This SOFTWARE EVALUATION AGREEMENT (“Agreement”) is made and entered into, by and between Tech-Angels Inc. (“Vendor”), located at 700 East Dania Beach Boulevard, Suite 202, Dania, Florida 33004
you and your company
The Customer desires to evaluate certain Software (as defined herein), and Vendor shall supply the Customer with a copy of the Software and associated documentation and technical support during the term of this Agreement pursuant to the following terms and conditions:
“Software” means Vendor’s Gemnasium software program, including all associated user manuals and documentation.
The Software will be delivered to the Customer and may be used for evaluation purposes only, at no cost to the Customer, in accordance with the terms and conditions of this Agreement. The Customer shall have an option to purchase a license for the Software at a mutually acceptable price.
The term of this Agreement shall commence upon the Customer’s receipt of the Software, and shall terminate forty five (45) days later (“Evaluation Period”), unless otherwise mutually extended or otherwise terminated by either party. Upon termination of this Agreement, the Customer shall return or destroy all copies of the Software and documentation, unless otherwise directed in writing by Vendor.
Title to all Software delivered to the Customer under this Agreement shall remain with Vendor. Vendor and its suppliers retain all right, title and interest in and to the Software and documentation including, but not limited to, all copyrights and trademarks.
6.1. The Customer shall take reasonable steps to ensure that the Software, or any portion thereof, is not made available or disclosed by the Customer to any other person, firm or corporation other than its Affiliates or contractors. For purposes of this Agreement, "Affiliate" means any entity directly or indirectly controlling or controlled by or under common control with the Customer.
6.2. The Customer shall not attempt to reverse compile, decompile, or otherwise derive the source code for the Software.
OTHER THAN AS SPECIFIED HEREIN, VENDOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, AND THE SOFTWARE IS PROVIDED “AS IS”. VENDOR DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Vendor represents and warrants to the Customer that (i) Vendor is the developer or/and owner of the Software or Vendor has the authority to grant the license granted hereunder, free and clear of any liens, claims and encumbrances, (ii) there is no claim or proceeding pending or threatened with respect to the Software or any component thereof, and (iii) the Software does not infringe, violate or misappropriate any patents, copyrights, mask work rights, trademarks, trade secrets or other proprietary rights of any third party.
The Customer shall acquire no right under this Agreement to use, and shall not use, the name “Gemnasium”, or “Tech-Angels” (either alone or in conjunction with or as a part of any other word or name), or to express or imply any endorsement of Vendor's products or services, or for any purpose whatsoever. The provisions of this section shall survive termination or expiration of this Agreement or any determination that this Agreement or any portion is void or voidable.
Furthermore, Vendor shall not disclose that the Customer is or was an evaluation site for Vendor’s System, without Vendor first having obtained the written permission of the Customer, which permission the Customer may withhold in its sole discretion.
Any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, mailed or delivered by recognized courier service, properly addressed and stamped with the required postage, to the intended recipient at its address specified below and shall be deemed effective upon receipt.
To the Vendor:
700 East Dania Beach Boulevard, Suite 202 Dania, Florida 33004
Attention: Philippe Lafoucrière
12.1 Assignment. This Agreement is not transferable or assignable by either party, whether in whole or in part, voluntarily or by merger, consolidation or sale, or otherwise by operation of law without the prior written consent of the other party, except that the Customer may transfer or assign this Agreement to any of its Affiliates. Subject to the foregoing, this Agreement and each and every provision hereof, shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.
12.2 No Waiver of Conditions. The failure of either party to insist upon strict performance of any of the terms and conditions hereunder, or a delay by either party in the exercise of any of its remedies shall not constitute a waiver of such terms and conditions or a waiver of any default nor of any remedy.
12.3 Entire Agreement. This Agreement supersedes in full all prior discussions and agreements between the parties relating to the Software and any shrink-wrap, click license or web-posted terms and conditions (whether made available before or after the date hereof) and constitutes the entire agreement between the parties relating to the subject matter hereof, and may be modified or supplemented only by a written document signed by an authorized representative of each party.
12.4 Governing Law. The laws of the State of Florida shall govern the interpretation and enforcement of this Agreement, without giving effect to principles of conflicts of law. THE PARTIES HEREBY WAIVE TRIAL BY JURY WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING.
12.5 Forum. Any action or proceeding brought by either party against the other party arising out of or related to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction located in Broward County, Florida.
12.6 Survival. Sections 5, 8, 9 and 10 herein shall survive the expiration or termination of this Agreement.
12.7 Severability. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of this Agreement shall remain valid and enforceable according to its terms.
12.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument.