EVALUATION TERMS AND CONDITIONS
THESE EVALUATION TERMS AND CONDITIONS, TOGETHER WITH ANY ORDER FORM THAT DESCRIBES THE SERVICES (THE “AGREEMENT”), ARE THE TERMS AND CONDITIONS ON WHICH BACON UNLIMITED INC. (“BACON”) AGREES TO PROVIDE LICENSEE WITH USE OF, AND ACCESS TO, ITS SERVICES ON A LIMITED-TERM, TRIAL BASIS. AS USED IN THIS AGREEMENT, THE TERM “YOU”, OR “LICENSEE” MEANS THE INDIVIDUAL OR BUSINESS ENTITY THAT ACCESSES AND USES THE SERVICE PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON “OK,” “ACCEPT,” “AGREE,” “SUBMIT” OR ANY BUTTON INDICATING ACCEPTANCE OF THESE TERMS AND CONDITIONS, YOU REPRESENT THAT YOU ARE AUTHORIZED TO: (I) ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE; AND (II) THAT YOU ARE AUTHORIZED TO USE THE SERVICE ON BEHALF OF LICENSEE.
1. Definitions
1.1. Authorized User(s) means those employees and independent contractors of Licensee who are authorized by Licensee to access and use the Service and Documentation.
1.2. Documentation means any document(s) made available to the Licensee by Bacon from time to time that set(s) out a description of the Services and any applicable user instructions.
1.3. Order Form means a document that describes the Service that Licensee is permitted to use and access under this Agreement. An Order Form may be an online submission form that identifies Licensee and any other information about the Service provided to Licensee.
1.4. Service means the software-as-a-service product(s) set forth in the applicable Order Form, that is made available to Licensee pursuant to this Agreement.
1.5. Trial Period means the period of time identified in the Order Form, during which Licensee may use and access the Service.
2. Use of the Service.
2.1. Access. Subject to all terms and conditions of this Agreement, Bacon grants to Licensee the limited, non-exclusive, non-transferrable right, during the Trial Period, to use and access the Service, through its Authorized Users, for the sole purpose of evaluating the Service. Bacon may extend the term of the Trial Period, in Bacon’s sole discretion. Licensee’s right to use and access the Service is subject to any usage limitations set forth in the Order Form. Licensee is, and will remain, fully responsible for all acts and omissions of its Authorized Users.
2.2. Use of Documentation. Subject to all of the terms and conditions of this Agreement, Bacon grants License a non-transferable, non-sublicensable, non-exclusive right, during the Trial Period, to: (i) use the Documentation solely in connection with use of the Service; and (ii) to make a reasonable number of copies of the Documentation.
2.3. Unauthorized Access; Suspension. Licensee shall prevent any unauthorized access to, or use of, the Service and/or the Documentation and, in the event of any such unauthorized access or use, Licensee will promptly notify Bacon. Bacon reserves the right to suspend Licensee’s, or any Authorized User’s access to the Service, to prevent harm to the Service.
2.4. License Keys. Bacon will provide Licensee with applicable electronic passkeys, license keys, security devices, or other unique identifying codes (“Security Devices”) that will allow an Authorized User to use the Service. Licensee further acknowledges that the Security Devices include time-out features that will prevent access to the Service after the end of the Trial Period. Bacon has no obligation to extract, retain, export, or otherwise preserve any of Licensee’s information that may reside in the Service, either before or after the Trial Period. License will ensure that the Security Devices remain strictly confidential.
2.5. Restrictions. Licensee shall not (and shall not allow any third-party to): (i) decompile, disassemble, reverse engineer, or otherwise attempt to gain unlawful access to the Service, or any component thereof, or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Service by any means whatsoever (except and only to the extent that applicable law prohibits or restricts de-compilation or reverse engineering restrictions, and then only with prior written notice to Bacon); (ii) distribute, sell, sublicense, rent, lease or otherwise transfer access rights to the Service; (iii) use the Service (or any portion thereof) for time sharing, hosting, service provider or like purposes; (iv) remove or cover any product identification, proprietary, copyright or other notices contained in or on the Service and/or Documentation; (v) modify any part of the Service or Documentation, or create a derivative work of any part thereof, or incorporate the Service into or with other products or services; or (vi) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Service; or (vii) in any way use the Service and/or Documentation to provide services to any third party; or (viii) tamper with, or otherwise attempt to disable or circumvent any Security Devices.
2.6. Harmful Code. Licensee will not post or introduce any data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine or mechanism, through or to the Service, that causes or is designed to cause either to cease functioning, or to disrupt, disable, harm or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of, or to allow Licensee or any other person to access, or damage or corrupt data, storage media, programs, equipment or communications or otherwise interfere with operations of, on, or with, the Service or any software, firmware, hardware, computer system or network of Bacon or any third party.
2.7. Licensee Data. As between Bacon and Licensee, Licensee owns or has license to all rights, title, and interest in and to all the data and information that Licensee inputs into the Service (“Licensee Data”). In all respects, Licensee has sole responsibility for the Licensee Data. Licensee grants Bacon a non-exclusive, perpetual, worldwide, paid-up, and irrevocable license to use, process, manipulate and/or modify, copy, perform, compile and create derivative works from the Licensee Data, solely to provide the Service to Licensee, and for the analysis and improvement of the Service, or as may be legally required. All other data and information, including aggregated or deidentified data that is collected, transmitted, recorded, or accessed by or through the Service, and all data, reports, derivative works, compilations, modifications, and other materials created from or with use of such data will be, in each case, the sole and exclusive property of Bacon.
2.8. Personal Data. The Service is not intended to process the data of any identified or identifiable natural person (“Personal Data”). Licensee acknowledges the same, and hereby agrees not to use the Service to process any Personal Data. If Licensee, or a third party on Licensee’s behalf, does input or provide Personal Data into the Service, Licensee is responsible for using the Service and sending Personal Data to Bacon in compliance with all applicable data privacy laws. Without limiting the generality of the foregoing, Licensee must ensure that data subjects receive notices or grant consent, as legally required. Licensee agrees to indemnify, defend, and hold Bacon harmless from and against all claims, demands, actions, or causes of action arising out of any breach of the foregoing obligations.
3. Ownership. Bacon and its suppliers retain all rights, title and interest in and to the Service and Documentation, (including, without limitation, all patent, copyright, trademark, trade secret, and other intellectual property rights therein and thereto) and all copies, modifications, and derivative works thereof. Licensee acknowledges that it is obtaining only a limited license right to use the Service, and that no ownership rights are being conveyed to Licensee under this Agreement or otherwise. In the event that Licensee provides comments, suggestions and recommendations to Bacon with respect to the Service and/or Documentation, (including, without limitation, with respect to modifications, enhancements, and/or improvements (collectively, “Feedback”), Licensee hereby grants to Bacon a world-wide, royalty-free, irrevocable, perpetual license to use all Feedback for any reason.
4. Term of Agreement.
4.1. Term; Termination. This Agreement is effective upon the earlier of: (i) the date Licensee first accesses the Service; or (ii) the first day of the Trial Period, whichever is earlier. This Agreement expires automatically at the end of the Trial Period, unless otherwise agreed between the parties. Bacon may terminate this Agreement at any time, for any reason. Termination is not an exclusive remedy; the exercise by Bacon of any remedy under this Agreement will be without prejudice to any other remedies Bacon may have under this Agreement, by law, or otherwise.
4.2. Effect of Termination. Upon termination of this Agreement, all rights to access and use the Service terminate immediately, and Licensee will cease use of all Documentation. Licensee will destroy all copies of the Documentation in its possession and certify such destruction to Bacon in writing.
4.3. Survival. Sections 1 (Definitions), Section 2.5 (Restrictions), Section 3 (Ownership), Section 4.2 (Effect of Termination), Section 5 (No Warranty; Disclaimers), Section 6 (Limitation of Liability), Section 8 (Confidential Information), Section 9 (General), and any other provisions that should rationally survive termination, such as indemnification, will survive termination or expiration of this Agreement
5. NO WARRANTY; DISCLAIMERS. THE SERVICE AND DOCUMENTATION ARE PROVIDED TO LICENSEE ON AN “AS-IS” BASIS, WITHOUT WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. BACON MAKES NO WARRANTIES THAT THE SERVICE IS FREE FROM HARMFUL CODE, OR THAT THE SERVICE WILL BE ACCESSIBLE. LICENSEE’S USE OF THE SERVICE AND DOCUMENTATION, AND THE RESULTS OF SUCH USE, ARE AT LICENSEE’S SOLE RISK.
6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL BACON OR ITS AFFILIATED COMPANIES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, ARISING OUT OF, OR RELATED IN ANY WAY, TO LICENSEE’S USE OF THE SERVICE AND DOCUMENTATION, EVEN IF BACON HAS BEEN ADVISED OF THE POSSIBILITY OF CLAIMS AND/OR DAMAGES. LICENSEE’S USE OF THE SERVICE MAY BE DEPENDENT ON COMPUTER SYSTEMS, WIRELESS NETWORKS, TELECOMMUNICATIONS NETWORKS AND THE INTERNET, ALL OF WHICH INVOLVE FACILITIES OWNED AND OPERATED BY THIRD PARTIES. BACON IS NOT RESPONSIBLE FOR THE OPERATION, AVAILABILITY, OR FAILURE OF ANY SUCH THIRD-PARTY SYSTEMS OR FACILITIES, INCLUDING WITHOUT LIMITATION THOSE REQUIRED TO USE THE SOFTWARE. IN NO EVENT WILL BACON’S LIABILITY UNDER, OR RELATED TO, THIS AGREEMENT, EXCEED $50.00. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 6 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
7. Licensee Warranties and Indemnification. Licensee warrants to Bacon as follows: (a) Licensee has all rights and authority necessary to enter into this Agreement and carry out its terms and conditions; and (b) Licensee will comply with all license requirements and restrictions under this Agreement, and with all applicable laws, rules, and regulations. Licensee will indemnify, defend, and hold Bacon and its affiliates harmless, from and against any and all claims, lawsuits, demands, actions or other proceedings brought against it by any third party due to, arising out of, or related in any way to: (a) Licensee’s or its Authorized Users’ use of the Service; or (b) Licensee’s, or its Authorized Users’, violation of any law, regulation or third party rights.
8. Confidential Information.
8.1. Definition. “Confidential Information” means any and all information provided by Bacon or its subsidiaries or affiliates (“Discloser”) to Licensee (“Recipient”) during the term of this Agreement, in tangible or digital form, orally or through visual inspection, including, without limitation, business and technical information, and information related to: inventions; ideas; processes; apparatuses; structures; software; data; works of authorship; know-how; trade secrets; improvements; discoveries; developments; designs; techniques; products; technology; operations; facilities; operations; marketing; business plans; budgets; finances; contracts; pricing; costs; suppliers; customers; and the existence of any business discussions, negotiations, or agreements between Discloser and Recipient or any third party. Confidential Information includes the Service, Documentation and other technical information, regardless of marking.
8.2. Permitted Use. Recipient may use Discloser’s Confidential Information solely for the purpose of performing its obligations or exercising its rights under this Agreement. Except as expressly permitted herein, Recipient shall not disclose Discloser’s Confidential Information to any third party. Recipient may disclose Discloser’s Confidential Information solely to its subsidiaries, and its and their employees, officers, directors, attorneys, financial advisors, and lenders (“Representatives”) who have a need-to-know Discloser’s Confidential Information to perform Recipient’s obligations under this Agreement, and whom are bound by a written agreement having terms at least as restrictive as the terms in this Agreement. Each Party shall be responsible and liable for any breach of this Agreement by it, its affiliates, and its and their Representatives. Recipient shall prevent the unauthorized use and disclosure of Discloser’s Confidential Information using at least the same degree of care, but no less than reasonable care, it uses to prevent the unauthorized use and disclosure of its own confidential information of a similar nature. Recipient shall not remove any proprietary or confidential notice from any form of Discloser’s Confidential Information.
8.3. Exceptions. The obligations in Section 9.2 of this Agreement will not apply to any information that the Recipient can demonstrate through written evidence was: (i) publicly available without breach of an obligation to maintain the confidentiality of such information; (ii) rightfully known by Recipient prior to the receipt of such information from Discloser without any obligation of confidentiality; (iii) rightfully obtained by Recipient on a non-confidential basis from a third party who is not under any obligation to maintain the confidentiality of such information; or (iv) developed by Recipient independently of, and without reference to, Discloser’s Confidential Information.
8.4. Legally Required Disclosure. If Recipient is required by, or receives an order, subpoena, or demand from, a court or government agency to disclose any of Discloser’s Confidential Information to a third party, then Recipient shall promptly notify Discloser in writing of any such requirement, order, subpoena, or demand prior to disclosure of Discloser’s Confidential Information and reasonably assist Discloser in its efforts, if any, to obtain a protective order or other protection to prohibit public disclosure.
8.5. Ownership and Return of Confidential Information. All Confidential Information remains the sole property of Discloser, and nothing contained herein shall be construed as giving Licensee any license or rights thereto. All Confidential Information of the Discloser will be returned to Discloser: (i) at Discloser’s request; or (ii) upon termination of this Agreement.
9. General.
9.1. Assignment. Licensee may not assign this Agreement without Bacon’s prior written consent. Any attempted transfer or assignment by Licensee will be null and void. Bacon may freely assign this Agreement.
9.2. Severability. If any court of competent jurisdiction adjudges any provision of this Agreement to be illegal, unenforceable or invalid, the illegal, unenforceable or invalid provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect, while preserving the intent of the parties. If the illegal, unenforceable or invalid provision is not such that limitation is possible, such illegal, unenforceable or invalid provision will be stricken from the Agreement, and the remaining terms will be in full force and effect.
9.3. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Jurisdiction and venue for actions related to the subject matter hereof are the applicable State courts of the State of California located in Los Angeles County or the United States federal courts located in the Central District of California, Western Division, and both parties hereby submit to the exclusive personal jurisdiction of such courts.
9.4. Notices and Reports. All notices given under this Agreement will be in writing, and will be deemed to have been received: (a) when delivered personally; or (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (c) one (1) day after having been sent by a commercial overnight carrier with written verification of receipt; or (d) by electronic communication. Either party may change its notice address by written notice to the other. All notices related to or arising under this Agreement will be addressed to Licensee at the address set forth in the Order Form, and to Bacon as follows: Bacon Unlimited Inc, Attn: Legal Department – Important Legal Notice, 578 Washington Blvd. #910, Marina del Rey, CA 90292.
9.5. Amendments; Waivers. All modifications of, or to, this Agreement must be in writing, and signed by both parties. No waiver of any provision of this Agreement is effective unless such waiver is set forth in writing and signed by a duly authorized representative of the parties.
9.6. Entire Agreement. The terms of this Agreement, together with the Order Form, represent the sole and exclusive terms of the agreement between Bacon and Licensee. All prior negotiations, discussions and documents are expressly superseded. Any pre-printed terms and conditions on either party’s purchase orders, order confirmations or other pre-printed forms are of no force or effect.
9.7. Official Language. The official language of this Agreement and of any related documents is English.
9.8. Audit Rights. Upon Bacon’s written request, Licensee shall certify in a signed writing that Licensee’s use of the Service is in full compliance with the terms of this Agreement (including any usage limitations). With at least three (3) days prior written notice to Licensee, Bacon may gain access to Licensee’s premises for the limited purpose of conducting an inspection to determine and verify compliance with the terms of this Agreement. Bacon will conduct such inspection during normal business hours and such inspection will be restricted in scope, manner, and duration to that reasonably necessary to achieve its purpose and not disrupt Licensee’s operations.
9.9. Independent Contractors. The parties to this Agreement are independent contractors. Neither party is, or will be deemed to be, a partner, joint venturer, employer, employee, franchisor, franchisee, or agent of the other. Neither party has the power to bind the other or incur obligations on the other party’s behalf.
9.10. U.S. Government End-Users. If Licensee is an entity of the United States Government, the Service and Documentation are provided to Licensee as a commercial item strictly under the terms and conditions of this Agreement and include only those rights customarily available to the public. Licensee is not authorized to permit disclosure by any agency or other part of the Federal Government that exceeds in any way the use and disclosure rights (i) conveyed to Licensee in this Agreement; or (ii) provided in FAR 12.212 (Computer Software) and (for Department of Defense use or disclosure) DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation), whichever set of rights provided in (i) or (ii) are the more restrictive. If an agency or other part of the Federal Government has a need for rights not conveyed under this Agreement, it must negotiate with Bacon for such rights.
9.11. Export Compliance. Licensee acknowledges that the Service and Documentation may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. Licensee shall not, and shall not allow any third-party to, remove or export from the United States or allow the export or re-export of any part of the Service or Documentation or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Licensee agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Service and Documentation are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government. Licensee will defend, indemnify and hold Bacon harmless against any liability (including attorneys’ fees) arising out of Licensee’s failure to comply with the terms of this provision.
