DERAPI, INC.
TRIAL AGREEMENT
Revised September 3, 2024
By accessing Derapi, Inc.’s (the “Company”) services using trial credentials (the “Trial”), you (the “Evaluator”) accept these terms and conditions (this “Agreement”), effective as of the first day you make such access (the “Effective Date”), which govern your use of the Software during the Trial.
1. EVALUATION
The Company grants Evaluator a non-exclusive, worldwide, fully paid-up license during the Term to use proprietary software, documentation or data related to the Company’s software and application programming interface (the “Software”) solely for evaluation purposes. If Evaluator wishes to continue using the Software after the end of the Term or for any other purposes, the parties shall memorialize the understanding between Evaluator and Company in a written license agreement to be negotiated by the parties. Evaluator will use the Software only in compliance with the Company’s standard published policies then in effect and all applicable laws and regulations. Evaluator agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Evaluator’s use of the Software.
2. OWNERSHIP
The Software and all related intellectual property rights (whether or not registered) shall remain the exclusive property of Company. Under no circumstances shall Evaluator (i) share login information for the Software (or its hosting location) with any third party, (ii) modify or reverse engineer the Software or (iii) sell, license, distribute, or otherwise transfer to a third party or encumber the Software without Company’s prior written consent. In exchange for access to the Software, and subject to Evaluator’s rights below, Evaluator hereby does and shall assign to Company 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 Agreement, including but not limited to (A) any widgets or templates underlying any apps in the Evaluator Works, and (B) improvements to the Software suggested by Evaluator, and any 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 and all other intellectual and industrial property rights of any sort with respect thereto. Evaluator agrees to take any action reasonably requested by Company to evidence, perfect, obtain, maintain, enforce or defend the foregoing. Notwithstanding the foregoing, any works created solely by Evaluator using the Software, but not including any portions of the Software (the “Evaluator Works”), shall be the property of Evaluator, but Evaluator shall only have a license to the Software necessary to operate the Evaluator Works for evaluation purposes during the Term.
3. TERM AND TERMINATION
This Agreement shall commence on the Effective Date and shall terminate on the date that is ninety (90) days after the Effective Date, provided that (i) Company may, at its option and with or without cause, terminate this Agreement immediately for convenience; and (ii) Evaluator may at any time terminate this Agreement immediately upon notice. Sections 4-7 shall survive termination or expiration of this Agreement.
4. NO OWNERSHIP
THE SOFTWARE IS PROVIDED “AS IS”, AND COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF COMPANY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHER LEGAL THEORY, EXCEED ONE HUNDRED DOLLARS ($100). EVALUATOR FURTHER AGREES TO INDEMNIFY AND HOLD HARMLESS COMPANY, ITS AFFILIATES, OFFICERS, DIRECTORS, DISTRIBUTORS, PARTNERS, AND EMPLOYEES FROM ANY CLAIMS, LIABILITIES, DAMAGES AND REASONABLE COSTS ARISING OR RESULTING FROM ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS RELATED TO EVALUTOR’S ACCESS TO OR USE OF THE SOFTWARE.
6. CONFIDENTIAL INFORMATION
Evaluator will not disclose to any third party the results of the evaluation of the Software or other performance or functional evaluation of the Software without prior written approval of Company. Company shall have the right to use for any purpose any Evaluator feedback, comments and suggestions regarding the Software. No rights are granted by Evaluator to Evaluator Works or any other technology or intellectual property rights of Evaluator.
7. MISCELLANEOUS AND ENTIRE AGREEMENT
The parties are independent contractors, and nothing in this Agreement is intended to or shall create any agency, partnership or joint venture relationship between them. This Agreement shall be governed by the laws of the State of California. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other party’s prior written consent, except in connection with any merger, consolidation, reorganization, sale or similar transaction of the assigning party in which the surviving entity is not a direct competitor of the non-assigning party. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. This Agreement constitutes the entire Agreement between Company and Evaluator with respect to the subject matter hereof and not be modified without the prior written consent of both parties.