THIS TIGERA EVALUATION AGREEMENT (THE “AGREEMENT”) IS BY AND BETWEEN TIGERA, INC., LOCATED AT 58 MAIDEN LANE, SAN FRANCISCO, CA 94108 (“TIGERA”), AND THE INDIVIDUAL OR LEGAL ENTITY WHO IS EVALUATING THE APPLICABLE SOFTWARE MADE AVAILABLE BY TIGERA (“CUSTOMER”) AND GOVERNS ALL USE BY CUSTOMER OF SUCH SOFTWARE.
BY CLICKING “I ACCEPT” OR INSTALLING AND/OR USING THE SOFTWARE AND/OR EXECUTING AN ORDER FORM FOR THE SOFTWARE THAT REFERENCES THIS AGREEMENT, CUSTOMER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT EXECUTE AN ORDER FORM AND MAY NOT INSTALL OR USE THE SOFTWARE.
1. Evaluation Program and Term.
Subject to the terms of this Agreement, Customer wishes to evaluate certain Tigera software (the “Software”). The term of this Agreement will start on the date you click on “I accept” and continue for a period of thirty (30) days (the “Evaluation Period”). At the end of the Evaluation Period, Customer may license the Software by executing Tigera’s standard terms of service or end user agreement with Tigera. In connection with the evaluation, Customer may receive proprietary information of Tigera and/or its suppliers and Customer agrees to hold the information confidential and not use or permit others to use it.
2. License and Restrictions.
Subject to the terms and conditions of this Agreement, Customer is granted a limited, non-transferable, nonexclusive, non-sublicensable, revocable right during the Evaluation Period to download, install, and use the Software for Customer’s internal evaluation purposes with the deployment of no more than one (1) instance. Customer will not and will not allow third parties to, either directly or indirectly, (a) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the source code of the Software in whole or in part, except as and only to the extent this restriction is prohibited by law, (b) modify, translate, copy or create derivative works based on the Software, (c) resell, rent, lease or timeshare the Software, or otherwise provide third parties with access to the Software, (d) alter or remove any marks or proprietary legends contained in the Software, (e) use the Software in a production environment or otherwise for commercial purposes, or (f) use the Software in any way that violates any applicable federal, state, local or international law or regulation or export control regulation.
Tigera owns all right, title and interest in and to the Software and any associated technical documentation (including all intellectual property rights therein). Except for the rights expressly granted herein, no other rights, express or implied, are granted to Customer under this Agreement.
“Confidential Information” means any information disclosed by one party relating to such party’s business or technology (“Disclosing Party”) to the other (“Receiving Party”), directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or some similar designation, or learned by Receiving Party under circumstances in which such information would reasonably be understood to be confidential. Confidential Information may include information disclosed in confidence to Disclosing Party by third parties. For the purposes of this Agreement, the Software, and the results of any performance, functional or other evaluation of the Software, shall be deemed Confidential Information of Tigera. This section shall not apply with respect to any Confidential Information which Receiving Party can demonstrate: (a) was in the public domain at the time it was disclosed to Receiving Party or has become in the public domain through no act or omission of Receiving Party; (b) was known to Receiving Party, without restriction, at the time of disclosure as shown by the files of Receiving Party in existence at the time of disclosure; (c) was disclosed by Receiving Party with the prior written approval of Disclosing Party; (d) was independently developed by Receiving Party without any use of Disclosing Party’s Confidential Information; or (e) became known to Receiving Party, without restriction, from a source other than Disclosing Party without breach of this Agreement by Receiving Party and otherwise not in violation of Disclosing Party’s rights. Except as set forth in Section 9 below, the Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (ii) not to use any such Confidential Information for any purpose other than to evaluate the Software; (iii) to give access to such Confidential information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iv) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Tigera may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Software’s performance. Receiving Party acknowledges that breach of the confidentiality obligations would cause irreparable harm to Disclosing Party, the extent of which may be difficult to ascertain. Accordingly, Receiving Party agrees that Disclosing Party is entitled to seek immediate injunctive relief in the event of breach of an obligation of confidentiality by Receiving Party, and that Disclosing Party shall not be required to post a bond or show irreparable harm in order to obtain such injunctive relief. At any time, upon Disclosing Party’s request, Receiving Party shall promptly return to Disclosing Party or destroy any Confidential Information of the Disclosing Party.
Customer may terminate this Agreement at any time on written notice to Tigera. Upon the conclusion of the Evaluation Period, Tigera may agree to extend the Evaluation Period for such periods of time as Tigera deems are required to complete Customer’s evaluation of the Software. Customer consents to such extension under this Agreement by continuing to use and access the Software. If Customer does not agree to such extension, then Customer must cease all use of the Software. Tigera may terminate this Agreement upon written notice to Customer if Customer breaches any material term of this Agreement. Upon any termination or expiration of this Agreement, Customer agrees to cease all use of the Software and any associated technical documentation and all rights granted under this Agreement will immediately terminate. Sections 4 and 5-10 will survive termination of this Agreement.
6. Warranty and Warranty Disclaimer.
Tigera represents and warrants that (a) it has full rights and authority to enter into and perform its obligations under this Agreement; and (b) its performance will not violate any agreement or obligation between Tigera and any third party. EXCEPT FOR THE FOREGOING WARRANTIES, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE IS PROVIDED FOR EVALUATION PURPOSES ONLY AND IS PROVIDED IN AN “AS IS” CONDITION AS TO ITS PERFORMANCE, ACCURACY, OR COMPLETENESS WITH NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED. TIGERA DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. TIGERA DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SOFTWARE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF DESIGN, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Liability.
IN NO EVENT SHALL TIGERA, ITS SUPPLIERS OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF TIGERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE TOTAL LIABILITY OF TIGERA ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER HEREUNDER.
8. Open Source Software.
Customer acknowledges that certain open source software may be provided to or otherwise downloaded by Customer in order for customer to utilize the Software (“OSS”) or that certain elements of the Software may be OSS. Customer understands and agrees that the OSS is not considered Software and is not licensed under this Agreement; OSS is open source software that is contributed to by the community and licensed under third-party licenses. The license terms that govern Customer’s installation and use of the OSS can be found at https://www.tigera.io/legal/component-licenses. Tigera may update the OSS licenses listed at the foregoing URL from time to time as needed.
Customer may from time to time provide suggestions, comments or other feedback with respect to the Software (“Feedback”). Customer hereby grants to Tigera a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicenseable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and otherwise distribute and exploit any Feedback in connection with the development and sale of its products and services, entirely without obligation or restriction of any kind, except that Tigera will not identify Customer as the provider of such Feedback.
This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law principle (whether of the State of California or any other jurisdiction). Any legal claim, suit, action or proceeding arising out of this Agreement (including its breach) will be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the City of San Francisco, California. Each party irrevocably submits to the exclusive jurisdiction of such courts and waives any objection based on improper venue or forum non conveniens. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be illegal, unenforceable, or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. The limitation or elimination of any provision of this Agreement will not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction. No waiver by either party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the waiving party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege (collectively, for the purposes of this Section, “rights”) arising from this Agreement will operate or be construed as a waiver of such rights. This Agreement and the rights and obligations hereunder are not transferable or assignable (by operation of law or otherwise) by either party without the prior written consent of the other party, such consent not to be unreasonably withheld, except in connection with a merger, or acquisition of all or substantially all of its assets or stock, or for purposes of corporate restructuring. Any attempt to assign this Agreement in contravention of this section will be null and void. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may only be amended, modified or supplemented by an agreement made in writing and signed by each party hereto. All notices submitted by either party to other pursuant to this Agreement will be in writing to the address listed in the preamble and to the attention of “Legal” and will be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or (c) by certified or registered mail, return receipt requested, postage prepaid.