Test and Evaluation Agreement

This Test and Evaluation Agreement is entered into by arvato Systems North America Inc. (hereinafter referred to as “arvato Systems) and the subscriber of its services (hereinafter referred to as “Company”).

1 Scope

  1. Company has entered with arvato Systems, 6 East 32nd Street, 11th Floor, New York, NY 10016, USA (hereinafter referred to as "arvato Systems") into an agreement on subscribing to arvato’s micro services for the hybris YaaS platform’s Open Beta Version (hereinafter referred to as "arvato Agreement"). Based on this arvato Systems Agreement Company is granted access to and use of arvato Systems’ micro services for the hybris YaaS platform’s Open Beta Version (hereinafter referred to as "arvato Services").
  2. Under this Test and Evaluation Agreement (“Agreement”) Company is granted a temporary free trial license to access, test and evaluate the following software:
    • arvato Inventory Service
    • arvato SMS Service
    • arvato Avalara Address Verification Service
    • arvato Scheduler
    (hereinafter "Software") together with the arvato Systems Services.
  3. The purpose of this Agreement is to enable Company to test the Software and evaluate how Company may use the Software to support its business processes and for arvato Systems to receive Company feedback about such test and evaluation of the Software. In addition, under this Agreement Company may get familiar with the functionality of the Software to determine its possible use in a productive use environment.
  4. Company acknowledges that the Software is a preliminary version and not subject to any productive use license agreement or any other agreement with arvato Systems. arvato Systems has no obligation to offer the Software for productive use or any other use, be it remotely accessible or by any other form of access. In addition, arvato Systems has no obligation to include or remove any functionality from the Software in any future version or in any arvato Systems standard product. Company and arvato Systems mutually acknowledge and agree that it would be imprudent and unreasonable to rely upon the expectation of entering into a contract regarding the productive use of the Software.
  5. Use of the arvato Systems’ systems shall be limited to access the Software for the purpose as permitted under this Agreement.
  6. arvato Systems shall not be responsible for any data produced, used or inserted by Company under this Agreement.
  7. Remote access to the Software is dependent upon the availability of the arvato Systems’ systems. arvato Systems may suspend access to the arvato Systems’ systems and the use of the Software at any time, in its sole discretion. arvato Systems shall use commercial reasonable efforts to provide Company with advance notice of any such suspension if practicable.
  8. Remote access connectivity is the sole responsibility of the Company. arvato Systems is not responsible for any problems or interruptions with respect to the connectivity to the arvato Systems’ systems or Software under this Agreement.

2. License Rights and Intellectual Property

  1. During the term of this Agreement arvato Systems grants to Company a non-transferable and non-exclusive, limited license to remotely access and use the Software for the exclusive purpose of testing and evaluation. Company shall not use the Software for any productive purposes.
  2. Company shall not remove notices and notations in the Software that refer to copyrights, trademark rights, patent rights and other intellectual property rights. Unless expressly agreed otherwise herein, any and all patent rights, copyrights, trademark rights and other rights in the Software, as well as any improvements, inventions, design contributions or derivative works conceived or created by either party in or to the Software shall remain the exclusive property of arvato Systems and/or its licensors. Except for the limited license rights expressly granted herein, this Agreement does not transfer any proprietary right or interest in the Software to Company. Between Company and arvato Systems all title to and rights in the Software, operational know-how and business secrets related thereto vest exclusively in arvato Systems and/or its licensors, notably copyright and rights of authorship, rights to inventions, and any other industrial and intellectual property rights. All license rights not expressly granted to Company in this Agreement are reserved by arvato Systems and its licensors. Company does not acquire any rights to the source code of the Software.
  3. As far as any proprietary rights described in Section 2.2 of this Agreement directly accrue to an employee or subcontractor of Company involved in the testing and evaluating, Company shall ensure the grant of rights under Section 2.2 through appropriate undertakings with such employees and subcontractors. Such grant of rights shall be free of charge.
  4. Company shall not be entitled to license, sell, lease, rent, outsource or otherwise transfer, make available or otherwise give access to the Software to third parties.
  5. Company shall not be entitled to duplicate, translate, decompile, reverse-engineer or otherwise modify any parts of the Software. No development activities shall be allowed or supported under this Agreement.

3. Services and Support by arvato Systems

  1. The use of the arvato Systems’ system and Software shall be an unsupported service. arvato Systems shall not be obliged to provide or offer any updates to the Software. arvato Systems may, in its sole discretion, provide Company with guidelines for testing and evaluation purposes.
  2. Any services by arvato Systems, such as without limitations assistance and consulting with respect to the use of the Software for individual business needs of Company, are not subject to this Agreement.

4. Obligations of Company

  1. Company shall appoint a contact person for all matters of testing and evaluating, as well as to give perspective on re-subscribing to arvato’s Software after the testing phase is completed.
  2. Company shall give comments on how the test runs, documenting related problems by contacting the arvato Systems support email (yaas@arvatosystems.com) unless informed otherwise by arvato Systems.

5. Limitation on Warranties and Liabilities

  1. THE SOFTWARE ARE LICENSED TO COMPANY “AS IS”, WITHOUT ANY WARRANTY, ESCROW, TRAINING, MAINTENANCE, OR SERVICE OBLIGATIONS WHATSOEVER ON THE PART OF ARVATO SYSTEMS. ARVATO SYSTEMS MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY TYPE WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. COMPANY ASSUMES ALL RISKS ASSOCIATED WITH ITS USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION RISKS RELATING TO QUALITY, PERFORMANCE, DATA LOSS, AND UTILITY IN A PRODUCTION ENVIRONMENT. IN NO EVENT SHALL ARVATO SYSTEMS BE LIABLE TO COMPANY OR TO ANY THIRD PARTY FOR ANY DAMAGES (WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR ANY OTHER TYPE OF DAMAGE) ARISING IN CONNECTION WITH (I) LICENSEE’S USE OF OR INABILITY TO USE THE SOFTWARE, (II) ARVATO SYSTEMS’ PROVISION OF OR FAILURE TO PROVIDE SERVICES PERTAINING TO THE SOFTWARE, OR (III) AS A RESULT OF ANY DEFECT IN THE SOFTWARE. THIS DISCLAIMER OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION THAT MAY BE BROUGHT AGAINST ARVATO SYSTEMS, WHETHER IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION ANY ACTION FOR NEGLIGENCE. COMPANY’S SOLE REMEDY IN THE EVENT OF BREACH OF THIS AGRREEMENT BY ARVATO SYSTEMS OR FOR ANY OTHER CLAIM RELATED TO THE SOFTWARE SHALL BE TERMINATION OF THIS AGREEMENT.

6. Data Protection and Confidentiality

  1. Company shall treat as confidential all confidential information and trade secrets of arvato Systems and its licensors acquired in connection with the performance of this Agreement that are expressly identified as confidential or proprietary or that are reasonably identifiable as confidential or proprietary based on the circumstances of their disclosure or by their nature ("Confidential Information") and to use such Confidential Information only to perform this Agreement. arvato Systems’ Confidential Information shall include all of, but are not limited to the Software (in object and source code), programming techniques and concepts, processing methods, system designs embedded in the Software, inventions, techniques, concepts, designs, flow charts, documentation, product specifications, application programming interface specifications, techniques and processes that relate to the Software, information on arvato Systems affiliated companies and business partners, information about deployed third-party software and any access credentials used to access the arvato Systems’ systems, including, but not limited to password or account information. The terms and conditions of this Agreement shall also be treated confidential.
  2. The foregoing obligation shall not apply to the extent that Company shows that the information (i) was public knowledge at the time it was disclosed by arvato Systems and had not become public knowledge through an act or omission by Company or Company’s employee or agent in breach of contract, or (ii) was in the possession of or known to Company before Company received it from arvato Systems, or (iii) had been lawfully disclosed to Company by another person entitled to do so, or (iv) had been independently developed by Company without reference to arvato Systems’ information.
  3. Confidential Information may be provided to third parties only upon prior written consent arvato Systems. These third parties must be subject to a written non-disclosure obligation. The term “third party“ as used this Section 6.4 does not apply to employees and subcontractors of Company whose proper performance under this Agreement reasonably requires access to such information and who have executed corresponding non-disclosure agreements.
  4. Company agrees to be named to other Companies and publicly referenced as a participant in this test and evaluation activity.
  5. Company grants to arvato Systems a license in the Feedback that is non-exclusive, perpetual, irrevocable, worldwide, royalty-free, and sub-licensable under all relevant intellectual property rights. arvato Systems may do whatever it wishes with the Feedback, including (1) use, (2) publish, (3) disclose, (4) display, (5) perform, (6) copy, (7) make or have made, or (8) sell it. arvato Systems does not have to identify Company as the Feedback’s source. arvato Systems owes Company no money or anything else in exchange for the Feedback and arvato Systems is not obligated to do anything with the Feedback. “Feedback” means information and materials provided by Company under this Agreement which relate directly to the design and performance of the Software.

7. Term and Termination

  1. This Agreement enters into force upon the availability of the Software to Company and remains effective until the end of hybris' and arvato system's Open Beta Phase or further notice by arvato Systems.
  2. Either party may terminate this Agreement at any time during the term upon five days’ advance notice (email, letter, fax) to the other party.
  3. Either party may terminate this Agreement without any advance notice in the event the other party breaches an obligation under this Agreement.
  4. Upon expiration or termination of this Agreement Company’s access to the arvato Systems’ system and the Software shall be terminated. To the extent applicable, Company shall return to arvato Systems and/or destroy any Confidential Information and the Software provided by arvato Systems under this Agreement. Any further use shall not be allowed and all parts of the Software, if any must be removed in its entirety from Company’s systems.

8. General

  1. This Agreement constitutes the complete and exclusive statement of the agreement between arvato Systems and Company related to the subject matter hereof, and supersedes all prior written and oral contracts, proposals and other communications between the parties relating to the subject matter. Oral agreements do not exist.
  2. Any changes to this Agreement must be in writing. This also applies to any waiver of this written form requirement.
  3. All notices or reports which are required or may be given pursuant to this Agreement shall be in writing and shall be deemed duly given when delivered to the respective addresses specified by either party.
  4. Company may not assign or otherwise transfer any of its rights under this Agreement without arvato Systems’ prior written consent.
  5. If any provision of this Agreement proves to be invalid, this will not affect any other provision of this Agreement.
  6. This Agreement does not entitle either party to use the other party’s name, trademark or trade designation for purposes of advertising and marketing without prior written consent of this party unless provided otherwise herein.
  7. This Agreement shall be governed by and construed under the laws of the State of New York, without giving effect to principles of conflicts of law. In the event of any conflicts between foreign law, rules, and regulations, and United States of America law, rules, and regulations, United States of America law, rules, and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement. The Uniform Computer Information Transactions Act as enacted shall not apply. The parties agree that the exclusive venue for all legal and equitable actions related to or arising from this Agreement shall be the United States Federal courts in New York. The waiver by either party of any of its rights hereunder shall not be construed as a waiver of any subsequent breach.
  8. This agreement shall be valid without signatures