Terms And Conditions
PRE-RELEASE APPLICATION SERVICE AGREEMENT
BEFORE YOU CLICK ON THE "I AGREE" BUTTON CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE "I ACCEPT" BUTTON, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. AVALON CYBER CORPORATION, DBA KING & UNION (THE “COMPANY”) AGREES TO PROVIDE ITS COMPANY OFFERING (DEFINED BELOW) TO YOU THROUGH THE INTERNET SITE WHERE YOU ACCESSED THIS PRE-RELEASE TERMS OF SERVICE AGREEMENT (“SITE”), SUBJECT TO YOUR AGREEMENT WITH THESE TERMS OF SERVICE (“AGREEMENT”). AS USED IN THIS AGREEMENT, “EVALUATOR” REFERS TO ANY PERSON OR USER OF THE COMPANY OFFERING AND THE SITE BY ANY PERSON THAT YOU AUTHORIZE TO USE THE SERVICE (AN “AUTHORIZED USER”, AS DEFINED BELOW).
BY CLICKING “I AGREE”, YOU ARE INDICATING YOUR ACCEPTANCE OF AND AGREEMENT WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE OR ACCESS THE COMPANY OFFERING.
In this Agreement the following terms, in addition to the terms defined above, shall have the following meanings respectively:
- “Authorized User” will mean any individual who is an employee of Evaluator or such other person or entity as may be authorized by Evaluator, authorized, by virtue of such individual’s relationship to, or permissions from, Evaluator, to access the Company Offering (as defined below) pursuant to Evaluator’s rights under this Agreement.
- “Company Offering” means Company’s proprietary Avalon analyst collaboration platform and service including the Documentation and any updates, changes, enhancements or modifications thereto that may be provided by Company to Evaluator pursuant hereto; and hosting, support and other services generally made available to Company’s other customers.
- “Confidential Information” shall have the meaning ascribed thereto in Section 6 hereof.
- “Documentation” means the then-currently available explanatory user materials supplied by Company with the Company Offering in paper and/or electronic form, including access protocols and policies.
- “Effective Date” means the date on which Evaluator accepts this Agreement through the Internet site where Evaluator accessed this Terms of Service Agreement.
- “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
- “Term” has the meaning ascribed to it in Section 4 hereof.
- Provision of Company Offering and Option
- Access and Rights. Subject to the terms hereof, and inconsideration of Evaluator’s agreement to provide feedback to Company as provided in Section 3.2 below, Company hereby grants to Evaluator a nonexclusive, nontransferable, nonsublicensable, license during the Term, to access and use the Company Offering and Documentation solely for the purpose of evaluating the Company Offering (the “Limited Purpose”). On or as soon as reasonably practicable after the Effective Date, Company shall provide to Evaluator the necessary passwords, security protocols and policies and network links or connections to allow Evaluator to access the Company Offering.
- Restrictions. Evaluator shall not: (i) use the Company Offering and Documentation for any purpose other than the Limited Purpose; (ii) permit any party to access the Company Offering or Documentation or use the Company Offering, other than Authorized Users; (iii) except as expressly authorized herein, make any copies of the Company Offering or Documentation; (iv) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code of the Company Offering; (v) decode any passwords or encrypted license or installation keys that have been provided to Evaluator by Company in order to enable the execution of the Company Offering; (vi) unless expressly authorized by Company in writing, sublicense, distribute, transfer, loan, use, lease or otherwise make available the Company Offering and Documentation or any part thereof to any third party; or (vii) modify, adapt, alter or translate the Company Offering or Documentation, or remove or amend any copyright notices, trademarks, or any other proprietary legends and/or logos of Company or its licensors appearing on the Company Offering or the Documentation; or (viii) use the Company Offering to create any competitive offering, product, or service.
- Option. For a period of time beginning on the Effective Date and ending one (1) month after the conclusion of the Term (“Option Period”), Evaluator shall have the option to acquire a non-exclusive license to the Company Offering, pursuant to a separate license agreement containing Company’s standard terms and conditions, at a discounted rate, which discount will be determined by Company in its sole discretion. Such option shall be exercised in writing by Evaluator to Company as promptly as practicable but in no event later than the last day of the Option Period. Following the expiration of the Option Period, Company shall have no obligation to provide Evaluator with any discounts for the purchase of a license to the Company Offering.
- Evaluator Data and Feedback
- Evaluator Data. “Evaluator Data” means any data or content uploaded to or through the Company Offering, or generated through Evaluator’s use of the Company Offering, including any data generated by the Service. Evaluator grants Company a non-exclusive, worldwide, royalty-free and fully paid license to use and process Evaluator Data as necessary to provide the Company Offering and otherwise perform its obligations and exercise its rights under this Agreement. Company shall protect Evaluator Data in accordance with reasonable security measures described in the Documentation. Company may aggregate and anonymize Evaluator Data to improve the Company Offerings and develop new offerings, and Evaluator hereby assigns all right, title and interest in and to such aggregated and anonymized Evaluator Data. Evaluator shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Evaluator Data.
- Feedback. Company may periodically request that Evaluator provide, and Evaluator agrees to provide to Company, feedback regarding the use, operation, performance and functionality of the Company Offering (“Feedback”). Such Feedback will include information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features. Evaluator hereby grants to Company a perpetual, irrevocable, worldwide, sublicenseable, and royalty-free right to use and other exploit the Feedback in any manner.
- Term and Termination.
This Agreement shall commence upon the Effective Date and will continue in effect for a period of thirty (30) days (the “Initial Term”). After the Initial Term either party may terminate this Agreement upon written notice to the other party. Unless terminated by either party, this Agreement will be automatically extended by additional thirty (30) day periods (“Renewal Term”). The Initial Term and any Renewal Terms are collectively referred to herein as the “Term”. Upon termination, Evaluator shall immediately cease all use of the Company Offering and Documentation.
- Intellectual Property and Ownership
The Company Offering and the Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its licensors. Evaluator is granted no title, ownership or Intellectual Property Rights in or to the Company Offering (including in or to the underlying source code) or Documentation, in whole or part. All such rights shall remain in Company and/or its licensors to Company of programs provided within the Company Offering. All cloud instances and all other deployments of the Company Offering are owned by and remain the property of Company or its licensors.
The Company Offering including without limitation, the specific design, structure and logic of individual programs, their interactions both internal and external, and the programming techniques employed therein, as well as any non-public technical information, programming, code, marketing strategies, customer data, product development plans, documentation, software and other proprietary information, are considered confidential and trade secrets of Company and/or its licensors (the “Confidential Information”), the unauthorized use or disclosure of which would cause irreparable harm to Company. Evaluator may not disclose Confidential Information to any person, entity or third party with the sole exception of Evaluator’s employees that have a need to know the Confidential Information for the Limited Purpose and who have executed confidentiality and nondisclosure agreements with Evaluator protecting the Confidential Information under terms no less restrictive than the terms of this Agreement. Evaluator shall use the same degree of care and means that it uses to protect its own information of a similar nature, and in any event, shall use best efforts to prevent the disclosure of Confidential Information to any third parties. Evaluator shall be responsible for any unauthorized use or disclosure of Confidential Information by its employees, agents, representatives, contractors and any third party to whom Confidential Information is disclosed by Evaluator, and hereby agrees to indemnify, defend and save Company harmless from and against any loss, claim, expense or damage suffered as a result of any unauthorized use or disclosure of Confidential Information by such persons, entities or third parties. Evaluator shall not use, reproduce or distribute the Confidential Information other than for the purposes specifically authorized herein. This confidentiality obligation shall continue to apply to the Confidential Information following the termination hereof, provided that the confidentiality provisions contained herein shall not apply to Confidential Information which (i) was known by Evaluator prior to disclosure, as evidenced by its business records; or (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of the confidentiality provisions contained herein. Notwithstanding any of the foregoing, Evaluator may disclose Confidential Information solely to the extent such disclosure is compelled pursuant to legal, judicial, or administrative proceeding, or otherwise required by law, provided that Evaluator shall give reasonable prior notice to Company and upon Company’s request, will reasonably assist Company in seeking protective or other court orders.
COMPANY PROVIDES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE COMPANY OFFERING, DOCUMENTATION OR OTHERWISE. THE COMPANY OFFERING AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS WITH ALL FAULTS. COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE, NONINFRINGEMENT AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE COMPANY OFFERING AND ANY DOCUMENTATION.
- Limitation of Liability
Company shall not be liable to Evaluator for any direct, indirect, special, incidental and/or consequential damages, including punitive or multiple damages, or any failure to realize expected savings, loss of data, equipment downtime, loss of use, loss of goodwill or loss of revenue or profit suffered by Evaluator for any reason, nor for any claim against Evaluator by any third party for damages of any kind which arise from or in connection with the delivery, use, or performance of the Company Offering or the Documentation. Notwithstanding any provision herein to the contrary, Company’s total cumulative, aggregate liability arising out of or in connection with this Agreement and the transactions contemplated hereby shall be limited to fifty dollars ($50). The foregoing limitations and exclusions of liability shall apply even if Company had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages and shall apply.
This Agreement, and the rights and obligations hereunder, are not transferable or assignable by Evaluator (whether by assignment, sublicense, delegation, transfer or otherwise) without the express prior written consent of Company. Company may freely assign this Agreement, and any of its rights and obligations hereunder.
- Governing Law.
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Virginia, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Evaluator hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Company’s principal place of business is located for any lawsuit filed there against Evaluator by Company arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Evaluator shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its subscription and use of the Company Offering or Documentation hereunder.
- Notices. Each party must deliver all notice ate s or other communications required or permitted under this Agreement in writing to the other party at the address listed on the first page of the Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
- Severability. Any provision herein which is prohibited, invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, invalidity or unenforceability, without invalidating, affecting or impairing the remaining provisions or affecting the validity or enforceability of such provision in any other jurisdiction. To the extent practicable, the prohibited, invalid or unenforceable provision shall be replaced, for purposes of such jurisdiction, with a permitted, valid and enforceable provision which comes closest to the intention of the Parties with respect to the provision so replaced.
- No Waiver. No waiver by either of the Parties hereto of any rights arising from the breach hereof shall be construed as a continuing waiver, nor shall failure to assert a breach be deemed to waive that breach or any further breach. No waiver of any of the provisions or a breach hereof shall constitute a waiver of any other provision or other breach hereof. No waiver shall be binding unless executed in writing.
- Entire Agreement. This Agreement contains the whole of the agreement between the Parties concerning the matters provided for herein and there are no collateral or precedent representations, warranties, agreements or conditions not specifically set forth herein and none have been relied on by either party as an inducement to enter into this Agreement. The terms set forth herein shall control over any inconsistent or additional terms set forth in any purchase order or similar document. Any additional terms set forth therein, except as specifically incorporated herein by reference, are hereby null and void in all respects.
- Successors and Assigns. This Agreement shall ensure to the benefit of and be binding upon Evaluator and Company and their respective successors and permitted assigns.