i) was in Recipient’s (or any Representative’s) possession before receipt from Discloser, (ii) is or becomes a matter of public knowledge through no fault of Recipient, (iii) was rightfully disclosed to Recipient (or any Representative) by a third party without restriction on disclosure, or (iv) is developed by Recipient without use of or reference to any of the Discloser’s Confidential Information. Upon notice to Discloser, Recipient may make disclosures to the extent required by law or regulation, provided, to the extent legally permissible, Recipient affords the Discloser an opportunity to take legal action to limit the scope of disclosure and obtain confidential protection.
6. Return or Destruction of Confidential Information.
Upon termination of this Agreement, Recipient shall cease using the Discloser’s Confidential Information. Upon written request by Discloser, Recipient will, and will compel its Representatives to, return or destroy all Confidential Information and all copies, notes or extracts thereof and confirm in writing that Recipient has complied with these obligations. Recipient shall not be in breach of this Agreement should copies of the confidential Information be automatically archived in computer back-up systems or as required by law and destroyed in compliance with Recipient’s internal policies, provided that any retained information remains subject to terms of this Agreement.
7. Proprietary Rights.
Neither party to this Agreement acquires any intellectual property rights or any other rights under this Agreement except the limited right to review Confidential Information set forth in this Agreement.
8. Disclaimer.
CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” AND THE DISCLOSER MAKES NO WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS THEREOF. THE DISCLOSER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE.
9. Export.
Recipient agrees not to remove or export from the United States or re-export any Confidential Information or any direct product thereof, except in compliance with all applicable U.S. and foreign laws and regulations.
10. Injunctive Relief.
Each party acknowledges that any breach of this Agreement may cause irreparable harm for which monetary damages are an insufficient remedy and therefore that upon any breach of this Agreement Discloser shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law.
11. Access and use of Software and Services.
Subject to Counterparty’s compliance with the terms of this Agreement, CloudEagle hereby grants to the Counterparty during the POC Term a royalty free, limited, personal, non-exclusive, non-transferable (except as otherwise expressly allowed by this Agreement) license to access and use the Software and Documentation via the Internet address provided to Licensee by CloudEagle (if the Subscription uses the Cloud Infrastructure) or (ii) to install and use the Software (if the Software is hosted on Licensee’s premises Licensee by CloudEagle) and use the Documentation.
Subject to Counterparty’s compliance with the terms of this Agreement, CloudEagle hereby grants to the Counterparty during the POC Term a royalty free, limited, personal, non-exclusive, non-transferable (except as otherwise expressly allowed by this Agreement) license to access and use the Software and Documentation via the Internet address provided to Licensee by CloudEagle (if the Subscription uses the Cloud Infrastructure) or (ii) to install and use the Software (if the Software is hosted on Licensee’s premises Licensee by CloudEagle) and use the Documentation.
For the purpose of this Agreement,
“Software” shall mean the licensed software, as well as any update made available to the Counterparty by CloudEagle and set forth in an Order;
“Services” means the Software and related services accessed by authorized users in a manner consistent with CloudEagle’s published Documentation and this Agreement
“Documentation” shall mean the instruction manuals, user guides, and other information to be made available from time to time by CloudEagle in either printed or electronic form to the Counterparty;
“Order” shall mean any document agreed to between the parties which sets forth the Software licensed by the Counterparty and any relevant pricing.
12. Restrictions of use.
Counterparty agrees that it and its users will not without express written permission of CloudEagle: (a) reverse compile, disassemble, decompile or engineer, copy, modify, adapt or create derivative works of or from the Software or any part thereof; (b) make the Software or Documentation available to, or use the Software or Documentation for the benefit of, anyone other than the counterparty; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Software or Documentation, or include any Software or Documentation in a service bureau or outsourcing offering; (d) permit direct or indirect access to or use of the Software or Documentation in a way that circumvents any contractual usage limit; (e) copy the Software or Documentation or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement); or (f) access or use any Software or Documentation in order to build a competitive product or service. Without limiting any other responsibilities, the Counterparty has under this Agreement, Counterparty is responsible for the actions of anybody accessing the Software using the credentials of any user.
13. License grant by Counterparty.
Counterparty hereby grants to CloudEagle a non-exclusive, transferable and sublicensable (solely as set forth herein), worldwide, royalty-free license to use, copy, modify and perform Licensee Data as reasonably required to operate and provide the Software and related services. CloudEagle shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related services, systems and technologies, and CloudEagle will be free to (i) use such information and data to improve and enhance the Software and related services and for other development, diagnostic and corrective purposes in, and (ii) except for data that is Confidential Information disclose such data solely in aggregate or other de-identified form (from which neither Counterparty cannot be identified) in connection with its business. “Counterparty data” shall mean any non-public data provided by Counterparty to CloudEagle to enable CloudEagle to provide the Software and related services.
14. Access and Credentials.
To access the Service, Counterparty must register and provide CloudEagle with certain information (such as identification or contact details) as part of the registration process. Counterparty shall provide accurate, current and complete information required to enable its users access to the Service. Once registered, Counterparty will be issued certain access credentials to access the Service. The counterparty will maintain the accuracy of such information during the use of the Services. Counterparty shall require its users to maintain proper password security, and to maintain the confidentiality of Counterparty’s account.
15. Disclaimer of Warranties.
EXCEPT AS MAY OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, SERVICES, DOCUMENTATION, DATA OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS WARRANTIES, AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CLOUDEAGLE DOES NOT WARRANT THAT THE SOFTWARE, SERVICES OR DOCUMENTATION PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT SUCH SOFTWARE OR DOCUMENTATION WILL SUCCEED IN RESOLVING ANY PROBLEM.
16. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY,NEGLIGENCE OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EITHER PARTY’S AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S), WILL BE LIMITED TO USD 100. .
17. Privacy and Security.
Each party agrees to abide by all applicable local, state, national, and international laws and regulations in connection with providing the Services, including, without limitation, all laws regarding the transmission of technical data exported from the United States through the Service(s) and all applicable privacy laws. CloudEagle will, taking into account the nature of the personal data and the risks involved in the processing of any such personal data, maintain reasonable and appropriate security measures, including technical and organizational safeguards designed to ensure the security and confidentiality of personal data.
18. Ownership.
CloudEagle owns its Software, Documentation, website and work. The Software and Documentation contain proprietary and confidential information of CloudEagle and its licensors. Except to the extent licenses are expressly granted hereunder, CloudEagle and its licensors retain all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to the Software, Documentation and Services. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to CloudEagle’s website are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, use or publication by Counterparty of any such parts of the website, Software, Documentation or the Services, except as expressly authorized by this Agreement, is prohibited. Except as may otherwise be provided for in a statement of work signed by the parties, CloudEagle shall own all right, title and interest, including all intellectual property rights, in and to any intellectual property created by CloudEagle and delivered to Counterparty pursuant to this Agreement or otherwise created by CloudEagle in the course of providing the Software, Service or Support Services under this Agreement. Except to the extent licenses are expressly granted hereunder, Counterparty retains all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to: (i) its products and services; and (ii) the Counterparty Data.
19. Effect of Termination.
Upon termination of this Agreement, Counterparty shall immediately uninstall all copies of the Software and Documentation in its possession or control, and a duly authorized officer of the Counterparty shall confirm in writing to CloudEagle that the Counterparty has complied with such obligation. Any termination of this Agreement pursuant to this Section shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
20. General.
In the event, post the completion of the POC, the Counterparty wants to go ahead with a paid subscription, then the parties shall execute a detailed agreement governing the access and use of the Services. In the event that any of the provisions of this Agreement shall be held illegal or unenforceable by a court of competent jurisdiction, 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 laws of the State of California and the United States without regard to conflicts of laws provisions thereof. The exclusive jurisdiction and venue for any action arising out of or relating to the subject matter of this Agreement will be the state and federal courts located in California and both parties hereby submit to the personal jurisdiction of such courts. Notwithstanding the foregoing, either party may seek equitable relief or enforcement of any judgment in any other court of competent jurisdiction. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof; provided, however, that this Agreement will not supersede or amend any agreement (including any confidentiality terms therein) between the parties or their affiliates for the purchase or use of either party’s products or services. The prevailing party in any action to enforce this Agreement may be entitled to reasonable costs and attorneys’ fees. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of each party and no failure or delay in enforcing any right will be deemed a waiver. Neither party may assign this Agreement without the advance written consent of the other party (which will not be unreasonably withheld), except that upon notice, either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities. This Agreement may be executed in any number of counterparts, each of which shall be considered an original, but all of which together will constitute one and the same instrument. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the signature box to this Agreement (or such other address as to which the other party has been notified), or sent by email to the email address as may be provided by one party to the other from time to time.