STAR CLOUD SERVICES INC. (“STARCLOUD”) IS PROVIDING YOU THE OPPORTUNITY TO EVALUATE (THE “EVALUATION”) CERTAIN PRODUCTS AND RELATED SERVICES (COLLECTIVELY, THE “PRODUCT”). USE OF THE PRODUCT AND THE CONDUCT OF THE EVALUATION ARE SUBJECT TO THIS EVALUATION AGREEMENT (“AGREEMENT”). PLEASE READ THE FOLLOWING INFORMATION CAREFULLY. YOUR USE OF THE PRODUCT AND PARTICIPATION IN THE EVALUATION WILL INDICATE YOUR AGREEMENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT PARTICIPATE IN THE EVALUATION OR MAKE ANY USE OF THE PRODUCT.
1. GRANT OF LICENSE. Unless agreed otherwise by the parties in a separate writing, the Products are furnished for purposes of the Evaluation without charge by StarCloud. You desire to participate in the Evaluation for purposes of assessing the performance, interoperability, and functionality of the Products and determining whether the Products you’re your requirements. The parties agree and acknowledge that participation in the Evaluation, whether or not successful, will not obligate either party to enter into any other or additional agreements. During the Evaluation, StarCloud grants you a revocable, nontransferable, nonexclusive, as-is license to use the Products for your internal use in conducting the Evaluation. You will use the Products in accordance with their applicable documentation and for no other purpose. The Products are licensed, not sold. Except for the limited license granted above, StarCloud and its licensors retain all right, title and interest in the Products, all copies thereof, and all proprietary rights in the Products, including copyrights, patents, trademarks and trade secret rights. You may not use any information disclosed by StarCloud in connection with this Agreement to contest the validity of any StarCloud intellectual property, including the Products. Any such use of StarCloud’s information and data will constitute a material, non-curable breach of this Agreement.
2. LIMITATIONS ON LICENSE. You may not (i) copy or distribute the Products except to the extent that copying is necessary to use the Products for the Evaluation; (ii) reverse engineer, decompile, disassemble, modify or create derivative works of the Products, except to the extent permitted by applicable law; (iii) assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Products, or directly or indirectly permit any unauthorized third party to use or copy the Products; (iv) use the Products for the benefit of any third party; (v) use the Products in excess of the limited rights granted herein; or (vi) remove any proprietary notices (e.g., copyright and trademark notices) from the Products.
3. TERM AND TERMINATION. Unless agreed otherwise by StarCloud in writing, the Evaluation will commence on your acceptance of this Agreement and will continue thereafter for a period of thirty (30) days, unless earlier terminated as provided herein. Either party may terminate this Agreement, without cause, at any time on written notice to the other party. On termination or expiration of this Agreement, the license granted in Section 1 will automatically terminate and you will, at your own cost, (i) promptly return all hardware Products and accompanying packaging and hardcopy Documentation to the address designated by StarCloud in writing; and (ii) delete all copies of the software Products and electronic Documentation from your systems and destroy or irretrievably erase any associated media. The following provisions will survive any termination or expiration of this Agreement: Sections 2 (Limitations on License), 3 (Termination), 4 (Warranty Disclaimer), 6 (Limitation of Liability), and 9 (General).
4. CONFIDENTIALITY. In connection with the Evaluation, StarCloud may disclose to you certain non-public information or materials, intellectual property, and other confidential and proprietary content (“Confidential Information”). Confidential Information includes, but is not limited to, the Products and all Documentation. Confidential Information does not include information that: (a) is or becomes publicly available through no breach by you of this Agreement; (b) was previously known to you prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third party without any breach of any obligation of confidentiality; (d) was independently developed by you without reference to the Confidential Information; or (e) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that you will promptly inform StarCloud in writing and provide a copy of the subpoena or order to StarCloud, and will only disclose that Confidential Information necessary to comply with such subpoena or order. Except as expressly provided herein, you will not use or disclose any Confidential Information without StarCloud’s prior written consent, except disclosure to and subsequent you’re your employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as those in this Section. You will use at least the same care and precaution in protecting the Confidential Information as it uses to protect your own most confidential information, and in no event less than reasonable care. You acknowledge that due to the unique nature of the Confidential Information, StarCloud will have no adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, StarCloud will be entitled to injunctive relief, without bond, to prevent any unauthorized use or disclosure of its Confidential Information.
5. WARRANTY DISCLAIMER. THE PRODUCTS ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, STARCLOUD AND ITS SUPPLIERS/LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUITE ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY. IN NO EVENT WILL STARCLOUD, ITS AFFILIATES, OR ANY OF ITS LICENSORS AND VENDORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THIS AGREEMENT OR THE PRODUCTS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN ANY EVENT, THE MAXIMUM LIABILITY OF ANY OF THE FOREGOING PARTIES FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) OF EVERY KIND ARISING OUT OF THIS AGREEMENT OR THE PRODUCTS WILL IN NO EVENT EXCEED ONE HUNDRED DOLLARS ($100.00).
7. EXPORT. You will not export, directly or indirectly, the Products to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval. It will be your responsibility to comply with such export laws, rules and regulations. You will defend and indemnify StarCloud from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of any claim the Products were exported or otherwise shipped or transported by you or your agents in violation of applicable laws, rules and regulations.
8. FEEDBACK. You may provide suggestions, comments or other feedback (collectively, “Feedback”) to StarCloud with respect to its products and services, including the Products. Feedback is voluntary and StarCloud is not required to hold it in confidence. StarCloud may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you hereby grant StarCloud an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with StarCloud’s business, including the enhancement of the Products.
9. GENERAL. You may not assign or transfer any rights or obligations under this Agreement without the prior written consent of StarCloud. This Agreement will be governed by and construed in accordance with the laws of the State of California. Any action at law or in equity arising out of or directly or indirectly relating to this Agreement may be instituted only in the federal or state courts located in Palo Alto, California. The parties consent and submit to the personal jurisdiction of those courts for the purposes of any action related to this Agreement, and to extra-territorial service of process. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement. The provisions of this Agreement will be deemed severable. If any provision of this Agreement will be held unenforceable by any court of content jurisdiction, it will be severed from this Agreement and the remaining provisions will remain in full force and effect. No course of dealing or usage of trade by or between the parties will be deemed to effect any such amendment or modification. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, will not constitute a consent to, or a waiver of any other, different or subsequent breach. Neither party will represent that its relationship with respect to the other party is other than as an independent contractor. Nothing in this Agreement will create in either party any right or authority to incur any obligations on behalf of, or to bind in any respect, the other party and nothing in this Agreement will be construed to create any agency, joint venture or partnership. This Agreement as may be amended in accordance with the provisions herein, sets forth the entire Agreement between the parties and supersedes prior proposals, agreements and representations between them related to the subject matter hereof, whether written or oral. No modifications or amendments to this Agreement will be binding upon the parties unless made in writing and duly executed by duly authorized representatives of both parties. StarCloud may assign any of its rights or obligations hereunder as it deems necessary.