BABEL STREET ROSETTE LTD. IS WILLING TO LICENSE THE PRODUCT (AS DEFINED BELOW) TO YOU ONLY IF YOU ACCEPT ALL TERMS AND CONDITIONS CONTAINED IN THIS EVALUATION AGREEMENT. PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. BY CLICKING OR CHECKING ANY “I ACCEPT,” “I AGREE” OR OTHER SIMILAR BUTTON/CHECK-BOX, OR BY DOWNLOADING, INSTALLING OR USING THE PRODUCTS, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK OR CHECK ANY “I ACCEPT,” “I AGREE” OR OTHER SIMILAR BUTTON/CHECK-BOX AND DO NOT COMPLETE THE TRANSACTION (OR DOWNLOAD OR INSTALLATION) AND DO NOT USE THE PRODUCTS.
Evaluation Agreement
This Evaluation Agreement (the “Agreement”) is between You (“Licensee”) and Babel Street Rosette Ltd., a Delaware corporation having its main office at 240 Elm St, 2nd/3d Floor, Somerville, MA 02144 (“Babel Street”). Babel Street and Licensee agree as follows.
1. Definitions. As used in this Agreement:
(a) ”Product” mean Babel Street “Limited Match” software product, which is a limited version of Babel Street’s “Match” software, and Related Materials.
(b) ”Related Materials” means information in written or other documentary form supplied to Licensee by Babel Street that relates, in whole or in part, to the installation, design, use, operation, testing, debugging, support, maintenance or marketing of the Product.
2. Export Controls
Licensee agrees to comply with all applicable export control laws and hereby represents and warrants that the following statements are true and will remain to be true during the Evaluation Period (defined below):
(a) Licensee is not a citizen, national, or resident of, and are not under control of, the government of Cuba, Iran, North Korea, Sudan, or Syria nor any country to which the United States has prohibited export;
(b) Licensee will not download or otherwise export or re-export the Product, directly or indirectly, to the above mentioned countries nor to citizens, nationals or residents of those countries;
(c) Licensee is not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor is Licensee listed on the United States Department of Commerce Table of Denial Orders; and
(d) Licensee will not download or otherwise export or re-export the Product, directly or indirectly, to persons on the above mentioned lists.
3. Evaluation of the Product. Evaluation Period.
Upon accepting the terms of this Agreement, Babel Street grants to Licensee a non-exclusive, nontransferable license to install, load and use the Product for a period of five (5) days (“Evaluation Period”), solely for the purpose of internal evaluation of the Product in contemplation of purchasing from Babel Street a license to use the Product.
4. Ownership; Nondisclosure
The Product is and shall remain the sole and exclusive property of Babel Street, including all applicable rights to patents, copyrights, trademarks and trade secrets and/or other intellectual property rights of any kind inherent therein and appurtenant thereto. Licensee shall use the Product solely for evaluation purposes as expressly permitted by this Agreement and shall not modify, loan, rent, lease, sell, give, disclose, display, distribute, sublicense, transfer said Product or otherwise make available or provide access to the Product or Related Materials, in whole or in part, to any other person, entity, or agency. In addition, Licensee shall not reverse engineer, adapt, translate, disassemble, or decompile any prototypes or Product, or create derivative works of the Product, or use the Product to generate data for development of its own products which are substantially similar to the Product, or publish performance information or comparisons, except to the extent that such activity is specifically permitted by law, or delete, remove or modify any patent, copyright, trademark or other proprietary rights notices which appear on or in the Product or Related Materials,
5. Confidentiality
5.1) Babel Street and Licensee are bound by the terms of any non-disclosure or confidentiality agreement executed between the parties (“NDA”). If no NDA exists between the parties, then the following Sections 5.2-5.5 of this Agreement shall apply.
5.2) “Confidential Information” herein shall mean any and all information disclosed by Babel Street or by any of its affiliates to Licensee including, but not limited to, data, know-how, trade secrets, and documentation relating, among other things, to linguistic technology and product development, software products, algorithms, business, marketing and distribution plans, the terms and conditions of this Agreement, financial statements and financial projections, but excluding any information that the Licensee can document is generally known in the computer industry, or that becomes known to the Licensee other than through a breach of confidence, or that is provided to the Licensee by a third party under no obligation to keep such information confidential.
5.3) Without derogating from the foregoing, Licensee acknowledges that elements of the Product are Confidential Information and may be trade secrets of Babel Street. Licensee hereby agrees to maintain the Product and Confidential Information in strict confidence, at least as carefully as it protects its own most confidential information. Licensee can only use Confidential Information during the Evaluation Period.
5.4) Licensee agrees to furnish the Confidential Information and Product only to its employees or to individuals on Licensee’s premises who are acting under Licensee’s direction and control and who are under obligation to protect Licensee's own Confidential Information. Licensee shall advise Babel Street immediately if Licensee learns or has reason to believe that any person having access to the Product or Confidential Information has violated or intends to violate the terms of this Agreement and will cooperate at its own expense with Babel Street in seeking suitable injunctive or other equitable relief against that person.
5.5) Licensee acknowledges that any disclosure of any aspect of the Product or Confidential Information, except as permitted by this Section 5, will give rise to irreparable injury to Babel Street that is inadequately compensable in damages. Licensee hereby consents to Babel Street's obtaining of injunctive relief against such disclosure in addition to any other available remedy without the necessity of posting a bond. All Licensee's undertakings and obligations relating to confidentiality and non-disclosure, whether contained in this Section or elsewhere, shall survive for five (5) years after termination of this Agreement, provided that such undertakings and obligations shall survive with respect to any Confidential Information that constitutes a trade secret for as long as such Confidential Information remains a trade secret.
6. Termination
6.1) This Agreement shall terminate automatically upon expiration of the Evaluation Period unless extended by the parties in writing.
6.2) Babel Street may terminate this Agreement immediately upon written notice to the Licensee if Licensee (a) fails to comply with a material term or condition of this Agreement; (b) sells all, or substantially all, of its assets, liquidates, or dissolves; or (c) attempts to convey any interest in the Product without the prior written consent of Babel Street.
6.3) If Licensee has not licensed the Product from Babel Street prior to the date of expiration or termination of this Agreement, Licensee shall immediately (a) return to Babel Street all copies of the Product, Related Materials, and all Confidential Information, in part or in whole, in all forms of media, if applicable; and (b) remove and destroy, any and all copies of the Products installed by Licensee or its employees on any system, if applicable, and all other Related Materials and Confidential Information.
6.4) Sections 4, 5, 6, 7, 8 and 9 shall survive for five (5) years after termination of this Agreement.
7. Warranties and Other Representations
BABEL STREET DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT. IN NO EVENT SHALL BABEL STREET BE LIABLE TO THE LICENSEE FOR ANY LOSS OR DAMAGE OF ANY KIND, INCLUDING BUT NOT LIMITED TO INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, ARISING OUT OF THIS AGREEMENT OR THE DELIVERY, USE, SUPPORT OR OPERATION OF THE PRODUCT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY, QUALITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY BABEL STREET EMPLOYEES OR OTHERWISE, SHALL BE DEEMED A WARRANTY BY BABEL STREET FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF BABEL STREET WHATSOEVER, UNLESS CONTAINED HEREIN.
8. Limitation of Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BABEL STREET SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING DIRECT AND INDIRECT LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN FOR ANY EXCEEDING OF THE SCOPE OF THE LICENSE GRANTED HEREIN OR BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1,000).
9. General
9.1) No Waiver. No delay or failure of any party to exercise any right provided herein shall in any way affect its right to enforce that right or any other right under this Agreement at a later time. No waiver shall be effective unless in writing signed by the waiving party.
9.2) Severability. If any provision of this Agreement is declared invalid by any lawful tribunal, then it shall be adjusted to conform to legal requirements of that tribunal and that modification shall automatically become a part of the Agreement. Or, if no adjustment can be made, the provision shall be deleted as though never included in the Agreement and its remaining provisions shall remain in full force and effect.
9.3) No Partnership or Agency. Babel Street and Licensee are independent contractors, and neither party shall be, nor represent itself to be, the joint venturer, franchiser, franchisee, partner, broker, employee, servant, agent or representative of the other party for any purpose. Neither party shall be responsible for the acts or omissions of the other, and neither party shall bear authority to make any representation or incur any obligation on behalf of the other party unless expressly authorized herein.
9.4) Governing Law. This Agreement and all matters relating to or arising out of this Agreement shall be governed and interpreted by and construed under the laws of the Commonwealth of Massachusetts, without reference to its choice of law provisions and without reference to the United Nations Convention on Contracts for the International Sale of Goods, and shall be deemed to be executed under seal in Cambridge, Massachusetts. The parties agree to submit to the exclusive jurisdiction and venue of state or federal courts located in Boston, Massachusetts.
9.5) Entire Agreement. Except for the provisions of any NDA (defined above in Section 5), this Agreement constitutes the complete and exclusive statement of the agreement between the parties and supersedes all prior oral and written agreements, communications, representations, statements, negotiations and undertakings relating to the subject matter herein; and any inconsistency or discrepancy between this Agreement and the NDA shall be resolved by relying on the provisions of the NDA.
9.6) Feedback. Notwithstanding any other provision in this Agreement, if Licensee provides any ideas, suggestions or recommendations to Babel Street regarding the Product or Related Materials (“Feedback”), such Feedback shall be the sole property of Babel Street.
9.7) Compliance with Laws. Licensee agrees to comply with all applicable domestic and international laws and regulations in connection with the use of the Product and Related Materials.
