.png?width=1200&height=628&name=Building%20Reliable%20E-commerce%20Experiences%20(34).png)
.png?width=1200&height=628&name=Building%20Reliable%20E-commerce%20Experiences%20(36).png)
Nobl9 Software Evaluation Agreement
This Software Evaluation Agreement (“Agreement”) is entered into by and between Nobl9 Inc., a Delaware corporation (“Nobl9”), and the person or entity that was identified in the course of the trial registration process during which these terms were accepted (such person or entity, the “Evaluator” and, together with Nobl9, the “Parties” and each a “Party”).
WHEREAS, Nobl9 is the developer of business-to-business service-level objectives (SLO) analytics software that collects, analyzes, and reports its customers’ website and software application metrics to assist them in optimizing the reliability, quality, performance, and cost-efficiency of their software business performance; and
WHEREAS, the Parties desire to enter into this Agreement pursuant to which Nobl9 will provide Evaluator with access to such software for Evaluator’s internal evaluation use;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties hereby agree as follows:
1. DEFINITIONS. The following terms, when used in this Agreement, shall have the meanings given below:
1.1 “Confidential Information” means any information disclosed by Nobl9 to the Evaluator, either directly or indirectly, in writing, orally or by inspection, which is designated as “Confidential,” “Proprietary” or some similar written designation or otherwise reasonably identifiable as confidential information. Information communicated orally will be considered Confidential Information if the information is identified as being Confidential Information at the time of disclosure. Notwithstanding the foregoing, the following is deemed Confidential Information with or without marking or written confirmation: (a) the Nobl9 Technology, product and service information, pricing information, and other related materials furnished by Nobl9; (b) the oral and visual information relating to the Nobl9 Technology; (c) the Software environment and tools, materials, documentation, whitepapers, guides, data sheets, training materials, methodology; and (d) the terms and conditions of this Agreement.
1.2 “Consultant” means an individual or entity providing services or other assistance to Evaluator or Nobl9 in connection with each Party’s respective obligations under this Agreement, as applicable. For clarity, Nobl9’s Consultants include its cloud services provider(s) used to provide access to the Software.
1.3 “Effective Date” means the first date on which both of the following have occurred: (a) Evaluator agrees to be bound by the terms of this Agreement, either by indicating such agreement during the trial registration process after the terms of this Agreement are made available for review by Evaluator, or by using the Software after such terms are made available for review by Evaluator, whichever occurs first and (b) Nobl9 makes the Software available for access by Evaluator.
1.4 “Evaluation Term” means the period commencing on the Effective Date and ending thirty (30) days thereafter.
1.5 “Evaluator Data” means all data, information and materials provided by Evaluator for use with the Nobl9 Technology.
1.6 “Nobl9 Technology” means Nobl9’s proprietary software, technology, frameworks, platforms, methodologies, facilitation guides, questionnaires, techniques, general purpose consulting and related know-how, logic, coherence and methods of operation of systems, user interfaces, screen designs, presentation materials, and best-practices documentation, including any enhancements, modifications or derivatives thereof, which are provided to Evaluator. The Software includes elements of Nobl9 Technology.
1.7 “Software” means the Nobl9 Service Level Objectives Platform, together with its associated documentation, and any updates thereto provided to Evaluator by Nobl9 during the Evaluation Term, which updates Nobl9 may provide in its sole discretion.
1.8 “User” means anyone who accesses the Software using Evaluator’s Credentials.
2. PROVISION OF SOFTWARE. Subject to the terms and conditions of this Agreement, Nobl9 will make the Software available to Evaluator during the Evaluation Term via electronic delivery over the internet for Evaluator’s access and use in accordance with the license set forth in Section 4.1 below. Unless otherwise agreed in writing with Nobl9, Evaluator shall be responsible for integration or Evaluator-side configuration and deployment of the Software.
3. EVALUATOR OBLIGATIONS.
3.1 Evaluator Control. Evaluator will be solely responsible for administering and monitoring the use of login IDs and passwords (“Credentials”) provided to Evaluator by Nobl9 for access to the Software. Upon the termination of employment or engagement of any User, Evaluator will terminate that individual’s Credentials. Nobl9 is not responsible for any damages resulting from Evaluator’s failure to manage the confidentiality of its Credentials and Evaluator is responsible for any liability or act arising out of use or misuse of the Credentials.
3.2 Prohibited Uses and Evaluator Restrictions. Evaluator must not modify, rent, sublease, sublicense, assign, use as a service bureau, copy, lend, adapt, translate, sell, distribute, derive works from, decompile, disassemble or reverse engineer the Nobl9 Technology provided under this Agreement, except as explicitly permitted hereunder. The Software shall be used solely by Evaluator and solely for the purpose of evaluating whether to obtain a license for its internal business use. Evaluator shall not, and shall ensure that Users do not: (a) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs in, to or from the Nobl9 Technology; (b) interfere with or disrupt the integrity or performance of the Nobl9 Technology, or the data contained therein; (c) use the Nobl9 Technology in a manner inconsistent with its applicable documentation; (d) attempt to gain unauthorized access to the Nobl9 Technology or related systems or networks; (e) copy (except as strictly necessary to use the Software in accordance with the terms of Section 2), distribute, sell, sublicense or otherwise transfer or make available the Software or any portion thereof to any third party; (f) remove from view any copyright legend, trademark or confidentiality notice appearing on the Software or Software output; (g) modify, adapt, translate, reverse engineer, decompile or derive the source code for the Software; (h) use the Software for general business purposes or use with the Software any Evaluator Data, Evaluator Content or any other information that Evaluator considers to be confidential or proprietary or that includes live or production data; or (i) authorize or assist any third party in doing any of the foregoing ((a)-(h)).
4. RIGHTS, OWNERSHIP, CONFIDENTIALITY & PRIVACY.
4.1 Nobl9 Technology License. Subject to the terms of this Agreement, Nobl9 hereby grants to Evaluator, during the Evaluation Term, a limited, non-exclusive, non-transferable, time-bounded license to access and use, for Evaluator’s internal evaluation purposes only and not for general commercial use, the Nobl9 Technology as included in the Software. This license expressly excludes all rights to any software source code (other than examples) included in the Nobl9 Technology.
4.2 Nobl9 Ownership. As between Evaluator and Nobl9, Nobl9 or its licensors are the sole owners of all right, title and interest in and to the Nobl9 Technology. If Evaluator provides any feedback, comments, suggestions, ideas, requests or recommendations for modifications or improvements to the Nobl9 Technology (“Feedback”), Evaluator hereby irrevocable transfers and assigns to Nobl9 all right, title and interest in and to all such Feedback, including all intellectual property rights therein, to be used for any purpose. Evaluator will not earn or acquire any rights or licenses in the Nobl9 Technology or in any intellectual property rights of Nobl9 on account of this Agreement or Evaluator’s performance under this Agreement, even if Nobl9 incorporates any Feedback into the Nobl9 Technology. Evaluator acknowledges that the Software contains Confidential Information and trade secrets of Nobl9 and its licensors.
4.3 Evaluator Ownership and Content License. As between Evaluator and Nobl9, and subject to the rights of Nobl9 set forth below, Evaluator owns all right, title and interest in and to all Evaluator Data and all Evaluator-provided designs, images, templates, sketches, artwork, logos, trade names, trademarks, and website or email text copy and type (“Evaluator Content”). Evaluator has sole responsibility for the accuracy, quality and right to use of all Evaluator Data and Evaluator Content. Evaluator grants to Nobl9 and its suppliers a non-exclusive, fully paid-up license to use, reproduce, store, modify and publicly display Evaluator Data and Evaluator Content, to the extent necessary for Nobl9 and its suppliers to perform their obligations and exercise their rights under this Agreement.
4.4 Confidentiality. Evaluator will only use the Confidential Information to exercise its rights or perform its obligations under this Agreement and will protect the Confidential Information using the same degree of care that Evaluator uses to safeguard its own confidential or proprietary information of a like nature from unauthorized use, disclosure, or dissemination, but not less than a reasonable degree of care. Evaluator will restrict access to the Confidential Information to Evaluator’s employees and Consultants who require such access in the course of their assigned duties and responsibilities and who have been informed of Evaluator’s obligations of confidence and have agreed in writing to preserve confidentiality of such information under terms and conditions no less restrictive than those set forth herein. This Agreement imposes no obligation upon the Evaluator with respect to Confidential Information that: (a) is or becomes publicly available through no breach of this Agreement by Evaluator; (b) is already in the possession of Evaluator at the time of disclosure as shown by Evaluator’s files and records immediately before the time of disclosure; (c) is obtained by Evaluator from a third party without obligation of confidentiality; or (d) is independently developed by Evaluator without use of or reference to the Confidential Information, as demonstrated by Evaluator’s documents. If any Confidential Information is required to be disclosed under any law or judicial order, Evaluator will (to the extent permitted by law) give Nobl9 prompt notice thereof and use its commercially reasonable efforts to seek or cooperate with Nobl9 in seeking a protective order at Nobl9’s request and expense. Evaluator acknowledges that any unauthorized disclosure or use of the Confidential Information may cause Nobl9 irreparable harm and that Nobl9 will be entitled to seek injunctive relief in the event Evaluator does not fulfill its obligations under this Section.
4.5 Privacy. Evaluator hereby acknowledges and agrees that in connection with Evaluator’s use of the Software, Nobl9 may receive certain information about the Evaluator, including event logs, monitoring logs, and other application-emitted data from Evaluator’s software environment as it is processed by Nobl9, and Evaluator hereby consents to Nobl9’s collection, use and disclosure of all such information in accordance with Nobl9’s privacy policy located at https://nobl9.com/privacy-policy/ (as the same may be amended from time to time, the “Privacy Policy”), which is incorporated by reference into this Agreement. All data received by Nobl9 in connection with Evaluator’s use of the Software will be treated in accordance with Nobl9’s Privacy Policy.
4.6 Reservation of Rights. Nobl9 and its licensors, as applicable, reserve all rights and licenses in and to the Nobl9 Technology not expressly granted to Evaluator hereunder. This Agreement does not create any implied licenses.
5. INDEMNIFICATION. Evaluator will indemnify, defend and hold Nobl9 and its licensors, affiliates, and their respective directors, officers, stockholders, employees and agents harmless from and against any third-party action, proceeding, claim or demand, and associated costs, expenses (including reasonable attorneys’ fees), losses and damages to the extent arising from or in connection with the gross negligence, willful misconduct or breach of this Agreement by Evaluator, its affiliates, and their respective directors, officers, stockholders, employees and agents.
6. REPRESENTATIONS AND DISCLAIMER OF WARRANTIES.
6.1 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other of them that the representing and warranting Party is duly organized in its jurisdiction of incorporation; that the representing and warranting Party has the full power and authority to enter into this Agreement; that this Agreement is binding upon the representing and warranting Party; that this Agreement has been duly authorized by all requisite corporate action within the representing and warranting Party; and that the execution, delivery and performance by the representing and warranting Party of this Agreement and its compliance with the terms and conditions hereof does not and shall not conflict with or result in a breach of any of the terms and conditions of or constitute a default under (a) any agreement or other instrument binding or affecting it or its property, (b) the provisions of its bylaws or other governing documents or (c) any order, writ, injunction or decree of any governmental authority entered against it or by which any of its property is bound.
6.2 Disclaimer of Warranties. THE SOFTWARE AND ANY SERVICES THAT NOBL9 MAY PROVIDE TO EVALUATOR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT ANY WARRANTY WHATSOEVER. NOBL9 MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE IN TRADE. Nobl9 specifically does not warrant that the Software will be error-free, available for use without interruption, or that the Software and data stored through the use of the Software will not be susceptible to intrusion, attack, computer virus infection or other forms of compromise.
7. DISCLAIMER OF DAMAGES. EXCEPT AS OTHERWISE MAY BE REQUIRED BY LAW, IN NO EVENT WILL NOBL9, ITS LICENSORS OR CONSULTANTS BE LIABLE TO EVALUATOR OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SOFTWARE OR ANY RELATED SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT. IN FURTHERANCE, AND NOT LIMITATION, OF THE FOREGOING, IN NO EVENT WILL NOBL9 OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, BUSINESS, REVENUE, DATA OR DATA USE, OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. The limitations of liability set forth in this Section 7 reflect the allocation of risk negotiated and agreed to by the Parties. Nobl9 would not enter into this Agreement without these limitations on its liability.
8. TERM AND TERMINATION.
8.1 Term. Unless terminated earlier in accordance with Section 8.2, the term of this Agreement is the period beginning on the Effective Date and ending upon expiration of the Evaluation Term (which may be extended only by Nobl9’s written agreement).
8.2 Termination.
(a) Either Party may terminate this Agreement upon written notice to the other Party for any reason; provided that, except in the case of a material breach of this Agreement by Evaluator, Nobl9 will provide at least five (5) days’ prior notice of any such termination.
(b) This Agreement shall terminate immediately upon the effective date of any other agreement entered into by the Parties during the Evaluation Term that grants Evaluator a license to access and use the Software.
8.3 Effects of Termination. Upon termination of this Agreement, in whole or in part, Nobl9 may immediately cease providing any terminated Software and Evaluator’s rights to use the affected Nobl9 Technology, Confidential Information, and other Nobl9 materials (collectively “Materials”) shall cease. Evaluator will immediately stop using such Materials and will return such Materials to Nobl9, or destroy all copies thereof and certify in writing that they have been destroyed, except for reasonable electronic backup copies kept in the normal course of business that are subject to reasonable document destruction procedures. Upon termination of this Agreement by Nobl9, Nobl9 will have no further obligation or liability hereunder. The provisions of Sections 1, 3, 4 (except for Section 4.1), 5, 6.2, 7, 8.3, and 9 will survive termination or expiration of the Agreement.
9. GENERAL.
9.1 Entire Agreement. This Agreement constitutes the entire agreement between the Parties, and supersedes all previous agreements or representations, whether oral or written, relating to the subject matter hereof. This Agreement may not be modified or amended, except in writing signed by an authorized representative of each Party. No ordering document (e.g., a purchase order) that originates from Evaluator will be binding on Nobl9, and any accompanying terms and conditions are null and void.
9.2 Compliance with Laws. Nobl9 agrees to comply with all laws applicable to Nobl9 in the provision of Software hereunder. Evaluator agrees to comply with all laws applicable to Evaluator in its receipt and use of Software hereunder. Without limiting the generality of the foregoing, Evaluator acknowledges and agrees that the Software is subject to regulation by U.S. and foreign governments and agencies, which prohibit export or diversion of certain technical products and information to certain countries and individuals. Evaluator covenants that it will comply in all respects with all export and re-export restrictions applicable to the technology and documentation provided hereunder.
9.3 Binding Effect. This Agreement shall be binding upon both Parties upon the Effective Date, without the need for each Party to physically execute this Agreement by signature.
9.4 Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed electronic mail transmission, or by overnight delivery service, and in each instance will be deemed given upon receipt. All communications will be sent to Evaluator at the applicable address provided during the trial registration process and to Nobl9 at contact@nobl9.com or 330 Bear Hill Rd., Suite 203, Waltham MA 02451, USA, Attn: Contract Notices, or to such other address as may be specified by a Party to the other in accordance with this Section 9.4.
9.5 Interpretation. Headings are for reference purposes only and have no substantive effect. References in this Agreement to “Sections” refer to the sections or articles of this Agreement. The terms “include,” “includes,” “including” and derivative forms of them shall be deemed followed by the phrase “without limitation” and the term “or” has the inclusive meaning represented by the phrase “and/or”.
9.6 Assignment. In the event of Evaluator’s acquisition of, or merger with, a third party, Evaluator may continue to use the Nobl9 Technology, and the obligations and rights of Evaluator under this Agreement will apply to, and may be exercised only in connection with, the operations of Evaluator as they existed on the date prior to the acquisition or merger. Evaluator may not otherwise assign this Agreement or transfer any rights hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Nobl9. Any attempted assignment or transfer by Evaluator in violation of this Section 9.6 will be null and void.
9.7 Choice of Law. This Agreement will be governed and interpreted in accordance with the laws of the State of Delaware without regard to the conflicts of law provisions of any state or jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
9.8 Dispute Resolution. Any dispute between the Parties arising out of this Agreement will be first submitted to senior management of both Parties for a good faith attempt at amicable resolution. If such good faith efforts to resolve the dispute by senior management have been unsuccessful thirty (30) days after submission, then, at either Party’s written election, such dispute shall be finally resolved under the Rules of Arbitration of the International Chamber of Commerce by a single arbitrator appointed in accordance with such rules. The place of the arbitration shall be New York City, United States. The language of the arbitration shall be English. At any time, a Party may seek or obtain preliminary, interim or conservatory measures from the arbitrators or from a court. Nothing in this Section 9.8 shall prevent either Party from resorting to judicial proceedings if the claim or dispute involves intellectual property rights.
9.9 Independent Contractor. Nobl9 is an independent contractor and nothing in this Agreement will be deemed to make Nobl9 an agent, employee, partner or joint venture of Evaluator. Neither Party will have any authority to bind, commit, or otherwise obligate the other Party in any manner whatsoever.
9.10 Third Party Consultants. Nobl9 will have the right to use Consultants in performance of its obligations hereunder and, for purposes of this Agreement, all references to Nobl9 or its employees shall be deemed to include such Consultants.
9.11 No Waiver. No failure of either Party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights or of any other rights hereunder unless agreed in a writing signed by an authorized representative of each Party.
9.12 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect.