SAAS EVALUATION AGREEMENT
This SaaS Evaluation Agreement (“Agreement”) is made between Atlas Informatics (“Company”), with its principal place of business located at 311 ½ Occidental Avenue South, Seattle, WA 98104 and you, either an individual or a single entity, (“Evaluator”).
Within the protection of a confidential relationship and on the following terms, Company is willing to supply the Services (defined below) to Evaluator solely for testing as provided below. Evaluator desires to have access to the Services for those purposes, is aware of the experimental and untested nature of the Services, and is willing to enter a confidential relationship and to use and test the Services and report to Company on the performance of the Services.
1. Use of Services; Fees. During the term and subject to the provisions of this Agreement, Company grants to Evaluator a personal, nonsublicensable, nonexclusive license to use the “Services” (meaning the services and any software and related materials that may be provided by Company for Evaluator’s use as part of the Services, all of which are set forth in Schedule A) in accordance with the documentation supplied by Company, solely for Evaluator’s internal testing on behalf of Company. Evaluator agrees to use the Services only in the ordinary course of testing, and Evaluator will not reproduce or modify the Services, any underlying ideas, technology, or related software, or any portion thereof. Evaluator shall not rent, sell, lease or otherwise transfer or allow access to the Services or any part thereof or use it for the benefit of a third party. Evaluator shall not reverse assemble, reverse compile or reverse engineer any software related to the Services, or otherwise attempt to discover any software source code or underlying Proprietary Information (as that term is defined below). In consideration of the rights granted herein, Evaluator agrees to pay Company the fees set forth in Schedule A.
2. Confidentiality; Ownership. Evaluator acknowledges that, in the course of using the Services and performing its duties under this Agreement, it may obtain, learn or develop information relating to the Services and/or to Company (“Proprietary Information”), including, but not limited to, the existence of the Services, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, any information or reports under Section 3 of this Agreement, analysis and performance information, and other technical, business, product, marketing and financial information, plans and data. During and after the term of this Agreement, Evaluator shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Proprietary Information, unless such Proprietary Information becomes part of the public domain without breach of this Agreement by Evaluator, its officers, directors, employees or agents. Evaluator will not remove or export the Services or any Proprietary Information or any direct product thereof from the United States. Evaluator hereby assigns to Company any improvements, enhancements, extensions, derivatives or modifications to the Services (and all related intellectual property rights) that are conceived, learned or reduced to practice in connection with this Agreement. Evaluator agrees to take any action reasonably requested by Company to evidence, perfect and maintain the foregoing ownership rights.
3. Reports. Evaluator agrees to provide periodic feedback to Company detailing: (1) the portions of the Services used and any related technology and/or software used, (2) the nature of that use, (3) the extent or amount of use, (4) the errors or difficulties discovered, and (5) the characteristic conditions and symptoms of those errors and difficulties so that Company may recreate the errors and difficulties itself. In addition, Evaluator will notify Company by telephone immediately of the discovery of any material error or bug.
4. Warranty Disclaimer. The parties acknowledge that the Services are provided “AS IS” and may not be functional on any machine or in any environment. COMPANY DISCLAIMS ALL WARRANTIES RELATING TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Limitation of Liability. COMPANY 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 OR CORRUPTION OF DATA OR (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (C) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, OR FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID TO COMPANY UNDER THIS AGREEMENT, OR (D) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
6. Nonassignability. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Evaluator, and any such attempted assignment or transfer shall be void and without effect.
7. Controlling Law, Attorneys’ Fee and Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 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.
8. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto are expressly canceled. Any modifications of this Agreement must be in writing and signed by both parties hereto.
9. Equitable Relief. Evaluator acknowledges and agrees that due to the unique nature of Company’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Evaluator or third parties to unfairly compete with Company resulting in irreparable harm to Company, and therefore, that upon any such breach or threat thereof, Company shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
10. Termination. 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 by Company upon notice of any breach by Evaluator of the provisions of this Agreement, and in any case will terminate one hundred eighty (180) days after the Effective Date. Upon termination, the rights and licenses granted to Evaluator hereunder shall terminate and Evaluator shall immediately return anything Evaluator has obtained in connection with Services, together with any and all documents, notes and other materials respecting the Services to Company, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect.