IMPORTANT: This is a legal agreement (the "Agreement")
between you (the "User") and KARMA2GO, LLC, a Delaware Limited Liability Company
with its principal business address as 456 Montgomery Street, Suite
1350, San Francisco, CA 94104 ("K2GO"). It is important that you
read this Agreement before accessing or using any information or
products on this K2GO World Wide Web site (the "Site"). By accessing
or using any of the information or products on this site, you acknowledge
that you have read this Agreement and agree to be bound by its terms.
If you do not agree to be bound by all of the terms
of this Agreement, do not attempt to access or use any of the information
or products on this site.
1. K2GO grants to User a non-exclusive, non-transferable,
limited license to use the Evaluation Products only for the Evaluation
Purpose during the Evaluation Period as such terms are defined below
and for no other purpose whatsoever. User agrees to use the Evaluation
Products solely for the Evaluation Purpose and only during the Evaluation
Period. Any further licensing of K2GO products by User shall be
the subject of a separate agreement. K2GO reserves the right to
refuse in its sole discretion to license the Evaluation Products
or any other products to User.
2.DEFINITIONS. For purposes of this Agreement:
(a) The "Evaluation Products" are collectively: (i)
any content and data accessible to User on the Site (the "Content");
(ii) any software products made available to User on the Site, in
object code form only (the "Software"); and (iii) any documents
made available to User on the Site (the "Documentation).
(b) The "Evaluation Purpose" shall be limited to
the internal evaluation by User for the sole purpose of determining
whether User desires to obtain a license to use any of the Evaluation
Products for other than solely internal Evaluation Purpose.
(c) The "Evaluation Period" shall be: (i) in the
case of any item of the Content now or hereafter placed on the Site,
from the time User accepts this Agreement to the time K2GO, in its
sole and absolute discretion, removes such item of Content from
the Site or otherwise makes it inaccessible to User; (ii) in the
case of the Software and the Documentation, from the time K2GO provides
User with a Password (defined below) to access the Software and
Documentation in accordance with Section 5 below until the time
such user name and/or password expire or are cancelled by K2GO in
its sole and absolute discretion in accordance with Section 5 below.
(d) The "User Data Form" shall be the request form
that User must submit to request access to the Software and/or Documentation.
3.OWNERSHIP. Except as expressly set forth
in this Agreement, all right, title and interest in the Evaluation
Products remain with K2GO or its licensors, and any proprietary
information contained in the Evaluation Products is protected by
copyright, trademark and trade secret law and international treaties.
4.LIMITATIONS ON USE. The Evaluation Products
may not be used for any purpose other than Evaluation Purpose and
may not, without limitation, be offered for sale or lease. User
may use the Software in accordance with this Agreement only on the
Site, which User may access from only one computer at the location
specified on the User Data Form (the "Designated Machine") and may
not download or otherwise transfer or reproduce the Software. In
the event that User is authorized by K2GO to download the Documentation,
User may do so only on the Designated Machine, may save the Documentation
as a single file on the Designated Machine and may print one (1)
hard copy of the Documentation. User shall return to K2GO or destroy
such file and copy upon K2GO's request, which may be made at any
time, and certify such return and/or destruction in writing to K2GO.
User may not otherwise download or reproduce the Documentation in
any form whatsoever or authorize or assist any third party to do
so. User may not, nor may User authorize or assist another to, modify,
translate, convert to another programming language, decompile, reverse
engineer or disassemble any portion of the Evaluation Products.
User may not allow access to the Evaluation Productby, nor disclose
the username and/or password provided to User by K2GO to, anyone
other than the employees of User who have entered into agreements
with User containing confidentiality provisions at least as restrictive
as those set forth in this Agreement and who have a need to access
the Evaluation Products for the Evaluation Purpose.
5.ACCESS. User must submit a fully completed
User Data Form setting forth such information as K2GO in its sole
discretion requires in order to request access to the Software and
Documentation. Notwithstanding anything to the contrary herein,
K2GO shall have the right in its sole and absolute discretion to
refuse to provide User with access to the Software and/or Documentation,
or to subsequently revoke such access at any time, for any or no
reason. In the event that K2GO grants User access to the Software
and/or Documentation, K2GO will supply User with one or more user
names and passwords (collectively, the "Password") to access such
items. If not terminated earlier by K2GO, the Password will automatically
expire 7 days from the date of its issuance by K2GO. User will disclose
the Password only to those employees of User who have a right to
access such items as provided in this Agreement and who are your
6.CONFIDENTIALITY. As used in this Agreement,
"Confidential Information" means: (i) each and every Evaluation
Product and all parts thereof in any form, and any related technology,
idea, algorithm or information contained in the Evaluation Products;
(ii) the Password; and (iii) any information disclosed by K2GO to
User relating to any of the Evaluation Products designated as confidential
at the time of disclosure or which would be considered confidential
by a reasonable person. Notwithstanding the foregoing, "Confidential
Information" shall not include information that: (a) is known and
has been reduced to tangible form by User prior to the time of disclosure
for the first time under this Agreement; or (b) is independently
developed by User without the use of any of the Confidential Information.
User shall have the burden to prove by clear and convincing evidence
that the foregoing exceptions apply. User will not use the Confidential
Information for any purpose other than the Evaluation Purpose. User
will use commercially reasonable efforts to protect the Confidential
Information from unauthorized disclosure. User may disclose the
Confidential Information only to employees of User who have a need
to know such Confidential Information in furtherance of the Evaluation
Purpose and who have entered into agreements with User containing
confidentiality provisions at least as restrictive as those set
forth in this Section 6 with respect to the Confidential Information.
User will not disclose any of the Confidential Information to any
third party without the clear and express written consent of K2GO.
User specifically agrees that it will not disclose any, or any portion
of any, Evaluation Product to any third party, for any reason.
7.WARRANTIES AND COVENANTS BY USER. User represents,
warrants and covenants as follows: (i) User is a potential customer
of K2GO; (ii) User will not use any of the Evaluation Products or
any part thereof in any manner inconsistent with the terms and conditions
of this Agreement, nor will User authorize or assist others to do
so; (iii) User is not a competitor of K2GO's; (iv) User will not
use the Evaluation Products in any way, directly or indirectly,
to compete with K2GO; (v) all of the information supplied by User
to K2GO in the past, contemporaneously herewith and at any time
hereafter, including without limitation information supplied on
the User Data Form, was, is and will be at all times true, accurate,
complete and not misleading; and (vi) User shall immediately notify
K2GO in writing at the address above (Attn: Legal Department) of
any unauthorized use or disclosure of any of the Evaluation Products
or part thereof or any Confidential Information.
8.INDEMNIFICATION BY USER. User will defend,
indemnify and hold harmless K2GO against all claims, suits, proceedings,
losses, liabilities damages and expenses (including reasonable attorneys'
fees and allocated costs of K2GO's in-house counsel), arising from
or related to the following: (i) a breach of any warranty set forth
in Section 7 above, (ii) the use or disclosure of Confidential Information
in any manner inconsistent with this Agreement, or (iii) the use
of the Evaluation Products accessed through use of the Password
assigned to User in any manner inconsistent with this Agreement
by any person, whether or not authorized by User.
9.NO WARRANTIES BY K2GO. The Evaluation
Products and all accompanying materials are provided "AS IS," without
warranty of any kind. To the maximum extent permitted by law, K2GO
hereby disclaims all warranties, express, implied and statutory,
including but not limited to, implied warranties of merchantability
and fitness for a particular purpose (regardless of whether K2GO
knows of such purpose) and against infringement. The entire risk
arising out of the use or performance of the Evaluation Products
and any accompanying written materials remains with User.
10.LIMITATION ON LIABILITY. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL K2GO OR ITS
SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, OR FOR ANY
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES) ARISING
OUT OF THE USE OF OR INABILITY TO USE THE EVALUATION PRODUCTS, EVEN
IF K2GO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.TERMINATION OF AGREEMENT. Sections 2 through
4 and 6 through 15 shall survive termination of this Agreement.
12.NONASSIGNABILITY. User may not assign or
transfer this Agreement or any Evaluation Product or all or any
part of its rights under this Agreement, by operation of law or
otherwise, including without limitation to any purchaser of User's
assets or securities. Any change in control of User shall constitute
an assignment for the purposes of this Agreement. K2GO may assign
this Agreement. Any assignment attempted in contravention of this
Section 12 shall be null and void, and shall entitle K2GO to terminate
this Agreement immediately upon written notice to User.
13.GOVERNING LAW AND JURISDICTION. This Agreement
shall be governed by the laws of the State of California excluding
its conflict of law principles. The courts located in or serving
Santa Clara County, California shall have exclusive jurisdiction
and venue over any dispute arising out of or relating to this Agreement,
and User and K2GO hereby consent to such jurisdiction and venue.
14.EXPORT REQUIREMENTS. User may not export
the Evaluation Products outside of the United States without K2GO's
express written consent. The Evaluation Products and all related
technical information or materials may be subject to export controls
under U.S. Government export regulations, and User shall comply
with all such regulations, as may be advised by K2GO from time-to-time.
15.MISCELLANEOUS. If a court holds any provision
of this Agreement to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect. This Agreement
contains the parties' entire understanding and agreement concerning
the subject matter of this Agreement and may only be modified by
a written instrument signed by each party's duly authorized representative.
Any waiver by either party of any default or breach under this Agreement
shall not constitute a waiver of any provision of this Agreement
or of any subsequent default or breach of the same or a different