BY SELECTING THE "I ACCEPT" OPTION IN THE SIGNUP FORM, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS EVALUATION AGREEMENT ("AGREEMENT"). YOUR AND YOUR COMPANY’S (COLLECTIVELY, “COMPANY” OR “YOU”) CONTINUED USE OF THE PRODUCT (AS DEFINED BELOW) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THE AGREEMENT, CLICK THE "CANCEL" BUTTON. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. YOU REPRESENT AND WARRANT THAT THE INDIVIDUAL WHO AGREES AND/OR ENTERS INTO THIS AGREEMENT HAS AUTHORITY TO AGREE AND/OR ENTER INTO THIS AGREEMENT AND BIND YOU TO THE TERMS OF THIS AGREEMENT.
1. Evaluation License
Subject to Company’s compliance with all of the terms and conditions of this Agreement, during the term of this Agreement AdStage, Inc. (“AdStage”) hereby grants to Company a limited, non-sublicensable, nonexclusive license to use and access the AdStage products and services (the “Products”) solely for Company's internal testing and evaluation and only in accordance with the documentation supplied by AdStage. Company shall not (nor shall it permit anyone else to) modify, reverse engineer, decompile, create other works from, or disassemble any software related to the Product, or otherwise attempt to discover such software source code or underlying Confidential Information (as that term is defined below).
Company acknowledges that, in the course of using and accessing the Product and performing its duties under this Agreement, it may obtain or develop information relating to the Product and/or to AdStage ("Confidential Information"), including, but not limited to the Product, code, technology, algorithms, schematics, testing procedures, user interface, documentation, problem reports, analysis and performance information, inventions (whether patentable or not), and other technical, business, product, marketing, financial and customer information, plans and data. During and after the term of this Agreement, Company shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Confidential Information, unless such Confidential Information becomes part of the public domain without breach of this Agreement by Company, its officers, directors, employees or agents. During or after the term of this Agreement, Company will disclose the Product and Confidential Information only to those of its employees as are necessary for the use expressly and unambiguously granted hereunder and who are bound by the provisions of this Agreement. Company shall not, without the prior written consent of AdStage, disclose or otherwise make available the Product, documentation or other supporting materials, including any information relating to the performance or operation of the Product (including any testing results, opinions, benchmarking or other evaluation conclusions), or copies thereof to any third party. Company acknowledges and agrees that due to the unique nature of AdStage's Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Company or third parties to unfairly compete with AdStage resulting in irreparable harm to AdStage, and therefore, that upon any such breach or threat thereof, AdStage shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
Title to and ownership of the Product shall be and at all times remain in AdStage. All reports and information contained in such reports are the sole property of AdStage. Any developments or modifications (including all related intellectual and proprietary rights) made during the term of this Agreement by AdStage or the Company, either independently or at AdStage's direction, in any way relating to the Product, whether or not influenced or suggested by the Company, are the sole property of AdStage. Company hereby makes all assignments necessary to effect the foregoing ownership.
4. Warranty Disclaimer & Liability Limitation
The parties acknowledge that the Product is experimental in nature and that the Product is provided "AS IS" and may not be functional on any machine or in any environment. ADSTAGE DISCLAIMS ALL WARRANTIES RELATING TO THE PRODUCT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
NEITHER ADSTAGE NOR ITS VENDORS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES, AND LOSS OF PROFITS. ADSTAGE SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
Neither the rights nor the obligations arising under this Agreement (including, but not limited to, Company login information) are assignable or transferable by Company, and any such attempted assignment or transfer shall be void and without effect.
6. Controlling Law, Attorneys' Fee, and Severability
This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California, without applying conflicts of law rules. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys' fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
7. Entire Agreement
This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto are expressly cancelled. Any modifications or waivers of this Agreement must be in writing and signed by both parties hereto.
This Agreement may be terminated by either party for any reason or no reason at any time upon ten days notice. Upon termination, the license granted hereunder shall terminate and Company shall immediately delete any and all documents, notes and other materials associated with the Product, including, without limitation, all Confidential Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect.