Evaluation Terms & Conditions
- Loan. For the purpose of evaluation, AmZetta is making available the Evaluation Equipment specified herein at no cost to Customer. The Evaluation Equipment will be delivered to Customer for use at the address and for the period of the day’s specified hereinabove in Section C upon execution and completion of this Agreement. AmZetta will ship the Evaluation Equipment to Customer at AmZetta’s cost. Any additional freight, customs, and transportation fees incurred as a result of shipping the Evaluation Equipment to the Customer are the responsibility of the Customer.
- Ownership. Title to the Evaluation Equipment loaned to Customer is and shall remain AmZetta’s and while in Customer possession the Evaluation Equipment shall be identified accordingly.
- Responsibility. Customer agrees that AmZetta shall not be responsible for any damages, demands, liabilities and loss of any kind arising in connection with the Evaluation Equipment and its use by Customer during the evaluation period or when the Evaluation Equipment is in the Customer’s possession or control. Notwithstanding the foregoing, risk of loss in connection with the Evaluation Equipment will pass to Customer upon Customer’s acceptance of the Evaluation Equipment.
- Return of Evaluation Equipment. Upon the expiration of the term for this evaluation, specified herein, Customer can elect to purchase the Evaluation Equipment at a mutually agreed price or return the Evaluation Equipment to AmZetta in the same condition as when first received. Customer shall be responsible to ensure the Evaluation Equipment is properly packaged for shipment. Customer shall be responsible for the expenses related to the return of the Evaluation Equipment. Customer will have fourteen (14) days following the expiration date of the Evaluation Term in which to return the Evaluation Equipment to AmZetta or notify AmZetta of the Customer’s desire to purchase the Evaluation Equipment. If the Equipment is not returned to AmZetta during the fourteen (14) days, Customer understands and agrees that it will be charged for the Evaluation Equipment at the SnapVDI List Price as stated within this said Agreement.
- Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 9 (CONFIDENTIAL INFORMATION), NEITHER CUSTOMER NOR AMZETTA OR ITS SUPPLIERS SHALL BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE TECHNOLOGY.
(b) EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 9 (CONFIDENTIAL INFORMATION), THE ENTIRE LIABILITY OF CUSTOMER, AMZETTA AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND EACH PARTY’S EXCLUSIVE REMEDY SHALL BE LIMITED TO ACTUAL DAMAGES INCURRED BY CUSTOMER UP TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE EVALUATION EQUIPMENT OR FIVE DOLLARS (US$5.00). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
- Disclaimer. THE EVALUATION EQUIPMENT IS PROVIDED “AS-IS” TO CUSTOMER. AMZETTA MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE EVALUATION EQUIPMENT AND EVALUATION MATERIALS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS AND LACK OF NEGLIGENCE. AMZETTA DISCLAIMS ANY WARRANTY OF QUIET ENJOYMENT, QUIET POSSESSION, AND NONINFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS REGARDING THE EVALUATION EQUIPMENT OR USE OF THOSE MATERIALS.
- General. Any claim arising under this Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, USA, without regard to conflict of laws principles. Each party hereby consents to the exclusive jurisdiction and venue of the state and federal courts having jurisdiction over the State of Georgia for all disputes and litigation arising under or relating to this Agreement. This Agreement constitutes the entire agreement between AmZetta and Customer regarding the subject matter hereof. All prior or contemporaneous agreements and negotiations, either written or verbal, are superseded by this Agreement. In the event of invalidity of any provision of this Agreement, the invalidity shall not affect the validity of the remaining portions of this Agreement. The parties have caused this Agreement to be executed by their duly authorized representatives.
- Licensed Software & License Grants. Pursuant to the terms and conditions herein contained:
(a) AmZetta will provide Customer with a thirty (30) day evaluation license to the SnapVDI Software, herein known as Licensed Software, for use on the Evaluation Equipment. AmZetta will pre-install the Licensed Software on the Evaluation Equipment prior to delivery to Customer.
(b) All Licensed Software is specifically licensed for use with Evaluation Equipment and may not be sold, licensed, leased, transferred, published or used separately from the Evaluation Equipment.
(c) AmZetta hereby grants to Customer a personal, non-transferable, non-exclusive license to use the Licensed Software but only for use on the Evaluation Equipment.
(d) Customer shall have no right to (i) transfer or sub-license the Licensed Software or (ii) authorize other parties to reproduce or access the Licensed Software.
(e) Customer shall not grant any customer or other entity any right to copy, modify, duplicate, or sub-license the Licensed Software.
(f) Customer shall not attempt to reverse engineer, decompile, disassemble, or trace the execution of the Licensed Software.
(g) This license is not a sale, lease, transfer or publication of the Licensed Software or of any copy thereof. AmZetta retains title and ownership of the Licensed Software, regardless of the form or media in which the original and copies exist. All copyrights associated with the Licensed Software and all other rights thereto not specifically granted to the Customer in this Agreement are reserved by AmZetta.
- Confidential Information.
(a) Definition of Confidential Information. “Confidential Information” means information disclosed by either party to the other which, in order to receive the protection afforded by this Agreement, must (i) if disclosed in tangible form, be clearly marked as “Confidential” or “Proprietary” or otherwise marked in such manner that would cause a reasonable observer to become clearly aware that the information is of confidential nature or (ii) if disclosed orally or visually, be identified as being Confidential Information at the time of disclosure and confirmed in a writing delivered to the recipient within thirty (30) days of such oral or visual disclosure; such writing shall summarize the disclosed Confidential Information, reference the time and place of disclosure, and be marked as “confidential” or “proprietary.” The party receiving such oral or visual disclosure will treat the information received as Confidential Information for at least the thirty (30) day period following disclosure thereof. Notwithstanding the above requirements, the Agreement and Customer Materials obtained by AmZetta while on Customer premises or from Customer’s network, or under circumstances as would cause a reasonable observer to become aware of its confidential nature will be deemed Customer Confidential Information, whether or not marked, identified as such or reduced to writing. “Customer Material” means the Confidential Information of Customer and/or a third party(ies), equipment, data, facilities, resources or materials in which Customer owns or in which Customer has a right, title or interest, which Customer has provided to AmZetta.
(b) Exceptions. The restrictions pertaining to Confidential Information shall not apply to information received from a disclosing party which the receiving party can clearly establish by written evidence (i) is or becomes rightfully known by the receiving party through disclosure from a third party without an obligation to maintain its confidentiality; (ii) is or becomes generally known to the public through no fault of the receiving party; (iii) is in the receiving party’s possession at the time of disclosure free of any confidentiality obligation; or (iv) is independently developed by the receiving party without use of the Confidential Information. If the receiving party is required to disclose the Confidential Information of the disclosing party to comply with any applicable laws, rules or regulations, or with a court or administrative order, then the receiving party shall provide the disclosing party with sufficient prior written notice of such intended disclosure such that the disclosing party may seek reasonable legal remedies to obtain confidential treatment for such Confidential Information.
(c) Duties. Each party will (a) protect Confidential Information received from the other party with the same degree of care that the receiving party employs for protection of its own proprietary information, but not less than commercially reasonable care; (b) limit its use of Confidential Information solely for the purposes set forth in this Agreement, and not otherwise for its own benefit or the benefit of others, and not reverse engineer nor create derivative works of any Confidential Information; and (c) limit access to Confidential Information to only those of its employees, or consultants or agents who (i) have a need to know such information to accomplish the purpose of this Agreement, as set forth above, (ii) have been advised of the confidential nature of such information, and (iii) are bound by an obligation of confidentiality at least as protective of confidential information as this Agreement. Each party agrees to provide written notice to the other immediately after learning of, or having reason to suspect, a breach of any of the confidentiality restrictions set forth in this Section 9.
(d) Independent Development or Acquisition. The terms of confidentiality under this Agreement shall not be construed to limit Customer’s right to independently develop or acquire products without use of AmZetta’s Confidential Information.