Evaluation Use Terms

These are the Terms governing your (“You” or “Customer”) use of proprietary software technology and related technical materials (the “Combary Encryption System” or “Combary”) owned by Permanent Hard Drive LLC (the “Company”). Your access to and use of Combary is conditioned on Your acceptance of and compliance with these Terms. These Terms apply to all users who access or use Combary. By downloading, installing, accessing or using Combary, You agree to be bound by these Terms. If You disagree with any part of these Terms, then You may not download, install, access or use Combary.

1. Combary. These Terms provides Customer access to a beta version of Combary, which is protected by US patent numbers 9,786,318, 10,121,510, 9,437,236, and 10,930,314 (the “Patents”), as well as at least one pending patent application. Combary is also protected by US copyright, trade secret and trademark law. As delivered to Customer, the Combary Encryption system consists of object code, source code, and written technical materials.

2. TERMS RELATED TO USE OF COMBARY.

a.License. Subject to these Terms, Company grants to You a limited, non-exclusive, non-transferable, revocable license to download, install and use, in the United States and FOR EVALUATION PURPOSES ONLY, the Combary Encryption System in the form offered by Company at combary.com.

b.Feedback. Customer hereby grants the Company a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, exploit for commercial purposes and incorporate into Combary any suggestions, enhancement requests, recommendations or other feedback provided by Customer as it relates to Combary.

c.Customer Responsibilities. Customer (i) is solely responsible for its use of Combary, (ii) must use commercially reasonable efforts to prevent unauthorized access to Combary, and notify Company promptly of any such unauthorized access, and (iii) may use Combary only in accordance with applicable law.

d. Customer Restrictions. Customer may not:

(i) Use Combary for any purpose other than evaluation;

(ii) Reverse engineer Combary, including by way of example and not limitation, accessing Combary to build a competitive product or service; or copying any feature, function or graphic of Combary for competitive purposes;

(iii) Remove or modify any proprietary marking or restrictive legends in Combary; (iv) Export Combary, in whole or in part, outside the United States; or

(v) Sell, resell, disclose, rent or lease Combary to any third party.

e. Reservation of Rights by Company. The software, both object and source code versions, workflow processes, user interface, designs, algorithms, know-how and other technologies provided by Company as part of Combary are the proprietary property of Company, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Company. Company reserves all rights not expressly granted in these Terms.

3. WARRANTY DISCLAIMER. Combary is provided as is, and is not ready for production use. Company disclaims all warranties, including, without limitation, any warranty that Combary is error free, and the implied warranties of merchantability, non-infringement and fitness for a particular purpose.

4. CONFIDENTIALITY.

a. Definition of Confidential Information. Confidential Information means all non-public business and technical information disclosed by Company to Customer, whether orally or in writing, relating to Combary (Confidential Information). Company’s Confidential Information includes without limitation all parts of Combary not disclosed in one of the Patents, including by way of example and not limitation, the algorithms contained in Combary.

b. Protection of Confidential Information. Customer must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) and may not disclose or use any Confidential Information for any purpose outside the scope of this agreement. Customer must make commercially reasonable efforts to limit access to Confidential Information to those of its employees who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Customer no less restrictive than the confidentiality terms herein.

c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Company, (ii) was known to the Customer prior to its disclosure without breach of any obligation owed to Company, or (iii) is received from a third party without breach of any obligation owed to Company. Customer may disclose Confidential Information to the extent required by law, but will attempt to provide Company with advance notice to seek a protective order.

5. TERM and Termination. This agreement continues until (a) it is terminated in writing by either party for any reason, or (b) Company releases Combary as generally available. Upon termination, Customer will uninstall Combary and delete all copies thereof.

6. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.

a. Exclusion of Certain Damages. Company is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay, loss of data or information, and lost profits) even if Company is aware of the possibility of such damage.
b. Limitation of Liability. Company’s liability for all direct damages arising out of or related to these Terms (whether in contract, tort or otherwise) will not exceed $500.

7. GOVERNING LAW AND LOCATION FOR DISPUTES. This agreement is governed by the laws of the State of Idaho (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

8. OTHER TERMS.

a. Entire Agreement and Changes. This agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it.

b. No Assignment. Neither party may assign or transfer this agreement to a third party, except that this agreement may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets of a party.

c. Independent Contractors. The parties are independent contractors with respect to each other.

e. Money Damages Insufficient. Any breach by Customer of this agreement or violation of Company’s intellectual property rights could cause irreparable injury or harm. Company may seek a court order to stop any breach or avoid any future breach.

f. Survival of Terms. Any terms that by their nature survive termination or expiration of this agreement, will survive.

I accept: