ARTICLE: 1 EVALUATION
These terms govern your use of the Datameer’s software and any other Datameer feature (“Products”) that enables you to access or purchase Datameer Products. Datameer will provide the Products for a fourteen (14) day evaluation period. Upon expiration of the evaluation period, Customer may either:
a.) license the Products under mutually agreeable terms and conditions;
b.) extend the length of the evaluation period with the prior written approval of Datameer.
ARTICLE: 2 PROPRIETARY INFORMATION
2.1 Obligations. Customer acknowledges that the Products contains valuable trade secrets of Datameer, and agrees that it shall not under any circumstances disassemble, decompile, or reverse engineer the Products. Customer agrees that it will not disclose or, except as expressly permitted in this Agreement, use any Products or other technical information disclosed to it by Datameer (“Confidential Information”) and that it will take all reasonable measures to maintain the confidentiality of all Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of equal importance. Without limiting the generality of the foregoing, features lists, assessment, bug and performance reports regarding the Products are expressly considered Datameer’s Confidential Information.
2.2 Exceptions. Confidential Information will not include information that (a) is in or enters the public domain without breach of this Agreement, (b) Customer receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation or (c) Customer develops independently, which it can prove with written evidence.
ARTICLE: 3 DISABLING CODE
Datameer warrants that, at time of provisioning, the Products will not include any data, design or routine that will cause Customer’s computer systems to become erased, contaminated, inoperable or otherwise incapable of being used in the manner they were used prior to the Products being installed at Customer.
ARTICLE: 4 DISCLAIMER OF WARRANTIES
THE PRODUCTS ARE EXPRESSLY PROVIDED WITH NO WARRANTIES OF ANY KIND AND CUSTOMER HEREBY WAIVES, ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE PRODUCTS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE. CUSTOMER ACKNOWLEDGES THAT BECAUSE OF THE COMPLEX NATURE OF COMPUTER SOFTWARE, DATAMEER CANNOT AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE ERROR-FREE.
ARTICLE: 5 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS OR INDIRECT, SPECIAL, INCIDENTAL OR CON¬SEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. DATAMEER SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN THE DELIVERY, INSTALLATION OR FURNISHING OF THE PRODUCTS HEREUNDER.
ARTICLE: 6 GENERAL PROVISIONS
6.1 Governing Law
This Agreement shall for all purposes be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of the laws of a different jurisdiction.
6.2 Jurisdiction and Venue
Any dispute, action or proceeding arising out of or related to this Agreement may be commenced in the state or federal courts located in the state of California. Each party agrees that these courts shall have exclusive jurisdiction over any proceedings initiated by the other party, and irrevocably submits and waives any objections to the personal jurisdiction and venue of such courts, including any objections based on forum non conveniens.
Any notices under this Agreement shall be in writing, and shall be delivered by the United States Postal Service using certified mail or via a reputable express courier service (such as FedEx, UPS). Notices shall be directed to the addresses set forth below and shall be deemed effective upon receipt (or if delivery is refused, on the date of such refusal). Either party may from time to time change its address for notices by providing written notice of such change to the other party. In Datameer’s case, our address is: Attn: Legal Department, DATAMEER, INC., 550 Bryant St, Suite 490, San Francisco, CA 94103
6.4 Relationship of the Parties
The parties agree that each is being engaged as an independent entity. Nothing contained in this Agreement, nor any action taken by any party, shall create any agency, employment, partnership, fiduciary or joint venture relationship between the parties and/or the parties’ representatives. As between Customer and Datameer, Datameer shall be solely responsible for its representatives, regardless of where such representatives are located. Datameer’s representatives are not eligible for and may not participate in any Customer benefit plans, and Datameer shall advise its representatives of such restriction.
6.5 Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and nothing herein, express or implied, shall give, or be construed to give, any rights hereunder to any other person, including without limitation, any subcontractors, sub-vendors, or anyone designated as a reseller
6.6 Attorney’s Fees and Costs
In any action, suit or proceeding to enforce this Agreement, the prevailing party shall be, in addition to any other relief it may receive, entitled to recover from the other party its reasonable attorney’s fees and costs incurred in connection therewith.
Neither party may assign, subcontract or otherwise transfer its duties or responsibilities under this Agreement, in whole or in part, by operation of law or otherwise, including by merger, consolidation or acquisition of a controlling interest in a party.
6.8 Revisions to this Agreement
Datameer may at any time revise the terms of this Agreement by updating these terms and by providing notice to you of that change.
No rights of a party or breach by the other party of any provision hereunder shall be waived by any act, omission, delay or knowledge of a party, except by a written document executed by a duly authorized representative of the waiving party. Any waiver on one occasion shall not constitute a waiver of any prior, concurrent or subsequent occasions.
6.10 Equitable Relief
You agree that any breach of this Agreement by You would cause irreparable damage, and that, in event of such breach, in addition to any and all remedies at law, Datameer will have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of this Agreement.
6.10 Force Majeure
Notwithstanding anything herein to the contrary, Datameer shall not be liable for any delay or failure in performance caused by circumstances beyond Our reasonable control.
If any provision of this Agreement is determined to be invalid or unenforceable under applicable law, the provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Agreement shall continue in full force and effect.
This Agreement, and any amendments hereto and any waiver hereof, may be executed in counterparts, all of which taken together shall constitute one single agreement between the parties.
The captions and article and section headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretations of this Agreement. The term “including” as used herein means “including without limitation.” The terms “herein,” “hereof,” “hereunder,” and similar terms refer to the Agreement as a whole, rather than any particular provision. Each party acknowledges that it has had the opportunity to review this Agreement with legal counsel. Any rule of construction that resolves ambiguities against the drafting party shall not apply in the interpretation of this Agreement.