KENZEN EVALUATION AGREEMENT
**IMPORTANT INFORMATION – PLEASE READ CAREFULLY**
THE KENZEN DEVICE(S) (“HARDWARE”) PROVIDED UNDER THIS EVALUATION AGREEMENT (THE “AGREEMENT”) CONTAIN COMPUTER PROGRAMS, SOFTWARE AND OTHER PROPRIETARY MATERIAL (“RELATED TECHNOLOGIES”) AND INFORMATION, THE USE OF WHICH IS SUBJECT TO AND EXPRESSLY CONDITIONED UPON ACCEPTANCE OF AND COMPLIANCE WITH THIS AGREEMENT.
THIS AGREEMENT FORMS A BINDING CONTRACT BETWEEN YOU (“CUSTOMER,” “YOU,” “YOURS”) AND KENZEN, INC. (“KENZEN,” “WE,” “US,” “OUR”). PLEASE READ THESE TERMS CAREFULLY BECAUSE BY TAKING DELIVERY OF, ACCESSING OR USING THE HARDWARE, YOU AGREE THAT THIS AGREEMENT WILL GOVERN YOUR EVALUATION AND USE OF THE HARDWARE. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING TO INDICATE YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND BY ALL TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. YOU FURTHER AGREE THAT YOUR USE OF A KEYPAD, MOUSE OR OTHER DEVICE TO SELECT AN ITEM, BUTTON, ICON OR SIMILAR ACT/ACTION, OR IN ACCESSING OR MAKING ANY TRANSACTION REGARDING ANY AGREEMENT, ACKNOWLEDGMENT, CONSENT TERMS, DISCLOSURES OR CONDITIONS CONSTITUTES YOUR SIGNATURE (HEREAFTER REFERRED TO AS "E-SIGNATURE"), ACCEPTANCE AND AGREEMENT AS IF ACTUALLY SIGNED BY YOU IN WRITING. YOU ALSO AGREE THAT NO CERTIFICATION AUTHORITY OR OTHER THIRD PARTY VERIFICATION IS NECESSARY TO VALIDATE YOUR E-SIGNATURE AND THAT THE LACK OF SUCH CERTIFICATION OR THIRD PARTY VERIFICATION WILL NOT IN ANY WAY AFFECT THE ENFORCEABILITY OF YOUR E-SIGNATURE OR ANY RESULTING CONTRACT BETWEEN YOU AND KENZEN. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT RECEIVE OR USE ANY HARDWARD.
“Customer Data” means any files, graphics, images, code, text, email or other content provided or submitted by Customer or its End Users to or through the Service, including but not limited to, information pertaining to Customer, its End Users, and/or employees, including without limitation, IP addresses, usernames, passwords, names, email addresses, telephone numbers, and Personal Data.
“Customer Site” means the ship-to address indicated as the site of installation and/or use of the Hardware, or a subsequent location approved by Kenzen.
“Effective Date” means the date you accept the terms of this Agreement as indicated by your signature, including without limitation via electronic signature.
“End User” means a single individual that has access at any time during the Evaluation Period to the Hardware and Related Technologies pursuant to Customer’s authorization under this Agreement.
“Evaluation Period” means a period of sixty (60) calendar days from the Effective Date, or as otherwise agreed in an order form.
“Personal Data” includes without limitation any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to specific data, such as name, email, address, phone number, and IP address.
“Sensitive Data” includes without limitation, any government issued identification number, bank account, debit or credit card number, biometric data, health data, or to one or more factors specific to physical, physiological, mental, economic, cultural or social identity, including but not limited to racial or ethnic origin.
- License Grant and Restrictions. Kenzen agrees to loan, and Customer agrees to accept the loan of, the Hardware during the Evaluation Period. During the Evaluation Period Kenzen hereby grants to you a limited, non-exclusive, non-transferable, non-sub-licensable, revocable, license to access and use the Hardware and Related Technologies solely in connection with Customer’s testing and evaluation of the Hardware for its internal business purposes and subject to the following restrictions: (i) all right, title and interest in and to the Hardware and Related Technologies, including all intellectual property rights embodied therein, shall at all times remain vested in Kenzen, Inc. (or its licensors); (ii) other than the express rights granted to you under this Agreement, no rights or licenses, express or implied, are granted to you; (iii) you will not take any action inconsistent with Kenzen’s proprietary rights including removing any proprietary notices within on the Hardware or contained within Related Technologies; (iv) you must ensure that anyone using the Hardware and Related Technologies complies with the terms and conditions herein; (v) you shall not use, copy, modify, sell, distribute, assign, or otherwise transfer the Hardware or Related Technologies to any third party; (vi) you are not entitled to receive the source code format of any Related Technologies contained or used with the Hardware; (vii) under no circumstances may you attempt to create or permit others to attempt to create, by reverse-compiling or reverse- assembling or otherwise, any part of the source programs from the object code programs or other information provided to you by Kenzen; and (viii) you shall not use the Hardware or Related Technologies for any production purposes during the Evaluation Period and shall not upload or process any Personal Data or Sensitive Data during the Evaluation Period, without the express written consent of Kenzen. If you violate the terms of this Section 2, your rights to use the Hardware and Related Technologies shall automatically terminate.
- Expiration and Termination of Evaluation Period; Return of Hardware. At the end of the Evaluation Period, Customer shall purchase the Hardware for the then-current price provided by Kenzen, or promptly return the same to Kenzen. Customer’s continued use of the Hardware and Related Technologies after expiration or termination will require Customer to enter into a separate Purchase and License Agreement with Kenzen. If Customer fails to procure or return the Hardware at the end of the Evaluation Period, Kenzen may at any time during normal working hours, and not excluding any other remedies we may have, enter the Customer Site, de-install the Hardware and remove it with no liability to Customer, and at Customer’s expense; provided that if previously authorized by Kenzen in writing, Customer may de-install and/or wipe the Product pursuant to Kenzen’s instructions. This Agreement may be terminated at any time by either party at its option, without liability. Upon termination of the Agreement for any reason, Customer shall cease all use and return the Hardware to Kenzen.
- Title, Risk of Loss, Installation and Shipment. Title to the Hardware shall at all times remain vested in Kenzen during the Evaluation Period. Risk of loss to the product shall be with Customer during the shipping and the Evaluation Period. Kenzen shall arrange and pay for shipment of the Hardware to the Customer Site and Customer shall be responsible for insuring the Hardware for its full replacement value during the Evaluation Period. At no time during the Evaluation Period may Customer remove the Hardware from the Customer Site, without Kenzen’s express consent. Following expiration or termination of the Evaluation Period, Customer shall wipe all Customer Confidential Information from the Hardware prior to returning the Hardware to Kenzen and shall arrange for the return shipping of the Hardware to Kenzen, pursuant to Kenzen’s instructions and at Kenzen’s cost and expense. All Hardware must be returned in the same condition it was received, normal wear and tear excepted.
- Confidentiality. From time to time during the Evaluation Period, each party may disclose to the other party Confidential Information (defined below) for purposes of the evaluation. Each party agrees to use Confidential Information only in connection with the evaluation of the Service and shall not use, publish or otherwise disclose Confidential Information to any third-party without the disclosing party’s prior written authorization. ‘Confidential Information’ means all nonpublic information disclosed by the disclosing party, its affiliates, business partners or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information does not include any portion of information that the recipient can demonstrate (i) was lawfully in its possession prior to receipt from the disclosing party; (ii) was received by recipient from a third-party without an obligation of confidentiality with respect to such information; (iii) is or becomes generally known to the public at or after the time of disclosure by disclosing party; or (iv) was independently developed by recipient without use of or reference to the disclosing party’s Confidential Information, as demonstrated by recipient’s written records. Upon the expiration or termination of this Agreement, each party agrees to either return, or destroy, at the option of the disclosing party, all Confidential Information in its possession and control, to the extent reasonably practicable.
- Term and Termination. This Agreement will remain in effect for the duration of the Evaluation Period, provided that either party may terminate this Agreement for convenience at any time upon prior written notice to the other party. At the expiration or termination of the Evaluation Period, Customer’s license to use the Hardware shall immediately terminate, Customer shall immediately cease its use of the Hardware and Customer shall return the product in accordance with Section 4 above. The provisions of Sections 3 (Customer Data), 6 (Confidentiality), 7 (Term and Termination), 8 (Warranty Disclaimer), 9 (Limitation of Liability) and 11 (General) shall survive expiration or termination of this Agreement.
- Limited Warranty and Disclaimer. During the Evaluation Period, Kenzen warrants that the Hardware and Related Technologies will be free from material defects in material and workmanship and will conform substantially to Kenzen’s published user documentation as of the date of Hardware shipment. If, during the Evaluation Period, the Hardware and/or Related Technologies fails to conform to this warranty, then Customer shall promptly notify Kenzen who will, at its option, either replace the allegedly defective Hardware or use commercially reasonable efforts to repair, correct, or work around the problem via telephone support as Customer’s sole and exclusive remedy for any failure of the Hardware or Related Technologies to conform to this warranty. EXCEPT FOR THE EXPRESS WARRANTY STATED IN THIS SECTION 8, THE HARDWARE AND RELATED TECHNOLOGIES ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR EVALUATION PURPOSES ONLY WITHOUT WARRANTY OF ANY KIND. KENZEN HAS NO OBLIGATION TO PROVIDE SUPPORT OR MAINTENANCE OF ANY KIND UNDER THIS AGREEMENT. EXCEPT TO THE EXTENT PROHIBITED BY LAW, KENZEN, INC. AND ITS AFFILIATES AND SUBSIDIARIES DISCLAIM ALL WARRANTIES REGARDING THE HARDWARE AND RELATED TECHNOLOGIES PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER KENZEN NOR ITS LICENSORS WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, THAT OPERATION OF THE HARDWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED.
- Limitation of Liability. IN NO EVENT SHALL KENZEN BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY LOST BUSINESS OR PROFITS) OR ANY LOSS, DAMAGE, MISAPPROPRIATION, OR DESTRUCTION OF CUSTOMER DATA ARISING IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE. CUSTOMER FURTHER ACKNOWLEDGES THAT THE HARDWARE IS BEING PROVIDED AT NO COST DURING THE EVALUATION PERIOD, AND THAT TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, KENZEN DISCLAIMS ANY AND ALL LIABILITY FOR CUSTOMER’S USE OF THE HARDWARE DURING THE EVALUATION PERIOD. KENZEN AND ITS AFFILIATES AND SUBSIDIARIES’ MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT LICENSEE ACTUALLY PAID UNDER THIS AGREEMENT FOR THE HARDWARE THAT GAVE RISE TO THE CLAIM, OR IF NO PAYMENT WAS MADE TO KENZEN, FIVE HUNDRED DOLLARS ($500.00). EXCEPT AS STATED IN THIS SECTION, ALL CLAIMS MUST BE MADE WITHIN THE PERIOD SPECIFIED BY APPLICABLE LAW. IF THE LAW ALLOWS THE PARTIES TO SPECIFY A SHORTER PERIOD FOR BRINGING CLAIMS, OR THE LAW DOES NOT PROVIDE A TIME AT ALL, THEN CLAIMS MUST BE MADE WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
- Trade Compliance. Customer’s use, evaluation and purchase (if applicable) of the Hardware and related technologies are for its own use, not for resale, export, re-export, or transfer. Customer shall comply with all United States export laws and regulations, including without limitation (i) the United States Bureau of Industry and Security (BIS) Export Administration Regulations (EAR); (ii) any other United States agency regulations that restrict export, re-exports and release of the Hardware and related technologies; and (iii) any export or import regulations applicable to the jurisdiction(s) where the Customer Site is located. Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory (including but not limited to North Korea, Cuba, Iran, Syria and Crimea) that is the subject or target of, economic sanctions of the United States or other applicable jurisdictions. Customer will not, directly or indirectly, export or re-export the Hardware or Related Technologies to entities listed on the most current United States export exclusions list, to any country subject to United States embargo or terrorist controls, and will not use or provide Hardware or Related Technologies in violation of the U.S. Arms Export Control Act (AECA) and the U.S. International Traffic in Arms Regulations (ITAR).