TRIAL AGREEMENT FOR KARMASPHERE PRODUCT
THIS TRIAL AGREEMENT FOR KARMASPHERE PRODUCT (THIS “AGREEMENT”) APPLIES TO YOUR USE OF THE KARMASPHERE SOFTWARE (AS DEFINED BELOW) PROVIDED BY KARMASPHERE, INC. (“KARMASPHERE”). PLEASE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.
BY USING THE KARMASPHERE SOFTWARE (OR ANY PORTION THEREOF), YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (B) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (C) YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE ANY PORTION OF THE KARMASPHERE SOFTWARE.THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE UPON WHICH YOU FIRST USE THE KARMASPHERE SOFTWARE.
1.1 The Karmasphere™ Product (the “Product”) consists of certain software developed by Karmasphere (the “Karmasphere Software”), along with certain third party software (the “Third Party Software”) which are identified, along with their respective third party licenses, at http://karmasphere.com/ks/opensource, as the contents may be amended by Karmasphere from time-to-time to reflect changes to the Product and/or the applicable license terms for components of the Product (the “Third Party Licenses”).
1.2 The Agreement is being entered into to allow you to evaluate the Product during a defined period following the Effective Date that has been indicated on the attached intake form (the “Trial Period”), solely for facilitating the Trial Purposes (as defined below).
2.1 Grant of License. Subject to the terms and conditions of this Agreement and the terms and conditions of the Third Party Licenses, Karmasphere hereby grants to you, during the Trial Period, a nonexclusive, nontransferable, nonsublicensable, revocable and limited license to: (a) run the Karmasphere Software solely for the Trial Purposes (as defined below); (b) use the Third Party Software included in the Product, subject to the terms of the Third Party Licenses; and (c) receive any software updates to the Product as may be provided to you by Karmasphere via the Product from time-to-time during the Trial Period (each, an “Update”), including any updates to the Karmasphere Software or the Third Party Software contained therein and run the Update solely for the Trial Purposes.
2.2 Trial Purposes. The “Trial Purposes” for which you may use the Product during the Trial Period consist of the following:
(a) Testing and/or evaluating the Karmasphere Software to consider potential commercial licensing and deployment of the Karmasphere Software in a production environment;
(b) Use of the Karmasphere Software in classroom settings, solely for educational purposes by non-profit entities; for the avoidance of doubt, this shall exclude use of the Karmasphere Software for any research projects funded by third parties. For the avoidance of doubt, the Trial Purposes shall exclude any use of the Karmasphere Software in a production environment or otherwise for any commercial purposes.
2.3 Reservation of Rights. All rights not expressly granted under this Agreement or the Third Party Licenses are reserved to Karmasphere and the licensors of the Third Party Software. You will not: (a) modify, translate or create derivative works of the Karmasphere Software; (b) decompile, reverse engineer or reverse assemble any portion of the Karmasphere Software; (c) sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Karmasphere Software, deploy or use the Karmasphere Software in a production environment, for any commercial purposes, or otherwise for any other purposes other than the Trial Purposes; (d) make, have made, reproduce or copy the Karmasphere Software other than for the Trial Purposes; (e) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Product; or (f) cause or permit any other party to do any of the foregoing.
3.1 Non-Disclosure. The Karmasphere Software and any other information or materials acquired by you in connection with this Agreement that is not generally available to the public will constitute confidential information of Karmasphere (“Confidential Information”). Confidential Information may include, without limitation, information or data relating to the use, testing, evaluation, research, study, or technology in or relating to the Karmasphere Software. You will treat all Confidential Information as confidential and proprietary information of Karmasphere and will use such Confidential Information solely in connection with its performance of this Agreement. You will not disclose Confidential Information to any person or entity, except that you may disclose such information on a need-to-know basis to its employees who have agreed to comply with your confidentiality obligations under this Agreement. Your obligation to maintain the confidentiality of such information shall not apply to information, other than the Software, that you are able to show through written documentation (i) was known to you before receiving such information without breach of confidentiality obligations to Karmasphere by itself or a third party, (ii) is in the public domain, or (iii) that you have received from a third party who was legally entitled to make an unrestricted disclosure.
3.2 Feedback. Any feedback that you provide under this Agreement, such as results from tests and evaluations of the product, or other such feedback (collectively, “Feedback”) shall be voluntary, and shall not create a confidentiality obligation on Karmasphere. You will not provide any Feedback to Karmasphere that is subject to any confidentiality obligations or intellectual property rights of any third parties. Karmasphere shall be free to use, reproduce, license, or otherwise exploit the Feedback for any purposes.
3.3 Return of Materials. For the avoidance of doubt, upon any expiration or termination of this Agreement, all rights granted to you under this Agreement will immediately terminate, and you will promptly delete all of the Karmasphere Software, and other materials received from Karmasphere hereunder. Upon request from Karmasphere, you will provide written confirmation of such deletion. The Product may include mechanisms which allow Karmasphere to disable or delete such software at the conclusion of the Trial Period.
4. Disclaimer of Warranties; Limitation of Liability
4.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT (INCLUDING, BUT NOT LIMITED TO, ANY KARMASPHERE SOFTWARE, THIRD PARTY SOFTWARE, OR UPDATES) AND SERVICES (IF ANY) ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTHING STATED IN THIS AGREEMENT WILL IMPLY THAT THE OPERATION OF ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED.
4.2 Exclusion of Consequential Damages. IN NO EVENT WILL KARMASPHERE OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS, OR LICENSORS (INCLUDING, BUT NOT LIMITED TO, ANY LICENSORS OF THIRD PARTY SOFTWARE) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT OR ANY RELATED AGREEMENTS, ANY USE OR INABILITY TO USE ANY SOFTWARE (INCLUDING, BUT NOT LIMITED TO, THE KARMASPHERE SOFTWARE AND THIRD PARTY SOFTWARE) OR SERVICES (IF ANY) PROVIDED HEREUNDER OR UNDER ANY RELATED AGREEMENTS, EVEN IF KARMASPHERE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM.
4.3 Limitation of Liabilities. In no event will Karmasphere’s aggregate liability for any damages arising out of or relating to this Agreement or any related agreement, whether in contract, tort or otherwise, exceed One Hundred U.S. Dollars ($100.00 USD).
4.4 Injunctive Relief. Notwithstanding any terms to the contrary in this Agreement, Karmasphere shall have the right to obtain injunctive relief in case of any breach by you of this Agreement or any Third Party Licenses.
You will indemnify, defend and hold Karmasphere and its directors, officers, employees, suppliers, consultants, contractors and agents (“Karmasphere Indemnitees”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) resulting from any claim (including third-party claims), suit, action, or proceeding against any Karmasphere Indemnitees, whether successful or not, caused by, arising out of, resulting from, attributable to or in any way incidental to any breach of this Agreement by you or a party acting on =your behalf.
6.1 Governing Law. This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of California, and the parties agree that any appropriate state or federal district court located in Santa Clara County, California, shall have the jurisdiction over any case or controversy arising hereunder and shall be the proper forum in which to adjudicate such case or controversy.
6.2 Termination; Survival. The Agreement shall expire at the conclusion of the Trial Period, provided that Karmasphere may terminate this Agreement on written notice to you: (a) in the event of a breach of the Agreement or the Third Party Licenses by you; or (b) if the Product should become, or, in Karmasphere’s reasonable opinion, is likely to become, the subject of intellectual property infringement or trade secret appropriation. You will immediately discontinue use of the Product upon expiration or termination of the Agreement; you acknowledge that the Product may include functions which disable the software therein upon expiration or termination of the Agreement. The following terms shall survive the termination of this Agreement: Section 2.3 (Reservation of Rights), Section 3 (Confidentiality), Section 4 (Disclaimer of Warranties; Limitation of Liability), Section 5 (Indemnification) and Section 6 (General).
6.3 Export Restrictions. You represent and warrant that you will not export, re-export, or transfer the Karmasphere Software or Third Party Software without obtaining any necessary licenses or authorizations from the U.S. government and / or other governing bodies, as applicable.
6.4 Severability. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the remainder of this Agreement shall not be affected and such provision shall be deemed to be modified to the minimum extent necessary to make such provision consistent with applicable law, and such provision shall thereafter be enforceable.
6.5 Assignment. You may not assign this Agreement or its rights or obligations hereunder to any person or party, without Karmasphere’s prior written consent, which may be granted or withheld and Karmasphere’s sole discretion. Any attempt by you to assign this Agreement without Karmasphere’s prior consent shall be null and void. Subject to the foregoing, any permitted assignment shall be binding upon and inure to the benefit of each Party and its respective successors and assigns. Karmasphere may freely transfer, assign or delegate this
Agreement or its rights and duties under this Agreement.
6.6 English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up and interpreted in English.
6.7 Entire Agreement. This Agreement represents the entire agreement and understanding between the parties regarding the Karmasphere Software, Product, and services (if any) provided hereunder.