Evaluation Agreement Terms

PLEASE READ THESE EVALUATION AGREEMENT TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY DYNETI TECHNOLOGIES, INC. (“DYNETI”).  BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH DYNETI THAT REFERENCE THESE TERMS, OR BY SUBMITTING AN ONLINE CHECK OUT PAGE ON DYNETI’S WEBSITE (EACH, AN “ORDER FORM”), COMPANY AGREES TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS.  YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND COMPANY.  IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1.           Scope of Agreement.  This Agreement sets forth the terms and conditions under which Company may use and test the Dyneti Products at the Evaluation site(s) during the Evaluation Term.

2.           Definitions

2.1        “Product” means the Dyneti product(s) listed the Order Form, including Software and any documentation provided by Dyneti.  The “Product” will also include any subsequent or modified versions of the Product that Dyneti may, in its sole discretion, choose to provide to Company under the terms hereof.

2.2        “Software” means the computer programs provided by Dyneti to Company, in connection with its use of or with a Product, including any software pre-installed or embedded in the Product(s).

3.           Delivery and Return of Products.    Company will return the Products, including all copies of Software and related documentation to Dyneti on or before the expiration of the Evaluation Term at Dyneti’s request and at its expense.  Company will be responsible, and will reimburse Dyneti, for loss of or damage to the Product occurred while Product is in Company’s possession.

4.           Company Obligations.

4.1        Evaluation and License.  Subject to the terms of this Agreement and during the Evaluation Term, Dyneti hereby  grants to Company a personal, non-transferable, non-sublicensable, non-exclusive license to use the Product, including the Software, but only at the Evaluation Site,  and solely to internally test and evaluate the Product (“Evaluation”).

4.2        Restrictions on Use.  Company agrees not to (i) copy, modify, reverse engineer, decompile, disassemble, or otherwise attempt to discover any source code of the Product, make derivative works based upon the Product, or use the Product to develop any products; (ii) sell, license, rent, lease, transfer, or otherwise dispose of or in any way encumber the Product (or any part thereof or access thereto), or use it for the benefit of, any third party or in an production environment; (iii) disclose or otherwise make available to a third party any benchmarking information, or other information for competitive purposes, involving the Product or other materials provided by Dyneti; or (iv) remove any product identification, legend, notices of any copyright restrictions from the Product, or remove the Product from the Evaluation Site.  Company will not export, or allow the export or re-export of the Product or any Confidential Information, or any direct product thereof, in violation of any applicable export laws, restrictions or regulations of the United States or any applicable foreign agency or authority.

5.           Ownership; Feedback.  Company acknowledges that the Product is loaned to Company for Evaluation only and that Dyneti at all times retains ownership of all right, title and interest to the Product and the intellectual property rights related thereto.  will Company agrees to provide reasonable feedback about the Product (“Feedback”) upon Dyneti’s request, which Feedback will answer questions posed by Dyneti  Notwithstanding the foregoing, Company agrees to notify Dyneti by telephone or email within two (2) days of the discovery of a material error or difficulty in the Product.  Company hereby assigns to Dyneti, any Feedback, invention, work of authorship, idea, information, or know-how that is conceived, learned or reduced to practice in the course of performance under this Agreement and all the right, title and interest (including all intellectual property or proprietary rights) with respect thereto.  Company agrees to take any action reasonably requested by Dyneti to evidence, perfect, obtain, maintain, enforce or defend the foregoing.

6.           Warranty DisclaimerEACH PARTY ACKNOWLEDGES THAT FEEDBACK, PRODUCTS AND ANY SUBJECT MATTER OF THIS AGREEMENT IS MADE AVAILABLE ON AN AS IS BASIS, AND SUCH PARTY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NONINFRINGEMENT.

7.           Term and Termination.  This Agreement will commence on the Effective Date and remain in force until the Evaluation End Date (as set forth in Exhibit A), unless terminated earlier in accordance with this Section 7 (the “Evaluation Term”). Either party may terminate this Agreement for any reason or no reason immediately by written notice to the other party.  Upon expiration or termination of this Agreement, all licenses granted to Company will terminate and Company will immediately cease use of the Product and will return the Product to Dyneti, including all Confidential Information and data (including all copies and extracts of thereof) then in Company’s possession or control together with any and all documents, notes and other materials regarding the Product, and certify in writing as to such action.  Upon expiration or termination hereof for any reason, the terms of the following sections will survive: 2, 3, 4.2, and 5-10.

8.           Limited Liability. DYNETI WILL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT 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, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, (C) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF $1,000, OR (D) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

9.           Confidential Information.  Company acknowledges that, in the course of using the Products, it may learn or obtain information relating to the Products and to Dyneti that is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information includes, but is not limited to, the existence of the Product, its features, its use or performance information (including any Feedback, testing results, opinions, benchmarking or other evaluation conclusions), this Agreement, trade secrets, know how, invention , techniques, processes, programs, software source documents, data, financial information, and sales and marketing plans or any other information which Company knows or has reason to know is confidential information of Dyneti. Company will at all times, both during the term of this Agreement and for a period of  five years after its termination, keep in trust and confidence all such Confidential Information, and will not use such Confidential Information other than as expressly authorized by Dyneti under this Agreement, nor will Company disclose any such Confidential Information to any third party.  Further, Company will only disclose the Product and Confidential Information to those of its employees and consultants as are necessary for the use expressly and unambiguously authorized hereunder, and only after such employees and consultants have agreed in writing to be bound by provisions no less restrictive than those of this Agreement.  Company will be responsible for any act or omission of any of its employees or consultants that, if done (or not done) by Company, would constitute a breach of this Agreement. The obligations of confidentiality will not apply to information which has entered the public domain except where such entry is the result of Company’s (or its representatives’) breach of this Agreement.  Any press release or publication regarding this Agreement is subject to prior approval of the parties.

10.        General.  This Agreement will be governed by and construed under the laws of the State of California without giving effect to the principles of conflicts of law and without application of the UN Convention on Contracts for the International Sale of Goods.  The prevailing party in any action arising out of this Agreement will be entitled to an award of its costs and attorneys’ fees.  No waiver of rights under this Agreement by either party will constitute a subsequent waiver of any right under this Agreement and all waivers must be in writing.  In the event that any term of this Agreement is held by a court to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  Dyneti may freely assign and transfer this Agreement in whole or part.  Company may not assign this Agreement without the prior written consent of Dyneti, and any such attempted assignment or transfer will be void and without effect.  All notices required or permitted under this Agreement will be in writing and will be sent to the addresses on the Order Form (or such other address as a party may designate in writing).  This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties with respect thereto.  This Agreement may only be modified by a written document executed by the parties hereto.