Evaluation License Agreement

EVALUATION License Agreement of CHOYCE

Last updated September 23, 2024

This Agreement for evaluation is made between

Maximilian-Valentin Longinus, Michel Steiskal and Daniel Stippich

located in Lakeside B01 9020 Klagenfurt, Austria hereinafter “CHOYCE” and

you, the user (hereinafter referred to as “Evaluator”), including all people acting on behalf of the Evaluator.

By checking the box located in our user interface during the registration process, you confirm that you have read and understood the terms of this Agreement and agree to be bound by its conditions. Checking this box is a mandatory step to proceed with accessing our service. This consent becomes effective as soon as you select the checkbox and follow the hyperlink to the full Evaluation Agreement License.

OBJECT OF THE AGREEMENT
PURPOSE OF SOFTWARE EVALUATION
NON-DISCLOSURE AGREEMENT
FEEDBACK OBLIGATIONS ON THE PART OF THE EVALUATOR
COMMERCIAL USE OF SERVICE
EXCLUSION OF WARRANTY AND LIABILITY
LIABILITY DURATION, END OR TERMINATION OF THE AGREEMENT
APPLICABLE LAW AND VENUE
DATA PROTECTION
REFERENCE CLAUSE
FINAL PROVISIONS AND CONTRACTUAL PENALTY

1. Object of the Agreement

1.1 The purpose of this Evaluation Agreement is to outline the terms and conditions under which CHOYCE shall allow the Evaluator to evaluate the software (hereinafter “software”) during the evaluation period.

1.2 Full ownership of the software components and all rights in it shall remain with CHOYCE. This Evaluation Agreement therefore does not grant you as Evaluator any rights whatsoever in the software nor, with respect to the program, any rights beyond the evaluation rights governed by the present agreement.

2. Purpose of software evaluation

2.1 Under this Evaluation Agreement the Evaluator is given an evaluation subscription only for the internal review purposes of evaluating in-house, whether the software meets the purposes the Evaluator.

2.2 Subject to the terms and conditions of this Evaluation Agreement, CHOYCE hereby grants to the Evaluator a non-commercial, non-exclusive, non-transferable, and non-sublicensable, right to access and use the software.

2.3. Other than the rights expressly specified hereunder, no other rights or interest whatsoever in the software, and/or any component thereof, are transferred or granted to the Evaluator. Without limiting the foregoing, Evaluator may not: (i) use the software for purposes other than the purposes explicitly set forth hereunder; (ii) copy or duplicate the software; (iii) reverse engineer or decompile, modify or revise, attempt to access the source code of the software or any part thereof, or create derivative works thereof; (iv) transfer in whole or in part the right to use the software or any part thereof; (v) use or access any functionality of the software that the Evaluator may gain access to during the Evaluation Period, including but not limited to any APIs, integrations, or data transfer mechanisms, unless expressly authorized by CHOYCE in writing; or (vi) commercially utilize the software, or any part thereof.

2.4 Certain portions of software provided with the software may be subject to “open source”, or “free software” licenses (“Third Party Code”). Such Third Party Code is not subject to the terms and conditions of this Evaluation Agreement, but is licensed under the terms and conditions of the license that accompanies such Third Party Code.

2.5 This evaluation subscription and rights to access the Service shall expire automatically as soon as this Evaluation Agreement is terminated, expires or is ended in any other manner. As per the effective date of any such termination, the Evaluator must (i) immediately cease running and using the software, and (ii) delete all the software components associated with it immediately, including all backup copies thereof, irrevocably and completely from all storage media.

2.6 Apart from providing the software, CHOYCE shall be under no obligation whatsoever to provide any further services or deliveries to the Evaluator, including, without limitation, training, consulting, documentation, manuals, maintenance services, support services (on site or remote), IT security services, etc.; the same shall apply to updates, upgrades and bug fixes of the software, provided, however, that CHOYCE may, in the CHOYCE’s sole discretion and of its own volition, make such updates and/or upgrades and/or bug fixes available to the Evaluator during the term of this Evaluation Agreement.

3. Non-disclosure agreement

3.1 The Evaluator undertakes to keep strictly confidential all information related to the software, including any software errors, security vulnerabilities, partnership conditions, and pricing. The Evaluator shall use such information solely for the purposes of its internal evaluation and fulfilling feedback obligations under this Agreement. The Evaluator shall not exploit or allow the exploitation of this information for its own benefit, nor disclose it without prior written consent from CHOYCE. These non-disclosure obligations shall not apply if the information: (i) was already known to the Evaluatorprior to disclosure, (ii) was already in the public domain at the time of disclosure, (iii) entered the public domain without the Evaluator's involvement, (iv) was legitimately obtained from a third party without any non-disclosure or non-exploitation restrictions, or (v) must be disclosed under statutory provisions, court decisions, or orders by a public authority. In such an event, the Evaluator must promptly notify CHOYCE of the disclosure. The non-disclosure obligations of the Evaluator, including partnership conditions, shall remain in effect even after termination of theEvaluation Agreement, as long as the relevant information has not become public.

4. Feedback obligations on the part of the Evaluator

4.1 The Evaluator undertakes to, at least once during the test period, provide CHOYCE with reasonably detailed and understandable feedback in writing on the Evaluator’s use of the software, which covers at least the following information: (i) a reasonably detailed and understandable description of the use cases or experiences for which the software is being run and used; (ii) a reasonably detailed and understandable description of the software technical functionality, including any technical problems, such as bugs, that occurred when using the software, the circumstances under which this occurred, and whether such problems/bugs are reproducible (and if so, how).

4.2 By submitting such feedback, the Evaluator shall grant CHOYCE a worldwide, exclusive, transferable and sub-licensable license (“Werknutzungsrecht” in terms of section 24 second sentence Austrian Copyright Act), unrestricted in terms of time and subject, to use and exploit the feedback itself and its contents (such as, in particular, technical ideas, design proposals, troubleshooting suggestions and proposals for further development relating to the software) in any and all manners of exploitation currently known and becoming known in future and to also have third parties use and exploit the same. This shall include the right of CHOYCE to register and keep registered, in its own discretion and at its own expense, intellectual property rights (such as patents or utility models) in relation to the feedback in all countries of the world.

5. Commercial use of Service

5.1 Should the Evaluator be interested to use the software, and/or any part thereof and related materials, for purposes beyond the scope expressly authorized by this Evaluation Agreement, then the Evaluator must enter into a separate agreement with CHOYCE under terms to be agreed upon by the parties. Any use of the software, beyond the scope expressly authorized by this Evaluation Agreement without an appropriate authorization from CHOYCE is in violation of copyright laws and other intellectual property laws.

6. Exclusion of warranty and liability [ML1] [TT2]

6.1 In light of the evaluation nature of this Agreement, the Evaluator acknowledges and agrees that CHOYCE does not provide any warranty for the software. Therefore, to the maximum extent permitted by applicable law, CHOYCEexplicitly disclaims all warranties, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, and non-infringement. This includes the suitability of the software for the Evaluator's intended purposes and the absence of errors or defects in the software.

6.2 CHOYCE’s liability shall likewise be excluded, provided, however, that such exclusion of liability shall apply neither to willful intent or gross negligence on the part of CHOYCE nor to personal injury.

6.3 Liability for loss of data is excluded to the extent permitted by law.

7. Duration, end or termination of the Agreement

7.1 The evaluation period is concluded for an indefinite period of time until one of the following events occurs: (i) a party terminates the contractual relationship with immediate effect (by e-mail to support@choyce.tech), (ii) the Evaluatorirrevocably deletes its account or (iii) the Evaluator of the software is discontinued, whichever occurs first.

8. Applicable law and venue

8.1 This Evaluation Agreement shall be governed exclusively by the laws of the Republic of Austria, excluding its conflict-of-law provisions under private law and the United Nations Convention on Contracts for the International Sale of Goods (“UN-Kaufrecht”).

8.2 The exclusive place of jurisdiction is the competent court in Klagenfurt, Austria.

9. Data Protection

9.1 The disclosure of the Evaluator’s data and information to a respective required business partner is permitted to the extent necessary for the fulfillment of the contractual relationship under this Evaluation Agreement (Art 6 para 1 lit b GDPR).

9.2 CHOYCE draws attention to the fact that data of the Evaluator may be processed for advertising purposes on the basis of legitimate interests (Art 6 para 1 lit f GDPR). The Evaluator may object to this form of data processing at any time (Art 21 para 2 GDPR).

10. Reference clause

10.1 CHOYCE is authorised to inform about the fact of the business relationship with the Evaluator by means of a reference on its homepage or in business documents. In this context, the CHOYCE is authorised to use the Evaluator`s logo. This right to cite references also extends beyond the contractual relationship.

11. Final provisions and contractual penalty

11.1 If the Evaluator violates the provisions of this Evaluation Agreement, it shall owe CHOYCE a contractual penalty irrespective of the damage and/or fault, in the amount of EUR 15,000 (fifteen thousand) – for each violation. Without prejudice to the aforementioned, CHOYCE is free to claim further damage compensations. Payment of the contractual penalty does not exempt the Evaluator from the obligations under this Evaluation Agreement.

11.2 This Evaluation Agreement constitutes the entire agreement and the entire intent of the Parties with respect to the subject of the Evaluation Agreement, and shall supersede in full any earlier agreements made in this respect. There are no oral side agreements. While the Parties may enter into other agreements or may already have done so, the Parties are agreed that such agreements shall have no impact on the present Evaluation Agreement, except as otherwise provided for in such agreements.

11.3 Any amendment of this Evaluation Agreement shall have to be made in writing, and the same shall apply to any waiver of the requirement of the written form.

11.4 Should any of the provisions of this Evaluation Agreement be or become invalid or unenforceable, this shall not affect the remaining provisions thereof, and a valid and enforceable provision shall be deemed as having been agreed which best reflects the economic intentions of the Parties. The same shall apply to any gaps in the agreement.