Terms & Conditions
Terms of Evaluation
This Terms of Evaluation Agreement (this “Agreement”) governs the access and use of Backtrace’s proprietary software solution (the “Software”) provided by BACKTRACE I/O, INC., a Delaware corporation (“Backtrace”). By clicking “I AGREE,” or otherwise installing, accessing, or using 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 and Services.
Subject to the terms and conditions of this Agreement, Backtrace grants CLIENT a limited, nonexclusive, nontransferable license, without the right to sublicense, to access and use the Software only on up to fifty (50,000) thousand computer devices which are owned or controlled by CLIENT, solely for the limited purpose of evaluating the Software and the output thereof. Backtrace shall install, configure and demonstrate the operation of the Software to CLIENT.
2. IP Ownership.
The Software and all intellectual property rights therein are the exclusive property of Backtrace. No implied licenses or rights are granted under this Agreement. All data or other output resulting from the operation is the exclusive property of CLIENT. All pre-existing intellectual property of each party remains the intellectual property of that party.
CLIENT acknowledges that the Software contains and constitutes valuable trade secrets of Backtrace. Accordingly, CLIENT will not: (i) use the Software for any purpose, except as expressly permitted in this Agreement; (ii) transfer, assign, sublicense, copy, distribute, modify, or create derivative works of the Software, in whole or in part; or (iii) decompile, reverse assemble or otherwise reverse engineer the Software. CLIENT will not remove or alter any of the copyright notices or other proprietary markings on the Software.
4. Maintenance and Support.
During the term of this Agreement, Backtrace shall provide maintenance and support services during Backtrace’s standard hours of service: (i) updates and upgrades, when and if available, and related on-line documentation, and (ii) telephone assistance with respect to the Software, including (a) clarification of functions and features of the Software; (b) clarification of the documentation; (c) guidance in the operation of the Software; and (d) error verification, analysis and correction to the extent possible by telephone or email.
(a) “Confidential Information” is all technical and non-technical information being disclosed by one party to the other party (including but not limited to the Software, product information, plans and pricing, financials, marketing plans, business strategies, customer and user information, data, research and development, software, APIs, specifications, designs, formulae, algorithms, and know-how); either designated as, or which would reasonably understood to be confidential or proprietary. In addition, the existence and terms of this Agreement and the fact that discussions are taking place between the parties in connection with this Agreement is deemed to be the Confidential Information of both parties.
(b) The receiving party will: (i) hold the disclosing party’s Confidential Information in confidence; (ii) restrict disclosure of such Confidential Information to those of its employees or agents with a need to know such information and who have previously agreed (e.g. as a condition to their employment or agency) to be bound by terms substantially similar to those of this Agreement; (iii) use such Confidential Information only for the purposes for which it was disclosed; and (iv) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information unless otherwise specified in writing by the
(c) The restrictions set forth herein will not apply to Confidential Information to the extent it (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure without breach of this Agreement by the receiving party; (iii) was lawfully received by the receiving party from a third party without such restrictions; (iv) was known to the receiving party without such restrictions prior to its receipt from the disclosing party; (v) was independently developed by the receiving party without reference to such Confidential Information; (vi) was generally made available to third parties by the disclosing party without such restriction; or (vii) is required to be disclosed by the receiving party pursuant to judicial order or other compulsion of law, provided that the receiving party will provide to the disclosing party prompt notice of such order and comply with any protective order imposed on such disclosure.
(d) Upon written request of the disclosing party, all copies of the disclosing party’s Confidential Information will be returned to the disclosing party or promptly destroyed.
There are no fees due under this Agreement and each Party shall bear its own expenses.
7. Term and Termination.
This Agreement shall continue for a period of one (1) year, unless earlier terminated as provided herein. Either party may terminate this Agreement for convenience, upon thirty (30) days prior written notice, which the parties agree may include email. Upon termination or expiration of this Agreement, CLIENT will cease all use of the Software and each party will return all confidential information of the other party. Sections 2 through 11 and 13 of this Agreement will survive any termination of this Agreement.
Backtrace will defend, indemnify and hold harmless CLIENT and its officers, directors, employees and agents (each, an “Indemnified Party”) from all third-party claims or liabilities (including without limitation reimbursement for reasonable outside attorneys’ fees and disbursements) arising out of or related to any claim, allegation or actual infringement or misappropriation of a third party’s U.S. patent, trademark, trade secret or copyright. CLIENT shall (i) promptly notify Backtrace in writing of the third-party claims (provided that failure of CLIENT to promptly notify Backtrace will not relieve Backtrace of its indemnification obligations, except to the extent it has been damaged by the failure); (ii) reasonably cooperate with Backtrace in the defense of the matter and (iii) give Backtrace primary control of the defense of the matter and negotiations for its settlement.
9. WARRANTY DISCLAIMER.
THE SOFTWARE AND SERVICES ARE BEING PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. BACKTRACE AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON- INFRINGEMENT OF THIRD PARTY’S RIGHTS.
10. LIMITATION OF LIABILITY.
OTHER THAN FOR DAMAGES RELATING TO BREACHES OF THE CONFIDENTIALITY PROVISIONS OR THE INTELLECTUAL PROPERTY PROVISIONS HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES. OTHER THAN FOR INDEMNIFICATION OBLIGATIONS, DAMAGES RELATING TO BREACHES OF THE CONFIDENTIALITY OR INTELLECTUAL PROPERTY PROVISIONS HEREIN OR DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE THOUSAND ($1,000) DOLLARS.
11. Governing Law; Dispute Resolution.
The provisions of this Agreement and all the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. Each Party consents to the exclusive jurisdiction and venue of the state and federal courts located in New York County, New York, and agrees not to contest such jurisdiction or
CLIENT may not assign or transfer any rights under this Agreement or delegate any obligations or duties under this Agreement (except in conjunction with a change in ownership, merger, acquisition, the sale or transfer of all, or substantially all of any part of a business or assets or otherwise, either voluntarily, by operation of law, or otherwise) without Backtrace’s prior written consent. Any attempted assignment or delegation without such consent will be null and void.
All waivers must be in writing and signed by an authorized representative of the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. This Agreement may not be amended, modified, altered, or supplemented other than by means of a written instrument duly executed by the authorized representative of each party and delivered on behalf of all parties. If any provision of this Agreement, or the application of any such provision to any person or set of circumstances, is determined to be invalid, unlawful, void, or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, void, or unenforceable, will not be impaired or otherwise affected, and will continue to be valid and enforceable to the fullest extent permitted by law. This Agreement sets forth the entire agreement and final understanding of the parties relating to the subject matter hereof and supersedes and terminates all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof.
Effective Feb 12, 2015