Oak Labs Product Demo Agreement
PLEASE READ THIS MASTER LICENSE AGREEMENT CAREFULLY BEFORE USING THE PRODUCTS, SOFTWARE AND SERVICES OFFERED BY OAK LABS, INC. (“OAK LABS”). BY SIGNING AN OAK LABS ORDER FORM WHICH REFERENCES THIS AGREEMENT (AN “ORDER FORM”), YOU OR THE ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE MASTER AGREEMENT CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS (THE “AGREEMENT”). PROVISION OF THE PRODUCT IS CONDITIONED ON, AND CUSTOMER’S INSTALLATION OR USE OF THE PRODUCT SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE ORDER FORM, THE ORDER FORM SHALL CONTROL.
This Agreement applies to the purchase, sale and/or licensing (as applicable) of products, services and software listed on an Order Form (the “Products”).
- Shipment. Products shall be shipped F.O.B. place of manufacture or Oak Labs’ warehouse, freight collect or pre-paid and added to the invoice. Orders are subject to written acceptance by Oak Labs and shipment schedules established in accordance with Product availability and Customer’s credit status; however Oak Labs shall not have any liability for failure to meet a delivery date. Oak Labs will be free to substitute components or modify manufacturing processes and make other changes in the Product(s) and/or Product specifications at any time and without any prior notice.
- Cancellation/Changes. All orders are non-cancellable and may not be rescheduled once received and accepted by Oak Labs. Any and all changes Customer makes to its purchase order must be agreed to by Oak Labs in writing.
- Demo Period: Product Return. Customer may use the Products in accordance herewith for the period of time set forth on the applicable Order Form (the “Demo Period”). The Demo Period will commence on the date that Customer receives the Products. Customer shall maintain the Products in an undamaged condition and shall not loan, or allow the use or possession of, any Products to any third party. Customer shall not sell, pledge, or otherwise dispose of or encumber, or allow any lien to be attached to, any Product. Unless Oak Labs otherwise notifies Customer in writing (including via email), upon the termination of the Demo Period, Customer shall immediately return the Product(s) (including, without limitation, all Software contained on such Product(s)) to Oak Labs.
- Payments: Taxes. Customer shall pay the amount set forth on the applicable Order Form within thirty (30) days from the date of invoice unless stated otherwise on such Order Form. All prices are in U.S. dollars, and all payments are to be made in U.S. dollars, free of any restrictions. Except as otherwise required by applicable law or agreed to in writing by the parties, Customer is responsible for paying or reimbursing Oak Labs for all taxes or providing Oak Labs with a tax exemption certificate acceptable to the taxing authorities.
- Software License; Restrictions. Subject to the terms hereof and any applicable use or capacity limitations, Oak Labs grants to Customer a personal, nonsublicensable, nonexclusive right to use the software delivered hereunder (including all related documentation, the “Software”) in object code form only and only in accordance with Oak Labs’ applicable user documentation, solely in connection with the Products and solely during the Demo Period. Without Oak Labs’ prior written consent in each instance, Customer will not use the Software or Products (a) in any location other than the Approved Product Location set forth on the Order Form or (b) for any purpose other than internal evaluation or to showcase the Products, provided that the Products may not be used in a productive store environment. Customer must notify Oak Labs and receive Oak Labs’ prior written consent (which may be withheld for any reason) if Customer wishes to change the Approved Product Location. Oak Labs retains ownership of all copies of Software and Customer will maintain the copyright notice and any other notices that appear on the Product on any copies and any media. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE DEMO PERIOD OR USE INCONSISTENT HEREWITH AND MAY BE REMOTELY DISABLED IN CONNECTION WITH SUPPORT AND MAINTENANCE SERVICES. Customer acknowledges that Software may contain or be distributed with third party software (“Third Party Software”). All use of Third Party Software shall be governed by the respective licenses for such Third Party Software set forth at oaklabs.is/oakmirror/terms. Customer will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, any Software (except as expressly and specifically authorized by Oak Labs), (iii) possess or use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof in violation of any export control laws or regulations, (iv) disclose to any third party any benchmarking or comparative study involving any Software or (v) modify any Software. Prior to disposing of any Product containing any part of the Software, Customer shall completely destroy any Software contained therein.
- Confidentiality. Customer will hold in confidence and will not possess or use (except as required to evaluate the Products and the proposed business relationship with Oak Labs) or disclose any business, technical or other information, materials and/or ideas (“Proprietary Information”), except information Customer can document (a) is already generally known to the public through no fault of Customer, (b) was properly known to Customer, without restriction, prior to disclosure by Oak Labs or (c) was properly disclosed to Customer by another person without restriction.
- Support. Support for the Products and Software, if any, may be provided by Oak Labs at Oak Labs’ sole and absolute discretion.
- Warranty Disclaimer. ALL PRODUCTS, SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER, AND OAK LABS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE. OAK LABS ALSO EXPRESSLY DISCLAIMS AND MAKES NO WARRANTY REGARDING ERROR-FREE USE, NON-INTERRUPTION OF USE OR FREEDOM FROM BUGS. OAK LABS WILL HAVE NO LIABILITY FOR THE LOSS OR CORRUPTION OF ANY DATA STORED ON ANY PRODUCT FOR ANY REASON. CUSTOMER ACKNOWLEDGES THAT THE PRODUCT MAY CONTAIN FEATURES OR FUNCTIONALITY THAT RENDER THE PRODUCT INOPERABLE OR OTHERWISE AFFECT PRODUCT PERFORMANCE IF THE PRODUCT IS USED IN ANY LOCATION OTHER THAN THE APPROVED PRODUCT LOCATION.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL OAK LABS OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY DIRECT OR INDIRECT (INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, AND CONSEQUENTIAL) DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGIES, OR DAMAGES RESULTING FROM YOUR USE OF THE PRODUCTS OR SOFTWARE. THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE ANY LIABILITY WHICH, UNDER APPLICABLE PRODUCTS LIABILITY LAW, CANNOT BE PRECLUDED BY CONTRACT.
- Miscellaneous. This Agreement (including the Order Form) shall constitute the complete and exclusive statement of the terms of agreement between Oak Labs and Customer. THE TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY OAK LABS. PROVISION OF THE PRODUCTS IS CONDITIONED ON, AND CUSTOMER’S ORDERING, ACCEPTANCE OR USE OF ANY SUCH PRODUCT SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. Oak Labs’ performance is expressly conditioned on Customer’s assent to this Agreement. A waiver of any default hereunder or of any provision of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other provision, but shall apply solely to the instance to which such waiver is directed. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the Parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby. For international shipments, Customer or its properly authorized agent or freight forwarder shall be exporter of record from the United States. Customer shall be the importer of record and is responsible for fulfilling quota terms, obtaining import licenses, paying import license or permit fees, duties and customs fees, and any other governmental or import taxes or fees, and preparing and submitting all required documentation in connection with importing the Products. Oak Labs shall not be liable to Customer for any alleged loss or damages resulting from delays in performance (including loss or damages resulting from delivery of the Products being delayed) caused by acts of Customer, acts of civil or military authority, governmental priorities, earthquake, fire, flood, epidemic, quarantine, energy crisis, strike, labor trouble, component shortage, war, riot, accident, shortage, delays in transportation, or any other causes beyond Oak Labs’ reasonable control. This Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of California as applied to contracts made and to be performed in California, without applying conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of thirty (30) days after written notice of a dispute has been given by one party hereunder to the other, shall be finally settled by arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS (“JAMS”) then in effect, by an arbitrator with substantial experience in resolving complex commercial contract disputes, who will be chosen from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the identity of an arbitrator within fifteen (15) days following the Arbitration Date, then an arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. Any arbitrator so selected shall have substantial experience in the networking industry. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. The parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. The following provisions shall survive the termination of this Agreement or the relationship with Customer: 4, 5, 6, 8, 9, 10.
© OAK LABS, INC. 2018