Trial Test Agreement Terms And Conditions

1. Definitions

Any capitalized terms used but not defined in these Trial Test Agreement Terms and Conditions will have the meanings (if any) specified applicable Exhibits. In addition, the following definitions apply.

1.1. “Product” means the Tubular Labs product(s) specified in the Trial User Agreement, including any updates or modifications thereto (which may be provided by Tubular Labs in its sole discretion), and Documentation

1.2. “Trial Test Period” mean the period set forth in the Trial User Agreement during which the trial of the Product contemplated hereunder will be undertaken.

1.3. “Documentation” means supporting written materials which Tubular Labs may in its sole discretion provide to Customer in connection with its use of a Product hereunder.

2. Scope

This Agreement sets forth the terms and conditions regarding Customer’s rights to trial the Product(s).

3. Product License and Restrictions

This Agreement sets forth the terms and conditions regarding Customer’s rights to trial the Product(s).

3.1. License Grant Tubular Labs hereby grants to Customer and Customer accepts a non-transferable, non-exclusive, revocable, non-sublicensable license to remotely access and use the Product during the Trial Test Period solely for the purpose of conducting internal, non-production evaluation of the Product. Customer may permit its employees with a need to know (also referred to as its “users”) to access and use the Product, but Customer hereby commits and ensures that each such employee shall comply with the terms and conditions of this Agreement and shall be bound by appropriate terms to effectuate their compliance. No third party may access or use the Product without the prior written consent of Tubular Labs, which may be withheld and/or conditioned in its sole discretion.

3.2. Certain Restrictions Customer agrees that it may not use any data derived from or generated by the Product for any purpose other than for the internal evaluation of the Product and may not make any such data available, directly or indirectly, to any other person or entity. In addition, Customer agrees not to, and not to permit any user or any third party to: (i) copy, modify, or reverse engineer the Product or its design, (ii) make derivative works based upon the Product, (iii) use the Product to develop any product, service, solution or other offering, without Tubular Labs’ prior written approval (iv) sell, license, rent, or transfer the Product to any third party, or use the Product to provide data processing or other services, or to engage in any other arrangement, which benefits a third party. Customer shall delete all data after the Trial Test Period within five (5) days and notify Tubular Labs in writing. In addition, Customer shall comply with any additional usage or licensing restrictions or limitations set forth in this Agreement Any licenses or rights not expressly granted to Customer are reserved by Tubular Labs.

3.3. Modifications Customer agrees that Tubular Labs may (in its sole discretion and without any obligation to do so) elect to make modifications, changes and updates to the Product during the Trial Test Period. Customer understands that these modifications, changes and updates may be incompatible with previous versions of the Product and could include substantial changes to the Product and its operating procedures.

3.4. Access During the Trial Test Period, Tubular Labs shall have the right to monitor Customer’s use of the Product at any time.

3.5. Future Offering Tubular Labs may elect to make the Product available for purchase by Customer, but makes no commitment that Customer will be able to purchase the Product(s). If it elects to do so (which decision shall be in Tubular Labs’ sole discretion), the Product would be offered under separate agreement for fees to be determined by Tubular Labs.

4. Obligations of Tubular Labs

4.1. Delivery; Remote Access. Tubular Labs agrees that Tubular Labs will make the Product available to Customer for evaluation purposes during the Trial Test Period. The Product will be made available on or about the “Start Date” specified in in the Trial User Agreement or, if no such date is specified therein, within a reasonable time after execution of this Agreement by both parties. The Product will be made available from a hosted computing environment controlled by Tubular Labs for remote access by Customer over the internet. While Tubular Labs will use commercially reasonable efforts to make the Product available on an ongoing basis, Customer understands and agrees that there may be downtime, outages and other delays.

5. Disclaimer of Warranty

THE PRODUCT IS PROVIDED HEREUNDER “AS IS” WITHOUT WARRANTIES OF ANY KIND. TUBULAR LABS SPECIFICALLY DISCLAIMS ALL EXPRESSED AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. 

6. Ownership and Feedback

6.1. Ownership Customer acknowledges that the Product is licensed to Customer for trial testing and evaluation and that Tubular Labs retains ownership of all right, title and interest to the Product, the Product design, underlying software and Documentation, and the intellectual property rights therein and thereto (including without limitation, all patent rights, design rights, copyrights and trade secret rights) subject to the terms and restrictions set forth in this Section 6.

6.2. Feedback and Modifications. Customer hereby assigns to Tubular Labs, Customer’s entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in, and agrees that Tubular Labs shall exclusively own, any ideas or suggestions regarding, and in any modifications, changes, updates or improvements to, the Product which Customer may suggest, propose or make or which Customer and Tubular Labs may jointly make in connection with this Agreement, including all modifications and derivatives based on any of the above.

7. Termination

THE PRODUCT IS PROVIDED HEREUNDER “AS IS” WITHOUT WARRANTIES OF ANY KIND. TUBULAR LABS SPECIFICALLY DISCLAIMS ALL EXPRESSED AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.

Upon termination of this Agreement, Customer shall immediately cease use of the Product and shall, at its expense, return to Tubular Labs all Proprietary Information, all proprietary materials and Documentation, and all data (including all copies thereof) then in Customer’s possession or custody or control, and certify in writing as to such action. In addition, Customer shall comply with the additional data deletion requirements set forth in Section 3.2. 

8. Disclaimer of Liability

IN NO EVENT SHALL TUBULAR LABS, ITS AFFILIATES, ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WITH RESPECT TO THE PRODUCT, CUSTOMER’S USE THEREOF, OR FOR ANY MATTER ARISING UNDER OR RELATED TO THIS AGREEMENT. 

9. Consequential Damage Waiver

IN NO EVENT SHALL TUBULAR LABS OR ITS AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA, OR ANY OTHER INDIRECT DAMAGES EVEN IF THEY HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF.

10. Confidential Information

Customer acknowledges that, in the course of using the Products and performing its duties under this Agreement, it may obtain information relating to the Products and to Tubular Labs which is of a confidential and proprietary nature (“Proprietary Information”). Such Proprietary Information includes, but is not limited to, trade secrets, know how, techniques, processes, programs, designs, Documentation, data, customer lists, financial information, product and business plans, the terms of this Agreement and other information which Customer knows or reasonably should know is confidential, proprietary or trade secret information of Tubular Labs. Customer shall at all times, both during the term of this Agreement and after its termination or expiration, for so long as the information is maintained as confidential by Tubular Labs., keep in trust and confidence all such Proprietary Information, and shall not use such Proprietary Information other than as expressly authorized by Tubular Labs under this Agreement, nor shall Customer disclose any such Proprietary Information to third parties without Tubular Labs’ written consent (which may be withheld and/or conditioned in Tubular Labs’ sole discretion). The obligations of confidentiality shall not apply to information which (i) has entered the public domain except where such entry is the result of Customer’s breach of this Agreement; (ii) prior to disclosure hereunder was already in Customer’s possession; or (iii) subsequent to disclosure hereunder is obtained by Customer on a non-confidential basis from a third party who has the right to disclose such information to the Customer. Any press release or publication regarding this Agreement is subject to prior review and written approval of the parties.

11. General

11.1. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California, United States of America, as of performed wholly within the state and without giving effect to the principles of conflict of law. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts in the Northern District of California. Customer shall comply with all applicable laws, including all relevant export laws and regulations.

11.2. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under this Agreement.

11.3. Customer shall not assign or delegate, in any manner, its rights, obligations or interest in or under this Agreement without the prior written consent of Tubular Labs (which may be withheld and/or conditioned in the sole discretion of Tubular Labs).

11.4. In the event of a breach by Customer, Customer will pay to Tubular Labs its reasonable attorneys’ fees and other costs and expenses incurred by Tubular Labs in connection with the enforcement of any provisions of this Agreement.

11.5. All notices required or permitted under this Agreement will be in writing and will be deemed given when: (a) delivered personally; (b) sent by confirmed facsimile (followed by the actual document delivered pursuant to one of the other options specified in this provision); (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (d) two (2) days after deposit with a commercial express air courier specifying next day delivery, with written verification of receipt; or (e) delivered via electronic mail with evidence of receipt by the other party. All communications will be sent to the addresses set forth in the cover sheet of this Agreement, or to such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph.

11.6. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.

11.7. Force Majeure. Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.

11.8. This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.

[End of Trial Test Agreement Terms and Conditions]

Last updated on December 18, 2017