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You, on your own behalf or on behalf of the single entity you represent (in either case, “Licensee”), must read and agree to the terms of this Beta Software License Agreement (“Agreement”) before you download any Beta Software (as defined below). This Agreement sets out the terms and conditions on which ServiceRocket is willing to license the Beta Software to Licensee for evaluation purposes. You as Licensee represent and warrant that, by downloading the Beta Software, you (i) have the authority to enter into this Agreement with ServiceRocket, (ii) have read the terms and conditions set out herein and (iii) agree to be bound by these terms and conditions. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD THE BETA SOFTWARE.
This Agreement shall become effective upon your download of the Beta Software (the “Effective Date”).
In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
1. Grant of Limited License. Subject to all the terms of this Agreement, ServiceRocket grants Licensee a non-sublicensable, nontransferable, nonexclusive, revocable, limited right to use the pre-release version of the connector and/or add-on software downloaded by Licensor, whether labeled as alpha, beta, pre-release, preview or otherwise, and as identified on ServiceRocket’s Workplace marketplace (the “Beta Software”) in the non-source code form provided by ServiceRocket, solely for Licensee’s Internal Purposes. “Internal Purposes” means internal business use with Licensee’s systems, networks, devices and data for the purposes of internal evaluation and testing of the Beta Software in order to provide Feedback to ServiceRocket regarding the Beta Software; provided, that such use does not include use of Licensee’s systems, networks or devices as part of services Licensee provides for a third party’s benefit. “Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Licensee (whether in oral, electronic or written form) to ServiceRocket in connection with Licensee’s use of the Beta Software, and does not include any data, results or output created or generated by Licensee using the Beta Software, unless submitted or communicated by Licensee to ServiceRocket. Licensee acknowledges that the Beta Software and documentation contain valuable and proprietary trade secret information of ServiceRocket and its licensors. The Beta Software is licensed only, and not sold; ServiceRocket and its licensors retain ownership of all right, title and interest in and to the Beta Software, the documentation and any derivatives thereof, including without limitation all intellectual property rights therein.
2. Restrictions. Licensee shall use the Beta Software only as expressly licensed above and only in accordance with the documentation provided by ServiceRocket. Licensee shall not (and shall not allow any third party within Licensee’s control to) (i) access or use the Beta Software for any purpose other than the Internal Purposes; (ii) modify or create derivative works of the Beta Software; (iii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Beta Software (except to the extent that applicable law prohibits reverse engineering restrictions); (iv) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Beta Software for the benefit of any third party; or (v) use the Beta Software, or allow the transfer, transmission, export, or re-export of the Beta Software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other U.S. or foreign government entity. All the limitations and restrictions on the Beta Software in this Agreement also apply to all related documentation provided by ServiceRocket.
3. Term; Termination. The term of this Agreement shall be for an initial term of six (6) months from the Effective Date, and may be extended by ServiceRocket for an additional six (6) months, at its sole discretion; provided, that access to any beta software will terminate automatically upon the commercial release (if any) of the Beta Software. Notwithstanding the foregoing, this Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination. Upon termination or expiration, or if a license ceases to be effective, Licensee shall immediately cease all use of the Beta Software and return or destroy all copies of the Beta Software, documentation and all portions thereof and certify such destruction to ServiceRocket. This Section 3 and Sections 4-10 shall survive termination of this Agreement. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
4. Disclaimer of Warranties. The parties acknowledge that the Beta Software is provided “AS IS”, without representation or warranty or any kind. SERVICEROCKET DISCLAIMS ALL WARRANTIES RELATING TO THE BETA SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SERVICEROCKET SPECIFICALLY DOES NOT WARRANT THAT THE BETA SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OR OUTPUT OF THE BETA SOFTWARE WILL BE ERROR-FREE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. ServiceRocket is not obligated to support, update or upgrade the Beta Software.
5. Limitation of Liability. EXCEPT FOR A BREACH OF SECTION 2 OR 6, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. SERVICEROCKET SHALL NOT HAVE ANY LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT.
6. Confidentiality. Neither party shall use or disclose to any person or entity, directly or indirectly, without the prior approval of the other party, the terms of this Agreement or any non-public information related to the business of the other party obtained by virtue of this Agreement (including without limitation source code, security, any test or evaluation results, and customer information) (“Confidential Information”), except on a confidential basis to its business, legal and financial advisors on a need to know basis who are subject to confidentiality obligations at least as restrictive as the terms of this paragraph or as required to be disclosed under applicable law or by legal process, provided the non-disclosing party: (i) provides prompt written notice to the disclosing party to enable it to seek a protective order or prevent disclosure, (ii) only discloses that portion of the Confidential Information required to be disclosed pursuant to such order, and (iii) ensures that any Confidential Information disclosed shall still be afforded the protection of this paragraph to the extent it does not become publicly available as a result of such disclosure. Each party will be responsible for any breach by its advisors. Licensee shall not disclose to any third party any results or information related to its evaluation or testing of the Beta Software, except with ServiceRocket’s express prior written consent in each case. There will be no restriction on the use of information: known to the general public through no improper action or inaction by the non-disclosing party or its advisors, known already by the non-disclosing party without restriction prior to receipt from the disclosing party, already in possession of the non-disclosing party, later lawfully obtained from a source other than the disclosing party without restriction, or independently developed by the non-disclosing party without use of the disclosing party’s Confidential Information. Nothing in this Agreement shall relieve either party of its obligations under any separate non-disclosure agreement between the parties, including any required procedures for handling customer data or other similarly sensitive information.
7. Intellectual Property. All right, title and interest, including intellectual property rights, in relation to the Beta Software (including any trade marks contained in or on the Beta Software) are the property of ServiceRocket and its licensors. No title, ownership, copyright or intellectual property rights in the Beta Software are transferred by this Agreement to Licensee. The Licensee shall not remove or alter any trade mark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Beta Software. All rights not specifically granted in this Agreement are reserved by ServiceRocket.
8. Feedback. ServiceRocket, in its sole discretion, may or may not respond to Licensee’s Feedback or promise to address all Licensee’s Feedback in the development of future features or functionalities of the Beta Software or any related or subsequent versions of such Beta Software. In the event ServiceRocket uses Licensee’s Feedback, Licensee grants ServiceRocket an unrestricted, perpetual, worldwide, exclusive, transferable, irrevocable, sublicensable, royalty-free, fully paid-up license to use, copy, modify, create derivative works of, make, have made, distribute (through multiple tiers of distribution), publicly perform or display, import, export, sell, offer to sell, rent, or license copies of the Feedback as part of or in connection with any ServiceRocket product, service, technology, content, material, specification or documentation. Licensee warrants that the Feedback does not infringe any copyright or trade secret of any third party, and that Licensee has no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by Licensee). Licensee further warrants that its Feedback is not subject to any license terms that would purport to require ServiceRocket to comply with any additional obligations with respect to any ServiceRocket product or service that incorporates Licensee’s Feedback.
9. Data. Licensee hereby grants ServiceRocket a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to use, access, transmit, host, store, and display the Data solely for the purpose of providing and improving the Beta Software. “Data” means Licensee’s own data and information uploaded or submitted or transmitted by Licensee in connection with Licensee’s use of the Beta Software (other than Feedback) and the specific file or output generated from the Beta Software, if any, based upon Licensee’s own data and information. ServiceRocket (or its sublicensees) may exercise such license for purposes of providing, maintaining, repairing, administering and improving the Beta Software or in developing new products or services, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Data. Licensee represents, warrants and agrees that the Data and other materials Licensee provides or makes available to ServiceRocket will include only information relevant to the Beta Software and the use thereof and will not include any personally identifiable information or any protected health data. Licensee acknowledges and agrees that it is solely responsible for all Data it uploads or submits using the Beta Software and for its conduct while using the Beta Software. Licensee acknowledges and agrees that: (a) it will evaluate and bear all risks associated with the use of any Data; (b) it is responsible for protecting and backing up the Data; (c) it is responsible for protecting the confidentiality of any Data; and (d) under no circumstances will ServiceRocket be liable in any way for any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages or any kind incurred as a result of Licensee’s use, deletion, modification, or correction of any Data. ServiceRocket has no responsibility to store, protect, remove or delete any Data for Licensee and shall have no liability for the deletion of or failure to store any Data.
10. Miscellaneous. Neither this Agreement nor the licenses granted hereunder are assignable or transferable by Licensee, whether by operation of law or otherwise, without the prior written consent of ServiceRocket; any attempt to do so shall be void. ServiceRocket may assign this Agreement without consent to any acquiror of all or substantially all of ServiceRocket’s assets, equity or business to which this Agreement relates, with written notice to Licensee. Any notice, report, approval or consent required or permitted hereunder shall be in writing and delivered via registered mail or international overnight courier to the address set forth above. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, 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. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any action arising from this Agreement shall be brought in the state and Federal courts located in Santa Clara County, California, U.S.A. Any waivers or amendments shall be effective only if made in writing. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney’s fees and costs in connection with such action. Licensee represents that it is not a government agency and it is not acquiring this evaluation license pursuant to a government contract or with government funds.