ACTO Evaluation Agreement

  1. * * * PLEASE READ CAREFULLY * * *

    This Evaluation Agreement ("Agreement") is a legally binding agreement between you and ACTO Technologies Inc., a company incorporated under the federal laws of Canada, with its principal place of business at 60 Atlantic Ave., Suite #200, Toronto, Ontario, Canada M6K 1X9 ("ACTO"). By logging in to the ACTO services, you acknowledge that (1) you are authorized to enter into this Agreement for and on behalf of your company, and are doing so, and (2) you have read and understand and agree that your company, or you, if you are acting in an individual capacity (“you” or the “Evaluator”), shall be bound by the terms and conditions of this Agreement and the limited warranty and limitation of liability set out in it, effective on the date you log in (the “Effective Date”).

    IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, do not log in or otherwise attempt to access the ACTO services or the related software.

    In consideration of the mutual covenants and undertakings contained herein, the parties agree as follows:

    1. Software as a Service (SaaS). For a term not to exceed the number of days set forth in the applicable Order Form, other written communication, or, if none is specified, 90 days (or a shorter period as ACTO may determine at any time, in its sole discretion), ACTO will provide Evaluator with ACTO’s a remotely hosted software as a service (SaaS) application specified in an Order Form or other written communication from ACTO, for evaluation purposes (collectively, the “ACTO Services”).

    2. License Terms

      (a) License Grant. Subject to the terms and conditions of this Agreement, ACTO grants to Evaluator a time-limited, non-exclusive, non-transferable worldwide right to permit Evaluator’s authorized employees and agents (“Users”) to access and use the ACTO Services solely for internal demonstration and evaluation purposes during the term set forth in Section 1. 

      (b) License Restrictions.
      (i) Generally.  Evaluator may not, and may not permit any User or other party to, (A) access the ACTO Services for purposes of monitoring its availability, performance or functionality, or for any other service benchmarking or competitive purposes; (B) make the ACTO Services available to anyone other than the authorized Users, or license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the ACTO Services in any way, without express prior written consent from ACTO; (C) modify or make derivative works based upon the ACTO Services or the software on which they operate (the “Software”), other than modifications to the Evaluator Content (defined below); (D) reverse engineer, decompile, disassemble the ACTO Services or the Software; or (E) use or access the ACTO Services in order to (I) build a competitive product or service, (II) build a product using similar ideas, features, functions or graphics of the ACTO Services, or (III) copy any ideas, features, functions or graphics of the ACTO Services.  The ACTO Services are licensed as individual User licenses and may be accessed only by the named Users.

      (c) Notice. Evaluator agrees to use commercially reasonable efforts to prevent the unauthorized access to and use of the ACTO Service. Evaluator agrees to promptly notify ACTO of any unauthorized access to or use of the ACTO Services and of any breach of these restrictions by Evaluator, Evaluator’s Users, or any third party of which Evaluator become aware.

      (d) Feedback. With respect to any technical or other information, including suggestions, enhancement requests, recommendations, feedback and computer code for modifications to, extensions of, or additional features or functionality for the ACTO Services or the Software (collectively, “Feedback”), Evaluator hereby assigns all right, title and interest in and to such Feedback, including without limitation all intellectual property rights therein, to ACTO.  Accordingly, Evaluator agree that ACTO has an unrestricted right to use such Feedback for its business purposes, including for product support and development.

    3. No Fees. Evaluator is not required to pay fees for the ACTO Services during the term of this Agreement.

    4. Consulting Services. During the term of this Evaluation Agreement, ACTO will use commercially reasonable efforts to provide the following consulting services to Evaluator: (a) work with Evaluator to set up filter options for the trial domain; (b) train Evaluator’s administrators on how to upload and curate content on the platform and how to deploy content to trial users; and (c) work with Evaluator to measure learning objective(s) throughout the term of the trial.

    5. Term and Termination.  This Agreement is effective for the period specified in Section 1 or until terminated earlier. The ACTO Services are terminable at any time by ACTO, without notice and for any reason or no reason. This license will terminate immediately without notice from ACTO or judicial resolution if Evaluator fails to comply with any provision of this Agreement.

    6. License & Ownership Rights: Software and Deliverables.

      (a) Software. ACTO alone (and its licensors where applicable) shall own all right, title and interest in and to the ACTO Services and the Software, including without limitation all enhancements, updates, derivative works and modifications thereto and all intellectual property rights therein and thereto.  All rights not expressly granted to Evaluator are reserved by ACTO and its licensors.  EVALUATOR MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL, DISTRIBUTE, NETWORK OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE, OR ANY PART THEREOF.  Evaluator may not release the results of any performance or functional evaluation of any Software to any third party without the prior written approval of ACTO for each such release. 

      (b) Evaluator Content. The ACTO Services may require or allow Evaluator to provide materials such as, but not limited to, data, client information, graphics, multimedia, text, video or other Evaluator specific information (“Evaluator Content”).  The Evaluator Content provided to ACTO or to the ACTO Services shall be owned by Evaluator. Evaluator grants to ACTO, and ACTO accepts from Evaluator, a non-exclusive, worldwide, royalty-free license to copy, display, store, use, transmit and display (including on and via the Internet) all of Evaluator Content, solely to the extent necessary to provide the ACTO Services to Evaluator in accordance with this Agreement. Evaluator, and not ACTO, shall have the sole responsibility for the accuracy, quality, integrity, reliability and appropriateness of all Evaluator Content.  ACTO will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Evaluator Content.  Upon termination of this Agreement for any reason, Evaluator’s right to access or use Evaluator Content via the ACTO Services will cease, and ACTO shall have no obligation to maintain or forward it, unless Evaluator has requested and ACTO has agreed to export Evaluator Content to Evaluator, and ACTO may, in its sole discretion, unless legally prohibited, delete all of Evaluator Content in ACTO’s systems or otherwise in ACTO’s possession or control.

      (c) Use of Evaluator Content. ACTO shall not use or distribute Evaluator Content to any third party without Evaluator’s prior written consent other than (i) to ACTO’s subcontractors who are bound by a similar duty of confidentiality as that contained herein and (ii) in conjunction with providing the ACTO Services to Evaluator.

    7. Proprietary Information and Confidentiality.

      (a) Each party agrees to hold in confidence any information that has been designated, either in writing or verbally, by the disclosing party as confidential information (“Proprietary Information”).  Proprietary Information will be maintained in confidence for the term of this Agreement and for a period of three (3) years thereafter.  All Proprietary Information will be returned by the receiving party to the disclosing party when it is no longer needed or at the termination of this Agreement, whichever comes first.

      (b) Proprietary Information does not include: (i) information rightfully in the possession of the receiving party prior to the disclosure by the disclosing party, (ii) information that becomes known to the general public through no act or omission of the receiving party and (iii) information that is lawfully disclosed to the receiving party by a third-party.

    8. No Warranty. Evaluator hereby expressly agrees that THIS IS A FREE TRIAL LICENSE, AND THEREFORE ACTO MAKES NO WARRANTY TO EVALUATOR OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THE ACTO SERVICES OR SOFTWARE AND DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  ACTO SHALL NOT BE LIABLE FOR LOST PROFITS, LOSS OF DATA OR ANY COLLATERAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND TO EVALUATOR OR ANY OTHER PARTY AS THE RESULT OF OR FOR ANY INCIDENT RELATING TO THE MANUFACTURE, DELIVERY, REPAIR OR USE OF ANY ACTO SERVICE OR SOFTWARE FURNISHED UNDER THIS AGREEMENT UNDER ANY CIRCUMSTANCES OR UNDER ANY THEORY OF RECOVERY WHETHER BASED ON CONTRACT, NEGLIGENCE OF ANY KIND, STRICT LIABILITY, TORT OR OTHERWISE.  UNDER NO CIRCUMSTANCES SHALL ACTO BE DIRECTLY OR INDIRECTLY LIABLE FOR PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND.

    9. Liability Disclaimer. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMMISSIONS OF A PARTY’S EMPLOYEES OR REPRESENTATIVES, CULPABLE NEGLIGENCE, OR WILLFUL MISCONDUCT.

    10. General.
      (a) All notices and consents required to be given or made by the parties shall be deemed properly made if mailed, postage prepaid, to the addresses first written above, or such other address established by notice hereunder, and, in the case of Evaluator, to the address provided by Evaluator, and in the case of ACTO, to the attention of the Vice President, Finance.

      (b) This Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of laws provisions. The Parties agree that all matters related to this Agreement, or any dispute between the Parties, shall attorn to the exclusive jurisdiction of the courts in the State of Delaware.

      (c) This Agreement constitutes the entire agreement between the parties and may only be amended or modified in writing by the duly authorized representatives of the parties.  If any provision of this Agreement is found to be invalid as a matter of law, there will be no impact on the validity of the remaining provisions of this Agreement.  The provisions of Sections 2(b), 2(c), 5, 6, 7, 8 and 9 of this Agreement shall survive any expiration or termination of this Agreement.  The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.