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This Evaluation License Agreement (the “Agreement”), dated as of (“Effective Date”) is made and entered into by and between Ziva Dynamics Inc. a Canadian corporation (“Ziva”), and (“Customer”).  Ziva and Customer (each a “Party” and together the “Parties”) agree as follows:

1. Definitions

In addition to terms defined elsewhere in this Agreement, the following capitalized terms will have the following meanings:

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity.

“Claims” means any claims or actions threatened, alleged or filed by any third party together with any related liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees, witness fees and court costs), whether incurred by settlement or otherwise.

“Confidential Information” means any confidential or proprietary information of Ziva, whether of a technical, business or other nature (including trade secrets, know-how and information relating to the technology, customers, business plans, promotional and marketing activities, finances and other business affairs of Ziva) that is disclosed to or obtained by you in connection with this Agreement and that, due to its nature or the circumstances of its disclosure, a person exercising reasonable business judgment would understand to be confidential, proprietary or trade secret information of Ziva.  Without limiting the foregoing, Confidential Information includes the Development Tools and any Feedback.

“Development Tools” means the software, documentation, scripts, metadata or other materials made available by Ziva to you under this Agreement (excluding any Third-Party Materials), together with any and all Updates provided by Ziva, if any.

“Evaluation Content” means any clipart, photographs, icons, fonts, shapes, animations, video clips, or other content developed by you in connection with your testing and evaluation of the Development Tools.

“Feedback” has the meaning given in Section 4.2.

“Intellectual Property Rights” or “IPR” means any patent rights, copyrights, rights in trademark, trade secrets, publicity rights, database rights, moral rights or other proprietary or intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise, including all renewals and extensions thereof, all goodwill associated therewith, and all benefits, privileges, rights to sue, recover damages and obtain relief for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.

“License” means the rights granted to you in Section 2.1.

“Term” means the term of the Agreement, as specified in Section 7.1.

“Third-Party Materials” means any (a) third-party open source software or other materials embedded within the Development Tools, and (b) third-party software or other materials with which the Development Tools are designed to interact or integrate.

“Update” means a change to any Development Tools that is commercially released by Ziva during the Term in the form of a patch, bug fix, point release, major release or other update to the version of the Development Tools then licensed by you under this Agreement.  

“Unauthorized Use”means any access, use, reproduction, distribution, disposition, possession, disclosure or other activity involving any Development Tools or Confidential Information of Ziva that is not expressly authorized under this Agreement or otherwise in writing by Ziva.

2. The Development Tools

2.1 License.  Subject to the limitations in Section 2.2 and other terms of this Agreement, Ziva hereby grants you a limited, non-exclusive, non-transferable (except as authorized under Section 8.8), revocable and non-sublicensable license during the Term to: (a) use the Development Tools in binary executable form solely for the purposes of testing and evaluation, and not for general production use; and (b) make and use a reasonable number of copies of any documentation provided with the Development Tools as reasonably required in connection with the exercise of the rights granted in (a).  

2.2 Limitations.  The License does not include any right to do, and you will not do or authorize any third party to do, any of the following unless expressly authorized in writing by Ziva: (a) reproduce (except as provided in Section 2.1(b)), license, distribute, publish, publicly perform or display, lease, rent, timeshare, transfer or sell any of the Development Tools; (b) modify or create any derivative works of the Development Tools; (c) reverse engineer, disassemble, decompile or attempt to discover the source code for, or any trade secrets related to, the Development Tools, except and only to the extent that such activity is expressly permitted by applicable law; (d) work around any technical limitations in the Development Tools; (e) remove, alter or obscure any proprietary rights notice on or in the Development Tools; or (f) use the Development Tools other than for their intended purpose.  

2.3 No Competing Development.  During the Term and for a period of 2 years thereafter, you will not, directly or indirectly, use the Development Tools, Confidential Information of Ziva or any other information, know-how, trade secrets or other materials resulting from or learned through any use of the Development Tools or Confidential Information of Ziva to develop any software, products or services that contain or perform the same or substantially similar features, functions or operations as the Development Tools.

2.4 Compliance with Third-Party Terms.  The warranties, obligations and liabilities of Ziva and your remedies with respect to any Third-Party Materials (whether or not embedded in the Development Tools) will be limited to whatever recourse may be available against the third-party provider of such Third-Party Materials and are subject to the restrictions and other limitations as may be set forth in the applicable provisions of the terms applicable to such Third-Party Materials (“Third-Party Terms”).  You will be solely responsible for its compliance with any Third-Party Terms.

2.5 Updates.  You acknowledge and agree that you are not entitled to receive any Updates. Without limiting the foregoing, you will install any Update provided by Ziva within a reasonable time after receipt of such Update.    

3. Confidential Information  

3.1 Obligations. You agree to hold all Confidential Information in strict confidence, not to use it in any way, commercially or otherwise, except in performing Services, and not to disclose it to others.  You further agree to take all actions reasonably necessary to protect the confidentiality of all Confidential Information including, without limitation, implementing and enforcing procedures to minimize the possibility of unauthorized use or disclosure of Confidential Information.

3.2 Exclusions.  The duties described in Section 3.1 will not apply to any information that: (a) is or becomes part of the public domain without a breach of this Agreement or wrongful act of any third party; (b) is rightfully known by you prior to disclosure by Ziva; or (c) is rightfully obtained by you from a third party without restrictions on use or disclosure.

3.3 Return of Materials.  Upon expiration or any termination of the Term of this Agreement, you will promptly destroy or (if requested) return the Confidential Information and all copies thereof.

4. Proprietary Rights

4.1 Ownership of the Development Tools. The License states the entirety of your rights with respect to the Development Tools.  Ziva reserves all rights not expressly granted in this Agreement.  Without limiting the generality of the foregoing, Ziva reserves all of its IPR in the Development Tools and its Confidential Information.  No title to or ownership of any IPR or Confidential Information of Ziva is transferred to you or any other person under this Agreement.  Except for the express license granted in Section 2.1, this Agreement will not be interpreted or construed as granting any other license or other right in or to the Development Tools or Confidential Information to you, whether by estoppel, implication or otherwise.

4.2 Feedback. From time to time, you may provide Ziva with feedback or comments regarding your experience using the Developer Tools and suggestions for improvements (collectively “Feedback”). All Feedback is provided voluntarily, and Ziva will be free to use and exploit all Feedback in any manner without restriction of any kind and without any need to compensate you. You acknowledge and agree that all Feedback will be the sole and exclusive property of Ziva.  You hereby irrevocably transfer and assign to Ziva and agree to irrevocably assign and transfer to Ziva all of  your right, title, and interest in and to all Feedback, including all IPR therein. At Ziva’s request and expense, you will take such action (including the execution, delivery and filing of documents and the provision of information, documents and testimony) to effect, perfect, evidence or protect Ziva’s IPR in the Feedback; provided that Ziva will pay or reimburse the out-of-pocket costs reasonably incurred by you in taking such action.  

4.3 Additional Protection of IPR.  You will not infringe or violate, and will take appropriate steps and precautions for the protection of, Ziva’s IPR referred to in Sections 4.1 and 4.2.  Without limiting the generality of the foregoing, you will (a) protect the Development Tools from and against Unauthorized Use, (b) immediately notify Ziva of any Unauthorized Use that comes to your attention, and (c) take all steps reasonably necessary to terminate any Unauthorized Use that comes to your attention, including by retrieving any copy of the Development Tools in the possession or control of any person or entity engaging in such Unauthorized Use.  

5. Warranty Disclaimer

5.1 The development tools and third-party materials are provided on an “as is” basis without warranties of any kind, either express or implied. ziva disclaims all warranties, express or implied, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Ziva does not represent or warrant that the development tools or third-party materials are (i) accurate, complete, reliable, current or error-free, (ii) free of viruses or other harmful components; or (iii) sufficient for development of evaluation content. You should use industry-recognized software to detect and disinfect viruses from any development tools. You will be solely responsible for backing up any evaluation content.

6. Limitation on Liability


6.2 Maximum Damages.  In no event will Ziva’s aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed one hundred dollars ($100).  

7. Term and Termination

7.1 Term.  The Term will commence on the date of your download of the Developer Tools and will continue for a period of sixty (60) days, unless terminated earlier in accordance with the terms of this Agreement.

7.2 Termination.  Either party may terminate this Agreement at any time, with or without cause, upon not less than five (5) days’ prior written notice to the other party.  Ziva may terminate this Agreement immediately upon written notice to you in the event that you breach Section 3 (Confidential Information) or infringe or otherwise violate Ziva's Intellectual Property Rights.

7.3 Effect of Termination.  Upon termination of the Term in accordance with the terms of this Agreement, the License for any Development Tools will terminate and you will immediately: (a) cease using such Development Tools; and (b) delete all copies of such Development Tools from all machine readable media and electronic memory in your possession or control.  Any Termination of the Term will be without prejudice to any other rights or claims that a party may have under this Agreement.

7.4 Survival.  The rights and obligations of each party under Sections 2.3, 3, 4, 5, 6, 7.3, 7.4 and 8 and the meaning of any defined terms will survive any termination of the Term.8

. Miscellaneous

8.1 Independent Contractor.  Each party is an independent contractor in the performance of this Agreement.  Without limiting the generality of the foregoing, each party will properly withhold and pay, or ensure that a third party properly withholds and pays for, all federal income, workers’ compensation, employer’s liability, pension, deferred compensation, welfare, insurance and other employee taxes or benefits payable to or on behalf of any person engaged by such party to perform any of its obligations under this Agreement.  Neither party will have, by virtue of this Agreement, any right, power or authority to enter into any contract or to assume or incur any other commitment or obligation in the name of or on behalf of, to act as the agent or representative of, or to otherwise bind the other party.  

8.2 Notices.   Any notices required or permitted under this Agreement will be given in writing, in English, and must be sent by post or email.  Notice will be sent to you at the email or postal address provided at the time of registration or download and to Ziva at humans@zivadynamics.com.  Notice will be deemed given on receipt, as verified by written or automated receipt or by electronic log (as applicable).  Either party may change such notice address by giving the other party notice of such change in accordance with this Section 8.2.

8.3 Compliance With Laws.  You agree to comply with all applicable laws, rules and regulations when using the Developer Tools. You will not use the Developer Tools to infringe or misappropriate any third party’s intellectual property rights.

8.4 Export Law.  The Development Tools may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. Appx. §§ 2401 et seq.) and the Export Administration Regulations (50 C.F.R. Parts 730-774), and may be subject to export or import regulations in other countries.  Except as authorized by law, you will not export or re-export the Development Tools to any country, or to any person, entity, or end-user subject to U.S. export controls, including persons or entities listed on the U.S. Department of Commerce Bureau of Export Administration’s Denied Parties List and the U.S. Department of Treasury’s Specially Designated Nationals.  

8.5 U.S. Government End Users.  The Developer Tools and related documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202.  If the Developer Tools and related documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Developer Tools and related documentation will be only those specified in this Agreement.

8.6 Publicity.  Neither party will issue any press release or make any public statements regarding this Agreement or the subject matter herein without the prior written consent of the other party.

8.7 Nonwaiver.  Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

8.8 Assignment.  You may not assign this Agreement, including any of your rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Ziva.  Assignment will not relieve you of your obligations under the assigned agreement.  Any attempted transfer or assignment in violation of this Section 8.8 shall be void, and Ziva shall have the right to immediately terminate this Agreement.

8.9 Force Majeure.  Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of events beyond the reasonable control of such party.

8.10 Severability.  If any provision of this Agreement is held by a court to be illegal, invalid, or unenforceable, the rest of this Agreement will be legal, valid, and enforceable to the fullest extent possible.

8.11 Cumulative Remedies.  The rights and remedies of Ziva set forth in this Agreement are in addition to and do not in any way limit any other rights and remedies afforded to Ziva by law or otherwise.

8.12 Attorneys’ Fees.  In any action to enforce any right or remedy under this Agreement, to recover any damages or other relief on account of any breach of or default under this Agreement, or to interpret any provision of this Agreement, the substantially prevailing party will be entitled to recover its costs and expenses (including reasonable attorneys’ fees) reasonably incurred in connection with such action or any appeal thereof.

8.13 Governing Law; Jurisdiction and Venue.  Any dispute between the parties will be governed by this Agreement and the laws of the Province of British Columbia, Canada, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.  Any suit or proceeding arising out of or relating to this Agreement will be brought in the federal or provincial courts, as applicable, in Vancouver, British Columbia, and each party irrevocably submits to the jurisdiction and venue of such courts.

8.14 Interpretation; Entire Agreement.  As used in this Agreement, the term “include” and “including” are meant to be inclusive and will be deemed to mean “include without limitation” or “including without limitation.”  This Agreement sets forth the entire agreement, and supersedes any and all prior proposals, understandings and agreements, between the parties with regard to the subject matter hereof.  No amendment, modification or waiver of any provision of this Agreement will be valid unless set forth in a written instrument signed by the party to be bound thereby.

8.15 Contact Information.  If you have any questions regarding this Agreement, you may contact Ziva at humans@zivadynamics.com.

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