THIS EVALUATION AGREEMENT (“AGREEMENT”) IS MADE BY AND BETWEEN GENESIS GLOBAL TECHNOLOGY LIMITED, INCORPORATED AND REGISTERED IN ENGLAND AND WALES WITH COMPANY NUMBER 09498568 WHOSE REGISTERED OFFICE ADDRESS IS AT CRAFTWORKS STUDIO, 1 – 3 DUFFERIN STREET, LONDON, ENGLAND EC1Y 8NA (“GENESIS”) AND THE COMPANY OR ENTITY LICENSING THE GENESIS PLATFORM UNDER THIS AGREEMENT FOR WHICH YOU ARE A DULY AUTHORIZED DIRECTOR, OFFICER, EMPLOYEE, OR CONTRACTOR (“USER”). WHEN GENESIS LICENSES THE GENESIS PLATFORM TO AN INDIVIDUAL NOT AFFILIATED WITH A COMPANY OR ENTITY, A USER SHALL BE SUCH INDIVIDUAL . BY USING THE GENESIS PLATFORM, THE USER WILL BE DEEMED TO HAVE ACCEPTED TO THE TERMS AND CONDITIONS HEREIN.
1. Definitions: Capitalized terms not defined herein shall have the meaning set forth in the Glossary at the end of this agreement.
2. Intellectual Property Rights
2.1 Unless otherwise agreed between the Parties in writing, all Intellectual Property Rights in and to the Genesis Platform belong, and shall belong, to Genesis and/or its licensors. This Agreement does not grant User any rights to, under or in, any Intellectual Property Rights, or any other rights or licenses in respect of the Genesis Platform.
2.2 Subject to User’s strict compliance with the restrictions and other terms and conditions of this Agreement, Genesis grants User, and not to any other third party, a nonexclusive, non-transferable, non-sublicensable, limited, free of charge license to use the Genesis Platform for the sole purpose of evaluation of Genesis Platform’s capabilities, including the creation of UDPs.
2.3 User is strictly prohibited from selling, licensing and/or applying any commercial use to the Genesis Platform and/or UDPs which contradicts the terms of the Agreement. User will not deploy the Genesis Platform or UDPs in any third-party’s environment, either testing, live production or otherwise.
2.4 In addition to the License Restrictions set out below, User agrees to:
2.4.1 not allow or suffer an User’s login credentials to the Genesis Platform to be used by any third parties other than the User;
2.4.2 keep a secure password for his/her use of the Genesis Platform that such password shall be changed no less frequently than as may be specified by Genesis and that User shall keep his password confidential.
2.4.3 only use the Genesis-hosted sandbox environment for the sole purpose of evaluating the capabilities of the Genesis Platform. User is strictly prohibited from using the sandbox environment for any other purpose, including the development of any software, content, or other materials that are not directly related to the evaluation of the Genesis Platform.
2.4.4 being prohibited from developing, uploading, or posting any content, software, or other materials within the Genesis Platform, including the Genesis-hosted sandbox environment, that is inappropriate, illegal, prohibited or restricted under any internal company policies applicable to the User, or harmful. This includes, but is not limited to, content or software that is malicious, obscene, defamatory, discriminatory, or that infringes on the intellectual property rights of others.
2.5 Genesis accepts no responsibility nor liability arising from the use of the Genesis Platform or the development and use of any UDPs.
2.6 Notwithstanding anything to the contrary, to the extent that User creates or develops any Intellectual Property Rights based on or using Genesis Platform, including, without limitation, UDPs, User hereby assigns such Intellectual Property Rights to Genesis.
2.7 User acknowledges and agrees that the Genesis Platform is not for personal family or household use and it is intended for professional use only.
2.8 License Restrictions
User will not:
- Attempt to copy, modify, duplicate, , frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Genesis Platform in any form or media or by any means. Additionally, except as otherwise provided in this agreement, User shall not create derivative works from the Genesis Platform.
- Attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Genesis Platform.
- Access all or any part of the Genesis Platform in order to build a product or service which competes with the Genesis Platform.
- Use the Genesis Platform to provide services to third parties.
- Use, sublicense, distribute, resell, copy, modify, or transfer the Genesis Platform unless and except as expressly permitted in this Agreement.
- Disclose, display, provide, or otherwise make available to third parties for any purpose the Genesis Platform in any form, without the prior written consent of Genesis, except such transfers or disclosures as are specifically authorized by this Agreement.
- Other than the licenses expressly granted under this Agreement, neither Party grants any license of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this Agreement, User shall have no rights in respect of any trade names or trademarks used by Genesis in relation to the Genesis Platform or their associated goodwill, and the User hereby acknowledges that all such rights and goodwill shall inure for the benefit of and shall remain vested in, Genesis.
2.9 In the event that User makes any comments, suggestions or contributions, whether written or oral, with respect to the Genesis Platform, documentation, training materials or promotional materials (collectively the “User Contributions”), the Parties acknowledge and agree that Genesis shall own all of the Intellectual Property Rights in the User Contributions. To the extent User might otherwise be entitled to any Intellectual Property Rights in or to any User Contributions by application of applicable Law, User hereby assigns all of User’s Intellectual Property Rights and title in or to such User Contributions. User hereby agrees to execute all documents requested by Genesis regarding or related to evidencing, perfecting and/or protecting Genesis’s ownership and Intellectual Property Rights in and to the User Contributions.
2.10 User will be fully liable for any and all losses suffered by Genesis, as a result of any breaches or purported breach of this Agreement. User shall indemnify Genesis against all liabilities, obligations, losses, costs, damages and other expenses and legal fees costs, incurred by Genesis, its Affiliates, agents, employees and/or officers (“Indemnified Parties”) arising from breach or purported breach of this Agreement by User, either awarded against an Indemnified Party or that are agreed to in a settlement,.
3. Confidentiality
3.1 “Confidential Information” means any non-public information or materials belonging to, concerning or in the possession or control of a Party or its Affiliates (“Disclosing Party”) that is furnished, disclosed or otherwise made available (directly or indirectly) to the other Party (“Receiving Party”), regardless of labelling, including without limitation any information, technical data or know-how relating to discoveries, ideas, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, systems, models, data, source code, object code, documentation, diagrams, flow charts, research, development, business plans, roadmaps and opportunities, business strategies, marketing plans and opportunities, future projects and products, projects and products under consideration, proprietary procedures, and information related to finances, costs, prices, suppliers, vendors, Users and employees. The Parties agree to disclose only information that is required for the performance of obligations under this Agreement.
3.2 The confidentiality obligations of this Agreement do not apply to any information that: (i) is or becomes generally known to the public at the time of disclosure without breach of any obligation owed by the Receiving Party to the Disclosing Party; (ii) was rightfully known to the Receiving Party, as can be demonstrated by written evidence, other than by breach of a confidentiality obligation prior to its disclosure by the Disclosing Party under this Agreement; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party, as substantiated by written evidence; or (iv) is lawfully received from a third party without an obligation of confidentiality.
3.3 Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized disclosure and use the same degree of care that the Receiving Party uses to protect its own Confidential Information, but in no event less than a commercially reasonable degree of care, (ii) the Receiving Party will not use the Disclosing Party’s Confidential Information for purposes other than those necessary to exercise a right or fulfill an obligation of this Agreement, and (iii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, attorneys, financial advisors, and agents who need such access for the Receiving Party to exercise a right or fulfill an obligation of this Agreement, who have been informed of the confidential nature of such information, and who are subject to confidentiality obligations no less stringent than those herein.
3.4 If the Receiving Party is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, such Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 3.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 3.4, the Receiving Party remains required by law to disclose any Confidential Information, such Party shall disclose only that portion of the Confidential Information that it is legally required to disclose.
3.5 The provisions of this Section 3 shall survive the termination of this Agreement for a period of five (5) years from such termination; provided that the confidentiality obligations for Confidential Information of a trade secret nature (as determined under applicable law) shall survive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret.
4. Compliance with Laws
4.1 User will comply with all applicable laws, rules and regulations in exercising rights and obligations under any part of this Agreement and/or related to User’s use of the Genesis Platform
5. Term and Termination
5.1 This Agreement shall start on the date the User has first started to use the Genesis Platform (“Start Date”) and shall continue in effect for a period of sixty (60) days from the Start Date, when it will automatically expire.
5.2 Notwithstanding Section 5.1, above, this Agreement may be terminated by either Party at any time, for any or no reason, without notice.
6. Effects of Termination
Upon termination or expiry of this Agreement for any reason:
- The licenses granted to User under this Agreement shall terminate immediately.
- User shall promptly discontinue use of the Genesis Platform, destroy all printed copies and delete all electronic copies of any documentation that User have downloaded, printed, or created relating to the Genesis Platform, and ensure that no copies of any of the Genesis Platform screens, data, or other content remain archived or otherwise stored on User computers.
- Where applicable, Genesis may take such additional measures as it deems reasonable, in its sole discretion to protect the availability and continuity of the Genesis Platform after termination.
- The accrued rights of the Parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced;
- Provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.
7. Limitation of Liability
IN NO EVENT SHALL GENESIS BE LIABLE TO THE USER, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATIONS, NEGLIGENCE AND, TO THE EXTENT PERMITTED BY LAW, STRICT LIABILITY) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, FOR ANY INDIRECT, INCIDENTAL CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS REVENUE OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GENESIS’ LIABILITY RESULTING FROM THE USE OF THE GENESIS PLATFORM OR THIS AGREEMENT IS LIMITED TO US$10 (TEN US DOLLARS).
8. Data Protection
8.1 Each Party agrees to comply with all applicable data protection legislation in the performance of its obligations under the Agreement and shall not perform its obligations in such a way as to cause the other Party to breach any of its applicable obligations under applicable laws.
8.2 The User agrees not to upload, use, include, or share any personal information within or through the Genesis Platform. Personal information includes, but is not limited to, any data that can be used to identify an individual, such as names, addresses, phone numbers, email addresses, social security numbers, and financial information.
8.3 User shall indemnify Genesis against all liabilities, obligations, losses, costs, damages and other expenses and legal fees incurred by Genesis, its Affiliates, agents, employees, officers and Users arising from breach of this Section 8 by User.
8.4 By entering into this Agreement, User agrees to Genesis’ Privacy Policy which can be found here: https://genesis.global/privacy-information/
9. Indemnity
9.1 User shall defend and indemnify Genesis, and any of its directors, officers or shareholders, from and against any and all liabilities, damages, losses, costs and expenses, including, but not limited to, reasonable attorneys’ fees and disbursements resulting from its gross negligence, willful misconduct or fraud, and/or any third party claims against Genesis arising out of any act, default, misrepresentation or any omission of the User’s part (including, without limitation, negligence and breach of this Agreement), or any of its agents, employees or representatives, directly or indirectly relating to this Agreement, including without limitation any claims relating to allegations, actions or proceedings for breach of contract or warranty, regulatory or other legal claims, claims for bodily injury (including death) and damage to property.
10. Audit.
10.1 In the event Genesis has reason to believe that a breach of any provision of the Agreement has occurred or may occur, Genesis shall have the right to audit the activities and records of the User in order to satisfy itself that no such breach has occurred. The User shall fully cooperate in any audit conducted by or on behalf of Genesis.
10.2 Each party agrees to the applicable governing law above without regard to the choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
10.3 Genesis reserves the right to implement any necessary measures, including but not limited to monitoring and restricting the User’s activities, and to remove any content, software, or other materials developed by the User via the Genesis Platform and/or within the Genesis-hosted sandbox environment. Genesis may take any necessary actions, including but not limited to suspending or terminating the User’s access to the sandbox, to protect the integrity and security of the Genesis Platform. User shall cooperate fully with any such measures implemented by Genesis
11. Disclaimer of Warranties for Genesis Software
11.1 The Genesis Platform is provided “as is” with no express or implied warranties of any kind. The excluded warranties include but are not limited to the warranties of merchantability, of fitness for a particular purpose, quality, or productiveness, capacity, and against infringement. Genesis does not warrant that the software will meet User’s requirements or that the operation of the software will be uninterrupted or error free. Genesis does not warrant any software that has been altered or changed in any way by anyone other than Genesis. Genesis is not responsible for problems caused by changes in the operating characteristics of computer hardware or computer operating systems that are made after the release of the software or for problems in the interaction or combination of the Genesis Software with non-Genesis Software.
12. Representations and Warranties
Each Party represents, warrants and undertakes that:
- it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and to grant the rights and licenses referred to in this Agreement and that this Agreement is executed by its duly authorised representative and represents a binding commitment on it; and
- b. it shall comply with all applicable Legislation in the performance of its obligations under this agreement.
Genesis makes no representations or warranties as to the validity or enforceability of the Intellectual Property Rights in the Genesis Platform, or any other goods or services provided by Genesis nor as to whether the same infringes any Intellectual Property Rights of third parties.
13. Relationship of Parties
13.1 The Parties to this Agreement are independent contractors. There is no relationship of agency, Usership, joint venture, employment or franchise between the Parties or any of its respective agents, employees, contractors or representatives. Neither Party has the authority to bind the other or to incur any obligation on its behalf.
13.2 All financial and other obligations associated with User’s business are solely its responsibility. As an independent contractor, the mode, manner and method used by User shall be under User’s sole control and User shall be solely responsible for risks incurred in the operation of its business and the benefits thereof. User shall bear all of its own expenses in connection with the performance of this Agreement and will not be entitled to reimbursement of any such expenses by Genesis.
14. Miscellaneous
14.1 Suggestions, Ideas and Feedback. Genesis will be free to use, irrevocably, in perpetuity and for any purpose, all suggestions, ideas and/or feedback provided by User or its affiliates and their respective employees, contractors or other agents, with respect to the Genesis Platform. The foregoing grant of rights is made without any duty to account to any of the foregoing persons or entities for the use of such Feedback.
14.2 Assignment: This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party shall assign this Agreement (or any part thereof) without the advance written consent of the other Party, except that Genesis may assign this Agreement to any company that is a part of its group of companies, as well as in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets. Any attempt to transfer or assign this Agreement except as expressly authorized under this section will be null and void.
14.3 Severability: In the event any provision of this Agreement is determined to be invalid or unenforceable, that provision shall be enforced to the maximum extent permitted, and the Parties agree that the other provisions of this Agreement shall not be affected and shall continue to be enforced.
14.4 Entire Agreement: This Agreement constitutes the full and complete understanding and agreement between User and Genesis with respect to the subject matter of this Agreement and constitutes a full statement of the terms of their agreement. This Agreement supersedes all prior agreements and contemporaneous agreements and except as otherwise provided herein, any variation will require a written document signed by both parties. Neither Party has relied upon any representation of the other not set forth herein as an inducement to enter this Agreement.
14.5 Genesis reserves the right to amend this Agreement at any time. Any such amendments will be effective upon providing you with at least five (5) days’ notice. Your continued use of the Genesis Platform after the effective date of the amendment constitutes your acceptance of the amended Agreement.
14.6 Notices. Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement (“Notices”) must be in writing and will be delivered by email to [email protected] or to the email address of User as provided at the time of User’s sign up to the evaluation of the Genesis Platform. Unless otherwise provided herein, all Notices will be deemed effective at 9.00 am of the next business day after the date of the transmission by email. Either Party may change the e-mail address to which Notices shall be sent by giving Notice to the other Party in the manner herein provided. Notices shall be written in the English language
14.7 Waiver: No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.8 Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
14.9 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) that arises out of or in connection with this Agreement or its subject matter or formation.
User rights: means the license rights granted to User by Genesis under this Agreement.
Affiliate: is any entity that, with respect to a party to this Agreement, controls, is controlled by, or is under common control with such party, either directly or indirectly, by share ownership, contract or otherwise. For purposes of this definition, the term “control” and correlative terms mean ownership, directly or through one or more Affiliates, of fifty percent (50%) or more of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or fifty percent (50%) or more of the equity interests in the case of any other type of legal entity, or any other arrangement whereby a party controls or has the power to direct or cause the direction of the management and policies of an entity.
Genesis Platform: means the Genesis Low-Code Application Platform, the Genesis-hosted sandbox environment and any other related software that is owned and operated by Genesis and/or its licensors.
Intellectual Property Rights: means any and all intellectual property rights of any nature anywhere in the world whether registered, registrable or otherwise, including patents, utility models, trademarks, trade secrets, registered designs and domain names, applications for any of the foregoing trade or business names, goodwill, copyrights and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of Users, marketing methods and procedures and advertising literature, including the “look and feel” of any websites.
Licensed Materials: means the software and the documentation related to the Genesis Platform.
User-Developed Products (UDP): a software application with no commercial use developed by the User via the Genesis Platform exclusively for the evaluation of Genesis Platform’s capabilities.