PLEASE READ THIS TRIAL AGREEMENT CAREFULLY. BY SUBMITTING A REGISTRATION PAGE TO ORCANOS YOU INDICATE ACCEPTANCE OF, AND AGREEMENT WITH, THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT DOWNLOAD, INSTALL, OR USE THE TRIAL MATERIALS.
THIS TRIAL AGREEMENT (the “Agreement“) is made and entered into by and between ORCANOS LTD., (“ORCANOS“) and the person or entity indicated on the trial registration page submitted to ORCANOS (the “Licensee“). This Agreement applies to (a) the ORCANOS computer software application: (i) made available to Licensee by means of the ORCANOS hosted application service available from a URL designated by ORCANOS (the “Service“), if the Deployment Type selected by Licensee is “On-Demand (SaaS)” (an “On-Demand Trial“) or (ii) ORCANOS computer software application, downloaded from a ORCANOS website, together with any Update and Error Correction, and replacements therefor (the “Software“), if the deployment type selected by Licensee is “On-Site (Local)” (an “On-Site Trial“), and (b) the Documentation. This Agreement will be effective on the date Licensee submits the trial registration page (the “Effective Date“) and terminates, unless extended by ORCANOS, 30 days after the Effective Date (such 30 day period and any extension is hereinafter referred to as the “Trial Period“).
As used in this Agreement:
“Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with Licensee and “control” means ownership of at least 50% of the equity or beneficial interests of such entity.
“Confidential Information” means all business or technical information of the Disclosing Party that is not generally known to the public and that derives value from not being generally known, whether such information is disclosed orally or in writing. Licensee acknowledges and agrees that the Trial Materials, the terms of this Agreement, and any source code, object code, proprietary tools, knowledge, or methodologies disclosed by ORCANOS to Licensee in connection with this Agreement are Confidential Information of ORCANOS. If this Agreement relates to an On-Demand Trial, ORCANOS acknowledges and agrees that Licensee Data is Confidential Information of Licensee.
“Contractor” means an independent contractor performing services for Licensee or an Affiliate.
“Documentation” means the supporting documentation and materials embedded in the Service and the Software.
“Electronic Device” means any computer or other device which accesses and or interacts with the Software or the Service by means of a web browser, network connection, or other means, and if this Agreement relates to an On-Site Trial, includes any computer or other device into which the Software is downloaded or installed.
“Error Correction” means a modification or addition that, when made or added to the Software or Service, brings the Software or Service into conformity with the Documentation in all material respects, or a procedure or routine that, when observed in the regular operation of the Software or Service, avoids the practical adverse effect of such nonconformity. Upon delivery, each Error Correction becomes merged with the Licensed Materials and is subject to all of the terms and conditions of this Agreement.
“Media” means any object which can record information in a form that can be transferred into an Electronic Device.
“Trial Materials” means Service and Documentation, if this Agreement relates to an On-Demand Trial and the Software and Documentation, if this Agreement relates to an On-Site Trial.
“Use” means that Licensee, Affiliates, and Contractors may during the Trial Period, access, run, and interact with the Trial Materials in accordance with the terms of this Agreement to evaluate the (a) suitability of the Trial Materials for Licensee’s intended use and (b) functionality of the Trial Materials in Licensee’s environment.
TEMPORARY LICENSE – ON SITE TRIAL
This Section applies only to an On-Site Trial. ORCANOS grants to Licensee and Licensee accepts from ORCANOS, a limited, non-exclusive, non-transferable, and temporary license to install the Software on an Electronic Device owned or controlled by Licensee and Use the Trial Materials during the Trial Period. Licensee may make copies (in machine-readable form only) of the Software solely for backup or disaster recovery purposes, and may make a limited number of copies of the Documentation sufficient to support Licensee’s Use of the Software as permitted by this Agreement. Contractors may Use the Trial Materials during the Trial Period solely for the benefit of Licensee or its Affiliate and not for the benefit of any other customer or client of Contractor and only for as long as Contractor is providing services to Licensee or an Affiliate during the Trial Period.
TEMPORARY LICENSE – ON-DEMAND TRIAL
This Section applies only to an On-Demand Trial. ORCANOS grants to Licensee and Licensee accepts from ORCANOS, a limited, non-exclusive, non-transferable, and temporary license to Use the Trial Materials during the Trial Period. Licensee may make a limited number of copies of the Documentation sufficient to support Licensee’s Use of the Service as permitted by this Agreement. Contractors may Use the Trial Materials during the Trial Period solely for the benefit of Licensee or its Affiliate and not for the benefit of any other customer or client of Contractor and only for as long as Contractor is providing services to Licensee or an Affiliate during the Trial Period.
Licensee acknowledges that ORCANOS may analyze Licensee’s usage of the Trial Materials for product support, product development, and administrative purposes.
ORCANOS will supply default administrator login credentials (“Login Credentials“) for Licensee to assign user names and passwords to all personnel that will access the Service. Licensee assumes sole responsibility for use of the Login Credentials. If Login Credentials are misappropriated, Licensee will notify ORCANOS immediately by telephone and will concurrently provide written notice to ORCANOS whereupon ORCANOS will disable the Login Credentials reported by Licensee and issue replacement Login Credentials.
Licensee agrees to use the Service only for lawful purposes and in a manner that complies with all applicable laws in the jurisdictions in which the Service is used. Transmission of any material which, in the sole determination of ORCANOS, is threatening, obscene, libelous, defamatory, discriminatory, or is otherwise offensive or illegal will constitute a material breach of this Agreement. Licensee will not violate or infringe the rights of any third party. Licensee agrees to report to ORCANOS immediately and use reasonable efforts to stop immediately any copying or distribution of information, documents, software, products, and services contained or made available to Licensee in the course of using the Service; and not to impersonate another ORCANOS user or provide false identity information to gain access to or use the Service.
Licensee agrees to indemnify, defend, and hold ORCANOS harmless of and from any liability, cost, damage, and expense arising out of any claim made against ORCANOS by any third party arising out of Licensee’s deployment and Use of the Service.
ORCANOS ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY OF LICENSEE’S COMMUNICATIONS, DATA, OR PERSONALIZATION SETTINGS.
Trial Materials. ORCANOS reserves all right, title and interest in and to the Trial Materials under all applicable federal, state and local laws of the United States and any other jurisdiction. ORCANOS is not obligated to provide, and Licensee acquires no right of any kind with respect to, any source code for the Trial Materials. Except as expressly permitted by this Agreement, Licensee may not: (a) sublicense, transfer, or otherwise assign its rights in the Trial Materials to any third-party nor allow any third-party to access or use the Trial Materials; (b) modify, create derivative works of, translate, reverse engineer, de-compile, or disassemble the Trial Materials to develop any other computer program or for any other reason; or (c) copy the Trial Materials, in whole or in part, without the prior written consent of ORCANOS. The original and all copies of the Trial Materials remain the sole property of ORCANOS, subject to all of the confidentiality and other restrictions set forth in this Agreement. Licensee must retain all legends relating to copyright, trademarks, patents, or confidentiality on all copies of the Trial Materials or any print of a screen display from the Trial Materials.
Licensee Data. ORCANOS does not own any data, information, or material that is submitted to the Service (“Licensee Data“). Licensee will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership, or right to use, Licensee Data. During the Trial Period, ORCANOS will perform a full back-up of Licensee Data daily. During the Trial Period, all back-ups are stored in a secure location both on site and off site from the data center from which the Service is provided. ORCANOS will retain Licensee Data for sixty days after termination of this Agreement (the “Data Retention Period“). Upon Licensee’s written request prior to expiration of the Data Retention Period, subject to Licensee’s agreement to pay ORCANOS’s then current charge for such services, ORCANOS will provide Licensee a back-up copy of Licensee Data. Following the Data Retention Period, ORCANOS may delete Licensee Data from any Electronic Device and all Media on which Licensee Data is present without notice to Licensee.
During the Trial Period, ORCANOS will provide the services described below (“Support“):
Telephone and Email Support. ORCANOS will not provide Licensee a telephone support during trial period. ORCANOS will provide the Licensee Representative reasonable access to its technical support staff via e-mail, or online help. The support staff can be reached by e-mailing [email protected].
Response. ORCANOS will use all reasonable efforts to respond to all support issues with twenty-four (72) hours of notification of such support issues, excluding weekend days and holidays.
Licensee Representative. ORCANOS will provide Support only to the Licensee Representative.
Licensee will designate a representative of Licensee (the “Licensee Representative“), whose name is set forth in the trial registration page or subsequently changed by notice to ORCANOS, who will be authorized to make decisions, grant requests on behalf of Licensee, and receive notices from ORCANOS.
LICENSEE ACKNOWLEDGES THAT THE TRIAL MATERIALS ARE PROVIDED IN “AS-IS” CONDITION WITH NO WARRANTY. ORCANOS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE TRIAL MATERIALS INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NONINFRINGEMENT.
LICENSEE REPRESENTS AND WARRANTS TO ORCANOS THAT THE PERSON THAT COMPLETES AND SUBMITS THE TRIAL REGISTRATION PAGE IS DULY AUTHORIZED TO BIND LICENSEE TO THE TERMS OF THIS AGREEMENT AND THAT THIS AGREEMENT IS LEGAL, VALID, AND BINDING OBLIGATION OF LICENSEE, ENFORCEABLE AGAINST LICENSEE IN ACCORDANCE WITH ITS TERMS.
Each recipient of Confidential Information (the “Recipient“) agrees that it will not use, disclose, provide, or otherwise make available any Confidential Information of the other party (the “Disclosing Party“) during the Trial Period and for a period of 5 years thereafter except on a need to know basis in connection with the Use of the Trial Materials as authorized under this Agreement. Each Recipient agrees that it will obtain a written confidentiality agreement from each third party (consultant or any other person) not governed by this Agreement who is provided access to the Confidential Information of the Disclosing Party. Recipient will use all reasonable efforts to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution not specifically authorized by this Agreement. Recipient will promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect the Disclosing Party’s rights in Confidential Information.
The Recipient’s obligations under this Agreement will not apply to any portion of the Confidential Information of the Disclosing Party that: (a) , Was in the public domain at the time of disclosure to Recipient or subsequently becomes a part of the public domain through no breach of this Agreement; (b) Recipient had in its possession at the time of disclosure by the Disclosing Party, as established by written documentation in existence at that time, and that was not acquired directly or indirectly from the Disclosing Party or with knowledge of confidentiality restrictions; (c) Recipient subsequently acquires by lawful means from a third-party who is under no obligation of confidentiality or non-use owed to Disclosing Party; or (d) Recipient subsequently independently develops without any use of or reference to the Confidential Information of the Disclosing Party.
If Recipient is legally compelled to disclose any portion of the Confidential Information of the Disclosing Party in connection with a lawsuit or similar proceeding or to any governmental agency, Recipient will give Disclosing Party prompt notice of that fact, including in its notice the legal basis for the required disclosure and the nature of the Confidential Information of the Disclosing Party that must be disclosed. Recipient will cooperate fully with Disclosing Party in obtaining a protective order or other appropriate protection relating to the disclosure and subsequent use of the Confidential Information of the Disclosing Party. Recipient will disclose only that portion of the Confidential Information of the Disclosing Party that is legally required to be disclosed.
LIMITATION OF LIABILITY
IN NO EVENT WILL ORCANOS, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO LICENSEE OR ITS AFFILIATES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES WHATSOEVER (INCLUDINGDAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF ORCANOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN IF A REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. IN NO EVENT WILL ORCANOS’S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, EVER EXCEED $100. THE LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ORCANOS AND LICENSEE. ORCANOS WOULD NOT HAVE PROVIDED THE TRIAL MATERIALS WITHOUT SUCH LIMITATIONS.
Either party may terminate this Agreement and the License granted hereunder by giving ten (10) days prior written notice to the other. This Agreement will automatically terminate at the end of the Trial Period. Upon any termination of this Agreement, Licensee must immediately cease all Use of the Trial Materials and delete all copies of the Trial Materials (including electronic copies) from any Electronic Device and Media on which the Trial Materials are then resident. Upon written request by ORCANOS, Licensee will certify in writing that it has complied with the preceding sentence. The provisions of this Agreement labeled Limitation of Liability and Confidentiality will survive the expiration or termination of this Agreement. The provisions of this Agreement labeled Limitation of Liability and Confidentiality will survive the expiration or termination of this Agreement.
Licensee acknowledges and agrees that the Trial Materials are subject to restrictions and controls imposed by United States law. Licensee represents and warrants that Licensee is not (a) located in an embargoed country as designated by the Office of Foreign Asset Control of the Treasury Department (an “Embargoed Country“), or (b) listed on the prohibited persons list maintained by the Bureau of Industry and Security of the Department of Commerce (the “Prohibited Persons List“). Licensee will not re – export the Trial Materials to any person located in an Embargoed Country or listed on the Prohibited Persons List.
Assignment. Licensee will not assign or transfer its rights and obligations under this Agreement without the prior written consent of ORCANOS and, any purported assignment or transfer without the prior written consent of ORCANOS will be null and void.
Amendments. ORCANOS may amend this Agreement at any time, or from time to time, by posting a new Agreement on ORCANOS’s website, which will be effective ten (10) days after the new Agreement is posted on ORCANOS’s website or when Licensee is notified of such amendment by ORCANOS by notice to the Licensee Representative, whichever occurs first.
Force Majeure. Neither party will be in default by reason of any failure in performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including acts of God or of the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, fire, flood, epidemic, restrictions, strikes, and/or freight embargoes.
No Waiver. Any failure by either party to detect, protest, or remedy any breach of this Agreement will not constitute a waiver or impairment of any such term or condition, or the right of such party at any time to avail itself of such remedies as it may have for any breach or breaches of such term or condition. A waiver may only occur pursuant to the prior written express permission of an authorized officer of the other party.
Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect.
Headings. Headings used in this Agreement are for convenience only and will not be considered in construing or interpreting this Agreement.
Governing Law. This Agreement and the rights of the parties hereunder will be governed by and construed in accordance with the laws of Tel-Aviv, Israel, without regard to the conflicts of law’s provisions thereof. In any suit, arbitration, mediation, or other proceeding to enforce any right or remedy under, or to interpret any provision of, this Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees, and all costs and fees incurred on appeal or in a bankruptcy or similar action. The parties expressly exclude all application of the United Nations Convention on the International Sale of Goods to this Agreement.
Entire Agreement. This Agreement constitutes the complete statement of the agreement between ORCANOS and Licensee in respect of the subject matter hereof, and supersedes all previous written or oral agreements, proposals, RFP responses, and representations. The parties acknowledge that there are no contemporaneous side-letters, or oral agreements, or other arrangements that contradict, alter, or otherwise serve to modify any of the terms set forth in this Agreement. Licensee acknowledges that ORCANOS objects to all pre-printed terms and conditions on, or attached to, Licensee’s purchase orders and that such pre-printed terms and conditions will be of no force or effect. This Agreement has been accepted by ORCANOS in Tel Aviv, Israel. Nothing in this Agreement will supersede any prior confidentiality agreement or license agreement between ORCANOS and Licensee.
Notices. Notices given by ORCANOS will be sent to the e-mail address or mailing address on the trial registration page. Notices given by Licensee to ORCANOS must be given by e-mail to [email protected] or such updated address as ORCANOS may provide. Notice sent to the e-mail or conventional mailing address last provided by the Licensee Representative to ORCANOS will be effective, valid, and binding regardless of whether such address has been changed, canceled, has expired, has been terminated, or otherwise becomes inoperative.