Proof of Concept
Proof of Concept Agreement
THIS PROOF OF CONCEPT AGREEMENT APPLIES TO THE PROPRIETARY COMPUTER PROGRAMS AND ALGORITHMS MADE AVAILABLE FOR DOWNLOAD HEREUNDER (“POC SOFTWARE”) BY INCODE TECHNOLOGIES, INC. (“INCODE”) TO YOU AND YOUR EMPLOYER OR THE COMPANY OR ENTITY THAT YOU REPRESENT (“COMPANY”). BY CLICKING THE CHECKBOX AND THE “[ACCEPT]” BUTTON, COMPANY UNCONDITIONALLY CONSENTS TO BE BOUND BY AND A PARTY TO THIS AGREEMENT. IF COMPANY DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THE AGREEMENT, DO NOT CLICK THE “[ACCEPT]” BUTTON AND THE REGISTRATION PROCESS WILL NOT CONTINUE. IF THIS AGREEMENT IS CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IF COMPANY IS AN INDIVIDUAL EXECUTING THIS AGREEMENT ON BEHALF OF AN ENTITY, THE INDIVIDUAL REPRESENTS THAT COMPANY HAS AUTHORITY TO DO SO.
Subject to the terms and conditions of this Agreement, during the Term and solely for the Purpose, Incode hereby grants Company a limited, nonexclusive, nontransferable, non-sublicensable license to use the POC Software and any “sample code” included in the POC Software, but only i) as expressly authorized in the documentation accompanying such code, ii) for internal evaluation by Company, in a non-production environment and no other purpose. POC Software may be installed and used only on internal devices owned by or under the control of the Company. Company shall not, and shall not allow any third party to, (i) copy, modify, enhance or create any derivative work of the POC Software or any portion thereof; (ii) reverse assemble, decompile, reverse engineer or otherwise attempt to derive the underlying source code, ideas, algorithms, structure or organization of the POC Software, except to the limited extent that applicable law prohibits reverse engineering restrictions; (iii) distribute, display, or disclose the POC Software to any person other than as expressly permitted herein; (iv) rent or lease the POC Software for third-party training, time-sharing or service bureau use; (v) use the POC Software for any commercial purposes or in a production environment with live data; or (vi) permit or authorize any third party to do any of the foregoing. Company acknowledges and agrees that suggestions, ideas, comments and other input provided by the Company about the POC Software or any services made available by Incode (“Feedback”) is given voluntarily, and Incode may fully and freely exploit Feedback without obligation or restriction of any kind by Company. Company represents, warrants and agrees that: (x) it shall at all times use the POC Software in compliance with all applicable laws; (y) it shall not provide to Incode or process through the POC Software any personal data; and (z) it is solely responsible for maintaining all necessary data backups. Incode shall not be responsible for any data loss, data corruption, or other errors arising from or relating to the POC Software.
Ownership; No Implied Licenses
Company acknowledges and agrees that Incode owns all right, title and interest (including without limitation all intellectual property right) in and to the POC Software, and any modifications, corrections or enhancements thereto. No rights or licenses are granted other than those expressly set forth herein.
Incode may provide confidential and/or proprietary information relating to its products, software, research or business (including the terms and conditions of this Agreement, the POC Software, and any technical or performance information about the POC Software; “Confidential Information”). Company only use the Confidential Information to perform the evaluation described in Section 1, and shall not disclose Confidential Information to any third party without Incode’s express prior written consent, and shall only disclose such Confidential Information to its employees and consultants who have a bona fide need to know such information and are bound by obligations of confidentiality and nonuse that are at least as protective of the Confidential Information and Incode as those set forth herein. Confidential Information does not include any information or material that Company can clearly demonstrate: (a) is or becomes generally known to the public without violation of his Agreement by Company; (b) was rightfully known to the Company without restriction as of the date of disclosure; (c) was rightfully obtained by Company from a third party without breach of any obligation of confidentiality, or (d) is independently developed by Company without access to or reliance on any Confidential Information. Company acknowledges that due to the unique nature of the Confidential Information, Incode shall not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of the Confidential Information. In addition to any other remedies, Incode shall be entitled to seek equitable relief from a court of competent jurisdiction.
Limitation of Liability
EXCEPT FOR VIOLATIONS OF SECTION 1 OR SECTION 3, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR SERVICES, OR LOST PROFITS. THE MAXIMUM AGGREGATE LIABILITY OF INCODE AND ITS SUPPLIERS TO COMPANY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY WILL BE LIMITED TO $100.00 (USD). THE FOREGOING LIMITATIONS DO NOT APPLY TO PERSONAL INJURY OR DEATH.
THE POC SOFTWARE IS PROVIDED “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
This Agreement shall continue for a period of thirty (30) days from the date of download unless the Agreement is extended by Incode in writing in its sole discretion, or earlier terminated as provided for herein. A Party may terminate this Agreement by prior notice if the other Party is in material breach of this Agreement and such breaching Party has not cured such breach within thirty (30) days of receipt of a notice of such breach. Upon expiration or earlier termination of this Agreement, the license restrictions in Section 1 and Sections 2 through 7 (inclusive) shall remain in full force and effect.