This Product Evaluation Agreement (the “Agreement”) is effective as of the date the user downloads the Products, as defined below (the “Evaluation Licensee”), and Synervoz Communications, Inc., a company incorporated under the federal laws of Canada, with an office at 27E 28th St., New York, NY 10016 USA (such address being acceptable for notice purposes hereunder) (“Company”), each a “Party” and collectively “Parties”.
1. PRODUCTS. The terms and conditions of this Agreement apply to the technologies, documentation, application programming interfaces and other proprietary works that combine to make the Switchboard SDK product and related documentation (collectively, the “Products”) that Company provides to Evaluation Licensee solely for evaluation purposes (“Evaluation License”).
2. EVALUATION PERIOD AND FEES. This Agreement is effective on the Effective Date and shall continue for 90 days (the “Evaluation Period”) unless sooner terminated by either Party. There is no evaluation fee. This Evaluation License does not include support for the Products. Support can be purchased from the Company under a separate support agreement. Any support provided by the Company hereunder is in Company’s sole discretion. Any technologies, documentation, application programming interfaces and other works and any related documentation created by by Company pursuant to any such support shall be part of the Products and governed by this Agreement. Company shall have no interest whatsoever in such works and documentation except as provided for under this Agreement.
3. RESTRICTIONS. Evaluation License does not include any rights to
i) attempt to reverse engineer, deconstruct or in any way determine the source code of any software in the Products, or the network interfaces, component origin, design, structure, or composition of the Products, or
ii) make derivative works, or otherwise incorporate any of the Products, or portions thereof, into any other products or software. The Parties acknowledge that any rights to the Products not explicitly granted in the Evaluation License are reserved by Company.
4. OWNERSHIP. The Products and any worldwide intellectual property rights and proprietary rights to the foregoing, are the exclusive property of Company and its suppliers, if any.
5. FEEDBACK. Evaluation Licensee may provide comments, criticisms, suggested improvements and other feedback about the use, operation, functionality and features of the Products (collectively, the “Feedback”). All right, title and interest in and to the Feedback shall be owned by Company, and Evaluation Licensee hereby assigns any right, title or interest, that may originate in it, to Company.
6. DISCLAIMER OF WARRANTY, LIABILITY. THE PRODUCTS PROVIDED OR LICENSED UNDER THIS AGREEMENT ARE PROVIDED OR LICENSED “AS IS” WITH ALL FAULTS, LATENT AND PATENT. COMPANY MAKES NO REPRESENTATIONS OF ANY KIND, INCLUDING NO REPRESENTATIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE USE OF THE PRODUCTS WILL NOT INFRINGE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY AND IT SHALL BE THE SOLE RESPONSIBILITY OF EVALUATION LICENSEE TO MAKE SUCH DETERMINATIONS. COMPANY SHALL NOT BE HELD TO ANY LIABILITY WITH RESPECT TO ANY CLAIM BY EVALUATION LICENSEE OR ANY OTHER THIRD PARTY ON ACCOUNT OF, OR ARISING FROM, THE USE OF THE PRODUCTS OR OTHER INFORMATION FURNISHED HEREUNDER.
7. TERMINATION. Each Party may terminate this Agreement, with or without cause, immediately upon written notice to the other Party. Upon the expiration or any termination of this Agreement, the rights granted to Evaluation Licensee will terminate and Evaluation Licensee, at its expense, will promptly return to Company the Products in the same condition as they were in when delivered to Evaluation Licensee. The provisions of Sections 3-10 shall survive termination or expiration of this Agreement for any reason. If Company terminates without cause it shall refund a pro-rata portion of any fee based on the unused Evaluation Period.
8. CONFIDENTIALITY. Each party (“Discloser”) may disclose certain information to the other party (“Recipient”) that is deemed “Confidential Information” of the Discloser. The terms and conditions of this Agreement, the Products, the Feedback, any functionality or intellectual property of a Party including any sensitive or proprietary technical or business information disclosed by or on behalf of Discloser to Recipient, or observed by Recipient in connection with this Agreement, constitutes Confidential Information, provided that information (i) already rightfully known to Recipient (ii) is or becomes generally available to the public other than by means of the Recipient’s breach; (iii) is independently obtained from a third party whose disclosure violates no duty of confidentiality; or (iv) is independently developed by or on behalf of the Recipient, does not constitute Confidential Information. Recipient shall use the Confidential Information solely pursuant to this Agreement, and all Confidential Information shall remain at all times the sole and exclusive property of Discloser. Recipient shall hold Discloser’s Confidential Information with at least the same degree of care as it holds its own Confidential Information and shall not make any disclosure of such Confidential Information to any person or entity, or per any legal process without prior advanced notice to the Discloser (if permissible), without Discloser’s prior written consent except to Recipient’s employees, agents and contractors who have a need to know such information and are subject to enforceable obligations, no less stringent than those set forth herein, to maintain the confidentiality of such information.
9. ASSIGNMENT. Evaluation Licensee may not assign any of its rights or obligations under this Agreement without the prior written consent of the Company. Any attempted assignment or transfer in violation of the foregoing will be void.
10. GOVERNING LAW. This Agreement will be governed by the laws of the Province of Ontario and federal laws of Canada, as applicable. The provincial and federal courts in Toronto, Ontario, shall have exclusive jurisdiction over any disputes arising from or relating to this Agreement and each party expressly consents to the jurisdiction of such courts with respect to all such disputes.
11. MISCELLANEOUS. Any notice under this Agreement will be in writing and deemed effective upon receipt when sent by confirmed email or when delivered in person or mailed by first class, registered or certified mail, postage prepaid, to the address of the Party specified in this Agreement or such other address as such Party may specify in writing. If any provision of the Agreement is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Agreement may be amended only upon the mutual written consent of Evaluation Licensee and Company. No failure of either Party to enforce any of its rights under this Agreement will act as a waiver of those or any other rights. This Agreement constitutes the entire understanding and agreement between the Parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings, whether written or oral.