IMPORTANT - READ CAREFULLY. THIS MATTERMOST, INC. SOFTWARE EVALUATION AGREEMENT (“AGREEMENT”) SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN RELATIONSHIP BETWEEN YOU (“CUSTOMER” OR “YOU”) AND MATTERMOST, INC. (THE “COMPANY”) AND THE RELATED TERMS AND CONDITIONS APPLICABLE TO ANY COMPANY PRODUCT YOU DOWNLOAD OR ACCESS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU SHOULD CLICK ON CANCEL AT THE BOTTOM OF THIS PAGE AT WHICH POINT YOU WILL NOT BE GRANTED ACCESS TO THE PRODUCT. DO NOT CLICK “I ACCEPT” UNLESS (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU CLICK ON THE BOX AT THE BOTTOM OF THIS PAGE LABELED "I ACCEPT", YOU WILL BE GRANTED ACCESS TO THE PRODUCT, AND THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY (THE “EFFECTIVE DATE”).
1. Grant of Rights; Restrictions; Feedback
a. Grant of Rights. Subject to the terms and conditions of this Agreement, and solely during the Evaluation Period (which shall run for 30 calendar days from the Effective Date), the Company hereby grants to Customer a nonexclusive, nontransferable license, without the right of sublicense, to royalty-free, limited, personal, non-exclusive, non-transferable and non-sublicensable license to: (i) install on a server and internally run and use the Software; and (ii) use the documentation, training materials or other materials supplied by the Company to enable such internal use, in each case solely for evaluation purposes and pursuant to the restrictions set forth in this Agreement. Customer will have access to Software documentation determined solely by the Company. This Agreement does not, however, entitle Customer to any additional documentation or media. All of the documentation provided to Customer pursuant to this Agreement is copyright Mattermost, Inc., and is licensed to Customer solely for Customer’s use during the term of this Agreement. Except for such use, Customer does not have the right to copy or redistribute the documentation. The Company retains all rights in the documentation not expressly granted to Customer.
b. Restrictions. Customer shall not: (i) electronically transmit the Software from one computer to another or over a network; (ii) distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Software or documentation; (iii) copy the Software or documentation, in whole or in part; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or documentation; (v) except as expressly provided for in this Agreement, use the Software in connection with any deployed computer system, including without limitation commercial, for-profit, or publicly accessible system or for commercial or revenue generating purposes; (vi) permit third parties to use the Software or documentation, or develop or deploy any system or software including the Software for use by any third parties; (vi) reverse assemble, reverse compile, decompile, translate or otherwise attempt to discover the source code of any component of the Software; (vii) reproduce, prepare derivative works of, display, perform, rent, lease, sell, license, sublicense, assign, distribute or otherwise transfer the Software or documentation or any components thereof; or (viii) access or use the Software or documentation in order to build a competitive product or service.
c. Feedback. Customer will use reasonable efforts to report to the Company any “bugs” or reproducible errors in the Software as they are encountered. Customer agrees that any information or feedback Customer may provide to Company related to the Software or this Agreement is non-confidential and Customer grants Company a non-exclusive, worldwide, fully paid up, perpetual and irrevocable license to use this information/feedback in Company’s business activities without restriction and without payment or accounting to Customer or any third party.
2. Intellectual Property Ownership
a. Ownership of Intellectual Property. The Software contains proprietary and confidential information of the Company and its licensors. Except to the extent licenses are expressly granted hereunder, each party and each party’s licensors, respectively, retains all right, title and interest in and to all patent, trademark, trade secret rights, inventions, copyrights, know how and trade secrets in and to that party’s respective products and services. The Company retains all right, title and interest in and to any work product created by the Company in the course of providing the Software and any service or support under this Agreement.
3. No Indemnities; No Warranties. THIS AGREEMENT DOES NOT ENTITLE CUSTOMER TO ANY INDEMNIFICATION OF ANY KIND. THE SOFTWARE AND DOCUMENTATION ARE LICENSED "AS IS." THE COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR SUCCEED IN RESOLVING ANY PROBLEM. CUSTOMER AGREES THAT USE OF THE SOFTWARE IS AT CUSTOMER’S OWN RISK. CUSTOMER HAS NO WARRANTY OR GUARANTEE UNDER THIS AGREEMENT THAT THE OPERABILITY OF ANY OF CUSTOMER’S APPLICATIONS RUNNING WITH THE SOFTWARE WILL BE MAINTAINED WITH ANY SUBSEQUENT OR GENERALLY AVAILABLE VERSIONS OF THE SOFTWARE OR THAT ANY VERSION OF THE SOFTWARE WILL EVER BE MADE AVAILABLE OR MARKETED. EXCEPT AS MAY OTHERWISE EXPRESSLY PROVIDED FOR HEREIN, NEITHER THIS AGREEMENT NOR CUSTOMER’S ACCESS TO THE SOFTWARE ENTITLE CUSTOMER TO RECEIVE SUPPORT SERVICES FROM THE COMPANY FOR THE SOFTWARE.
4. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, LOST REVENUE OR PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, OR PUNITIVE DAMAGES ARISING FROM THE USE OF THE SOFTWARE, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL THE COMPANY’S LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF THE AMOUNT PAID FOR THE SOFTWARE UNDER THIS AGREEMENT OR FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK.
a. Termination. This Agreement will terminate automatically at the end of the Evaluation Period. In addition, either party may terminate the Agreement at any time by giving the other party written notice of termination.
b. Effect of Termination. Upon termination or expiration of this Agreement, all licensed granted hereunder shall cease. Substantially concurrent with the end of the Evaluation Period or any earlier termination of this Agreement, Customer shall (in the case of Customer-hosted, on-premise evaluations) remove the Software (by deleting the Software and all copies thereof) from Customer’s premises, and any copies of it made by Customer, unless the Company gives Customer written authorization before close of the Evaluation Period or any earlier termination to retain possession of the Software and copies for a longer time period.
c. Survival. The following sections shall survive any termination of this Agreement: 1(b), 1(c), 2, 3, 4, 5(b), 5(c), 7 and 8 all associated definitions and all accrued rights to payment, if any.
6. Relationship of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. The parties agree that each is an independent contractor and neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. Nothing in this Agreement shall be construed as an obligation by either party to enter into a contract, subcontract, or other business relationship with the other party. Each party shall bear all costs and expenses incurred by it under or in connection with this Agreement.
7. Export Regulations. The Software is regulated by the Department of Commerce and Export Administration Regulations (and may be subject to export or import regulations in other countries). Customer agrees not to transfer, export or re-export, directly or indirectly, the Software to any Prohibited Entity, and Customer affirms that Customer is not a Prohibited Entity or acting on behalf of any Prohibited Entity. A Prohibited Entity includes any person or entity who is a government end-user (as defined in part 772 of the U. S. Export Administration Regulations), a military end-user, or a resident of any country to which the Export Administration Regulations prohibit exportation of encrypted software. The Company’s obligations to provide the Software is subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of technology and software abroad. Customer agrees to comply strictly with all such laws and regulations and hereby acknowledges that Customer has the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery of the Software to Customer
8. Miscellaneous. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) on the date of receipt, when delivered by email. This Agreement is not assignable or transferable by Customer without the Company’s prior written consent. 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 is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate. This Agreement may be modified, replaced or rescinded only in writing and signed by a duly authorized representative of each party. This Agreement shall be construed under and governed by the laws of the State of California, without regard to conflict of law provisions. THIS AGREEMENT SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS ORAL OR WRITTEN COMMUNICATIONS, PROPOSALS, REPRESENTATIONS AND WARRANTIES AND PREVAILS OVER ANY CONFLICTING OR ADDITIONAL TERMS OF ANY QUOTE, PURCHASE ORDER, ACKNOWLEDGMENT, OR OTHER COMMUNICATION BETWEEN THE PARTIES RELATING TO ITS SUBJECT MATTER DURING THE TERM OF THIS AGREEMENT.