Trial Terms and Conditions
These Trial Terms and Conditions (the “Terms”) are a binding contract between you or the entity you represent (“Customer”) and Keebo, Inc. (“Keebo” or “Company”). You represent and warrant that you are authorized to bind Customer. This “Trial Agreement” includes and incorporates these Terms and any evaluation or trial exhibit executed by the parties in writing and referencing these Terms (each, an “Evaluation Exhibit”). By accepting this Trial Agreement (e.g., by clicking a box indicating acceptance, by executing an Evaluation Exhibit, or by using the “Technology” (as defined below)), Customer agrees to the terms and conditions of this Trial Agreement, to the exclusion of all other terms. Capitalized terms used herein that are not separately defined will have the meanings ascribed to them in the Evaluation Exhibit, if any.
1. Evaluation License
Subject to all the terms of this Trial Agreement and Customer’s compliance therewith, Keebo grants Customer a non-exclusive, non-sublicensable, non-transferable license to access and use the Keebo Acceleration Software during the term of this Trial Agreement solely for Customer to evaluate whether to enter the currently proposed business arrangement with Keebo (the “Evaluation”) (and only in accordance with Keebo’s written documentation – if any). As between the parties, Keebo shall at all times retain all title to and ownership of all intellectual property rights in the Technology and anything else created pursuant to the Trial Agreement, including but not limited to all copies, improvements, modifications and derivative works thereof, related documentation and materials.
Customer agrees to use the Technology only in the ordinary course of its Evaluation. Customer will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Technology (except to the extent that applicable law expressly prohibits reverse engineering restrictions), (ii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Technology for the benefit of any third party, (iii) list or otherwise display or copy any object code of any part of the Technology, (iv) copy the Technology (or component thereof), develop any improvement, modification or derivative works thereof or include any portion thereof in any other equipment or item, or (v) allow the transfer, transmission, export, or re-export of the Technology or any portion thereof or any technical data. All the limitations and restrictions on the Technology in this Trial Agreement also apply to all documentation provided by Keebo to Customer.
3. Confidentiality; Ownership
Customer acknowledges that, in the course of using the Technology and performing its duties under this Trial Agreement, it may obtain information relating to the Technology and/or Keebo and its affiliates, sponsors, partners and licensors (“Confidential Information”). Such Confidential Information shall belong solely to Keebo and includes, but is not limited to, the Technology and its existence, its features and mode of operation, this Trial Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. In regard to this Confidential Information:
(a) Customer shall not disclose Confidential Information without the prior written consent of Keebo unless such Confidential Information becomes generally available to the public without breach of this Trial Agreement by Customer, its officers, directors, employees or agents;
(b) Customer agrees to take reasonable measures to maintain the Confidential Information in confidence, including implementing industry-best administrative, physical and technical safeguards designed to protect the Technology;
(c) Customer will disclose Confidential Information only to those of its employees as are necessary for the use expressly and unambiguously licensed hereunder, and only after such employees have agreed in writing to be bound by the non-use and non-disclosure obligations no less restrictive than those contained in this Trial Agreement; Customer is responsible for any noncompliance by its employees. Customer shall not, without the prior written consent of Keebo, disclose or otherwise make available the Technology or copies thereof to any third party;
(d) Customer will not remove or export any Confidential Information or any direct product thereof from the United States;
(e) Customer hereby assigns to Keebo any invention, work of authorship, mask work, idea, information, feedback or know-how (whether or not patentable) that is conceived, learned or reduced to practice in the course of performance under this Trial Agreement and that is an improvement to, or modification, enhancement or derivative work of, the Technology or that is based on Keebo’s Confidential Information, including any associated patent rights, copyrights (including moral rights; provided that any non-assignable moral rights are waived to the extent permitted by law), trade secret rights, mask work rights, sui generis database rights or other intellectual and industrial property rights. Customer agrees to take any action reasonably requested by Keebo to evidence, perfect, obtain, maintain, enforce or defend the foregoing.
4. Customer Data
For purposes of this Trial Agreement, “Customer Data” shall mean any Customer data, information or other material provided, uploaded, or submitted by Customer to the Technology in the course of using the Technology. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Keebo, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Keebo is not responsible to Customer for unauthorized access to Customer Data unless such access is due to Keebo’s gross negligence or willful misconduct. Customer is responsible for the use of the Technology by any person to whom Customer has given access to the Technology, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Keebo may (i) internally use and modify Customer Data for the purposes of (A) providing the Technology to Customer and (B) generating Aggregated or Anonymous Data (as defined below), and (ii) freely use and make available Aggregated or Anonymous Data for Keebo’s business purposes (including without limitation, for purposes of improving, testing, and operating Keebo’s products and services). “Aggregated or Anonymous Data” means data submitted to, collected by, or generated by Keebo in connection with Customer’s use of the Technology, but only in aggregate or anonymized form.
5. Term and Termination
This Trial Agreement may be terminated by Keebo for any reason or no reason upon 2 days’ notice to Customer, including by email to Customer’s registered email, or immediately upon notice of any breach by Customer of the provisions of this Agreement, and in any case will terminate on the last day of the term identified as shown in Customer’s Keebo account or as identified in Evaluation Exhibit. Upon any termination, the license granted hereunder will terminate, and Customer shall immediately cease all use of the Technology and immediately return or destroy all Confidential Information to Keebo (including all copies and extracts thereof) and so certify the foregoing to Keebo. The provisions of this Trial Agreement which by their nature should survive termination shall survive.
Customer shall indemnify, defend and hold harmless Keebo from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any (i) breach by Customer of this Trial Agreement or (ii) use by Customer or its employees, contractors, or agents of Technology. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Keebo at Customer’s expense.
7. Warranty Disclaimer
THE TECHNOLOGY IS PROVIDED “AS IS” AND IS PROVIDED WITHOUT ANY WARRANTY OF ANY KIND. KEEBO AND ITS LICENSORS DISCLAIM ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, RELATING TO THE TECHNOLOGY OR ANY OTHER SUBJECT MATTER OF THIS TRIAL AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING ELSE IN THIS TRIAL AGREEMENT OR OTHERWISE, NEITHER KEEBO NOR ITS LICENSORS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO THE TECHNOLOGY OR ANY OTHER SUBJECT MATTER OF THIS TRIAL AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF FORESEEABLE, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, OR (C) FOR AGGREGATE DAMAGES IN EXCESS OF USD $100, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Equitable Relief
Customer acknowledges and agrees that due to the unique nature of Keebo’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Customer or third parties to unfairly compete with Keebo resulting in irreparable harm to Keebo, and therefore, that upon any such breach or threat thereof, Keebo shall be entitled to injunctions and other appropriate equitable relief without posting a bond in addition to whatever remedies it may have at law.
Although fully assignable and transferable by Keebo, neither this Trial Agreement nor the licenses granted hereunder are assignable or transferable by Customer, and any attempt to do so shall be void and without effect. Any notice, report, approval or consent required or permitted hereunder shall be in writing. If any provision of this Trial Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Trial Agreement shall otherwise remain in full force and effect and enforceable. This Trial Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Michigan, without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any controversy or claim arising out of or relating to this Trial Agreement, or breach thereof, shall be settled by arbitration in Washtenaw County, Michigan in English and in accordance with the JAMS International Arbitration Rules then in effect. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s). The prevailing party in any action to enforce this Trial Agreement will be entitled to recover its attorney’s fees and costs in connection with such action. This Trial Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Any modifications of this Trial Agreement must be in writing and signed by both parties.