“Affiliate(s)”shall mean any one or more legal entities (i) owned or controlled by TUTK or Evaluator,(ii) owning or controlling Evaluator, or (iii) owned or controlled by the legal entity owning or controlling Evaluator, but any such legal entity shall only be considered an Affiliate of Evaluator for as long as such direct or indirect ownership or control exists. For the purposes of this definition a legal entity shall be deemed to own or control another legal entity if more than 50% (fifty per cent) of the voting stock of the latter legal entity, ordinarily entitled to vote in the meetings of shareholders of that entity, (or, if there is no such stock, more than 50% (fifty per cent) of the ownership of or control in the latter legal entity) is held directly or indirectly by the owning and/or controlling legal entity.
“Documentation”shall mean the printed or electronic documentation about the technology that TUTK makes available to Evaluator.
“Software Library”shall mean the software of Kalay, developed by TUTK and made available by TUTK to Evaluator hereunder, to facilitate the evaluation strictly in accordance with provisions of these Terms.
2.1 Subject to Evaluator’s full and unconditional compliance with all its obligations under these Terms, TUTK hereby grants to Evaluator for a non-exclusive, non-transferable license, without the right to grant sublicenses, under its intellectual property rights in and to the Software Library, to use the Software Library together with the Documentation strictly in accordance with the authorised purpose of evaluation. It is expressly acknowledged and agreed that the Software Library is licensed to Evaluator and not sold. Other than the limited license explicitly granted to Evaluator hereunder, no other right or license under any intellectual property right of TUTK or its Affiliates is granted and any implied licenses are expressly excluded.
2.2 TUTK owns and shall continue to own all right, title and interest in and to the Software Library and Documentation (as well as derivative works of each of the foregoing), and all other intellectual property rights therein. Evaluator undertakes not to interfere with or diminish, whether by act or omission, TUTK’ right, title and interest in and to the Software Library and Documentation.
2.3 Evaluator shall not, and shall not permit any third party to:
a. alter, modify, adapt, improve, translate, or create derivative works from any portion of the Software Library or take any action that may cause or result in the fragmentation of the Software Library;
b. reverse engineer, decompile, or disassemble or otherwise the attempt to derive source code or the algorithmic nature of the Software Library;
c. decode, decrypt, remove, circumvent or neutralize any security measures in the Software Library;
d. copy, reproduce, distribute, sell, lease, lend, transfer or otherwise dispose of the Software Library to any third party;
e. produce its own version of the Software Library;
f. combine the Software Library with open source software, by means of incorporation or linking or otherwise; or
g. place, or permit to be placed, any portion of the Software Library on any public internet site or on the world wide web.
2.4 Evaluator shall not change or remove any label, proprietary including copyright notices or other marking embodied in the Software Library and Documentation provided hereunder.
3. NO FEE
The provision to and the use and evaluation of the Software Library and Documentation by Evaluator shall be free of charge.
The Software Library, Documentation and all other information provided by TUTK under these Terms are provided “AS IS”, without any representation or warranties that they are complete, secure, error-free and function without disruptions, delays, or imperfections. To the extent permitted by law, we disclaim all warranties, whether expresse or implied, including the warranties of merchantability, quality of performance, fitness for any particular purpose, or non-infringement of third party rights. TUTK shall not be liable vis-à-vis Evaluator under any cause of action or inaction for any damages of whatever nature arising in connection with the use of the Software Library and Documentation.
5. LIMITATION OF LIABILITY
5.1 Neither Party shall be liable to the other Party for any indirect or consequential, incidental, punitive or special, damages (including, but not limited to, damages for loss of profit, for business interruption or for personal injury) arising out of or in any way related to or in connection with the Terms, even if the other Party has been advised of the possibility of such damages.
5.2 Save for gross negligence or willful misconduct and any breach of Evaluator’s obligation under Clause 2, in the event that a court of competent jurisdiction renders judgment against either Party holding a Party liable vis-à-vis the other Party under the Terms, in no event shall such Party’s aggregate and cumulative liability towards the other Party under or in connection with exceed the amount of USD 1,000 (one thousand U.S. dollars).
Evaluator shall indemnify TUTK against and hold TUTK and its Affiliates harmless from any and all damages and costs arising from or connected with any breach by Evaluator of its obligations hereunder and any claims resulting from Evaluator’s use of the Software Library.
7.1 The Terms make up the entire agreement between TUTK and Evaluator regarding the use of the app. They supersede any prior agreements.
7.2 If any portion of the Terms are found to be unenforceable, the remaining portion shall remain in full force and effect. If TUTK fails to enforce any of the Terms, it shall not be considered a waiver. Any amendment to or waiver of the Terms must be made in writing and signed by TUTK.
7.3 Evaluator shall not transfer any of your rights or obligations under the Terms to anyone else without TUTK’s consent.
7.4 The Terms do not confer any third party beneficiary rights. All of TUTK’s rights and obligations under the Terms are freely assignable by TUTK in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
7.5 TUTK always appreciate feedback and other suggestions about the app. Evaluator should know that TUTK may use them without obligation to compensate or any restriction, and TUTK is under no obligation to keep them confidential.
7.6 TUTK may update the Terms from time to time. Unless otherwise required by law, TUTK will notify Evaluator before TUTK make changes to the Terms and give Evaluator an opportunity to review them. Once any updated Terms are in effect, Evaluator will be bound by them if Evaluator continues to use the Software Library and Documentation.
7.7 The Terms and any claim shall be governed by the laws of Taiwan without regard to conflict of law provisions. Any dispute related to the Terms shall be resolved exclusively in the Taiwan Shilin District Court, provided that TUTK may, at its option, submit any such dispute to the competent courts of any place where any unauthorised use of the Software Library or the Documentation occurs.
* Date of Last Revision: April 30th, 2019