google-site-verification=_RwcM4MItQC0-JHm56TSvjfn6brmCQF7rt4USbkrEro

30 Day SAAS EVALUATION TERMS & CONDITIONS

In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. Definitions. Any defined term which is not defined herein shall have the meaning set forth in the Data Form. For the purposes of this Agreement, the following terms have the following meanings:

“Authorized User” means employees of Customer identified by Customer’s listed in Data Form, each of whom is authorized to use the Services solely for the benefit of Customer in accordance with the terms and conditions of this Agreement.

“Confidential Information” means all non-public, proprietary, or confidential information of or relating to either party or its respective business, disclosed to the other party or its Representatives in oral, visual, written, electronic, or other tangible or intangible form, derived from, in whole or in part, whether or not marked or designated as “confidential,” including, but not limited to, the Evaluation Materials or either party’s (a) patented or other unpatented inventions, ideas, methods, processes, discoveries, know-how, trade secrets, unpublished patent applications, invention disclosures, invention summaries, technology, business operations, plans, strategies, and other confidential intellectual property; (b) all other designs, specifications, documentation, components, software, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; and (c) support materials, collateral, technical or functional descriptions, training materials, maintenance releases and software patches, upgrades, error corrections of any kind, customers, customer information, and other notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and all other materials disclosed to the Receiving Party or its Representatives, in whole or in part. Confidential Information also shall mean all notes, analyses, summaries, and other materials prepared by either party or any of its respective Representatives that contain, are based on, or otherwise reflect, to any degree, any of the foregoing; provided, however, that Confidential Information does not include any information that: (i) is or becomes publicly available through no breach of this Agreement; (ii) acquired by it from a third party which is not, to the Receiving Party’s knowledge, under an obligation not to disclose such information; (iii) was in either party’s or its respective Representatives’ possession, as established by documentary evidence, before either party’s disclosure hereunder; or (iv) independently developed by it or for it without the use of confidential information, as established by documentary evidence.  Confidential Information also includes: (x) the fact that the parties are in discussions regarding this Agreement and that Confidential Information has been disclosed; and (y) any related terms, conditions, or arrangements discussed.

“Designated Site” means the Customer’s facilities set forth in the Data Form.

“Documentation” means all user manuals, operating manuals, technical manuals, design documents and any other instructions, specifications, documents or materials, in any form or media, that describe the functionality, structure, installation, testing, operation, use, maintenance, support, technical or other components, features or requirements of the Services.

“Evaluation Materials” means the Services in object code form and the Documentation, and any and all (a) copies, reproductions, modifications, enhancements,  adaptations, translations and other derivative works of, and (b) inventions, improvements, know-how, specifications, performance characteristics, designs, plans, methods, procedures, processes, techniques, software, technology, concepts, information or materials whatsoever (other than Usage Data) comprising, relating to, based on or arising out of, the Services or Documentation, in whole or in part and however and by whomever originated, including, without limitation, by any technology or device or by Crosscode, Customer, an Authorized User or any other Person.

“Intellectual Property Rights” means any and all intellectual property rights in any part of the world, whether registered or unregistered, and all registrations, applications, renewals, extensions and other government issued indicia of ownership thereof, including, but not limited to, rights comprising or relating to: (a) patents, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with the goodwill associated therewith; (c) copyrights and copyrightable works (including, but not limited to, computer programs), and rights in works of authorship, data and databases; (d) trade secrets, know-how and other confidential information; and (e) all similar or equivalent rights or forms of protection.

“Lab Environment” means Customer’s dedicated system(s) or server(s) which operate independently as a stand-alone environment isolated from all outside processes for the sole purpose of testing, benchmarking, and/or evaluating the Services pursuant to this Agreement.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, subpoena, common law, judgment, decree, or valid legal order or other requirement or rule of law of any federal, state, local or self-governing organization, foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Master SaaS Agreement” or the “Master Agreement” means the agreement that supersedes this Evaluation Agreement upon the Roll-Over Date (as defined below).

“Permitted Use” means the testing, demonstration, trial and other evaluative (but not any developmental or productive) use of the Services, including, but not limited to, the assessment of the Services’ compatibility with the Customer’s System, by an Authorized User for the benefit of Customer solely for the purpose of Customer’s evaluation of the Services to determine whether Customer will enter into the Master SaaS Agreement.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

“Process” means to perform any operation or set of operations on any data, information, material, work, expression or other content, including, without limitation, to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other improvements or derivative works, (b) process, retrieve, generate, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (c) block, erase or destroy. “Processing” and “Processed” have correlative meanings.

“Services” means offering of Crosscode Panoptics as permitted under this Agreement, but expressly excludes any CS Plug-In raw data.

“System” means Customer’s information technology infrastructure, including, but not limited to, the computers, software, databases, database management and other electronic systems and networks on or with which the Services is licensed for use pursuant to this Agreement, as described in the Data Form.

“Territory” means the United States, unless otherwise specified in the Data Form.

“Usage Data” means all data, information, materials and other content of any type and in any format, medium or form, whether audio, visual, digital, screen, GUI or other, that is Processed by, for or on behalf of Customer by or through any device, system or network, including, but not limited to, any and all works, inventions, data, analyses and other information and materials resulting from any use of the Evaluation Materials by Customer or any Authorized User under or in connection with this Agreement, except that Usage Data does not include any Evaluation Materials or any data, information or content, including, but not limited to, any GUI, audio, visual or digital or other display or output, that is generated automatically upon executing the Services without additional user input.  All output, copies, reproductions, improvements, modifications, adaptations, translations and other derivative works of, based on, derived from or otherwise using any Usage Data are themselves Usage Data.

  1. Evaluation License.
    • License Grant. Subject to and conditioned upon the Customer’s compliance with the terms and conditions of this Agreement, Crosscode hereby grants Customer a limited, personal, nonexclusive, nontransferable, non-sublicensable license to use the Services and Documentation in the Territory solely for the Permitted Use of the Services on the System during the Term (the “Evaluation License”), including, but not limited to, the rights to install, execute and run the Services on the Authorized Server(s) by the Authorized User(s) at the Authorized Site(s).
    • No Technical Support. Crosscode has no obligation under this Agreement to provide any maintenance, support or other services relating to the Services. Customer is solely responsible for taking appropriate measures to back up Customer’s System and data and all other necessary measures to prevent any file or data loss.
  2. Customer Use.
    • Use Restrictions. Customer shall not, and shall not permit others to:
      • use, evaluate, implement, test, and/or run the Services, in whole or in part, on any systems or servers other than in a dedicated Lab Environment.
      • copy Evaluation Materials, in whole or in part;
      • modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Evaluation Materials;
      • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or other Evaluation Materials to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
      • reverse engineer, disassemble, decompile, decode, or adapt the Services, or otherwise attempt to derive or gain access to the source code of Evaluation Materials, in whole or in part;
      • bypass or breach any security device or protection used for or contained in the Services or other Evaluation Materials or access or use the Services or other Evaluation Materials other than by an Authorized User;
      • remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Services or other Evaluation Materials;
      • input, upload, transmit, or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;
      • damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, in whole or in part;
      • access or use the Services or other Evaluation Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates the Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Crosscode customer or third-party supplier), or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law;
      • access or use the Services or other Evaluation Materials for purposes of: (1) developing, using or providing a competing software product or service; or (2) any other purpose that is to Crosscode’s detriment or commercial disadvantage;
      • access or use the Services or other Evaluation Materials in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services or other Evaluation Materials could lead to personal injury or property damage; or
      • access or use the Services or other Evaluation Materials beyond the scope of the authorization granted under this Agreement; or
      • access or use the Services other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this Agreement.
    • Customer Obligations. Customer shall:
      • comply, and procure the compliance of all Authorized Users, with all terms and conditions of the controlling Licenses;
      • not incorporate any code or other components into the Services or take or permit any steps that would cause the Services to be subject to any license or other obligations associated with open-source or other third-party licenses, or Customer’s work-for-hire mandates or obligations, other than such obligations as arise from the Evaluation Materials as provided by Crosscode and used in accordance with the terms and conditions of this Agreement; and
      • throughout the Term, maintain within its organization a “Service Manager” to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement with Crosscode. Each Service Manager shall be responsible for providing all day-to-day consents and approvals on behalf of Customer under this Agreement.  Customer shall ensure its Service Manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity.  Customer’s Service Manager shall be identified herein or otherwise in writing.
  1. Delivery and Installation.
    • Within ten (10) days after the parties’ execution and delivery of this Agreement, Crosscode shall deliver and install the Evaluation Materials by such means as are reasonable and appropriate, including, where appropriate, via the internet or other electronic media, or by such other means as the parties may agree to in writing. Risk of loss of any tangible media on which any copy of the Services is delivered shall pass to the Customer upon Customer’s receipt of such copy of the Services at a Designated Site or another location designated in writing by the parties.
    • Crosscode, however, reserves the right, in its sole discretion, to make any changes during the Term to the Evaluation Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Crosscode’s services to its customers, (ii) the competitive strength of or market for Crosscode’s services, or (iii) the Services’ performance; or (b) to comply with applicable Law.
  2. Ownership.
    • Ownership of Evaluation Materials. Subject solely to the express license granted by Crosscode under this Agreement, as between the parties, Crosscode reserves and retains all right, title and interest in and to the Services and Evaluation Materials and Crosscode’s other Confidential Information, including the sole and exclusive ownership of all Intellectual Property Rights relating thereto. Customer shall and hereby does, and shall cause each of its Authorized Users to, unconditionally and irrevocably assign to Crosscode, the entire right, title and interest that Customer or such Authorized User may have or acquire in any Evaluation Materials or any of Crosscode’s Confidential Information, including the sole and exclusive ownership of all Intellectual Property Rights relating thereto.
    • Ownership of Usage Data. Customer has, reserves and retains all right, title and interest in and to the Usage Data and Customer’s other Confidential Information, including the sole and exclusive ownership of all Intellectual Property Rights relating thereto.
    • Rights in Any Open-Source Components. Ownership of all Intellectual Property Rights in any open-source components found in the Evaluation Materials remain with the respective owners thereof, subject to Crosscode’s and Customer’s respective rights and licenses under any applicable open-source licenses.
    • No Implied Rights. Nothing contained in this Agreement will be construed as granting, by implication, waiver, estoppel or otherwise: (a) Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Evaluation Materials or Crosscode’s Confidential Information, except for the limited rights and licenses expressly granted to Customer and its Authorized Users pursuant to this Agreement; or (b) Crosscode or any third party any Intellectual Property Rights or other right, title or interest in or to any of the Usage Data.
    • Proprietary Notices. Customer shall not remove from, and shall cause to be affixed to or otherwise displayed in connection with, any copies of the Evaluation Materials made by or on behalf of Customer all copyright and other Intellectual Property Rights notices contained in the Evaluation Materials as received from Crosscode.
  3. Confidentiality.
    • Confidentiality and Use. Each party acknowledges that in connection with this Agreement such party may gain access to Confidential Information of the other party (the “Disclosing Party”). As a condition to being provided with such Confidential Information, the party receiving the Confidential Information (the “Receiving Party”) agrees, for a period of three (3) years after the Effective Date, to:
      • not use the Disclosing Party’s Confidential Information other than as strictly necessary to exercise its rights or perform its obligations under this Agreement;
      • not use any of the Disclosing Party’s Confidential Information, directly or indirectly, in any manner to the detriment of the Disclosing Party or to obtain any competitive advantage relative to the Disclosing Party; and
      • notify the Disclosing Party in writing immediately of any unauthorized accessing, possession or use of the Disclosing Party’s Confidential Information of which it may become aware and cooperate fully with the Disclosing Party in any investigation or litigation relating to or arising from any of such unauthorized acts.

Neither party shall use or disclose to any other person or entity (other than its respective affiliates, and its or their officers, directors, agents, employees, accountants, and lawyers (collectively, “Representatives”) who: (a) need to know such Confidential Information for the purpose of this Agreement; (b) know of the existence and terms of this Agreement; and (c) are bound by written confidentiality agreements or obligations no less protective of the Confidential Information than the terms contained herein) confidential information relating to this Agreement furnished on or after the Effective Date by the other Party, either orally or in writing.  The Receiving Party shall use, and ensure that its Representatives use, reasonable care, at least as protective as the efforts it uses with respect to its own confidential information, to safeguard the Disclosing Party’s Confidential Information from use or disclosure other than as permitted hereby.

  • Exceptions. If either party or respective Representative is required by applicable Law to disclose any Confidential Information, either party shall, before such disclosure, promptly notify the other party in writing of such disclosure request so that they may petition for or seek protective concealment, oppose such disclosure, or seek other remedy, and the party having to disclose shall reasonably assist the other party therewith. If a party remains legally compelled to make such disclosure, it shall: (a) only disclose that portion of the Confidential Information that, in the written opinion of its outside legal counsel, the party is required to disclose; and (b) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment.
  • Return of Confidential Information. Any information or other property furnished to a party by the other party, including all copies thereof and materials incorporating such Confidential Information, whether in physical or electronic form, except that one copy may be retained in the files of the Receiving Party’s legal counsel, for recordkeeping purposes only, subject to the terms and conditions of this Agreement, shall be returned or destroyed (certifying such destruction in a signed writing) to the Disclosing Party upon demand.  Nothing in this Agreement prohibits or limits a party’s use of information (including but not limited to ideas, concepts, know-how, techniques, and methodologies).
  1. Fees.
    • Evaluation Fee. There is no charge for the Evaluation License, or any authorized use by Customer or any Authorized User of the Evaluation Materials pursuant to the Evaluation License, during the Term.
    • Post-License Fee. If (i) a party does not explicitly terminate this Evaluation Agreement before the end of the Term, or (ii) the parties do not mutually extend this Agreement in writing, Customer will automatically be subject to the fees set forth in the Master Agreement.
  2. Term, Termination, and Extension.
    • Term. This Agreement commences as of the Effective Date and will continue in effect for 30 days or until the expiration of the Term and any extensions thereof unless terminated earlier pursuant to any of its express provisions (the “Term”).
    • Termination.
      • Either party may terminate this Agreement at any time without cause, and without incurring any obligation, liability or penalty by reason of such termination, on giving the other party at least five (5) days’ prior written notice of such termination. Crosscode may also, without any resulting obligation, liability or penalty, deactivate the Services at any time before or after the expiration of the Term or the expiration or termination of this Agreement, which deactivation shall constitute notice to Customer of the termination of this Agreement.
      • Either party may terminate this Agreement effective upon written notice to the other party if the other party breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured five (5) days after the breaching party receives written notice thereof.
      • Either party may terminate this Agreement in the event of a claim that any Evaluation Materials or use of any Evaluation Materials infringes the rights of a third party.
    • Extension. A party may extend the Term of this Evaluation Agreement, subject to Crosscode’s sole written consent, (an “Extension Period”).
    • Roll-Over. If Customer does not terminate this Evaluation Agreement before the Roll-Over Date pursuant to Section 8.2 herein, or extend this Agreement pursuant to Section 8.3, Customer shall be bound by the terms and conditions of the Master Agreement, and subject to the fees thereunder, whereupon the terms and conditions of the Master Agreement shall supersede any and all conflicting terms and conditions of this Evaluation Agreement.  The date following the last day of the Term of which Customer has not terminated this Evaluation Agreement shall be deemed the “Roll-Over Date.
    • Effect of Expiration or Termination. Upon the expiration of the Term or the termination of this Agreement, if Customer terminates this Evaluation Agreement before the end of the Term, Customer shall:
      • immediately discontinue all use of and permanently destroy, erase or cause to be erased from its and its Authorized Users’ computer systems, files and storage media all copies of the Evaluation Materials and other Confidential Information of Crosscode obtained, made or authorized to be made by Customer or on Customer’s behalf;
      • within five (5) days after such expiration or termination, return or cause to be returned to Crosscode or, with Crosscode’s written approval, destroy or cause to be destroyed all copies obtained, made or authorized to be made by Customer or on Customer’s behalf of documents and tangible materials containing, reflecting, incorporating or based on the Evaluation Materials or any other Confidential Information of Crosscode, and certify in writing to the Crosscode that it has complied with the requirements of this Agreement.
  1. Representations and Warranties.
    • Disclaimers.
      • THE SERVICES MAY CONTAIN AND CROSSCODE MAY ACTIVATE AND USE, WITHOUT ANY RESULTING OBLIGATION OR LIABILITY TO CUSTOMER OR ANY THIRD PARTY, A DISABLING DEVICE OR ENCODED COMMANDS THAT WILL PREVENT THE SOFTWARE FROM BEING USED BY UNAUTHORIZED USERS, FOR UNAUTHORIZED PURPOSES OR AFTER THE TERM. CUSTOMER SHALL NOT TAMPER WITH THIS DISABLING DEVICE OR CODE.
      • EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF.
      • THE EVALUATION MATERIALS ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CROSSCODE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE, OR THAT ANY SERVICES OR OTHER EVALUATION MATERIALS WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICES’ OPERATION WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE OR SUITABLE FOR THE PARTICULAR NEEDS OF CUSTOMER OR ANY INTENDED USER OR THIRD PARTY.
      • CUSTOMER REPRESENTS, WARRANTS AND COVENANTS THAT IT IS ENTERING INTO THIS AGREEMENT AND INTENDS TO USE THE EVALUATION MATERIALS SOLELY AS A BONA FIDE CUSTOMER OF CROSSCODE AND THAT CUSTOMER WILL NOT USE OR CAUSE OR PERMIT OTHERS TO USE THE EVALUATION MATERIALS, IN WHOLE OR IN PART, TO DEVELOP, DISTRIBUTE, PROVIDE OR USE ANY PRODUCT OR SERVICE THAT COMPETES WITH THE SERVICES, OR IN OR FOR ANY PURPOSE, MANNER OR APPLICATION THAT DISADVANTAGES CROSSCODE OR CROSSCODE’S BUSINESS OR OPERATIONS.
  1. Limitations of Liability.
    • Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CROSSCODE, ITS DEVELOPERS OR SUPPLIERS BE LIABLE FOR ANY LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA, LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, PRODUCTION, GOODWILL OR ANTICIPATED SAVINGS, OR BUSINESS INTERRUPTION OR OTHER COMMERCIAL, PERSONAL, ECONOMIC OR OTHER DAMAGES, LOSSES OR INJURY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF, INCLUDING, WITHOUT LIMITATION, ANY USE OF OR INABILITY TO USE THE SERVICES OR OTHER EVALUATION MATERIALS, IN WHOLE OR IN PART, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES OR INJURIES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
    • CAP ON MONETARY LIABILITY. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT WILL CROSSCODE’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE OF AMOUNTS PAID FOR THIS TRIAL TO CROSSCODE UNDER THIS AGREEMENT.
    • Exceptions. The exclusions of damages and limitations of liability set forth in this Section 10 do not apply to a party’s obligations under Section 5 (Ownership); Section 6 (Confidentiality); Section 14 (Attorneys’ Fees); or to the extent damages or liabilities are covered by a party’s insurance.
  2. Indemnification.
    • Customer Indemnification. Customer shall indemnify, defend, and hold harmless Crosscode (a “Crosscode Indemnitee“) from and against any and all losses incurred by such Crosscode Indemnitee resulting from any action by a third party (other than a Representative of a Crosscode Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
      • Customer systems or Customer data, including any processing of Customer data by or on behalf of Crosscode in accordance with this Agreement;
      • any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Crosscode’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Crosscode;
      • Customer’s or Customer Representatives or other Persons’ breach of any applicable Law or its representations, warranties, covenants, or obligations under this Agreement;
      • modification of the Services or other Evaluation Materials by Customer other than: (i) by Crosscode personnel in connection with this Agreement; or (ii) with Crosscode’s express written authorization and in strict accordance with Crosscode’s written directions and specifications;
      • incorporation, combination, operation, or use of the Services or other Evaluation Materials by Customer with any good, service, technology, or other matter whatsoever (including any software, hardware, firmware, system, or network) that is neither provided by Crosscode nor expressly authorized by Crosscode in this Agreement, documentation or specifications; and
      • negligence or more culpable abuse, misuse, act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, other Person, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
    • Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense.  The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense.  The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.  The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.  The Indemnitor shall not settle any action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed.  If the Indemnitor fails or refuses to assume control of the defense of such action, the Indemnitee shall have the right, but no obligation, to defend against such action, including settling such action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate.  The Indemnitor’s failure to perform any obligations under this Section will relieve the Indemnitor of its obligations hereunder, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
    • SOLE REMEDY. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND CROSSCODE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND EVALUATION MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
  3. Infringement. If Customer is notified by a third party that such party claims rights in any Evaluation Materials or that any use of any Evaluation Materials infringes any right of that third party, Customer shall immediately notify Crosscode and, at Crosscode’s request, immediately cease all such use of all such Evaluation Materials. If Crosscode is, or determines that it cannot or should not otherwise allow Customer to continue evaluating the Services because of such claim, either party may terminate this Agreement immediately on written notice to the other party without any resulting obligation or liability to the other party by reason of such termination.
  4. Compliance with Laws/Export Control.
    • Crosscode makes no claims concerning whether the Services may be downloaded, viewed, or be appropriate for use outside of the United States. If Customer or its Authorized Users access the Services or other Evaluation Materials from outside of the United States, Customer does so at its own risk.  Whether inside or outside of the United States, Customer is solely responsible for ensuring compliance with applicable Laws.
    • Evaluation Materials may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or related documentation to, or make the Services or related documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.  The Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or related documentation available outside the US.  In particular, but without limitation, the Services and other Evaluation Materials may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.  By using the Services and other Evaluation Materials, Customer represents and warrants that it is not located in any such country or on any such list.
  5. References. In consideration for use of the Services, (a) Crosscode may use Customer’s name and/or logo(s) in marketing collateral, websites, and client lists, and (b) Customer shall supply references on Crosscode’s behalf, if so requested.  Customer hereby grants to Crosscode a limited, non-transferable, non-assignable license to use Customer’s name and logo(s) in connection with the foregoing.
  6. Miscellaneous.
    • Survival. The rights and obligations of the parties set forth in this Section 15.1 (Survival) and Section 1 (Definitions), Section 5 (Ownership), Section 6 (Confidentiality), Section 3 (Effect of Expiration or Termination), Section 9 (Disclaimer of Warranty), Section 10 (Limitations of Liability), Section 12 (Infringement), Section 14 (References) and Section 15 (Miscellaneous), and any right, obligation or required performance of the parties in this Agreement which by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
    • Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, exclusivity or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    • Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties as specified in the Data Form. Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (in each case, with confirmation of transmission), if sent during normal business hours of the recipient, and on the next business day, if sent after normal business hours of the recipient; or (d) on the fifth (5th) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
    • Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes any and all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter.
    • Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
    • Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Crosscode’s prior written consent. Any purported assignment, delegation or transfer in violation is void ab initio. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
    • Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Crosscode may, without Customer’s consent, include Customer’s name and other indicia in its lists of Crosscode’s current or former customers of Crosscode in promotional and marketing materials.
    • No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
    • Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
    • Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or related to this Agreement or the Evaluation License granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.  Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
    • Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury with respect to any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
    • Equitable Remedies. Customer acknowledges and agrees that (a) a breach or threatened breach by Customer of any of its obligations under this Agreement would give rise to irreparable harm to the Crosscode for which monetary damages would not be an adequate remedy, and (b) in the event of a breach or a threatened breach by Customer of any such obligations, Crosscode shall, in addition to any and all other rights and remedies that may be available to Crosscode at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including, but not limited to, a temporary restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security or to prove actual damages or that monetary damages will not afford an adequate remedy. Customer agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Agreement.
    • Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable/actual attorneys’ fees and court costs from the non-prevailing party.
    • Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
    • Non-Solicitation. During the Term and for one (1) year after, Customer shall not, and shall not assist any other Person, directly or indirectly, to recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Crosscode or any subcontractor and involved in any respect with the Services or the performance of this Agreement. In the event of a violation of this Section, Crosscode will be entitled to liquidated damages equal to the compensation paid by Crosscode to the applicable employee or contractor during the prior twelve (12) months.