Evaluation License Agreement
To use eSellerate for evaluation purposes, please carefully read the Evaluation License Agreement below and then click the Agree button at the bottom of this page.
ESELLERATE EVALUATION AGREEMENT PLEASE READ THIS ENTIRE ESELLERATE EVALUATION AGREEMENT (THE "AGREEMENT") CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON, ORGANIZATION OR ENTITY WHO ACCEPTS, OR WHO ACCEPTS ON BEHALF OF, THIS AGREEMENT ("Evaluator") AND DR MYCOMMERCE, INC. D/B/A ESELLERATE ("eSellerate"). Please print a copy of this Agreement for your records. Evaluator must agree to the terms and conditions in this Agreement before eSellerate will grant Evaluator a right to utilize, for evaluation purposes, the eSellerate Evaluation Platform and Materials (as defined below). Evaluator's electronic acceptance of this Agreement constitutes an offer to eSellerate. BY ACCEPTING THIS AGREEMENT BELOW, THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND EVALUATOR TO THIS AGREEMENT. The commencement of eSellerate's performance of its obligations hereunder shall constitute eSellerate's acceptance of this Agreement, and upon commencement of such performance this Agreement shall form a binding agreement between the parties. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Evaluator and eSellerate agree as follows: 1. RIGHT TO EVALUATE. Subject to Evaluator's compliance with the provisions of this Agreement, for the term of this Agreement eSellerate hereby grants to Evaluator a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable right to utilize, for internal evaluation purposes only, (a) the eSellerate-owned and provided Web-based commerce system (the "eSellerate Platform"), (b) the functionality within the eSellerate Platform that allows clients to customize certain of the account elements, designs, functionalities and user experiences, specifically the "Custom Layouts" option available for use with Web Store and Embedded Web Store clients ("Custom Layouts"), and (c) the eSellerate-owned and provided software code and related APIs which support in-application commerce ("eSellerate In-Application Tools") (collectively, the "eSellerate Evaluation Platform and Materials"), for the sole purpose of determining whether Evaluator desires to enter into an agreement with eSellerate pursuant to which eSellerate would resell Evaluator's products to purchasers through online commerce via the eSellerate Platform. 2. RESTRICTIONS. A. NO SUPPORT FOR LIVE TRANSACTIONS. For the avoidance of doubt, the eSellerate Evaluation Platform and Materials provided pursuant to this Agreement does not support, and may not be used to perform or complete, any actual sales transactions with purchasers of Evaluator's products. Evaluator must enter into a separate Publisher Agreement with eSellerate in order for eSellerate to resell its products to purchasers through online commerce via the eSellerate Platform. Under no circumstances shall eSellerate be responsible for the processing of, or have any liability for, any actual sales transactions utilizing the eSellerate Evaluation Platform and Materials. B. RESTRICTIONS ON USE. Evaluator agrees and acknowledges that the grant of rights is a right of use of the eSellerate Evaluation Platform and Materials only, and that all right, title and interest in and to the eSellerate Evaluation Platform and Materials (including without limitation any enhancements, developments, and improvements or changes thereto whether suggested or requested by Evaluator or otherwise) and any rights not granted herein shall remain with, and are expressly reserved to, eSellerate or its licensors or subcontractors. Evaluator agrees that it shall not, under any circumstances, (1) resell, rent, lease, sublicense, assign, or otherwise transfer any of its rights under the Agreement; (2) copy, translate, port, modify, make derivative works of, incorporate into or with other software, disassemble, decompile, or otherwise reverse engineer, or otherwise attempt to learn, derive or discover the source code, source files, structure, underlying user interface techniques, underlying ideas or underlying algorithms of, the eSellerate Evaluation Platform and Materials by any means; (3) provide third parties with access to its evaluation account or login credentials provided by eSellerate; (4) alter or modify any of the eSellerate Evaluation Platform and Materials except as may be expressly approved by eSellerate in writing; (5) export any of the eSellerate Evaluation Platform and Materials from the United States, or import any of the eSellerate Evaluation Platform and Materials from the United States; or (6) take any other action contrary to the grant of evaluation rights hereunder. The eSellerate Evaluation Platform and Materials and the intellectual property rights therein are protected by U.S. and international copyright laws and treaties. Evaluator will not alter, remove or obscure any designation name or mark from any supplied material that identifies such material as belonging to or developed by eSellerate. No right or license is granted to use, display, or reproduce eSellerate trademarks. C. CONFIDENTIALITY. Evaluator agrees and acknowledges that any materials provided by eSellerate to it pursuant to this Agreement are highly confidential, and shall be retained in the strictest confidence by Evaluator using the same manner of care as it uses for its own information of like importance (but not less than reasonable care). Evaluator further agrees and acknowledges that such materials may not be disclosed to any third party without the express prior written consent of eSellerate, except (1) to the extent such disclosure is required by subpoena or similar valid legal process where Evaluator has given eSellerate notice of such disclosure request and a reasonable opportunity to contest such disclosure request, and (2) to its employees who have a need to know such information for the purposes of evaluating the eSellerate Evaluation Platform and Materials and who are bound to Evaluator by written obligations of confidentiality no less restrictive than those set forth herein (provided that any breach of confidentiality by any such employee shall be considered a breach by Evaluator). 4. TERM AND TERMINATION. This Agreement shall automatically terminate on the one (1) calendar month anniversary of the date on which Evaluator electronically accepts this Agreement. eSellerate and Evaluator may agree to extend the term of this Agreement by subsequent mutual agreement in writing or by email. Notwithstanding the foregoing, (1) this Agreement will automatically terminate in the event Evaluator enters into a Publisher Agreement with eSellerate for the use of the eSellerate Platform as of the effective date of that agreement; and (2) eSellerate may terminate this Agreement at any time at its sole discretion. Upon termination of this Agreement for any reason, (i) Evaluator will cease any and all use of the eSellerate Evaluation Platform and Materials (except to the extent Evaluator is granted rights of use pursuant to a Publisher Agreement); (ii) all rights granted hereunder shall immediately terminate; and (iii) Evaluator shall destroy and irretrievably delete all eSellerate-provided materials in any form that are in its possession or control. 5. DISCLAIMERS. A. NO WARRANTIES. THE ESELLERATE EVALUATION PLATFORM AND MATERIALS ARE PROVIDED "AS IS, WITH ALL FAUNTS" AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ESELLERATE DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. B. NO LIABILITY FOR DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ESELLERATE BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPARY OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE, EVALUATION OR INABILITY TO USE OR EVALUATE THE SOFTWARE, EVEN IF ESELLERATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 6. MISCELLANEOUS. A. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding between Evaluator and eSellerate with respect to its subject matter, and supersedes any and all prior or contemporaneous proposals, communications, agreements, understandings, negotiations, and representations, whether written or oral, related thereto, which shall have no effect as of the date this Agreement becomes effective. Evaluator may not assign this Agreement, or any of its rights or obligations under this Agreement (whether directly or indirectly, in whole or in part, by operation of law or otherwise) without eSellerate's express prior written permission to do so, and any attempt to assign in violation of the preceding shall constitute an incurable material breach of this Agreement and shall, at eSellerate's option, render this Agreement null and void. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns. This Agreement may not be modified except by a writing signed by a duly authorized representative of eSellerate. B. NOTICES. If Evaluator is obligated under this Agreement to tell eSellerate something or Evaluator wish to give eSellerate legal notice of any kind, Evaluator must do so in writing and deliver it by certified mail, postage pre-paid and return receipt requested OR by nationally recognized overnight courier which provides a written proof of delivery, to the following address: DR MyCommerce, Inc. d/b/a eSellerate, ATTN: General Counsel, 10380 Bren Road West, Minnetonka, MN 55343, United States of America. If eSellerate is obligated under this Agreement to tell Evaluator something or eSellerate wishes to give Evaluator legal notice of any kind, eSellerate may do so by use of any of the addresses Evaluator gave to eSellerate, including postal mail or e-mail. If any such notice fails to reach Evaluator because Evaluator gave eSellerate inaccurate address information, eSellerate's notice shall nonetheless be deemed to have been delivered to Evaluator. C. GOVERNING LAW; VENUE. This Agreement shall be governed by and interpreted under the laws of the State of Minnesota, United States of America, without respect to or application of its conflicts-of-laws provisions. If there are any disputes or conflicts related to or arising out of this Agreement, Evaluator and eSellerate shall use reasonable means to resolve the conflict prior to starting any litigation, including negotiation between management personnel capable of resolving the conflicts. However, any disputes arising from this Agreement will be litigated by the Parties, and in the event either Evaluator or eSellerate should commence any litigation arising out of this Agreement, Evaluator expressly agrees that the litigation will take place exclusively in the state or federal courts located in Hennepin County, Minnesota, United States of America, and Evaluator expressly agrees that any such court has personal jurisdiction over Evaluator. Evaluator waives all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either Party in the manner authorized by applicable law or court rule. D. OTHER TERMS. No waiver of any provision or breach of this Agreement (a) shall be effective unless made in writing, or (b) shall operate as or be construed to be a continuing waiver of such provision or breach. Any failure by eSellerate to enforce any of its rights under this Agreement or any applicable laws shall not constitute a waiver of such right. The invalidity of non-enforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall not affect the other provisions hereof, and in any such occasion this Agreement shall be construed in all respects as if such invalid or non-enforceable provisions were omitted, and the invalid or non-enforceable provision of this Agreement shall automatically be construed as replaced with a valid and enforceable provision which most closely meets or approximates the intent and economic effect of the invalid or non-enforceable provision. This Agreement shall not in any respect whatsoever be deemed to create a partnership, joint venture, or other business combination between Evaluator and eSellerate. E. ELECTRONIC SIGNATURES. EVALUATOR HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICES PROVIDED BY ESELLERATE. Further, Evaluator hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. v12.01 (0103)
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