This Evaluation License Agreement (the “Agreement”) is entered into by and between Crunchfish AB, Swedish corp. id. no. 556804-6493 and the Licensee (as defined in Clause 1.2 in the Standard Terms) and will commence on the Effective Date (as defined in Clause 3.1 in the Standard Terms). The Standard Terms are incorporated and shall be seen as an integral part of the Agreement. The software components and the associated technical documentation listed below will, subject to the terms of this Agreement – including but not limited to Clause 1.4 of the Standard Terms – be disclosed to the Licensee. Software Components: [List of software components] [Associated Technical Documentation List of associated technical documentation if possible]
SW19305468/3 STANDARD TERMS
1.1 Crunchfish has developed and is continuing to develop a beacon proximity technology solution for integration with software applications and hardware devices, such as, but in no way limited to, mobile telephones.
1.2 Crunchfish is prepared to disclose to the licensee (the “Licensee”) the software components (the “Software”) and the associated technical documentation (“Technical Documentation”) listed in the introduction of this Agreement. Together the Software and the Technical Documentation shall be referred to as the “Materials”.
1.3 The Materials are supplied to the Licensee to (i) internally test and evaluate the Materials; (ii) incorporate the Software into the hardware agreed upon; and (iii) visually demonstrate the capabilities of the incorporated Software for third parties (the “Purpose”).
1.4 The Materials are supplied to Licensee after approval by Crunchfish of Licensee’s request to evaluate the Software. Crunchfish may in its sole discretion reject any request and thereby deny any access to the Materials.
2. USE AND LICENSE OF MATERIALS
2.1 Subject to the terms and conditions of the Agreement, Crunchfish hereby grants to the Licensee a free of charge, non-exclusive, non-transferable, limited licence to use the Materials solely for the purposes of the Purpose.
2.2 Licensee may, without written approval, not demonstrate the capabilities of the incorporated Software for a third party who does or have plans to develop software similar to the Software or who otherwise can be considered a competitor of Crunchfish.
2.3 All copies of the Materials provided by Crunchfish, including all intellectual property rights including all patents, inventions, copyrights, database rights, design rights (whether registered or not), trade marks, trade names, logos, trade secrets, know how and all rights to sue for passing off or unfair competition and all applications for the same and all rights of similar nature existing anywhere in the world (“Intellectual Property Rights”) therein, are and shall remain the exclusive property of Crunchfish.
2.4 The Licensee shall not distribute, sell, supply, modify, adapt, amend, merge, or otherwise alter, the Materials. Licensee shall not attempt to decompile, reverse-engineer or otherwise disassemble any part of the Materials.
2.5 The Licensee acknowledges that the Materials, the related Intellectual Property Rights including its object code and source code (if any) and related proprietary information embodied therein or related thereto (the “Proprietary Information”), contain valuable trade secrets of Crunchfish and are also protected by the copyright and patent laws of various countries. The Licensee agrees that it will keep the Proprietary Information in strict confidence and will not in any way; (a) disclose or make available the Proprietary Information or any portion thereof to any person or entity, except employees and representatives of the Licensee to whom such disclosure is strictly necessary for the Purpose; or (b) copy, reproduce or duplicate the Proprietary Information or any portion thereof in any form or medium.
2.6 The Licensee’s confidentiality obligations under this Section 2 shall survive termination of this Agreement for any reason whatsoever.
2.7 To the extent permitted by the law, the Materials are supplied as is, including any faults. To the maximum extent permitted by the law, Crunchfish excludes all warranties, conditions or other terms that may be implied into this Agreement whether by law, statute or otherwise. Crunchfish gives no condition, warranty or other term whatsoever, either express or implied including, without limitation, any condition, warranty or other term as to the condition of any code, or as to merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or use of reasonable care and skill. To the extent permitted under applicable law, Crunchfish shall not be liable in contract, tort or otherwise for any loss or damage, howsoever arising in connection with the Materials or this Agreement. Crunchfish shall not be liable for any direct, indirect, special, or consequential damages, whether such damages or losses are known, foreseen, foreseeable or unforeseen. Nothing in this Agreement shall limit Crunchfish’s liability for negligently caused death or personal injury or fraud.
2.8 Except for the rights and licence granted hereunder, nothing contained in this Agreement shall be construed to grant to the Licensee any right, title or interest in or to the Materials. Crunchfish expressly reserves all right, title and interest in and to the Materials which are not specifically granted to the Licensee hereunder.
2.9 The Licensee shall maintain complete and accurate books and records of its use of the Materials hereunder. Crunchfish shall have the right to inspect and audit the facilities and all the relevant books and records of the Licensee to ensure that the Licensee is fully complying with its obligations hereunder. Any such audit shall be upon at least twenty-four (24) hours prior written notice and shall be conducted during normal business hours no more than twice per calendar year.
3. TERM AND TERMINATION
3.1 The Agreement shall commence on the date of delivery of all or any of the Materials to Licensee (the “Effective Date”) and unless terminated earlier in accordance with this Section, shall continue until either the Purpose is
complete or for a period of six (6) months from the Effective Date whichever shall occur sooner (the “Term”) and which definition shall include any extensions thereto. Crunchfish may at any time by notice in writing to the Licensee withdraw the Licensee’s rights under Section 2 whereupon it may require the Licensee immediately upon receipt of such notice to cease use of the Materials.
3.2 Crunchfish may at any time immediately withdraw Licensee’s rights under Section 2 should it, in its sole discretion, deem that Licensee’s use of the Software is causing higher than expected traffic to Crunchfish’s servers.
3.3 In the event of expiry or termination of this Agreement howsoever caused, the Licensee shall: (a) return to Crunchfish, or as Crunchfish may direct, ensure to the satisfaction of Crunchfish that all copies of the Materials and other Proprietary Information are destroyed and all software erased from all media, such of the original versions of the Materials and other Proprietary Information and copies thereof that are in its possession; (c) destroy all programs and documents prepared by or for it or in its possession which incorporate any part or element of the Materials and other Proprietary Information; and (d) within five (5) business days of any request from Crunchfish, provide written certification of compliance with Sections 3.1 (a) and (b), above.
3.4 Each party shall have the right to terminate this Agreement by notice with immediate effect, if the other party that exists on the date of this Agreement changes in any material manner that adversely affects the rights of the terminating party, including the acquisition of ownership or control by a competitor of the other party. In such event, the terminating party shall co-operate with the other party to conduct an orderly termination of this Agreement.
4. BREACH AND LIQUIDATED DAMAGES
4.1 The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose. The Licensee agrees that any breach of this Agreement may cause Crunchfish substantial and irreparable damages and, therefore, in the event of any such breach, in addition to other remedies which may be available, Crunchfish shall have the right to seek specific performance and other injunctive and equitable relief.
5. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between the parties with respect to its subject matter and replaces and excludes all previous agreements entered into, and all undertakings, promises or representations (except fraudulent representations) made, given or implied from any contact between the parties prior to this Agreement regarding this Agreement’s subject matter. A party shall have no remedy for any untrue statement (except for a fraudulent, untrue statement) made by the other party which it relied upon in entering into this Agreement except the remedy for breach of this Agreement. This Agreement, including this Section 5, cannot be changed except by written agreement between the parties.
6.1 The Licensee may not assign or otherwise transfer its rights or obligations under this Agreement without Crunchfish’s prior written consent.
6.2 Crunchfish may assign or otherwise transfer its rights and obligations under this Agreement to an affiliate of Crunchfish without the consent of the Licensee and without any further conditions imposed by the Licensee. Crunchfish may assign or otherwise transfer its rights and obligations under this Agreement to a third party with the consent of the Licensee, such consent not to be unreasonably withheld or delayed. The Licensee agrees to enter promptly into any documentation required by Crunchfish to effect any such assignment or transfer to an affiliate of Crunchfish or to a third party.
The failure of either party to enforce or to exercise, at any time or for any period of time, any term of or any right arising pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or exercise it.
If any provision of this Agreement is found to be invalid, unlawful or unenforceable by a court of competent jurisdiction, such invalid term shall be severed from the remaining portion of this Agreement which will continue to be valid and enforceable to the fullest extent permitted by law. In the event of such invalidity, illegality or un-enforceability, the parties shall enter into good faith negotiations in order to agree on a replacement for each such invalid, illegal or unenforceable provision with a valid, legal and enforceable provision that most nearly and fairly approximates the effect and intent of the invalid, illegal or unenforceable provision. If the parties cannot agree on such replacement provisions, either party may terminate this Agreement upon thirty (30) days’ prior notice to the other party.
9. CONFIDENTIAL NATURE OF AGREEMENT
Each party agrees to keep the existence and nature of this Agreement confidential and not to use the same or the name of the other in any publicity, advertisement or other disclosure with regard to this Agreement or otherwise without the prior written consent of the other party.
10. GOVERNING LAW AND JURISDICTION
10.1 The interpretation construction and effect of this Agreement shall be construed in all respects in accordance with Swedish substantive law.
10.2 Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”).
10.3 Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce. The seat of arbitration shall be Malmö, Sweden. The language to be used in the arbitral proceedings shall be English.
10.4 Any arbitration award shall be final and binding and may, if necessary, be enforced by any court or authority having competent jurisdiction.
10.5 The parties undertake and agree that all arbitral proceedings conducted under this Section
10 shall be kept strictly confidential, and all information, documentation, materials in whatever form disclosed in the course of such arbitral proceedings shall be used solely for the purpose of the proceedings.
10.6 Notwithstanding the foregoing, nothing in this Section 10 shall prevent the parties from seeking any injunctive or equitable relief by a court of competent jurisdiction.
By clicking “Request Early Access” the Licensee requests access to the Materials and agrees to be bound by this Agreement.