This Evaluation Agreement (“Agreement”) governs access and use of Gremlin’s proprietary software solution (“Software”) provided by Gremlin Inc. (“Gremlin”). By agreeing to install, access, or use the Software, you are acknowledging on behalf of yourself and the entity on whose behalf you are using the Software (“Client” or “you”) that you have read, understand, and agree to accept and be bound by the terms and conditions of this Agreement on Client’s behalf. By accepting this Agreement, you represent, warrant, and covenant that you have the full power and authority to bind Client to the terms and conditions of this Agreement. If you do not agree, or do not have the authority to bind Client, neither you nor Client may use the Software.
1. License Grant
From time to time during the Term, Gremlin may provide Licensed Materials to Licensee. The Licensed Materials are licensed, not sold, to Licensee under this Agreement.
1.2. License Grant
Subject to the terms of this Agreement, Gremlin grants to Licensee a personal, limited, nonexclusive, nontransferable license to, during the Term: (a) download, install and use Licensed Materials; and (b) access and use Licensed Materials that are hosted by or on behalf of Gremlin, if any, each of (a) and (b) solely as reasonably necessary for Licensee to test and evaluate the Licensed Materials (“Authorized Purpose”).
2. Installation Support.
Gremlin may provide limited support via electronic means to Licensee for the installation and operation of the Software in Licensee’s environment or provisioning of access to any hosted components of the Licensed Materials. If Gremlin deems necessary, Gremlin may choose to visit Licensee’s premises and assist Licensee. Licensee will allow Gremlin access to its premises for this purpose and will cooperate with Gremlin for this purpose. Notwithstanding the foregoing, Gremlin may, but has no obligation to, provide support, maintenance and upgrades to the Software.
There are no fees due under this Agreement and each Party shall bear its own expenses.
Section 1 states all of Licensee’s rights regarding the Licensed Materials. Licensee will not use the Licensed Materials in any manner except as permitted in Section 1. Without limiting the foregoing, Licensee will not: (a) distribute the Licensed Materials to third parties; (b) grant sublicenses or otherwise authorize any third party to use the Licensed Materials; (c) sell or offer for sale the Licensed Materials; (d) use the Licensed Materials to develop a product or service competitive with the Licensed Materials or Gremlin’s other products or services; (e) test, evaluate, or otherwise use the Licensed Materials with any products competitive with the products of Gremlin; (f) reverse engineer, decompile, disassemble or attempt to discover the source code or other trade secrets of the Licensed Materials; (g) modify, alter or create any derivative works of the Licensed Materials; (h) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Licensed Materials; or (i) use the Licensed Materials in: (1) violation of law or for any unlawful purposes; or (2) a manner that would cause a material risk to the security or operations of Gremlin or any of its customers, or to the continued normal operation of other Gremlin customers.
Analytic reports, outcomes and predictions and other results generated from Licensee’s use of Licensed Materials (“Results”) may be available to Licensee.
The Licensed Materials are the valuable property of Gremlin and its licensors and are protected by copyright and other intellectual property laws and treaties. There are no implied licenses granted to Licensee (by implication, estoppel or otherwise), and except for the license expressly granted to Licensee in Section 1 of this Agreement, Gremlin and its licensors own and reserve all right, title and interest in and to the Licensed Materials. As between Licensee and Gremlin, Licensee owns all Results.
7. Confidentiality; Data Security
7.1 Confidential Information
In this Agreement, “Confidential Information” means (a) the Licensed Materials and (b) all other information provided by Gremlin to Licensee in connection with the Licensed Materials that is either (1) designated as confidential by Gremlin at the time of disclosure or (2) should reasonably be considered, given the nature of the information or the circumstances surrounding its disclosure, to be confidential. Licensee will not use Confidential Information except to the extent necessary for the Authorized Purpose, and will not disclose any Confidential Information to any person except to its own personnel who have a need to know the Licensed Materials for the Authorized Purpose and are obligated to maintain the confidentiality of the Licensed Materials. The foregoing obligations do not apply with respect to Confidential Information that Gremlin has made generally publicly available. Licensee may disclose Confidential Information to the extent required by any subpoena, court order or other governmental action, so long as Licensee provides advance notice to Gremlin (unless prohibited by applicable law) as promptly as possible so as to afford Gremlin a reasonable opportunity to appear, object and obtain a protective order or other appropriate relief regarding such disclosure, and cooperates with Gremlin’ efforts to obtain such relief. Licensee will protect the Confidential Information from unauthorized access, use or disclosure. In the event of a reasonably suspected unauthorized access, use or disclosure of the Confidential Information, Licensee will immediately notify Gremlin in writing and provide all reasonable cooperation and assistance regarding the same.
7.2. Data Security
Gremlin has established and implemented reasonable information security practices regarding the protection of customer data, including administrative, technical and physical security processes. Notwithstanding the foregoing, Licensee is responsible for maintaining appropriate security, protection and backup of all Results and other hardware, software, systems, information, content or data of Licensee. Gremlin is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, or loss of, or damage to, or failure to store or encrypt, any Results or other hardware, software, systems, information, content or data.
Licensee may provide any ideas, suggestions or recommendations to Gremlin regarding Gremlin’s products, services or Confidential Information (“Feedback”). Feedback is Confidential Information of Gremlin, and Gremlin is free to retain, use and incorporate such Feedback in Gremlin’ and/or its affiliates’ products and/or services, without payment of royalties or other consideration to Licensee.
THE LICENSED MATERIALS ARE MADE AND DESIGNED SPECIFICALLY TO IDENTIFY POTENTIAL POINTS OF FAILURE IN SOFTWARE AND HARDWARE SYSTEMS AND INFORMATION TECHNOLOGY OPERATING ENVIRONMENTS AND TO CAUSE FAILURE IN SUCH SOFTWARE AND HARDWARE SYSTEMS AND INFORMATION TECHNOLOGY OPERATING ENVIRONMENTS. GREMLIN MAKES NO WARRANTY THAT THE LICENSED MATERIALS ARE SAFE FOR USE OR EVALUATION OR THAT ONLY SOFTWARE AND HARDWARE SYSTEMS AND INFORMATION TECHNOLOGY OPERATING ENVIRONMENTS THAT ARE IDENTIFIED IN A TESTING PLAN WILL BE CAUSED TO FAIL.THE LICENSED MATERIALS ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITH ALL FAULTS, DEFECTS AND ERRORS, AND WITHOUT WARRANTY OF ANY KIND. GREMLIN DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXPRESS, IMPLIED, ARISING BY LAW OR OTHERWISE) REGARDING THE LICENSED MATERIALS AND THEIR PERFORMANCE OR SUITABILITY FOR LICENSEE’S INTENDED USE, INCLUDING ANY REPRESENTATIONS OR WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FOR THE AVOIDANCE OF DOUBT, GREMLIN MAKES NO WARRANTY, GUARANTY, COMMITMENT OR OTHER OBLIGATION RELATED TO THE ACCURACY OR COMPLETENESS OF ANY RESULTS (INCLUDING, WITHOUT LIMITATION, ANY PREDICTIONS OR PREDICTIVE ANALYTICS INCLUDED IN SUCH RESULTS) AND LICENSEE IS SOLELY RESPONSIBLE FOR ITS USE AND RELIANCE ON ANY SUCH RESULTS.
Licensee will defend, indemnify and hold harmless Gremlin and its affiliates, and each of their respective directors, officers, employees, agents, contractors and suppliers (collectively, “Gremlin Parties”), from and against all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney and expert witness fees) arising out of or related to Licensee’s use of or inability to use the Licensed Materials or any Results.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY OF THE GREMLIN PARTIES BE LIABLE (UNDER ANY THEORY OF LIABILITY) FOR PERSONAL INJURY OR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING FOR LOSS OF DATA, LOSS OF PROFITS, DAMAGE TO ANY SOFTWARE AND HARDWARE SYSTEMS AND INFORMATION TECHNOLOGY OPERATING ENVIRONMENTS, UNINTENDED FAILURE OF ANY SOFTWARE AND HARDWARE SYSTEMS AND INFORMATION TECHNOLOGY OPERATING ENVIRONMENTS, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATED TO LICENSEE’S USE OF OR INABILITY TO USE THE: (A) LICENSED MATERIALS, (B) FEEDBACK, OR (C) RESULTS, EVEN IF A GREMLIN PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Term and Termination
The term of this Agreement commences on the Effective Date and will continue for 30 days unless extended on mutual agreement of the parties or earlier terminated in accordance with this Agreement (“Term”). Either party may terminate this Agreement at any time, with or without cause, upon 7 days’ prior written notice to the other party; provided, however, that (a) Gremlin may immediately terminate this Agreement with or without notice upon Licensee’s breach of any obligation under Sections 1 or 4, and (b) this Agreement will automatically terminate upon the parties’ execution of a Commercial Agreement. Upon termination of this Agreement, (x) the license granted in Section 2 will immediately terminate; (y) except as permitted under a Commercial Agreement, Licensee will cease all access or use of the Licensed Materials and Results and will permanently remove, delete and uninstall all copies of the Licensed Materials and Results in Licensee’s possession or control, and (z) except for Section 2 (License Grant), all other Sections of this Agreement will survive such termination. Gremlin may remotely terminate Licensee’s access to the Licensed Materials and Results at the conclusion of the Term.
(a) The parties are independent contractors and not partners, agents or joint venturers with each other.
(b) Neither party will make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so. This is not an exclusive agreement.
(c) This Agreement does not create an obligation of either party to enter into a contract, subcontract or other business relationship. Unless and until the parties enter into a Commercial Agreement, either party may discontinue participating in discussions and any of its activities related to the Software (including any testing and certification activities) at any time.
Neither party may assign this Agreement without the prior written consent of the other party and any attempt to do so will be null and void; however, Gremlin may assign this Agreement without consent to (i) any affiliate or (ii) any entity in connection with a reorganization, merger, consolidation, acquisition, or other transaction involving all or substantially all of the voting securities or assets of Gremlin, upon written notice to Licensee. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.This Agreement will be governed and construed under the laws of the State of California without regard to conflicts of law provisions. Neither party will commence or prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement other than in the state or federal courts located in Santa Clara County, California. Each party irrevocably submits to the jurisdiction and venue of such courts in connection with any action, suit, proceeding or claim arising under or by reason of this Agreement.
(d) In the event of Licensee’s breach of this Agreement, Gremlin may suffer irreparable harm and have no adequate remedy at law. In such event or the threat of any such event, Gremlin will be entitled (in addition to all other remedies) to seek injunctive relief, specific performance and other equitable remedies without proof of monetary damages or the inadequacy of other remedies, and without necessity of posting a bond or other security.
(e) This Agreement is the entire agreement of the parties and supersedes all previous or contemporaneous agreements between the parties relating to its subject matter. For clarity, this Agreement supplements and does not terminate or replace any confidentiality agreement that may exist between the parties; provided that in the event of a conflict between this Agreement and such a confidentiality agreement, this Agreement will control. This Agreement may only be modified or amended in a writing signed by the parties.
(f) No provision of this Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except specifically in a writing signed by the waiving party. If any provision is deemed by a court unenforceable or invalid, that provision will be stricken or modified and the remainder of this Agreement will be in full force and effect.