This Hosted On-Demand Trial Agreement (this “Agreement”) is entered into and effective on the day the online form has been completed (the “Effective Date”), by and between ClearSky Data, Inc., with offices at 100 Summer Street, 9th Floor, Boston, MA 02110 (“ClearSky”) and the client who has registered for the Hosted On-Demand Trial online. (“Customer”).
- Hosted On-Demand Trial Engagement. ClearSky and Customer have agreed to cooperate on an evaluation of ClearSky’s storage managed service offering (the “Service”) as described in Exhibit A. ClearSky grants Customer a non-exclusive, nontransferable subscription license to access and use the Service for Customer’s internal evaluation purposes during the Evaluation Term. Customer shall not copy, modify, decompile, reverse engineer, attempt to expose the source code or recreate any software which forms a part of the Services. Customer shall have the right to use the Service with certain of Customer’s software and/or data (“Customer Data”) if necessary as part of Customer’s evaluation. ClearSky will use any Customer Data, if applicable, solely for the evaluation. Due to the risk of loss and corruption of data, Customer will not use any production or critical data in the evaluation. Customer shall not modify, copy, reverse engineer or attempt to recreate the software which forms a part of the Service.
- Term and Termination. The term of the evaluation shall last for two weeks. The parties can mutually agree to extend the evaluation term in writing (email is sufficient). The initial evaluation term and any mutually agreed upon extension shall be referred to herein as the “Evaluation Term.” ClearSky may suspend Customer’s right to access or use the Services immediately upon notice if ClearSky determines that Customer’s use of the Services poses a material security risk or may materially adversely affect the Services. Either party may terminate the evaluation or this Agreement for any reason upon ten (10) days’ notice. Upon any termination of this Agreement, Sections 3 - 8 of this Agreement shall survive.
- Intellectual Property Rights. Customer acknowledges and agrees that ClearSky retains and shall retain all rights, title, ownership and interest in and to (i) the Service and Services platform and, including, without limitation, any equipment, software and data forming a part thereof (but excluding any Customer Data, if applicable) and all related documentation, (ii) all improvements, modifications and derivative works thereof, and (iii) all patent, copyright, trade secret, trademarks and other intellectual property rights pertaining to any and all of the foregoing (collectively as the “ClearSky Property”). Ownership of Customer Data, if any, supplied by Customer in connection with the evaluation shall remain with Customer.
- Confidentiality. For purposes hereof, “Confidential Information” shall mean the confidential and proprietary information relating to a party or its affiliates, or their personnel or the third parties with whom they do business, which is disclosed or made available by the disclosing party or its affiliates, whether in written, oral, electronic or visual form, which is identified as confidential at the time of disclosure or should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including without limitation information relating to their business, operations, finances, technologies, products and services, pricing, personnel, customers and suppliers ,and expressly includes, without limitation, (i) with regard to Customer, the Customer Data and Customer computer systems and (ii) with regard to ClearSky, the ClearSky Property. The receiving party will retain in confidence, using the same degree of care and discretion (but not less than reasonable care), to avoid disclosure, publication or dissemination of the disclosing party’s Confidential Information as it uses with its own information of a similar nature, and shall use the disclosing party’s Confidential Information solely for the purposes described in this Agreement or as otherwise authorized in writing by the disclosing party. Except as authorized in this Agreement, the receiving party will not disclose the Confidential Information of the disclosing party to any third party other than to its personnel, subcontractors, agents or advisors who have a need to know in connection with its performance of this agreement and have agreed to protect such information. Confidential Information shall not include information that (a) is publicly known at the time of disclosure, (b) is lawfully received from a third party not bound in a confidential relationship with the disclosing party, (c) is published or otherwise made known to the public by the disclosing party, or (d) was or is generated independently without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information to the extent such disclosure is required to be disclosed by law or pursuant to a court order provided that it provides the disclosing party with prior written notice. The obligations set forth in this Section 4 shall continue following termination of this Agreement.
- Security Measures. Without limiting any other obligations hereunder, ClearSky shall establish and maintain generally accepted industry best practices systems security measures as well as administrative, physical and technical safeguards designed to guard against the destruction, loss, or alteration of Customer Data.
- Termination Obligations. Each party shall destroy using industry standard methods all copies of the party’s Confidential Information in its possession or, upon request, shall return any tangible confidential information of the other party. Upon request, the receiving party shall confirm the destruction or return in writing.
- WARRANTY DISCLAIMER; LIABILITY OF LIMITATION. CLEARSKY PROVIDES THE SERVICES ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. CLEARSKY SHALL NOT HAVE ANY LIABILITY OR OBLIGATION FOR DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION OR TYPE OF DAMAGE, INCLUDING BUT NOT LIMITED TO ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL AND INCIDENTAL DAMAGES, ARRISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF CLEARSKY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- General. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts. The terms and conditions of this Agreement provide the complete understanding of the parties and supersede all previous agreements, proposals or representations related to the subject matter hereof. Any waiver, amendment, or modification of any right or remedy, in whole or in part under this Agreement will not be effective unless expressly agreed to in writing and signed by the authorized representatives of both parties.