Agreement for Supplying Evaluation Products
Effective date: 1 November 2019
THIS EVALUATION AGREEMENT (“AGREEMENT”) IS A LEGAL LICENSE AGREEMENT BETWEEN YOU INDIVIDUALLY IF YOU ARE AGREEING TO IT IN YOUR OWN CAPACITY, OR IF YOU ARE AUTHORIZED TO ACQUIRE THE LICENSE ON BEHALF OF YOUR COMPANY OR ORGANIZATION, BETWEEN THE ENTITY FOR WHOSE BENEFIT YOU ACT FOR (“YOU” OR “CUSTOMER”) AND BANZAI CLOUD ZRT. (“BANZAI CLOUD”), WITH ITS PRINCIPAL PLACE OF BUSINESS AT RÁKOCZI ÚT 1-3, 1088 BUDAPEST, HUNGARY, WITH RESPECT TO THE PRODUCTS AND/OR SERVICES COVERED BY THIS AGREEMENT, OR WITH RESPECT TO ANY TEST, DEMO OR EVALUATION PRODUCT OR SERVICE WHICH MAKES THE ACCEPTANCE OF THIS AGREEMENT A CONDITION OF USE (“EVALUATION PRODUCTS”).
BEFORE INSTALLING (OR OTHERWISE COMMENCING USAGE OF) THE EVALUATION PRODUCT, PLEASE CAREFULLY READ THE FOLLOWING AGREEMENT.
BY INSTALLING THE EVALUATION PRODUCT OR OTHERWISE INDICATING YOUR ACCEPTANCE WHETHER EXPRESS OR IMPLIED (USING, ACTIVATING, COPYING, DISTRIBUTING), YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS HEREIN, THEN YOU HAVE NO RIGHT TO USE THE MATERIALS PROVIDED UNDER THIS EVALUATION AGREEMENT. IN THIS CASE, DO NOT ATTEMPT TO DOWNLOAD, INSTALL, USE, COPY OR DISTRIBUTE THE EVALUATION PRODUCT BY ANY MEANS AND IT IS YOUR RESPONSIBILITY AND LIABILITY TO HAVE IT DELETED BY ALL PARTIES WHO RECEIVED IT FROM YOU DIRECTLY OR INDIRECTLY.
YOU ACKNOWLEDGE AND AGREE THAT THIS LICENSE IS ACCEPTED BY YOU IMPLICITLY WITHOUT SIGNATURE OF ANY PARTY BY COMMENCING USAGE OF THE MATERIALS YOU HAVE RECEIVED UNDER THIS AGREEMENT (“IMPLICIT CONDUCT AGREEMENT”). ANY EXPRESS LEGAL AGREEMENT SIGNED OR OTHERWISE CLEARLY AND MUTUALLY AGREED BETWEEN YOU (OR THE ENTITY YOU ACT ON BEHALF OF) AND BANZAI CLOUD WILL PREVAIL OVER THIS AGREEMENT IN CASE THERE IS A CONFLICT BETWEEN THIS AGREEMENT AND SUCH EXPRESS LEGAL AGREEMENT.
LICENSE. You accept and agree that Evaluation Products (and connected documentation) supplied by Banzai Cloud are licensed and NOT SOLD. Banzai Cloud grants to You and You hereby accept, a nonexclusive, nontransferable, irrevocable license to install and use a reasonable (proportionate to- and confirming with- the purpose) number of copies of the software Evaluation Products and related documentation in accordance with the terms and conditions set forth herein. Use of Evaluation Products beyond the term and the Purpose will be based on a separate agreement. (“License”)
PURPOSE. Customer is allowed to use the licensed Evaluation Products for internal examination, testing and evaluation of such Evaluation Products and their compatibility and interoperability with your products, services and processes. The Products and Documentation may not be used for any other purpose, including but not limited to productive or commercial use. (“Purpose”).
DELIVERABLES. You acknowledge that in the course of performing any Services, Banzai Cloud may create software or other works of authorship delivered to You pursuant to or in connection with the performance of Services (a “Deliverable”). Subject to Your rights in the Customer Confidential Information (defined below), Banzai Cloud shall own all right, title and interest in such Deliverables, including all intellectual property rights therein and thereto. Banzai Cloud hereby grants to Customer nonexclusive right and license to use such Deliverables exclusively in conjunction with the Products and limited to the scope of the Purpose.
OTHER MATERIALS. You agree and acknowledge that You are not obtaining any intellectual property right in or to any materials provided by Banzai Cloud to You in connection with the provision of Services (including, but not limited to any software and documentation) (“Materials”), other than the rights of use specifically granted in this Agreement. You will be entitled to keep and use all Materials provided by Banzai Cloud to You, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved by Banzai Cloud. In particular and without limitation, Materials may not be modified, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way.
All Banzai Cloud trademarks, trade names, logos and notices present on the Materials will be preserved and not defaced, modified or obliterated.
COOPERATION, FEEDBACK. You agree to provide Banzai Cloud with such cooperation, materials, information, access and support which Banzai Cloud deems to be reasonably required to allow Banzai Cloud to successfully provide the Evaluation Products and Services. You understand and agree that Banzai Cloud’s obligations hereunder are expressly conditioned upon You providing such cooperation, materials, information, access and support.
Opinions, valuation results, test results, feature ideas or any information regarding the Evaluation Products, Services, Deliverables or Materials of Banzai Cloud supplied by You (“Feedback”) will be used by Banzai Cloud freely and independently of You or any third party, including utilizing such Feedback for the improvement of Banzai Cloud’s products and services and offering them to third party customers.
You accept and agree that Banzai Cloud may collect data of your usage (“analytics data”) of the Evaluation Product and use it for any purpose, including enhancements, statistics and business purposes. Such analytics data is always anonymized and the personal identity or profile of actual users of the Evaluation Products may never be identified, traced or reconstructed.
LIMITATION. The License is limited to the Purpose and You are not permitted to use the Evaluation Products, Services, Deliverables or Materials in any manner not expressly authorized by this Agreement. You acknowledge and agree that ownership of Evaluation Products, Services, Deliverables or Materials and all subsequent copies thereof regardless of the form or media are held by- and remain with Banzai Cloud.
TERM; FEE. The Agreement is effective from Your acceptance, whether explicit or implicit (acceptance by commencement of use).The term of the License granted is unlimited, as long as Your use of the Evaluation Products is limited to the Purpose. You agree that Banzai Cloud may terminate this Agreement in its sole discretion with immediate effect and without giving you reason without any liability to You or any third party.
Following termination or expiration of the Agreement, You shall cease all use of the Evaluation Products and any Services and materials (including information generated by using the Evaluation Products, like logs, core dumps, test results) and shall, at the discretion of Banzai Cloud, either return or destroy the Evaluation Product and materials and Confidential Information.
Sections 2, 3, 4, 6, 8, 9, 11 and 12 shall survive termination or expiry of this Agreement.
The license granted on the basis of this Agreement is free of royalties or other fees. Such fees may be separately agreed between You and Banzai Cloud. You also agree to pay all taxes resulting from this Agreement or any activities hereunder.
You agree to bear any costs incurred by You in connection with the installation, hosting, running, acquiring, copying or any other type of use of the Evaluation Products or materials covered by this Agreement.
Unless otherwise expressly agreed by Banzai Cloud You shall not (in particular):
(a) transfer, resell, sublicense, lease, rent or lend, transfer to a third party or otherwise distribute the Evaluation Products, Services, Deliverables or Materials, including together with your products or services;
(b) reverse engineer, decompile, unlock, reverse compile, or disassemble, alter, modify, translate, amend or integrate with other works protected by intellectual property rights the Evaluation Products, Services, Deliverables or Materials or let third parties to do so, OR evade any protection applied on the Evaluation Products, Services, Deliverables or Materials or to modify, circumvent or obviate such protection through technological or by any other means;
(c) use the Evaluation Products, Services, Deliverables or Materials for any purpose other than the Purpose and within the scope of the License;
(d) duplicate the Evaluation Products, Services, Deliverables or Materials (to make a copy thereof) or any part of it, except to the extent allowed by this Agreement or applicable law. For the purposes of this provision “copy” shall not include copying of any software portion that naturally occurs during normal program execution when used in accordance with and for the Purpose or as part of regular backups;
(e) translate the Evaluation Products, Services, Deliverables or Materials (including translation (compilation) to other programming languages) or otherwise modify, extend, transform the Evaluation Products, Services, Deliverables or Materials (in whole or in part), to separate it into parts, combine it with other products, install it in other products, utilize it in other products except as necessary for the Purpose;
(f) remove, modify or obscure any copyright, trademark notice, or restrictive legend included in the materials You have received or any part thereof;
(h) access or otherwise use, whether by means of Your software solutions or otherwise, any application programming interfaces (“API”) that are not documented by Banzai Cloud in documentation released with the Evaluation Products, Services, Deliverables or Materials;
(i) use the Banzai Cloud Evaluation Products, Services, Deliverables or Materials to develop any solution that modify, delete, duplicate or replace all or any material part of the functionality, or features, of all or any portion of the Evaluation Products.
NO BENCHMARKING. You expressly agree that you will not without the express prior written consent of Banzai Cloud execute or engage in benchmarking or any other activity comparing characteristics of the Evaluation Product with other similar solutions (“benchmarking”) and even if benchmarking was allowed by Banzai Cloud, you may not without a separate express written approval publish, distribute, convey or otherwise disclose results of any benchmarking to a third party or to a public audience.
UPDATES. Banzai Cloud is under no obligation to provide You with any bug fixes, service packs, hot fixes, updates, upgrades, enhancements, modifications, and new releases or versions of the materials provided under this Agreement (“Update”). However, if You are provided with any Updates, such Updates shall be subject to the terms and conditions of this Agreement.
Banzai Cloud is not responsible, if any changes to APIs or Updates to Evaluation Product or any materials breaks connectivity of- or renders Your software or other product, service or process unusable or incompatible. In such cases, it is Your responsibility to modify, recompile, and redistribute to fix such compatibility problems and Banzai Cloud expressly disclaims all liability for such events.
Customer will use reasonable care to prevent disclosing to others trade secrets of Banzai Cloud that are identified in written notice and embodied in the Evaluation Products or related documentation. “Reasonable care” shall mean that care which Customer normally uses to protect its own technology of a similar nature. Customer’s obligation under this Paragraph will not apply to portions of the Evaluation Products and related documentation which were or will become part of the public domain, which are previously known to Customer, or which are independently developed by Customer.
(b) Customer will not provide the Evaluation Products and related documentation to any person, other than Customer employees, Customer agents, or Customer affiliate employees, without Banzai Cloud’s prior written consent, except during the period any such person is using or accessing the Evaluation Products with Customer’s permission for purposes specifically related to Customer’s use of the Evaluation Products.
(c) Customer agrees not to remove any notices of patent, copyright or trademark ownership from the software or its documentation, and indication of certifications, manufacturer and Banzai Cloud’s marks from physical products.
(d) Customer will not assign or grant sublicenses, leases, or other rights or obligations to the software or its documentation to others without the permission of Banzai Cloud.
(e) Customer will not reverse assemble, decompile, reverse translate, or in any way derive from the Evaluation Products any source code, or export the software or permit it to be exported to any country.
IP INDEMNITY. Banzai Cloud warrants that to the best of its knowledge the transfer to Customer and Customer’s use of the Evaluation Products and related documentation within the scope of Purpose will not infringe any proprietary rights (including patents, copyrights, trademarks and trade secrets) of any other entity. In the event a claim of infringement is asserted, as sole remedy and in its sole discretion (i) Banzai Cloud may elect to replace or modify the Evaluation Products to make it non-infringing, provided that Customer agrees that such replacement or modifications achieves the substantive results of the original version of the Evaluation Products, or (ii) Banzai Cloud may procure at its expense a license for Customer to use the rights allegedly infringed, or (iii) Banzai Cloud may terminate this Agreement without any further liability to Customer.
LIMITATION OF LIABILITY. To the fullest extent allowed by law Banzai Cloud disclaims any and all liability for any damages or third-party claims, (including direct and indirect, special, incidental, consequential, or punitive damages, lost business, lost data), even if Banzai Cloud has previously been advised of or otherwise has reason to know of the possibility of such damages. Where such damages are not disclaimable due to a mandatory legal instrument, Banzai Cloud’s liability for damages or indemnity obligations shall not exceed the lower of (i) the total amount of fees received under parties’ Agreement or (ii) 50,- EUROS (fifty euros).
These limitations on damages or indemnities shall not apply to (i) either parties’ breach of any confidentiality obligations, (ii) Banzai Cloud’s breach of its indemnity obligations for personal injury or property damage, (iii) any claims that results from bad faith, fraud, intentional misconduct or violation of law applicable to services provided by either party.
OWNERSHIP. If not otherwise expressly indicated herein (e.g. in Section 10 paragraph “Open Source Products”) Customer acknowledges Banzai Cloud’s representation that Banzai Cloud or its third party suppliers owns the Evaluation Products and materials provided under this Agreement and copyrights covering such Evaluation Products and materials and Customer will not make any claim contrary to Banzai Cloud’s ownership of the Evaluation Products. Banzai Cloud has and will retain all rights, title and interest in and to the Evaluation Products, Documentation and other supplied materials (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works. Customer acknowledges that it is obtaining only a limited license right to the Evaluation Products, Documentation and other supplied materials, and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.
(a) Evaluation Products, Documentation and other supplied materials are provided AS-IS, with ALL FAULTS. No warranty for error free operation or conformance with specifications and documentation is given under this Agreement. Customer shall be responsible for its own data or systems used in connection with the Evaluation Products.
(b) Banzai Cloud warrants that any services rendered by Banzai Cloud in conjunction with the Evaluation Products will be performed in a professional manner by qualified personnel.
(c) Banzai Cloud’s warranties are limited to those set forth in this Agreement and do not include any other express or implied warranties, including implied warranty of merchantability and fitness for a particular purpose or compliance with any law, regulation, standard or regulation.
Testing individuals and those exposed to Evaluation Products must at all times be aware that the use in not live and that any part of the Evaluation Products may malfunction or provide incorrect results or unwanted behavior and that any use by individuals is at their own risk.
Any warranties provided by Banzai Cloud are limited in time to the term of the Agreement.
THE EVALUATION PRODUCT, THE SERVICES, ALL SUPPLIED MATERIALS AND CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES, EXCEPT AS EXPRESSLY SET FORTH HEREIN. BANZAI CLOUD DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
OPEN SOURCE PRODUCTS. The Evaluation Products, Deliverables or supplied materials may include individual open source components, each of which has its own copyright and its own applicable license conditions. The open source products are licensed to Customer under the terms and conditions of the applicable open source license conditions and/or copyright notices that can be found in the licenses file, the Documentation or other materials accompanying such products.
ENTIRE AGREEMENT. The terms and conditions of this Agreement constitute the entire Agreement between Customer and Banzai Cloud with respect to the license and support of the Evaluation Products and supplied materials. No general purchase terms of Customer – even if referred to on a document, notice, invoice or purchase order – is applicable without the prior explicit written consent of the other party.
LAW AND VENUE. This Agreement shall be governed by the laws of Hungary. Litigation on contractual causes arising from this Agreement shall be exclusively brought into the competent courts of Hungary having jurisdiction based on applicable Hungarian laws.