CYBERSOURCE EVALUATION AGREEMENT
This CyberSource Evaluation Agreement ("Agreement") is made by and between CyberSource Corporation ("CyberSource"), and You. By You clicking the "Accept" button at the bottom of this page, You and CyberSource agree as follows:
This Agreement sets forth the terms and conditions under which You will evaluate Internet commerce services offered by CyberSource.
When used in this Agreement, the capitalized terms listed below will have the following meanings:
2.1 "You." The entity on behalf of which you are entering into this Agreement with CyberSource, including the possessive form "Your".
2.2 "CyberSource Internet Commerce SuiteSM." Those Internet commerce services of CyberSource provided to Internet merchants including, but not limited to, Credit Card Services, Internet Fraud Screen, Fulfillment Messaging, Delivery Address Verification, Digital Delivery, Digital Warehousing, Tax Calculation, Policy Compliance, Export Compliance, and Digital Product Rights Management (each a "Service" and collectively the "Services").
2.3 "CyberSource Commerce Component." The software and associated documentation of CyberSource which You will integrate into Your commerce system for the purpose of evaluating the Services (hereinafter the "CCC").
2.4 "CyberSource Test System." The machines and systems of CyberSource that emulate the functionality of the Services (the "Test System") and that enable potential and existing customers of CyberSource to submit test transactions to evaluate the Services.
2.5 "Test Account." Unique identification created by and maintained in the CyberSource systems to enable You to download the CCC and to evaluate the Services.
Subject to the limitations set forth in this Agreement, CyberSource grants You a personal, revocable, nonsublicensable, nonexclusive, nontransferable, limited license to use the CCC solely on Your machine(s) and/or system(s) for the sole purpose of evaluating the Services. CyberSource shall at all times retain all title to and ownership of the CCC and all copies thereof, including any modifications or derivatives. This license is revoked automatically and immediately upon any termination of expiration of this Agreement or in the event that CyberSource deactivates Your Test Account.
4. PROPRIETARY INFORMATION
4.1.1 You acknowledge that, in the course of using the CCC and performing Your duties under this Agreement, You may obtain information relating to the CCC, and/or CyberSource ("Proprietary Information"). Such Proprietary Information shall belong solely to CyberSource and includes, but is not limited to, the CCC itself, the CCC's features and mode of operation, this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, software documents, and other technical, business, product, marketing and financial information, plans, and data.
In regard to this Proprietary Information:
4.1.2 You will disclose the CCC and any other Proprietary Information only to those of Your employees and consultants as are necessary for the use expressly and unambiguously licensed hereunder, and only after such employees and consultants have agreed in writing to be bound by the provisions of this Agreement.
4.1.3 You will use the CCC and any other Proprietary Information only in the ordinary course of testing. You will not reproduce or modify the CCC or any portion thereof. You will not reverse assemble, reverse compile or reverse engineer the CCC, or otherwise attempt to discover any CCC source code or underlying Proprietary Information (as that term is defined below).
4.1.4 You will not rent, sell, lease or otherwise transfer the CCC, any part or product thereof, or any other Proprietary Information to any third party, or use it for the benefit of a third party.
4.1.5 You will not remove or export the CCC, any product thereof, or any other Proprietary Information from the United States.
5. USE OF CCC AND TEST SYSTEM
5.1 Upon Your acceptance of this Agreement, CyberSource will provide you with a unique Test Account and password.
5.2 You will be given access to the CyberSource Merchant Support Center by use of Your Test Account and password where You can download the CCC and relevant documentation.
5.3 CyberSource will not provide any direct assistance, technical or otherwise.
5.4 You will follow instructions set forth in relevant documentation regarding the integration, installation, or configuration of the CCC in Your system.
5.5 You understand and agree that the purpose of this Agreement is to enable You to evaluate the functionality of the Services. You will not test the Test System for capacity, throughput, or speed.
5.6 Any test transactions submitted by Your system to the Test System will conform to the requirements set forth in the relevant documentation, including, but not limited to, those requirements regarding data fields, data elements, accuracy of data, and completeness of data.
5.7 You will not, directly or indirectly, access or attempt to access the Test System in any way not intended by CyberSource under this Agreement.
6. TERM AND TERMINATION
6.1 The term of this Agreement shall be ninety (90) days from the date You accept this Agreement by clicking on the "Accept" button below, at which time this Agreement will terminate automatically.
6.2 This Agreement may be terminated by either party at anytime for any reason or no reason with one (1) day prior written notice to other party.
6.3 CyberSource may deactivate Your Test Account at anytime for any reason or no reason with notification to any of the e-mail addresses You entered during the registration process.
6.4 Upon any termination or expiration of this Agreement,
(a) any licenses or rights granted hereunder are immediately revoked, and (b) You will immediately return the CCC, any modifications or derivatives thereof, and any other Proprietary Information, or immediately destroy the CCC, any modifications or derivatives thereof, and any other Proprietary Information and provide written certification of such destruction to CyberSource.
You agree to indemnify, defend and hold CyberSource harmless for any claims, losses or damages (including reasonable attorney's fees and costs) for any third party claims arising from any actions or inactions attributable to You related to the subject matter hereunder, including, but not limited to, Your breach of any obligations under this Agreement.
8. DISCLAIMER TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CYBERSOURCE PROVIDES TO YOU THE CCC, AND ANY (IF ANY) DOCUMENTATION RELATED TO THE CCC AS IS AND WITH ALL FAULTS; AND CYBERSOURCE HEREBY DISCLAIMS, WITH RESPECT TO THE CCC AND ANY ASSOCIATED DOCUMENTATION, ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES OR CONDITIONS OF OR RELATED TO: TITLE,NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, QUIET ENJOYMENT, QUIET POSSESSION, AND CORRESPONDENCE TO DESCRIPTION.
THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE OS COMPONENTS AND ANY SUPPORT SERVICES REMAINS WITH YOU.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL CYBERSOURCE BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOST DATA, LOST PROFITS, LOST SAVINGS, OR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.1 You acknowledge and agrees that due to the unique nature of Proprietary Information, there can be no adequate remedy at law for any breach of Your obligations hereunder, that any such breach may allow You or third parties to unfairly compete with CyberSource resulting in irreparable harm to CyberSource, and therefore, that upon any such breach or threat thereof, CyberSource shall be entitled to injunctions and other appropriate equitable relief without the requirement of posing a bond in addition to whatever remedies CyberSource may have at law.
10.2 Neither the rights nor the obligations arising under this Agreement are assignable or transferable by You, and any such attempted assignment or transfer shall be void and without effect.
10.3 The parties shall perform all of their duties under this Agreement as independent contractors. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The parties understand and agree that, except as specifically provided in this Agreement, neither party grants the other party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other party, or to transfer, release, or waive any right, title, or interest of such other party.
10.4 This Agreement will be deemed entered into in California and will be governed by and interpreted in accordance with the laws of the State of California, excluding (i) that body of law known as conflicts of law and (ii) the United Nations Convention on Contracts for the International Sale of Goods. You agree that any dispute arising under this Agreement will be resolved in the state or federal courts in Santa Clara County, California, and the parties hereby expressly consent to jurisdiction therein.
10.5 This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.
10.6 This Agreement may not be modified or amended, including by custom, usage of trade, or course of dealing, except by an instrument in writing signed by duly authorized employees of both of the parties hereto.
10.7 The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.
10.8 If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
10.9 The provisions of this Agreement relating to Proprietary Information, disclaimers, limitation of liability, indemnification, and Miscellaneous shall survive any termination or expiration of this Agreement.