This EVALUATION AGREEMENT (this “Agreement”) is made and entered into by and between you or, if you are entering into this Agreement on behalf of a company or other legal entity, such entity (“Licensee”) and BLUECHASM, LLC, a Texas limited liability company (“Company”), effective as of the earlier of the date you click “I Accept” or first access or use the Service (as defined below) (“Effective Date”).
1. Acceptance of Terms. PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCESSING
OR USING COMPANY’S ONLINE SERVICE FOR AUDIO/VISUAL ANALYSIS (INCLUDING ANY RELATED SOFTWARE OR OTHER
COMPONENTS) (“SERVICE”), YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS
POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO
NOT ACCES OR USE THE SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR
OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH
ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “LICENSEE” SHALL REFER TO SUCH ENTITY. IF YOU DO
NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU
MAY NOT ACCESS OR USE THE SERVICE. THIS AGREEMENT REQUIRES BINDING ARBITRATION TO RESOLVE ANY
DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF
THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS
AGREEMENT (EACH, A “CLAIM”), AND YOU AGREE THAT ANY CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL
BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION OR ARBITRATION. PLEASE
REVIEW SECTION 16 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION
OF ANY CLAIM. You represent and warrant that you are: (a) over eighteen (18) years of age or the age
of majority in your jurisdiction, whichever is greater; (b) of legal age to form a binding contract;
and (c) not a person barred from using the Service under the laws of your country of residence or
any other applicable jurisdiction.
2. Responsibility for Content. Licensee acknowledges and agrees that all information, data, text, software, music, sounds, photographs, graphics, videos, messages, scripts, tags and/or other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that Licensee, and not Company, is entirely responsible for all Content that Licensee uploads, posts, emails, transmits or otherwise makes available through the Service (“Licensee Content”), and other users of the Service, and not Company, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service (“User Content”). Licensee acknowledges and agrees that Company has no obligation to pre-screen Content (including, but not limited to, Licensee Content and User Content), although Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing, Company shall have the right to remove any Content that violates this Agreement or that it deems objectionable. To the extent that Licensee submits any Content, Licensee represents and warrants that: (a) Licensee has all necessary right and authority to grant the rights set forth in this Agreement with respect to Licensee Content; and (b) Licensee Content does not violate any copyright, trademark, right of privacy, right of publicity or any other right of any party.
3. Rights to Content. Company does not claim ownership of Licensee Content. However, Licensee grants Company and its service providers a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable, transferable license to use, distribute, transmit, reproduce, modify, adapt, create derivative works from, publicly perform and publicly display Licensee Content in connection with the Service. Subject to Licensee’s rights in Licensee Content, Licensee agrees that Company and its licensors own all rights, title and interest in the Service and all Content and other materials within the Service. Company reserves all rights not expressly granted to Licensee under this Agreement.
4. License. Subject to Licensee’s compliance with the terms and conditions of this Agreement in all material respects, Company grants to Licensee a personal, limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the term of this Agreement to access and use the Service only in executable, machine-readable, object code form within the online platform provided by Company for accessing the Service and only for Company’s non-commercial, evaluation purposes.
5. Restrictions. Except with respect to Licensee Content or as expressly permitted by this Agreement, Licensee may not: (a) decompile, decode, disassemble, reverse engineer, reverse assemble or otherwise attempt to discover any source code or the architectural framework for any software within or associated with the Service; (b) allow any third party to access or use the Service, or access or use the Service for the benefit of any party other than Licensee or Company; (c) use, distribute, transmit, reproduce, modify, adapt, create derivative works from, publicly perform or publicly display any Content; (d) frame or utilize any framing technique to enclose any Content; or (e) access the Service for purposes of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any product or service offered by Company.
6. User Conduct. Licensee shall not upload, post, email, transmit or otherwise make available any Content that: (a) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful or otherwise objectionable; (b) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (c) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (d) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; or (e) contains software viruses or any other code, files or programs designed or intended to interrupt, destroy, compromise or limit the functionality or integrity of any software or hardware. Licensee shall further comply with all applicable local, state, federal and international laws and regulations with respect to Licensee’s access to and use of the Service.
7. Confidentiality. The Service, all Content and other materials within the Service, all accompanying documentation, this Agreement, and all information disclosed by Company to Licensee hereunder or otherwise in connection with the Service or Company’s business, including, but not limited to, performance data, features and other information relating to or obtained from the Service (collectively “Confidential Information”) constitute confidential and proprietary information of Company. Licensee shall not disclose Confidential Information to any third party or access or use Confidential Information except as expressly permitted pursuant to this Agreement. Licensee shall take all necessary precautions to avoid disclosure and misuse of Confidential Information. Each of Licensee’s employees with access to Confidential Information shall be bound by a written non-disclosure agreement that is at least as protective of Confidential Information as is this Agreement. Licensee shall promptly notify Company if Licensee becomes aware of any breach of this Section 7 and assist Company in remedying such breach.
8. Term. The term of this Agreement shall commence on the Effective Date and continue in full force and effect until Company announces through the Service that the evaluation period for the Service has concluded, unless terminated sooner in accordance with the terms of this Section 8. Notwithstanding the foregoing sentence, this Agreement: (a) shall terminate immediately upon a material breach of this Agreement by Licensee, with or without notice to Licensee; and (b) may be terminated at any time by Company for any reason or no reason at all. Upon termination of this Agreement for any reason, all rights granted to Licensee hereunder shall immediately terminate, and Company may, at its option, remove or delete Licensee Content.
9. Indemnification. Licensee shall indemnify, defend and hold Company and its affiliates, and each of their directors, officers, employees and agents (collectively, “Company Parties”), harmless from and against any loss, damage, cost, liability or expense (including, but not limited to, reasonable attorneys’ fees) to the extent arising from Licensee’s access to or use of the Service or breach of this Agreement.
10. DISCLAIMER OF WARRANTIES. LICENSEE UNDERSTANDS THAT THE SERVICE IS IN AN EXPERIMENTAL STATE AND MAY BE SUBJECT TO BUGS, ERRORS AND OTHER MALFUNCTIONS. LICENSEE’S USE OF THE SERVICE IS AT LICENSEE’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY PARTIES DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA OR RESULTS, NON-INFRINGEMENT, OR NON-INTERFERENCE.
11. LIMITATION OF LIABILITY. COMPANY PARTIES SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES AND ANY LEGAL THEORY (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) FOR ANY LOST PROFITS, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS (INCLUDING, BUT NOT LIMITED TO, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR LOST DATA), EVEN IF COMPANY PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL COMPANY PARTIES’ TOTAL LIABILITY TO LICENSEE FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR LICENSEE’S ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE EXCEED THE AMOUNT PAID BY LICENSEE (IF ANY) TO COMPANY UNDER THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 11 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
12. Feedback. Licensee may provide Company with suggestions, comments, ideas, improvements or other feedback relating to the Service (“Feedback”). If Licensee elects to provide or make available to Company any Feedback, Company shall be free to use, disclose, reproduce, practice, make, have made, modify, license, transfer and otherwise utilize and distribute such Feedback in any manner, without credit or compensation to Licensee.
13. Modifications. Company reserves the right at any time to modify, suspend or discontinue, temporarily or permanently, the Service (or any portion thereof) with or without notice. Company shall not be liable to Licensee or to any third party for any modification, suspension or discontinuance of the Service (or any portion thereof).
14. Injunctive Relief. Licensee acknowledges and agrees that Licensee’s breach of Section 4, 5 or 7 will result in irreparable harm to Company for which there is no adequate remedy at law. Notwithstanding anything to the contrary, Company shall be entitled to seek injunctive or other equitable relief from any court of competent jurisdiction to address such breach, without the requirement to post any bond or other security.
15. Governing Law. This Agreement and all Claims shall be governed by and construed, adjudicated and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
16. BINDING ARBITRATION AND CLASS ACTION WAIVER. ALL CLAIMS SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT LICENSEE MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS AGREEMENT AS A COURT WITH LIMITED JURISDICTION TO HEAR CLAIMS NOT EXCEEDING $5,000) IF LICENSEE’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable rules, including, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, Licensee agrees that such hearing shall be conducted in Austin, Texas or another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction. LICENSEE AND COMPANY EACH AGREES THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION OR ARBITRATION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, LICENSEE AND COMPANY EACH WAIVES ANY RIGHT TO A JURY TRIAL AND AGREES THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS (AUSTIN) OR, IF FEDERAL JURISDICTION IS NOT AVAILABLE, IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. LICENSEE HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY OBJECTION ON THE GROUNDS OF JURISDICTION, VENUE, FORUM NON CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM. Notwithstanding anything to the contrary, Licensee and Company may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 16.
17. Procedure for Making Claims of Copyright Infringement. If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide Company’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Company’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
18. General. This Agreement and any claim arising out of or relating to this Agreement or Licensee’s access to or use of the Service (collectively, “Claims”) shall be governed by the laws of the State of Texas, without reference to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. All Claims shall be subject to the exclusive jurisdiction of the state and federal courts located in Travis County, Texas, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Licensee shall not assign this Agreement in any manner, and any purported assignment shall be void. Licensee shall comply in all respects with all U.S. and foreign export laws and regulations. This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous negotiations and understandings between the parties, both oral and written, regarding such subject matter. The failure of Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. This Agreement may not be amended by Licensee except in a writing executed by an authorized representative of Company. If any provision of this Agreement is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement. This Agreement shall be fairly interpreted in accordance with its terms and conditions without any strict construction in favor of or against either of the parties.