Digital.ai Software Evaluation Agreement
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS TRIAL AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. BY INSTALLING OR USING THE SOFTWARE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTOOD THIS AGREEMENT AND AGREES TO ABIDE BY ALL OF THE TERMS AND CONDITIONS STATED OR REFERENCED HEREIN. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU (“CUSTOMER”) AND DIGITAL.AI SOFTWARE, INC. (“SUPPLIER”) THAT GOVERNS CUSTOMER’S USE OF THE SOFTWARE. CUSTOMER AGREES THAT THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES REGARDING THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS ORAL AND WRITTEN AGREEMENTS.
“Documentation” means all written and electronic information and materials made available by Supplier to Customer relating to the access, use, operation, or functionality of the Software, including technical and user manuals and operating instructions.
“Software” means the object code versions of the software or run-time modules in object code as provided by Supplier for Customer’s evaluation purposes and described in the associated Documentation.
“Trial Period” means that period set forth in an applicable evaluation order form.
2.1 Subject to the terms and conditions of this Agreement, Supplier grants Customer a free-of-charge, non-exclusive, non-transferable, revocable, and non-sublicensable license for the Trial Period to use the Software and the Documentation solely for Customer to evaluate the Software and Documentation (the “License”). This Agreement is for the sole benefit of Customer and Supplier and nothing herein, express or implied, shall give, or be construed to give, any rights to any other person, including without limitation, any subcontractors, sub-vendors, or anyone designated as a reseller.
2.2 Customer agrees that Digital.ai may collect and use technical data and related information (including, but not limited to, technical information about Customer’s devices, server, system and application software, and peripherals, and device fingerprints) that is gathered periodically to improve the Software, facilitate the provision of software updates, product support, and other services to Customer and to monitor compliance with and determine billing. Digital.ai reserves the right to permanently delete any collected technical data and related information thirty (30) days after the Trial Period ends.
2.3 Nothing in, or done pursuant to, this Agreement shall be construed to transfer to Customer title to any intellectual property rights (including, without limitation, any trademark or copyright) in or to the License or any other software application, or any associated Documentation or materials, provided to Customer by Supplier. Any and all such title and rights shall, at all times, remain with Supplier.
2.4 Customer will not, directly or indirectly, (i) sublicense, transfer, lease, rent, or otherwise assign its rights in the Software or the Documentation to any third party nor allow any third party to access or use the Software or the Documentation; (ii) modify the Software or the Documentation, create or attempt to create any derivative works of the Software or the Documentation, or translate, reproduce, reverse engineer, re-engineer, de-compile, or disassemble the Software or the Documentation to develop any other computer program or for any other reason; (iii) copy the Software or the Documentation (e.g., for archival, disaster recovery, or training purposes); (iv) alter or remove any of Supplier’s or its licensor’s copyright or proprietary rights notices or legends appearing on or in the Software; or (v) modify, distribute, or otherwise use the Software in any manner that causes any portion of the Software that is not already subject to an open source license to become subject to the terms of any open source license, in whole or in part.
- Warranty; Indemnification
3.1 Supplier solely warrants that it is entitled to license the Software to Customer. Supplier does not warrant that operation of the Software shall be uninterrupted or “bug” free.
3.2 THE FOREGOING WARRANTY IS EXCLUSIVE. THE SOFTWARE IS PROVIDED “AS IS” AND SUPPLIER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES REGARDING THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. Customer acknowledges that the exclusion and limitation of remedies provided under this Agreement are neither unreasonable nor unconscionable and that this allocation of risk was consideration for the other terms and conditions provided herein. Supplier’s liability for damages concerning the performance or non-performance by Supplier in relation to this Agreement, and regardless of whether the claim for such damages is based in contract, tort, strict liability, or otherwise, is limited to an amount of $100. In no event shall Supplier be liable for any indirect, incidental, special, punitive or consequential damages, lost data, or lost profits, even if Supplier has been advised to the possibility of such damages.
3.3 Customer agrees to indemnify, defend, and hold Supplier harmless of and from any liability, cost, damage, and expense arising out of any claim made against Supplier by any third party arising out of Customer’s deployment and use of the Software.
4.1 Customer acknowledges that the Software and Documentation contains valuable trade secrets and confidential information of Supplier. Customer warrants that all of the information received from Supplier which is known to be or should be known to be confidential in nature, shall remain secret and be kept confidential by Customer, unless a legal obligation mandates disclosure of that information. Customer shall only use confidential information for the purpose for which it has been provided.
- Term and Termination
5.1 This Agreement shall remain in effect for the Trial Period; provided, that either party may immediately terminate this Agreement and the Trial Period at any time for any reason whatsoever upon notice to the other party. The License terminates immediately upon expiration or termination of this Agreement. Upon expiration of this Agreement, Customer may either (i) license the Software under mutually agreeable terms and conditions; or (ii) return the Software and Documentation to Supplier at no charge.
5.2 All provisions and obligations of this Agreement which by their nature should survive any termination of this Agreement will survive any such termination, including provisions and obligations with regard to confidentiality obligations, warranty disclaimers, limitations of liability, and indemnification obligations.
6.1 Support. Support may be provided by Supplier in its sole discretion.
6.2 Open Source Software. The Software may contain open source software or other third party software (“OSS”) licensed under such OSS’s own applicable license terms. Any such OSS, if licensed, is licensed to Customer only under the terms set forth in the corresponding open source license, which Customer may find on the Internet at the designated URL, or in the header files of such OSS. Notwithstanding the foregoing, this Agreement shall not prevent or restrict Customer from exercising additional or different rights referring to any free open source code, documentation, or materials contained in or provided with the Software in accordance with the applicable free OSS license for such code, documentation, and materials, which can be found in the corresponding technical documentation. Supplier is not obligated to provide any maintenance or support for the OSS or any Software that has been modified pursuant to an OSS license, and Supplier accepts no liability for Customer’s use of such OSS.
6.3 Customer may not assign this Agreement or the License without Supplier’s prior written consent. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other parts of this Agreement. This Agreement shall be governed by the laws of the State of Delaware, which governing law shall control without giving effect to conflict of law principles and excluding the U.N. Convention on Contracts for the International Sale of Goods. Any suit or proceeding relating to this Agreement shall be brought exclusively before the state or federal courts located in the State of Delaware.
Digital.ai Software Trial Agreement v1