(rev. June 30, 2020)
This evaluation agreement ("Agreement") is made between Shakti Software, Inc. ("Shakti") and the entity that downloads the Software for its use ("Customer"). This Agreement takes effect on the date when it is accepted by Customer or when Customer first uses the Software ("Effective Date"). The person accepting this Agreement on behalf of Customer represents that such person has the authority to bind Customer to this Agreement.
BY CLICKING ON THE ACCEPTANCE CHECKBOX (OR OTHER BUTTON INDICATING ACCEPTANCE) OR BY DOWNLOADING OR USING THE SOFTWARE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTOOD ALL THE TERMS OF THIS AGREEMENT AND THAT CUSTOMER CONSENTS TO BE BOUND BY, AND TO BECOME A PARTY TO, THIS AGREEMENT. IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN, THE PARTIES AGREE AS FOLLOWS:
A. Access. "Software" means the executable object code version of the Shakti software product known as "Shakti" that Shakti delivers or otherwise makes available to Customer hereunder. Subject to Customer’s ongoing compliance with this Agreement, Shakti hereby grants to Customer a non-exclusive, non-commercial, non-transferable, non-sublicensable, revocable, limited license for a period of 30 days (the "Evaluation Period") to download, install and run the Software for Customer’s evaluation purposes and for internal, non-commercial use only. Customer understands that any rights to use the Software beyond the scope of this license will be subject to a separate written agreement, and Shakti will have no obligation to enter into any future agreement with Customer with respect to the Software.
B. Restrictions. Customer shall not, directly or indirectly, and shall not authorize any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of, reconstruct, or discover any hidden or underlying elements of the Software (except to the extent expressly permitted by applicable law); (ii) translate, adapt, modify, or create any derivative works based on the Software or any portion of the foregoing; (iii) write or develop any program based upon the Software or any portion thereof, or otherwise use the Software in an manner for the purpose of developing products or services that compete with the Software; (iv) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Software or any rights thereto; (v) make the Software available to any third parties or use the Software in connection with a service or products provided to third parties; (vi) reproduce the Software; (vii) alter or remove any trademarks or proprietary notices contained in or on the Software; (viii) use the Software in a manner that violates this Agreement, any third party rights or any applicable laws, rules or regulations; (ix) use the Software other than for evaluation purposes or otherwise except as expressly permitted hereunder; or (x) distribute or otherwise make available to any third party any report regarding the performance of the Software benchmarks or any information from such a report unless Customer receives the express prior written consent of Shakti to disseminate such report or information, which consent may be withheld in Shakti's sole discretion.
Except for those limited rights expressly granted in Section 1(A), Shakti retains all right, title and interest in and to the Software, including any and all intellectual property rights and other proprietary rights therein and thereto. Customer acknowledges that the license granted pursuant to this Agreement is not a sale and does not transfer to Customer title or ownership of the Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO SHAKTI.
Customer may provide feedback regarding the use, operation and functionality of the Software ("Feedback"). Shakti is hereby granted the non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up, fully sublicensable and transferable right to use and incorporate Feedback into any products and services, to make, use, sell, offer for sale, import, and otherwise exploit such products and services, and to otherwise use, copy, distribute, and otherwise exploit the Feedback without restriction whatsoever and without any obligation to provide attribution or compensation to Customer.
4. TERM AND TERMINATION.
A. Term. This Agreement will commence as of the Effective Date and will remain in full force and effect for the Evaluation Period. If Customer violates any provision of this Agreement, the rights granted to Customer hereunder and this Agreement automatically terminate. Either party may terminate this Agreement immediately for any reason or no reason by giving written notice to the other party. Shakti may post such notice on its website.
B. Effect of Termination. Upon expiration or termination of this Agreement for any reason: (i) the rights granted to Customer hereunder will immediately terminate; (ii) Customer must immediately delete any copies of the Software within its possession or control; and (iii) Customer shall promptly return or destroy all Confidential Information (as defined below). Sections 2, 3, 4(B), 5, 6, 7, and 8 will survive the expiration or termination of this Agreement for any reason.
"Confidential Information" means any and all information disclosed by Shakti to Customer with respect to the Software. Customer agrees: (A) to use Confidential Information solely in accordance with the provisions of this Agreement; and (B) not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party without Shakti’s prior written consent. Customer shall safeguard the Confidential Information using the same measures it uses to protect its own confidential information, but in no event shall Customer use less than reasonable care in safeguarding the Confidential Information. Notwithstanding the foregoing, the foregoing restrictions on the use and disclosure of Confidential Information shall not apply to information that Customer can demonstrate is: (Y) rightfully publicly available through no fault of the Customer, or (Z) rightfully obtained from third parties not under confidentiality restrictions. Further, Customer may disclose the Confidential Information to the extent it is required to be disclosed by order of a court of competent jurisdiction or other governmental entity after providing Shakti written notice of its obligation.
6. WARRANTY DISCLAIMER.
THE SOFTWARE IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. SHAKTI DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SHAKTI DOES NOT WARRANT THAT THE SOFTWARE OR ANY PORTION OF THE SOFTWARE WILL BE FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS. CUSTOMER, AND NOT SHAKTI, SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF THE SOFTWARE, INCLUDING ANY USE OF THE RESULTS OF THE SOFTWARE AND DECISIONS MADE OR ACTIONS TAKEN BASED ON THE SOFTWARE. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHAKTI DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT SHAKTI IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
7. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SHAKTI OR ITS OFFICERS, EMPLOYEES, DISTRIBUTORS, AGENTS OR LICENSORS (THE "SHAKTI ENTITIES") BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RELATING TO THE SOFTWARE OR THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF SHAKTI TO CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE SOFTWARE OR THIS AGREEMENT IS LIMITED TO $100. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Shakti has no obligation to provide any maintenance or support for the Software. The parties are independent contractors, and nothing in this Agreement is intended to shall create any agency, partnership or joint venture relationship between them. Any notices required or permitted under this Agreement must be submitted to (i) the mailing address or email address on file with Shakti, in the case of Customer, or if none, the Shakti website, or (ii) 243 Fifth Avenue, #702, New York, New York 10016, in the case of Shakti. Each notice will be deemed delivered on the date the sender can reliably confirm the notice was sent. Customer at all times shall comply with all applicable federal, state, local, and foreign laws and regulations. Without limiting the foregoing, Customer agrees to comply with all applicable export control laws and regulations related to its use of the Software. This Agreement shall be governed by and construed under the laws of the State of New York without regard to the conflict of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. If any provision of this Agreement is found to be illegal or unenforceable by a court of competent jurisdiction, such provision shall be reformed to the extent necessary to make it enforceable, and the remaining provisions of this Agreement shall continue to be valid and enforceable to the fullest extent permitted by law. The failure to require performance of any provision will not affect Shakti’s right to require performance at any other time after that, nor will a waiver by Shakti of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Customer agrees that any violation or threatened violation of this Agreement would cause irreparable injury to Shakti for which monetary damages would not be an inadequate remedy, entitling Shakti to seek injunctive relief in addition to all legal remedies, without the posting of any bond (or any other security) or proof of actual damages. Customer may not assign this Agreement without Shakti’s prior express written consent. Shakti may assign this Agreement freely in its sole discretion. Any purported transfer or assignment in violation of this Section shall be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior agreements and understandings with respect to said subject matter. This Agreement may not be modified except by a subsequently dated writing signed by an authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement.