Terms and Conditions

Last updated: 12 October 2022

EVALUATION AGREEMENT
TERMS & CONDITIONS

IMPORTANT: PLEASE READ THESE EVALUATION AGREEMENT TERMS & CONDITIONS ("AGREEMENT") BEFORE ACCESSING, INSTALLING, CONFIGURING, AND/OR USING THE "FLOX" SOFTWARE AND TECHNOLOGY THAT IS PROVIDED OR OTHERWISE MADE AVAILABLE BY INNVENCO II, INC. ("LICENSOR") OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT (INCLUDING THROUGH THIRD PARTY PLATFORMS SUCH AS GIT HUB), INCLUDING ANY SOFTWARE CODE, SPECIFICATIONS AND DOCUMENTATION PROVIDED IN CONNECTION THEREWITH (COLLECTIVELY, THE "PRODUCT").

BY ACCESSING, INSTALLING, CONFIGURING AND/OR USING THE PRODUCT IN ANY WAY, YOU, ON YOUR OWN BEHALF AND ON BEHALF OF THE ENTITY THAT YOU REPRESENT ("EVALUATOR"): (A) ACCEPT THE TERMS AND CONDITIONS HEREOF AND UNCONDITIONALLY CONSENT TO BE BOUND BY AND WILL BE A PARTY TO THIS AGREEMENT WITH LICENSOR; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.

IF EVALUATOR DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, USE OF THE PRODUCT IS STRICTLY PROHIBITED.

  1. EVALUATION LICENSE; TERM.  This Agreement governs Evaluator's access, installation, configuration and/or use of the Product in any capacity.
    1. Evaluation License.  Subject to the Evaluator's continued compliance with the terms and conditions of this Agreement, Licensor hereby provides Evaluator, during the Term (as defined below), a limited, personal, revocable, non-exclusive, non-transferable, non- assignable, non-sublicensable right and license to evaluate the Product for personal or internal use and to test Evaluator's own applications that operate in connection with the Product, solely for the purpose of internally evaluating the performance and functionality of the Product (the "License"). For the avoidance of doubt, Evaluator may not disclose or use the Product or any components thereof on behalf of or in connection with any third party's products, services, or research and development activities; provided that, upon Licensor's prior written consent, Evaluator may use the Product in connection with Evaluator's clients who are bound to an unmodified form of this Agreement with Licensor.
    2. Source Code Rights.  In connection with this Agreement, Licensor may make available for download certain files and software components of the Product in source code form (the "Source Code Programs"). Such Source Code Programs shall be subject to the License and other terms and conditions of this Agreement (including Section 3), provided that Evaluator may modify and create derivative works of the Source Code Programs (collectively, "Improvements") solely for use in connection with its internal evaluation and testing as otherwise permitted herein. Evaluator shall not, under any circumstances, publish or otherwise share any Improvements with any third party.
    3. Term.  Subject to Section 6 (Termination), Evaluator shall be entitled to use and evaluate the Product for the period of time specified by Licensor in writing (including email), or if no such period is specified then for six (6) months after the date Evaluator accepts this Agreement (as described in the preamble above) (the "Term").
  2. FEEDBACK.  During the Term, Evaluator may provide to Licensor feedback and suggestions regarding the use, operation, performance, and functionality of the Product ("Feedback"). Such Feedback may include information about operating results, performance, known or suspected bugs, errors or compatibility problems and user-desired features. Evaluator hereby grants to Licensor an unlimited, perpetual, irrevocable, worldwide, transferable, sub-licensable, and royalty-free right to use and otherwise exploit the Feedback in any manner.
  3. RESTRICTIVE USE.  Evaluator agrees that it will not: (i) except as expressly permitted in Section 1, reproduce, modify, distribute, disclose or make available to any third party any portion of the Product in any form; (ii) publish, license, sublicense, transfer or assign, in whole or in part, any portion of the Product; (iii) except as expressly permitted in Section 1 with respect to the Source Code Programs, reverse engineer, decompile or disassemble any portion of the Product, or otherwise attempt to decrypt, extract or derive the source code for the software (or any parts thereof) embedded therein; (iv) access or use the Product in order to build a similar or competitive product or service; (v) publish or disclose to any third party any performance or benchmark tests or analyses or other non-public information relating to the Product or the use thereof; (vi) access or use the Product to develop, or introduce into the Product, any harmful or malicious code or programs, such as computer viruses, Trojan horses, ransomware, spyware or other malware; or (vii) use the Product in any applications in which failure of such Product could reasonably be expected to result in personal injury, loss of life or property damage, including any life sustaining, medical or nuclear use. The software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. Evaluator shall not remove any copyright or other proprietary notices from the Product. Without limiting Licensor's other rights or remedies, Evaluator agrees to defend, indemnify and hold Licensor and its affiliates and its and their employees, officers, directors, and agents harmless from and against any claims, losses, damages, and expenses (including reasonable attorneys' fees) to the extent arising from Evaluator's breach of this Agreement.
  4. THIRD PARTY CODE. 
    1. Certain items of software code provided within the Product and/or Source Code Programs, or which are intended to be downloaded separately by Evaluator and used with the Product, are licensed from third parties and are subject to "open source" or "free software" licenses from such licensors ("Third Party Code"). The Third Party Code is licensed under the terms of the license that accompanies or otherwise is applicable to such Third Party Code. Nothing in this Agreement limits Evaluator's rights under, or grants Evaluator rights that supersede, the terms and conditions of any applicable license for the Third Party Code, including any rights to copy, modify, or distribute Third Party Code under the applicable license.
    2. Notwithstanding Section 4.1, Evaluator shall not use the Product in connection with any Free and Open Source Software ("FOSS", as further defined below) in such a way that would require all or any part of the Product or any source code that incorporates or discloses any part of thereof to be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; (iii) redistributable at no charge; or (iv) subject to any FOSS licensing terms or obligations. As used above, "FOSS" or "Free and Open Source Software" means any software that is subject to terms that, as a condition of use, copying, modification, or redistribution, requires such software and derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivatives works, or to be redistributed at no charge, including software distributed under the GNU General Public License or GNU Lesser General Public License (formerly known as "the GNU Library General Public License") or any version thereof.
  5. TITLE; RESERVATION OF RIGHTS.  As between the parties, Licensor and its affiliates or licensors shall retain all right, title, and interest in and to the Product, including all Improvements thereto, and in all intellectual property rights therein, including as may be applicable, all patent, trademark, copyright, rights in computer software, database rights and trade secrets, whether registered or not registered. No license or other express or implied rights of any kind are granted or conveyed except for the limited internal License expressly provided in Section 1 above. As between Evaluator and Licensor, the Product shall remain Licensor's sole and exclusive property. To the extent Evaluator obtains any ownership rights in any Improvements, Evaluator shall, and hereby does, irrevocably and unconditionally assign to Licensor, its entire right, title and interest in and to such Improvements, including all intellectual property rights therein. Evaluator shall not offer, loan, license, transfer, encumber, se l or otherwise dispose of the Product to any third party without having received prior written authorization from Licensor. Except as expressly provided herein, all rights are reserved by Licensor and its affiliates or licensors, as applicable.
  6. TERMINATION.  This Agreement will expire at the end of the Term, unless terminated earlier. Either party may terminate this Agreement earlier for convenience with immediate effect upon written notice to the other party (including via email). In addition, this Agreement will terminate immediately upon any breach by Evaluator. Upon termination or expiration of this Agreement for any reason, Evaluator's rights to use the Product shall immediately expire, Evaluator shall cease any use of the Product and delete all copies thereof (including all copies of Source Code Programs), and an officer of Evaluator shall certify such deletion in writing to Licensor; otherwise, the terms and conditions of this Agreement will survive.
  7. DISCLAIMER OF WARRANTIES.  EVALUATOR UNDERSTANDS THAT THE VERSION OF THE PRODUCT PROVIDED PURSUANT TO THIS AGREEMENT IS A PRE-RELEASE 'BETA' VERSION THAT HAS NOT YET COMPLETED LICENSOR'S QUALITY ASSURANCE TESTING. LICENSOR IS PROVIDING THE PRODUCT AND THE SOURCE CODE PROGRAMS ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR USE BY EVALUATOR AT ITS OWN RISK. LICENSOR AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND AND DISCLAIM ALL WARRANTIES RELATING TO THE PRODUCT AND THE SOURCE CODE PROGRAMS OR ANY SERVICES PROVIDED IN CONNECTION THEREWITH, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, RELIABILITY, ACCURACY OR COMPLETENESS. EVALUATOR BEARS THE ENTIRE RISK OF DETERMINING WHETHER TO USE THE PRODUCT AND THE SOURCE CODE PROGRAMS UNDER THE TERMS PROVIDED HEREUNDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR DOES NOT WARRANT THAT THE PRODUCT WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM.
  8. LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR, OR ITS AFFILIATES OR LICENSORS, BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, IN CONNECTION WITH THE USE OF THE PRODUCT, THE SOURCE CODE PROGRAMS OR OTHER MATERIALS PROVIDED ALONG WITH THE PRODUCT OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR'S AGGREGATE AND CUMULATIVE LIABILITY ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF $100.00 US DOLLARS.
  9. CONFIDENTIALITY.  "Confidential Information" means any nonpublic information or data relating to Licensor or its affiliates or the Product, whether disclosed orally or in written or otherwise, including any information or data that is identified as "confidential" or with a similar legend at the time of such disclosure, or that Evaluator knows or should have known is the confidential or proprietary information of Licensor or its affiliates. Confidential Information shall include any software code provided by Licensor or its affiliates in connection with this Agreement (including the Source Code Programs). All Product-related technical information, evaluation or reports supplied to or prepared by Evaluator that relate to the Product also are Confidential Information. Evaluator shall not use or disclose any Confidential Information except as expressly authorized by this Agreement and shall protect the Confidential Information using the same degree of care that it uses with respect to its own comparable confidential information, but in no event with safeguards less than a reasonably prudent business world exercise under similar circumstances. Except as provided herein, Evaluator agrees not to permit any third party access to any materials generated by Licensor or its affiliates or Evaluator regarding the Product without Licensor's or its affiliates' advance written approval.
  10. GENERAL PROVISIONS. 
    1. Governing Law and Venue.  This Agreement will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different state. To the extent permitted by applicable law, each party hereby expressly consents to the personal jurisdiction and venue in the federal courts in New York, New York (or, if the federal courts do not have jurisdiction, the state courts in New York, New York) for any lawsuit filed there arising from or related to this Agreement. The parties hereby waive the right to trial by jury.
    2. Severability.  If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by applicable law.
    3. No Assignment.  This Agreement, and Evaluator's rights and obligations herein, may not be assigned, delegated, or transferred by Evaluator without Licensor's prior written consent, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Any change of control, merger, or other acquisition of all or substantially all of Evaluator's assets or business will be deemed an assignment requiring consent hereunder. Licensor may assign, delegate or transfer this Agreement, in whole or in part.
    4. Notices.  All notices or other communications required under Sections 6 and 10 of this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery such as Federal Express, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt. All other notices and communications may be made by email instead.
    5. Waiver.  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.
    6. Export.  The Product, its software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Evaluator agrees not to export, reexport, or transfer, directly or indirectly, the Product or any technical data acquired from Licensor in violation of the United States or foreign export laws or regulations.
    7. Publicity.  Evaluator shall not disclose the existence of this Agreement or its terms or make a public announcement regarding the business relationship of the parties or use any mark, logo or tradename owned or used by Licensor or any of its affiliates, without the express written consent of Licensor.
    8. Including.  "Including" and its derivatives (such as "include" and "includes"), whether or not capitalized in this Agreement, and the provision of examples herein, shall not be interpreted as words of limitation and shall be deemed to be immediately followed by the words "without limitation".
    9. Headings.  The division of this Agreement into Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in the construction or interpretation of this Agreement.
    10. Entire Agreement; Modification.  This Agreement constitutes the entire agreement between Evaluator and Licensor and supersedes in their entirety any and all oral or written agreements previously existing between Evaluator and Licensor with respect to the subject matter hereof. This Agreement may only be amended in a writing signed by duly authorized representatives of the parties.