1.1 “Trial Period” means the period commencing on the Effective Date and ending on the date that is three (3) days thereafter.
1.2 “Product” means the Services and all associated documentation provided with the Services (if any) (“Documentation”), collectively.
2. Scope of Agreement.
This Agreement is between You and KatanaGraph and governs Your use of the Product for evaluation use only. If You wish to obtain a production license, support or other services, You should contact KatanaGraph to obtain the applicable terms and conditions. The Services are not intended for use in a production or commercial operating environment or with production data. Before using the Services, You should back up all of Your data that You may input into the Product and regularly back up Your data while using the Services.
Subject to the terms and conditions of this Agreement, KatanaGraph grants You a non-exclusive, non-transferable, limited license (without the right to sublicense), solely for the Trial Period, to (i) access and use the Product solely for internal evaluation purposes as necessary to determine the feasibility of using the Services and the feasibility of using KatanaGraph software; (ii) use all associated Documentation in connection with such authorized use of the Services; and (iii) make one copy of the Documentation solely for archival and backup purposes. Your use of any third party software included in the Services is subject to the applicable third party license terms.
Except as expressly permitted in this Agreement, You shall not, and shall not permit any third party to: (i) copy, reverse engineer, reverse assemble, or otherwise attempt to discover the source code of all or any portion of the Product; (ii) reproduce, modify, translate or create derivative works of all or any portion of the Product; (iii) assist any third party to gain access, license, sublicense, resell distribute, assign, transfer or use the Product; (iv) remove or destroy any proprietary notices contained on or in the Product or any copies thereof; or (v) publish or disclose the results of any benchmarking of the Products, or use such results for Your own competing services development activities, without the prior written permission of KatanaGraph.
5. Disclaimer of Warranty.
YOU AGREE THAT KATANAGRAPH AND ITS LICENSORS PROVIDE THE PRODUCTS ON AN “AS IS” AND “WHERE-AS” BASIS. NEITHER KATANAGRAPH NOR ITS LICENSORS MAKE ANY WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE PRODUCT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND KATANAGRAPH AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Intellectual Property Rights and Feedback.
All rights, title and interest in and to the Product and any improved, updated, modified or additional parts thereof, shall at all times remain the property of KatanaGraph or its licensors. Nothing herein shall give or be deemed to give You any right, title or interest in or to the same except as expressly provided in this Agreement. KatanaGraph reserves all rights not expressly granted herein. You agree to make reasonable efforts to provide KatanaGraph with oral feedback and/or written feedback related to Your use of the Product, including, but not limited to, a report of any errors which You discover in the Services or related Documentation. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by You to KatanaGraph concerning the Product and any information reported automatically through the Product to KatanaGraph (“Feedback”) will be the property of KatanaGraph. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to KatanaGraph and agree to assist KatanaGraph, at KatanaGraph’s expense, in perfecting and enforcing such rights.
7. Limitation of Liability; Allocation of Risk.
7.1 Limitation of Liability.
NEITHER KATANAGRAPH NOR ITS LICENSORS SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT OR DATA OR ANY ACTUAL OR ANTICIPATED DAMAGES, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF KATANAGRAPH OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, IF DUE TO THE ACTS OR OMISSIONS OF ITS THIRD PARTY HOSTING PROVIDERS. IN NO EVENT SHALL KATANAGRAPHâ€™S DIRECT DAMAGES EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS (US $100.00). ADDITIONALLY, IN NO EVENT SHALL KATANAGRAPHâ€™S LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND.
7.2 Allocation of Risk.
You and KatanaGraph agree that the foregoing Section 7.1 on limitation of liability and the Section 5 above on warranty disclaimers fairly allocate the risks in the Agreement between the parties. You and KatanaGraph further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations specified in this Section 7 shall apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.
“Confidential Information” means any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, the Product and any non-public technical and business information. Confidential Information does not include information that (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure. You and KatanaGraph will maintain the confidentiality of Confidential Information. The receiving party of any Confidential Information of the other party agrees not to use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party’s Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event shall use less than reasonable care. The receiving party may disclose the Confidential Information of the disclosing party if required by judicial or administrative process, provided that the receiving party first provides to the disclosing party prompt notice of such required disclosure to enable the disclosing party to seek a protective order. Upon termination or expiration of this Agreement, the receiving party will, at the disclosing party’s option, promptly return or destroy (and provide written certification of such destruction) the disclosing party’s Confidential Information.
9. YOUR DATA.
10. Term and Termination.
Upon the expiration of the Trial Period unless otherwise extended in writing by KatanaGraph in its sole discretion, this Agreement terminates and unless You and KatanaGraph have entered into a subsequent written license agreement You must cease use of the Product.
You may terminate this Agreement at any time by ceasing use of the Product. This Agreement will terminate immediately upon written notice via email from KatanaGraph if You fail to comply with any provision of this Agreement. Except for Section 3 (“License”) all Sections of this Agreement shall survive termination for a period of three (3) years from the date hereof. On termination of this Agreement, KatanaGraph will destroy all of Your data that You submit through the Services and You will no longer be able to access or extract Your data from the Services.
11. Government End Users.
The Product provided under this Agreement is commercial computer software programs developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to You), the Product licensed in this Agreement is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to You), any use, modification, reproduction, release, performance, display, or disclosure of such commercial Product or commercial Product documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
12. No Export.
You agree and certify that neither the Product nor any other technical data received from KatanaGraph, nor the direct product thereof, will be exported outside the United States or re-exported except as authorized and as permitted by the laws and regulations of the United States and/or the laws and regulations of the jurisdiction, (if other than the United States) in which You rightfully obtained the Product.
13. General Provisions.
All notices permitted or required under this Agreement to KatanaGraph shall be in writing and shall be delivered by personal delivery, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. This Agreement shall be governed by the laws of the State of California, U.S.A. without regard to conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of this Agreement shall not be affected thereby. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement may not be assigned, sublicensed or otherwise transferred by either party without the other party’s prior written consent except that either party may assign this Agreement without the other party’s consent to any entity that acquires all or substantially all of such party’s business or assets, whether by merger, sale of assets, or otherwise, provided that such entity assumes and agrees in writing to be bound by all of such party’s obligations under this Agreement. In the event any judicial proceeding, lawsuit or claim is brought by one party against the other party in connection with this Agreement, the prevailing party shall be entitled to recover its reasonable fees and costs, including but not limited to attorneys’ fees, expert witness fees, consultant fees, and related costs and expenses. This Agreement constitutes the parties’ entire understanding regarding the Product, and supersedes any and all other prior or contemporaneous agreements, whether written or oral.
KatanaGraph may change the Agreement by posting a revised version of the Agreement on the KatanaGraph website, providing you notice or receiving your online acceptance of a revised version provided via the KatanaGraph website. The modified terms will be effective upon the posting, notice or online acceptane respectively. By continuing to use the Product after the date of modification, you agree to be bound by the modified terms.
Last updated June 2, 2020