XPN EVALUATION AGREEMENT
(Version 1.1)
This XPN Evaluation Agreement (“Agreement”), states the contractual terms and conditions that govern access to and use of the XPN SDK, the Intertrust Platform, and any other products, services, technology, or information (collectively, “Evaluation Materials”) provided by Intertrust Technologies Corporation (“Intertrust”) hereunder, and is an agreement between Intertrust and the entity you represent (the “Company”). Please review this Agreement carefully before accepting it on behalf of the Company.
Access to and use of the Evaluation Materials is expressly conditioned on acceptance of this Agreement. No company may access or use the Evaluation Materials unless an authorized representative has accepted this Agreement on its behalf. You represent to Intertrust that you are lawfully able to enter into contracts (e.g., you are not a minor) and that you have legal authority to accept this Agreement on behalf of the Company and to bind the Company.
This Agreement shall become effective on the date it is accepted online (the “Effective Date”) and shall continue in effect for the Evaluation Period set forth herein. Intertrust and the Company are also hereinafter referred to collectively as the “Parties” and individually as a “Party”.
PLEASE READ THESE TERMS CAREFULLY AS YOU WILL BE REQUIRED TO ACCEPT THEM PRIOR TO USING THE EVALUATION MATERIALS.
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 “Authorized User” means an employee or contractor of the Company who is authorized to access and use the Intertrust Platform as described in Section 2.2.
1.2 “Confidential Information” means information disclosed by one Party (“Discloser”) to the other Party (“Recipient”), or obtained by Recipient through inspection or observation of Discloser’s property or facilities, or through access to or use of Discloser’s systems or networks, whether in writing, or in oral, graphic, electronic or any other form, that is marked or identified as, or disclosed or obtained under circumstances reasonably indicating it is, confidential or proprietary. For avoidance of doubt, all information regarding the use and operation of the Intertrust Platform is Confidential Information of Intertrust.
1.3 “Company Data” means any data that Company or its Authorized Users upload to the Intertrust Platform.
1.4. “Evaluation Period” has the meaning set forth in Section 9.1.
1.5 “XPN SDK” means the XPN source code SDK licensed by Intertrust under this Agreement.
1.6. “Intertrust Platform” means the cloud-based platform provided by Intertrust.
2. EVALUATION MATERIALS
2.1. Evaluation of Intertrust Platform. Subject to the terms and conditions of this Agreement, Intertrust will make available to Company and its Authorized Users, on a hosted, “as-a-service” basis, the Intertrust Platform and its associated functionality, solely for testing and evaluation and not for commercial use.
2.2 Trial User Accounts. Intertrust will establish a trial user account on the Intertrust Platform for Company. This trial user account will enable Company and its Authorized Users to access and use the Intertrust Platform during the Evaluation Period. Company will inform each Authorized User of the applicable limitations and restrictions set forth in this Agreement, and require each Authorized User to comply with such terms. Company will not permit its personnel other than Authorized Users to access or use the Intertrust Platform, and will not disclose any user names or passwords for the Intertrust Platform other than as necessary to enable Authorized Users to access and use the Intertrust Platform. Company will notify Intertrust immediately if Company knows of or has reason to suspect any unauthorized use of the Intertrust Platform or any loss or theft of any user name or password. Company will be responsible for all activities of its Authorized Users in connection with the Intertrust Platform and all activity using any user names or passwords issued to Company or any Authorized Users.
2.3. XPN SDK and Other Evaluation Materials. Intertrust will provide the Evaluation Materials to Company for use during the Evaluation Period for the sole purpose of conducting Company’s testing and evaluation of the XPN SDK and the Intertrust Platform in accordance with the terms and conditions of the Agreement. Intertrust grants to Company, for the Evaluation Period, a nonexclusive license to use the Evaluation Materials solely for testing and evaluation and not for commercial use. Except as expressly set forth in the preceding sentence, no licenses or other rights are granted to Company with respect to the Evaluation Materials, whether by implication, estoppel, or otherwise. Company acknowledges and agrees that the Evaluation Materials incorporate and practice Intertrust’s proprietary technology and intellectual property. Company agrees that it will acquire no interest or rights in Intertrust’s proprietary technology or intellectual property, except as expressly set forth in this Agreement.
2.4 Restrictions. Without limiting any other provision of this Agreement, Company represents and warrants that it will not (and will not permit any Authorized User or third party to): (a) access or use the Evaluation Materials for any purpose or in any manner other than for testing and evaluation purposes as expressly permitted under this Agreement; (b) attempt or purport to sell, lease, sublicense, assign, or transfer access to the Evaluation Materials to any third party, other than providing access to Authorized Users as expressly permitted under this Agreement; (c) extract ideas, algorithms, procedures, workflows or hierarchies from the Evaluation Materials, or otherwise use the Evaluation Materials for the purpose of creating another product or service; (d) provide any means of access to, or otherwise display or transmit, the Evaluation Materials from or through any website (including by “framing” or “mirroring”) other than the website provided by Intertrust for such purposes; (e) remove any disclaimer, copyright, trademark, confidentiality, or other legal notice from the Evaluation Materials; (f) use the Evaluation Materials for any fraudulent or unlawful purpose or in any manner that would violate the legal rights of any third party; (g) interfere with or disrupt the Intertrust Platform or the servers, software or networks used to make the Intertrust Platform available; or (h) upload to or process using the Intertrust Platform any (i) data or materials that Company does not have the right to upload and process, or that would otherwise infringe, misappropriate, or violate any third party’s rights, or (ii) data or other materials containing any virus, worm, Trojan horse, time bomb, spyware, malware or other harmful or potentially harmful code. Intertrust will have the unrestricted right, but not the obligation, to monitor Company’s and Authorized Users’ use of the Evaluation Materials. Company will, and will cause each Authorized User to, use the Evaluation Materials in accordance with all applicable laws, rules and regulations. Without limiting the foregoing, Company further represents and warrants that it will not (and will not permit any authorized user or third party, including employees and contractors of Company to) export, reexport or transfer in-country any materials or technology provided pursuant to this agreement without first obtaining any export license or other approval that may be required under the U.S. Export Administration Regulations.
2.5. Company Data. Intertrust is permitted to use the Company Data solely in connection with providing the Intertrust Platform to Company during the Evaluation Period (and Company hereby grants Intertrust the right to use the Company Data for such purposes). Company will ensure that all Company Data is uploaded to the Intertrust Platform in the format required by Intertrust. Company represents and warrants that: (a) Company possesses and will maintain all necessary rights to upload and transmit the Company Data to, and process the Company Data using, the Intertrust Platform and Evaluation Materials as contemplated by this Agreement in compliance with all applicable contractual obligations, laws, rules, and regulations; and (b) the Company Data, and the processing, uploading, transmittal, making available, or other use thereof by Company and Intertrust, do not and will not infringe, misappropriate or otherwise violate any copyright, trade secret, patent, or other intellectual property, privacy, or proprietary rights of any third party.
2.6. Third Party Software. The Evaluation Materials may include software owned by third parties, including both proprietary and open source software (collectively, “Third Party Software”), which may be subject to additional terms, conditions and limitations imposed by the relevant third-party licensors (“Third Party Terms”). Any such Third Party Terms will be included or referenced in the documentation provided with the Evaluation Materials. Notwithstanding anything to the contrary in this Agreement, Company will comply with the Third Party Terms and, if any Third Party Terms conflict with the terms and conditions of this Agreement with respect to any Third Party Software, then the Third Party Terms will control (and will resolve any conflict or inconsistency) with respect to such Third Party Software.
3. FEES & HOSTING
No fees are due hereunder. Intertrust will host the Intertrust Platform on computing infrastructure provided by a third-party cloud hosting service provider. From time to time it may be necessary for Intertrust to perform upgrades or maintenance on the Intertrust Platform. Planned upgrades may cause brief interruption in the Intertrust Platform, however, commercially reasonable efforts will be made to perform upgrades and maintenance without causing outages.
4. OWNERSHIP
As between the Parties, (a) Intertrust exclusively owns and retains all right, title, and interest (including all intellectual property rights) in and to the Evaluation Materials (and all improvements, enhancements, or modifications thereto or derivative works thereof); and (b) Company exclusively owns and retains all right, title, and interest (including all intellectual property rights) in and to the Company Data.
5. CONFIDENTIALITY
5.1. Disclosure and Use. Each Party may receive Confidential Information from the other Party in connection with this Agreement. The Confidential Information of Intertrust includes, but is not limited to, the Evaluation Materials, information obtained from the Intertrust Platform, and pricing or other information; and the Confidential Information of Company includes, but is not limited to, the Company Data. Each Party will: (i) safeguard the other Party’s Confidential Information with the same degree of care as it exercises with its own confidential information, but no less than reasonable care; (ii) not disclose any Confidential Information to third parties other than agents who have a need to know and who are bound by a confidentiality agreement having similar provisions to those herein; and (iii) will use the Confidential Information solely in the exercise of the rights and obligations under this Agreement and for no other purpose. The foregoing restrictions on disclosure and use will survive the termination or expiration of the Evaluation Period.
5.2. Exclusions. Confidential Information does not include information that the Recipient can demonstrate: (i) is or has become public knowledge through no fault of the Recipient; (ii) is rightfully obtained by the Recipient from a third party without breach of any confidentiality obligation; or (iii) is independently developed by employees of the Recipient without use of or reference to the Discloser’s Confidential Information. The Recipient may disclose Confidential Information if required by a regulation, law, or court order, but only to the extent required to comply with such regulation, law, or order, and only after providing reasonable advance notice to the Discloser to allow the Discloser to contest such disclosure.
6. REPRESENTATIONS AND WARRANTES; DISCLAIMERS
Each Party represents and warrants to the other Party that: (a) it is a corporation or other legal entity duly organized or formed and validly existing under the laws of the jurisdiction in which it was incorporated or formed; (b) it has all requisite corporate or equivalent power and authority to enter into this Agreement and perform its obligations under this Agreement; and (c) the acceptance and performance of this Agreement by it does not and will not conflict, violate, or breach any other contract or obligation of such Party or any applicable law or regulation to which such Party is subject. THE EVALUATION MATERIALS ARE PROVIDED “AS IS” AND INTERTRUST MAKES NO (AND HEREBY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITATION OF THE FOREGOING, INTERTRUST DOES NOT REPRESENT OR WARRANT THAT ACCESS TO THE EVALUATION MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DATA OR CONTENT WILL NOT BE SUBJECT TO DAMAGE, CORRUPTION, DESTRUCTION, LOSS, OR DELETION.
7. INDEMNIFICATION
7.1 Mutual Indemnification. Subject to any exclusive remedies and limitations of liability set forth elsewhere in this Agreement, each Party will defend, indemnify, and hold harmless the other Party from and against any loss, damage, settlement, cost, expense, and any other liability (including reasonable attorneys’ fees and costs) (collectively, “Losses”) arising from third party claim, lawsuit, or proceeding (a “Claim”) based on an allegation that, if true, would constitute a breach by such Party of any of its representations and warranties under this Agreement.
7.2. Indemnification Process. The Party seeking indemnification under this Section 7 (the “Indemnified Party”) must: (a) notify the other party (the “Indemnifying Party”) in writing of the applicable Claim promptly; (b) give the Indemnifying Party control of the defense and related settlement negotiations; and (c) cooperate with the Indemnifying Party in defending or settling such Claim. The Indemnifying Party will not enter into any settlement or other compromise that imposes any cost or obligation on the Indemnified Party or otherwise adversely affects the Indemnified Party without the Indemnified Party’s written approval, not to be unreasonably withheld. The Indemnified Party may participate in the defense and settlement of the claim with counsel of the Indemnified Party’s choice at the Indemnified Party’s expense.
8. LIMITATION OF LIABILITY
EXCEPT FOR BREACH BY EITHER PARTY OF SECTION 2.4, SECTION 2.5, OR SECTION 5, OR EACH PARTY’S OBLIGATIONS UNDER SECTION 7, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUSINESS INTERRUPTION OR LOSS OF INCOME, DATA, PROFITS, OR REVENUE, UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF INTERTRUST UNDER THIS AGREEMENT WITH RESPECT TO ANY CLAIM SHALL BE LIMITED TO THE GREATER OF (i) THE FEES PAID TO INTERTRUST BY COMPANY IN THE SIX (6) MONTHS PRECEDING THE EVENTS GIVING RISE TO THE CLAIM, OR (ii) ONE HUNDRED DOLLARS (USD $100.00). IN ADDITION, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, INTERTRUST WILL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY UNAUTHORIZED USE OF THE EVALUATION MATERIALS, OR MODIFICATIONS THERETO BY ANYONE OTHER THAN INTERTRUST.
9. TERM AND TERMINATION
9.1 Term and Termination. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with this Section 9, will continue for thirty (30) days (the “Evaluation Period”). If a Party defaults on any of its material obligations under this Agreement, the non-defaulting Party may immediately terminate this Agreement by written notice describing with reasonable specificity the nature of the default. In addition, either Party may terminate this Agreement by providing fifteen (15) days written notice to the other Party.
9.2. Effect of Termination. Upon expiration or termination of this Agreement, (a) Company’s right to access and use the Evaluation Materials will immediately terminate, (b) Company and its Authorized Users will immediately cease all use of the Evaluation Materials, (c) Company will promptly return all Evaluation Materials to Intertrust, and (d) each Party will return any materials then in its possession or control containing or constituting Confidential Information of the other Party. Following expiration or termination of the Agreement, Intertrust may destroy or otherwise dispose of any Company Data residing on the Intertrust Platform. Termination by either Party will not act as a waiver of any breach of this Agreement and will not act as a release of either Party from any liability for breach of such Party’s obligations under this Agreement. The following Sections will survive any expiration or termination of the Evaluation Period: 2.2 (last sentence only), 2.4, 2.5, 4, 5, 6, 7, 8, 9.2, 10, and 11.
10. PROCESSING OF PERSONAL DATA
Company may provide to Intertrust certain personal data of its customers, employees, contractors, and other personnel in connection with the performance of this Agreement. Company represents and warrants that it has and will maintain all necessary consents, rights, and permissions to provide any such data to Intertrust. If Company is subject to the European Union General Data Protection Regulation (“GDPR”) or other potentially applicable privacy laws, regulations, or directives, Intertrust’s Data Protection Agreement, https://www.Intertrust.com/DPA, shall apply.
11. GENERAL
All notices and requests in connection with this Agreement will be deemed given as of the day they are received by the applicable Party. Company must provide notices to Intertrust under this Agreement by personal delivery, overnight courier, or registered or certified mail, in all cases with a copy by email (as specified below). Intertust’s address for notices is: Intertrust Technologies Corporation, Attn: Legal Department, 2140 Shattuck Avenue, Suite 1201, Berkeley, CA 94704, with a copy to [email protected]. Intertrust may provide notice to Company under this Agreement by sending a message to the email address provided by Company in connection with accepting this Agreement, or such other email address as Company may provide to Intertrust. Neither Party will (nor will either Party have the right to) assign or otherwise transfer, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement, except that Intertrust may assign or otherwise transfer this Agreement to an affiliate or as part of a merger, consolidation, corporate reorganization, sale of all or substantially all of Intertrust’s assets, sale of stock, change of name, or like event. Any purported assignment or transfer of this Agreement, except as permitted hereunder, will be null and void. The Agreement and its interpretation and validity will be governed by the substantive law of the State of California. applicable to contracts made and to be performed therein and without regard to its conflicts of laws rules. Any controversy, claim, or dispute arising out of or relating to this Agreement (“Dispute”) will be settled by arbitration administered by the American Arbitration Association in accordance with its applicable procedures then in effect. Judgment on the award rendered may be entered in any court having jurisdiction thereof. The place of the arbitration will be California, United States. The language of the arbitration will be English. Notwithstanding the foregoing, to the extent herein permitted, either Party may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that it deems necessary to protect its rights or property, pending the establishment of the arbitral tribunal or pending the arbitral tribunal’s determination of the merits of the Dispute. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior or contemporaneous agreements. No amendment or modification of any provision of this Agreement will be effective unless in writing and signed by a duly authorized signatory of Company and Intertrust.