VEXCEL INTELLIGENCE
EVALUATION, BETA TESTING, AND MUTUAL NONDISCLOSURE AGREEMENT
This Evaluation, Beta Testing, and Mutual Nondisclosure Agreement (“Agreement”) is entered into
effective as of the date (the “Effective Date”) that the party wishing to license Vexcel’s product
(“Licensee”) accepts the terms of this Agreement with Vexcel Imaging US, Inc., a Delaware corporation
(“Vexcel,” and together with Licensee, the “Parties”) by checking the acceptance box.
In consideration of the mutual covenants contained herein, Vexcel and Licensee agree as follows:
1. LICENSE TERMS
1.1. License Grant. Vexcel grants to Licensee during the Term a non-exclusive,
non-transferable license to (a) use, reproduce, and modify the sample set of product that Vexcel provides
in its Vexcel Intelligence evaluation and beta testing “sandbox” (the “Evaluation Data”); and
(b) create derivatives from the Evaluation Data, in all cases solely for Licensee’s internal use and solely
for the purpose of participating in the beta-testing of the Evaluation Data, providing feedback to Vexcel
on the Evaluation Data, and evaluating whether to license the Evaluation Data, or products similar to it,
from Vexcel (the “License”). Vexcel may update the Evaluation Data at any time.
1.2. License Restrictions. Licensee shall not do any of the following, except and solely to the
extent expressly permitted by Section 1.1 (License Grant): (a) copy, reproduce, modify, market, grant access
to, display, distribute, sell, rent, lease, sublicense, assign, or commercially exploit the Evaluation Data;
or (b) remove, bypass, or circumvent any electronic or other forms of protection measure included on or
with the Evaluation Data.
2. ACCESS
2.1. Access. Licensee may access the Evaluation Data via the Vexcel API and the Vexcel Studio.
Vexcel grants to Licensee a nonexclusive, nontransferable right to use the Vexcel API and the Vexcel Studio,
as applicable, to access the Evaluation Data for the duration of the Term. Vexcel does not guarantee access
to the Evaluation Data through the Vexcel API or the Vexcel Studio and Vexcel is under no obligation to provide
Licensee with any support regarding the Vexcel API or the Vexcel Studio or access to the Evaluation Data.
Vexcel may terminate Licensee’s access to the Vexcel API and the Vexcel Studio without notice if Licensee
engages in abusive behavior. “Vexcel API” means the application programming interface that Vexcel
currently provides to its customers that enables a user to access Vexcel’s hybrid cloud-based service that
provides Vexcel’s products programmatically. “Vexcel Studio” means Vexcel’s browser-based studio
application that allows users to interact with Vexcel’s products.
2.2. Access Security. Licensee must keep its users’ login credentials, including without limitation
usernames and passwords, secure and confidential and must use commercially reasonable efforts to prevent
unauthorized access to or use of its account. Licensee must promptly notify Vexcel of any unauthorized access
or use of Vexcel’s product, including the Evaluation Data.
3. OWNERSHIP
3.1. Vexcel Materials. Vexcel owns all right, title, and interest in the Evaluation Data and
Vexcel’s product, all copies thereof and customizations and modifications thereto, all materials used by
Vexcel to provide the Evaluation Data, and the Vexcel trademarks and trade names authorized by Vexcel
(collectively, the “Vexcel Materials”). Except for the License, nothing herein transfers or conveys
to Licensee any right, title, or interest in the Vexcel Materials. Licensee shall not take any action with
respect to Vexcel’s intellectual property that is inconsistent with the foregoing.
3.2. Feedback; Ownership of Improvements. Licensee and its users may, but are not required to,
provide suggestions, comments, ideas, reports, or other feedback relating to the Evaluation Data, the Vexcel API,
or the Vexcel Studio (“Feedback”). As between the Parties, Vexcel will own all right, title, and interest,
including all intellectual property rights, in and to the Feedback and any improvements, enhancements, corrections,
or derivative works of Vexcel’s offerings created using or inspired by the Feedback (collectively,
“Improvements”). To the extent Licensee or its personnel acquire any right in the Feedback or Improvements,
Licensee hereby irrevocably assigns and agrees to assign such rights to Vexcel and, to the fullest extent permitted
by law, waives, and will cause its personnel to waive, any moral rights therein. If the foregoing assignment or waiver
is ineffective, Licensee grants Vexcel an exclusive, perpetual, irrevocable, worldwide, fully paid, royalty-free license,
with the right to sublicense, to use, reproduce, modify, distribute, display, perform, make, have made, sell, import,
and otherwise exploit the Feedback and Improvements for any purpose. Vexcel has no obligation to credit or compensate
Licensee for Feedback.
3.3. Usage Data. In addition to any Feedback provided by Licensee, Licensee acknowledges and agrees
that Vexcel may automatically collect, generate, and process technical and operational data relating to Licensee’s
access to and use of the Evaluation Data, the Vexcel API, and the Vexcel Studio (“Usage Data”). Usage Data
may include logs, performance metrics, feature usage, session metadata, error reports, and other analytical
information generated through use of the Evaluation Data. Vexcel may use Usage Data (a) to maintain, improve,
diagnose, and secure its products and services; (b) to develop enhancements, analytics, and new offerings; and
(c) for any other internal business purpose. Other than for usage to support Licensee’s evaluation and beta-testing
of the Evaluation Data, Vexcel will use Usage Data only in aggregated or de-identified form. Licensee shall not
interfere with or disable any usage, analytics, or reporting functions associated with the Evaluation Data.
4. FEES. Licensee may use the License free of charge. If Licensee intentionally consumes Vexcel
product other than the Evaluation Data, or if Licensee consumes any Vexcel product, including Evaluation Data,
outside of the Term, then Licensee shall pay Vexcel Vexcel’s current price for such product. Any amounts due
under this Agreement shall be invoiced and paid in U.S. dollars net 30 days from date of invoice.
5. LICENSEE COVENANTS
5.1. Compliance with Laws. The Parties shall comply with all applicable laws and regulations in
performing their obligations under the Agreement, including all applicable employment, tax, data-privacy,
export-control, and environmental laws and regulations; provided that Vexcel’s compliance with applicable
data-privacy laws and regulations is conditioned upon Licensee’s compliance with Section 5.3. In addition,
Licensee waives any damages that may be recovered as a result of a breach by Vexcel of applicable data-privacy
laws if Licensee would not have incurred such damages but for Licensee’s use of the Product beyond internal use.
The Parties shall not export, re-export, sell, resell, or transfer any export-controlled commodity, technical data,
or software (a) in violation of any law, regulation, order, policy, or other limitation imposed by the United States,
including the United States Export Administration regulations, or any other government authority with jurisdiction;
(b) to any country in violation of any applicable embargo; or (c) to any country for which an export license or other
governmental approval is required at the time of export, without first obtaining all necessary licenses or equivalent.
Without limiting the foregoing, the Parties shall comply with the United States Foreign Corrupt Practices Act and
any anti-bribery or similar law or regulation in any jurisdiction where business is conducted or services performed
in connection with the Agreement.
5.2. Compliance with Terms of Google Maps/Google Earth for Vexcel Studio Use. The Studio may use
geocoding services accessed from Google Maps/Google Earth. Licensee shall comply with the Google Maps/Google Earth
Additional Terms of Service posted at
https://www.google.com/intl/en_us/help/terms_maps.html
(the “Google-Maps Terms”) when using any Google geocoding services. If there is any inconsistency
between this Agreement and the Google-Maps Terms, the Google-Maps Terms will control.
5.3. No PII. Licensee and its users shall not share any information with Vexcel when accessing
the Vexcel API or using the Evaluation Data in any manner that can be used to distinguish or trace an individual’s
identity, either alone or when combined with other personal or identifying information that is linked or linkable
to a specific individual (“PII”). Vexcel does not accept PII associated with Licensee’s licensing of the
Evaluation Data and hereby rejects any submissions of PII.
5.4. No Reverse-Engineering. Licensee shall not reverse engineer, decompile, or otherwise attempt
to derive the source code, techniques, processes, algorithms, know-how, or other information from the executable
code portions of the Vexcel API, the Vexcel Studio, or Vexcel’s hybrid cloud-based service, except to the extent
allowed by applicable law.
6. WARRANTY DISCLAIMER. THE EVALUATION DATA, THE VEXCEL API, AND THE VEXCEL STUDIO ARE
PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND VEXCEL DISCLAIMS (TO THE GREATEST EXTENT
PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE,
RELATING TO THE EVALUATION DATA, THE VEXCEL API, AND THE VEXCEL STUDIO, INCLUDING BUT NOT LIMITED TO
ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT,
MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT,
ACCURACY OF INFORMATION, CONTENT, OR RESULTS, OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT.
VEXCEL DOES NOT WARRANT THAT (a) THE EVALUATION DATA, THE VEXCEL API, OR THE VEXCEL STUDIO WILL MEET
THE BUSINESS REQUIREMENTS OF LICENSEE; (b) THE EVALUATION DATA, THE VEXCEL API, OR THE VEXCEL STUDIO
WILL BE ACCESSIBLE, AVAILABLE, ACCURATE, CURRENT, OR COMPLETE, OR THAT THE OPERATION OF THE EVALUATION
DATA, THE VEXCEL API, OR THE VEXCEL STUDIO WILL BE COMPLETELY SECURE, ERROR-FREE, OR UNINTERRUPTED;
OR (c) ANY ERRORS WILL BE CORRECTED. VEXCEL SHALL HAVE NO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS
IN ACCESS TO OR USE OF THE EVALUATION DATA, THE VEXCEL API, OR THE VEXCEL STUDIO RESULTING FROM USE
OF THE INTERNET AND/OR TELECOMMUNICATIONS CONNECTIONS OR EQUIPMENT. THE EVALUATION DATA IS NOT
GUARANTEED TO GRADUATE TO ADDITIONAL LAUNCH STAGES. THE EVALUATION DATA IS NOT SUBJECT TO ANY SERVICE
LEVEL AGREEMENT AND MIGHT BE SUBJECT TO BACKWARD-INCOMPATIBLE CHANGES. THE SUPPLIERS OF VEXCEL MAKE
NO DIRECT WARRANTY OF ANY KIND TO LICENSEE UNDER THIS AGREEMENT.
7. CONFIDENTIAL INFORMATION
7.1. Obligations. Each Party (“Recipient”) acknowledges that confidential information,
including trade secrets and confidential technical, financial, and business information, of the other Party
(“Discloser”) may be disclosed pursuant to this Agreement (collectively, “Confidential Information”).
For the avoidance of doubt, Vexcel’s Confidential Information includes without limitation Vexcel’s product, the
Evaluation Data, any Feedback or Improvements with respect thereto, whether or not actually provided to Vexcel,
the terms and conditions of this Agreement, and any development or potential pricing information for the Product
that is provided in connection with the evaluation performed by Licensee under this Agreement, whether such
information is provided before, contemporaneous with, or after entry into this Agreement. Recipient shall use no
less than the same means it uses to protect its similar confidential and proprietary information, but in any event
not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential
Information of Discloser. Recipient shall not disclose or use the Confidential Information of Discloser except for
the purpose of fulfilling its obligations or exercising its rights under this Agreement. Recipient shall promptly
report to Discloser any unauthorized use or disclosure of Discloser’s Confidential Information that Recipient
becomes aware of and provide reasonable assistance to Discloser, or its licensors, in the investigation and
prosecution of any such unauthorized use or disclosure. Any potential pricing information provided by Vexcel to
Licensee, if any, is Vexcel’s Confidential Information, not Licensee’s, and Vexcel may share such information with
third parties. The obligations of confidentiality will continue for three years from the Effective Date, notwithstanding
the earlier termination of this Agreement.
7.2. Exclusions. Information will not be subject to the restrictions set forth above to the extent
that such information (a) is already known by Recipient without an obligation of confidentiality; (b) is publicly
known or becomes publicly known through no unauthorized act of Recipient; (c) is rightfully received from a third
party without any obligation of confidentiality; (d) is independently developed by Recipient without use of the
Confidential Information of the Discloser; or (e) is required to be disclosed pursuant to a requirement of a
governmental agency or law, provided that Recipient provides Discloser with notice of such requirement prior to
any such disclosure and takes steps reasonably necessary to maintain the information in confidence.
7.3. Responsibility for Third Parties. Recipient shall, and shall cause its employees, contractors,
and consultants who have access to Confidential Information of Discloser, and where Recipient is Licensee, all
employees, contractors, regulators, external auditors, and consultants of Recipient who have access to Confidential
Information of Discloser, collectively, the “Additional Recipient Parties,” to safeguard and maintain the
Confidential Information of Discloser in strict confidence. Recipient shall not, and shall ensure that the Additional
Recipient Parties do not, disclose, provide, or make such Confidential Information available to any third party
except to Recipient’s employees, contractors, and consultants who have a need to access such Confidential Information
to enable Recipient to fulfill its obligations or exercise its rights under this Agreement.
8. LIMITATION OF LIABILITY
Each Party’s recovery of damages for breach of this Agreement is limited to documentable damages that arise
directly from such breach, subject to a cap of $1,000; provided, however, that such cap does not apply to any
statutory damages that may be available under the Copyright Act, 17 U.S. Code §504(c).
9. INDEMNIFICATION
9.1. Indemnification by Licensee. Licensee shall indemnify, defend, and hold harmless Vexcel,
its affiliates, employees, officers, directors, and shareholders from any third-party claim that arises from
Licensee’s use of the Evaluation Data, or any other Vexcel product accessed during the Term by Licensee,
outside of internal use (a “Vexcel Claim”). Licensee shall pay reasonable attorneys’ fees incurred
by Vexcel in connection with any Vexcel Claim.
9.2. Indemnification by Vexcel. Vexcel shall indemnify, defend, and hold harmless Licensee,
its affiliates, employees, officers, directors, and shareholders from any third-party claim that the Evaluation
Data infringes such third party’s intellectual property rights (a “Licensee Claim”) so long as such claim
is limited to Licensee’s non-commercial internal use. Vexcel shall pay reasonable attorneys’ fees incurred by
Licensee in connection with any Licensee Claim.
9.3. Procedures. Each Party’s indemnification obligations set forth in this section are subject to
the conditions that the Party seeking indemnification must (a) notify the indemnifying party promptly in writing
of such claim, provided that failure to so notify shall not relieve the indemnifying party of its obligations except
to the extent that the indemnifying party is actually prejudiced by such failure to give prompt notice; and
(b) fully cooperate with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement
of such claim, and (c) give the indemnifying party sole control of the defense and settlement of any claim so long
as such settlement is either (i) approved in writing by the indemnified party, and in the case of Vexcel, by the
Chief Executive Officer, Chief Financial Officer, or Chief Operating Officer of Vexcel, each, an
“Authorized Representative” of Vexcel; or (ii)(A) is for monetary damages only; (B) does not involve
any finding or determination of wrongdoing or violation of law by the indemnified party; and (C) provides for
a full, unconditional, and irrevocable release of the indemnified party in connection with such claim. The indemnity
provided under this section shall be the sole and exclusive remedy for any third-party claim.
10. TERM AND TERMINATION
10.1. Term and Termination. This Agreement shall commence on the Effective Date and continue
for 6 months (such period, the “Term”). Either Party may terminate this Agreement at any time by giving
notice to the other Party.
10.2. Effect of Termination. The license granted hereunder terminates upon termination of this
Agreement and Licensee shall immediately cease all use, and destroy all copies, of the Evaluation Data; provided,
however that Licensee may retain Evaluation Data as part of regular computer back-ups for the period such records
are normally archived so long as Licensee does not access such Evaluation Data unless required to pursuant to an
external audit or legal proceedings.
11. GENERAL
11.1. Entire Agreement; Amendments; Waiver. This Agreement sets forth the entire understanding
and agreement of the Parties and supersedes any oral or written agreements or understandings between the Parties
as to the subject matter of the Agreement, including, without limitation, any terms in a purchase or acknowledgement
provided by Licensee. This Agreement may only be changed by a written agreement signed by both Parties, and in
the case of Vexcel, an Authorized Representative of Vexcel. The waiver of a breach of any provision of this Agreement
will not operate or be interpreted as a waiver of any other or subsequent breach.
11.2. Injunctive Relief. Any material breach of this Agreement by either Party may cause irreparable
injury and monetary damages may not be a sufficient remedy. Each Party is entitled to equitable relief, including
injunctive relief and specific performance, in the event of a breach, and the breaching Party waives the defense
that there is an adequate remedy at law. The above will not be construed to limit the remedies available to any Party.
11.3. Cumulative Remedies. Except as otherwise set forth in this Agreement, all rights and remedies
provided in this Agreement are cumulative and not exclusive. The exercise by either Party of any right or remedy
does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law,
in equity or otherwise, in this Agreement or any other agreement between the Parties.
11.4. Governing Law; Venue. Any dispute arising under this Agreement will be governed by the laws
of Colorado without giving effects to its conflict-of-law principles. The Parties submit to the exclusive jurisdiction
of the state and federal courts located in Denver, Colorado for any legal action arising out of this Agreement. The
Parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods
(1980).
11.5. Assignment. Neither Party may assign nor transfer, by operation of law or otherwise, this
Agreement or any of its rights under this Agreement to any third party without the other Party’s prior written
consent, and in the case of Vexcel, such consent to be provided by an Authorized Representative; provided, however,
Vexcel may assign this Agreement to any successor to its business or assets, whether by merger, sale of assets,
sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing
will be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and
their respective successors and permitted assigns and shall not confer any rights or remedies upon any person or
entity not a party hereto.
11.6. Notice. Any notice under this Agreement to Licensee will be provided to the email address
provided in the evaluation signup. Any notice under this Agreement to Vexcel must be in writing and delivered by
overnight courier to Vexcel Imaging US, Inc., Attention: Legal Department, 12503 E Euclid Drive, Suite 20,
Centennial, CO.
11.7. Section Headings. The headings or captions used in this Agreement are for reference purposes
only and are not intended to be used or relied upon in interpreting or enforcing this Agreement.
11.8. Severability. To the extent that any provision, portion, or extent of this Agreement is deemed
to be invalid, illegal, or unenforceable, such provision, portion, or extent shall be severed and deleted or limited
to give effect to the intent of the Parties insofar as possible, and the remainder of this Agreement shall remain
binding upon the Parties.
