SOFTWARE SANDBOX LICENSE AGREEMENT
This Software Sandbox License Agreement (this “Agreement”) is between you
(“Customer”) and Passbase, Inc., a Delaware corporation with its principal place of
business at 179
Franklin Street, 3rd Floor, New York, New York 10013 U.S.A. (“Company”). By
clicking on the
checkbox marked “I Accept and agree to be bound by the terms of this Agreement and Passbase’s
at https://www.passbase.com/privacy, you have indicated that you understand this Agreement
and accept all of
its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal
represent and warrant that you have the authority to bind that company or other legal entity to the
terms of this
Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If
you do not
accept all the terms of this Agreement, then you must not click the checkbox.
- Company has developed a certain software product, as more fully described on Schedule A
- Customer desires to test and evaluate the Software and provide feedback to Company to determine
whether to enter
into a standard end user license agreement with Company.
- Company desires to have Customer test and evaluate the Software and provide
feedback to Company
for Customer to determine whether to enter into a standard end user license agreement with Company,
subject to and
in accordance with the terms of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
- Grant of License. Subject to Customer’s compliance with the terms and conditions of
Company hereby grants to Customer a limited, nonexclusive, nontransferable, revocable
license, during the
term of this Agreement, to use the Software, in object code form, solely for the purposes of
evaluation, and not for general production use.
- License Restrictions. Customer acknowledges that the Software contains trade secrets
of Company and
its licensors, and, in order to protect such trade secrets and other interests that Company
licensors may have in the Software, Customer agrees not to reverse engineer, decompile,
modify the Software or authorize a third party to do any of the foregoing. Customer will not
sell, sublicense or otherwise transfer the Software or otherwise use the Software or any
Information disclosed to create a competitive product or offering. Customer will not copy
except as strictly necessary to use the Software in accordance with the terms of
Section 1.1. Customer will
reproduce all of Company’s and its licensors’ copyright notices and any other proprietary
rights notices on
all copies of the Software that Customer makes hereunder.
- Limited Rights. Customer’s rights in the Software will be limited to those expressly
Section 1.1. Company and its licensors reserve all rights and licenses in and to the
Software not expressly
granted to Customer under this Agreement.
FEEDBACK. Customer will: (a) test the Software and cooperate with Company
in evaluating the
Software; and (b) work with Company to identify and resolve any errors, problems or defects
in the Software
discovered by Customer or Company. In addition to the foregoing, upon the termination or
expiration of this
Agreement, Customer will provide Company with a final written report summarizing Customer’s
“Final Report”). All feedback, comments, and suggestions for improvements
provides to Company hereunder, including the Final Report, are referred to collectively as
OWNERSHIP. Customer acknowledges and agrees that all Customer Feedback will be the sole and exclusive
property of Company.
Customer hereby irrevocably transfers and assigns to Company and agrees to irrevocably assign
and transfer to
Company all of Customer's right, title, and interest in and to all Customer Feedback, including
patent rights (including patent applications and disclosures), copyright rights, trade secret
rights, and other
intellectual property rights (collectively, “Intellectual Property Rights”)
Company’s request and expense, Customer will execute documents and take such further acts as
reasonably request to assist Company to acquire, perfect and maintain its Intellectual Property
Rights and other
legal protections for the Customer Feedback. Customer further acknowledges and agrees that, as
parties, Company owns all right, title, and interest in and to the Software, including all
Rights therein, even if Company incorporates any Customer Feedback into subsequent versions of
Customer will not earn or acquire any rights or licenses in the Software or in any Company
Rights on account of this Agreement or Customer's performance under this Agreement.
- Definition. “Confidential Information” means: (a) the Software, and any
results or output produced by, and other information relating to, the Software (including,
all Customer Feedback); and (b) any business or technical information of either party,
including, but not
limited to, any information relating to either party’s product plans, designs, costs, product
prices and names,
finances, marketing plans, business opportunities, personnel, research, development or know-how
that (i) is
designated by either party as “confidential” or “proprietary”; (ii) if orally disclosed, is
reduced to writing
by the disclosing party within thirty (30) days of such disclosure; or (iii) due to its nature
circumstances of its disclosure, a person exercising reasonable business judgment would
understand to be
confidential or proprietary.
- Exclusions. The obligations in Section 4.3 will not apply to the extent any information:
(a) is or
becomes generally known to the public through no fault or breach of this Agreement by the
receiving party; (b)
is rightfully known by the receiving party at the time of disclosure without an obligation of
(c) is independently developed by the receiving party without access to or use of any
or (d) is rightfully obtained by the receiving party from a third party without restriction on
- Restrictions. The receiving party will not use or disclose any Confidential Information,
necessary for the performance of this Agreement. The receiving party will use all reasonable
efforts to protect
Confidential Information of the disclosing party from unauthorized use or disclosure, but in no
event less than
the efforts that it ordinarily uses with respect to its own proprietary information of a similar
importance. The receiving party may disclose Confidential Information of the disclosing party
only to those of
its employees who have a bona fide need to know such Confidential Information for the
performance of this
Agreement; provided, that each such employee first executes a written agreement (or is otherwise
by a written agreement) that contains use and nondisclosure restrictions at least as protective
Confidential Information of the disclosing party as those set forth in this Agreement.
WARRANTY DISCLAIMER. Customer acknowledges and agrees that the Software is being provided “AS IS.” COMPANY DISCLAIMS ALL
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
LIMITATION ON LIABILITY.
IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER OR TO ANY
THIRD PARTY FOR
DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH
OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE
WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING
LIABILITY OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS OR DAMAGE.
IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT
EXCEED $5,000. THE
PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY
SPECIFIED IN THIS
AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
TERM AND TERMINATION.
- Term. The term of this Agreement will be for a period of thirty (60) days,
terminated as provided below.
- Termination. Either party may terminate this Agreement at any time, with or without cause,
upon five (5)
days' written notice to the other party. Company may terminate this Agreement immediately upon
written notice to
Customer in the event that Customer breaches any of its obligations under this Agreement or
infringes or otherwise
violates Company's Intellectual Property Rights.
- Effect of Termination. Upon any termination or expiration of this Agreement: (a) the rights
granted to Customer under this Agreement will automatically terminate; (b) Customer will promptly
deliver to Company
the Final Report; and (c) unless the parties otherwise agree in writing, within five (5) days after
termination or expiration, Customer will, at its expense, return to Company all copies of the
Software and any other
Confidential Information in Customer's possession or control, and an officer of Customer will
certify in writing to
Company that it has complied with the foregoing.
- Survival. The provisions of Sections 2, 3, 4, 5, 6, 7.3, 7.4 and 8 will survive any
termination or expiration
of this Agreement.
Assignment. Neither party may assign this Agreement or any of its rights or obligations
hereunder, in whole
or in part, by operation of law or otherwise, without the prior written consent of the other party.
assignment without such consent will be null and of no effect. Notwithstanding the foregoing, each
party may assign
this Agreement in the event of a merger, acquisition or change of control of the Company without the
consent of the
- Governing Law. This Agreement will be governed by and construed in accordance with the laws
of the State of
New York (excluding its body of law controlling conflicts of law). The parties expressly agree that
Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action
arising under this Agreement will be brought exclusively in the federal or state courts located in
New York County,
and the parties hereby consent to the personal jurisdiction and venue therein.
- Severability. If any provision of this Agreement is held invalid or unenforceable by a court
jurisdiction, such provision will be construed so as to be enforceable to the maximum extent
permissible by law, and
the remaining provisions of the Agreement will remain in full force and effect.
- Waiver. The waiver of any breach or default will not constitute a waiver of any other right
hereunder or of
any subsequent breach or default.
- Notices. All notices required or permitted under this Agreement will be in writing and
delivered in person,
by confirmed facsimile transmission, by overnight delivery service, or by registered or certified
prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All
will be sent to the addresses set forth above or to such other address as may be specified by either
party to the
other in accordance with this Section.
- Entire Agreement. This Agreement and the attached schedules constitute the entire and
between the parties pertaining to the subject matter hereof, and supersedes any and all prior
communications, and understandings (both written and oral) regarding such subject matter. This
Agreement may only be
modified, or any rights under it waived, by a written document executed by both parties.
- Counterparts. This Agreement may be executed in counterparts, each of
which will be
deemed an original, but all of which together will constitute one and the same instrument.
Passbase provides temporary use of non-downloadable cloud-based software for identity verification,
authentication, and secure storage of consumer identity information.