1.1 Service. Factor has developed a software platform thatit plans to commercially offer as a subscription service (the “Service”). Participant wishes to obtain (or has alreadyobtained), and Factor has agreed to provide (or has already provided) Participantwith, access to a beta, untested version of the Service in accordance with theterms of this Agreement. The parties acknowledge and agree that the terms andconditions of this Agreement are effective retroactively to the date on whichParticipant first received access to the Service (if prior to the EffectiveDate).
1.2 Beta Use. Participant understands thatthe version of the Service provided pursuant to this Agreement is a prereleaseversion that has not yet completed Factor’s quality assurance testing. Participant agrees to use good faith effortsto test, use and evaluate the Service, andto promptly report to Factor any errors, problems, defects or suggestions forchanges and improvements to the Service (collectively, “Feedback”) during an evaluation period, which shall begin on thedate that Factor notifies Participant that the Service is available for use by Participant(the “Commencement Date”) and whichshall terminate on [_____________](the “License Term”). Participant hereby assigns to Factor allrights in the Feedback and agrees that Factor shall have the right to use andexploit such Feedback and related information in any manner it deemsappropriate without restriction and without any obligation to provideattribution or compensation to Participant. Providing the Service to Participant does not constitute a sale or anannouncement that the Service, or that any other service of a similar designand/or functionality, will be available from Factor.
1.3 License. Subject to Participant’s continued compliancewith the terms of this Agreement, Factor hereby grants to Participant duringthe License Term a non-exclusive, non-transferable, and non-sublicensablelicense to access and use the Service solely for Participant to test andevaluate the Service.
1.4 Ownership. Participant agrees that Factorand its suppliers own all rights, title and interest, including allintellectual property rights, in the Service. Participant may not remove, alter or obscure any copyright, trademark,service mark or other proprietary rights notices incorporated in or accompanyingthe Service.
1.5 Updates. Participant understands thatthe Service is evolving and is deployed via a software-as-a-service model. Participant acknowledges and agrees that Factormay update the Service with or without notifying Participant. Participant may need to update third-partysoftware from time to time in order to use the Service.
1.6 Certain Restrictions. Factorreserves all rights that are not expressly granted to Participant in Section1.3. Without limiting the priorsentence, Participant may not (i) rent, lease, lend, redistribute, sublicenseor otherwise provide any third party with access to the Service; or (ii)attempt to derive the source code of, reverse engineer, decompile, copy, modifyor create derivative works of the Service, or use the Service to create aproduct that competes with the Service. Participantmust comply with all applicable laws, rules and regulations when using theService.
1.7 Third Party Materials. As apart of the Service, Participant may have access to materials that are providedby another party. Participant agreesthat it is not possible for Factor to monitor such materials and that Participant’saccess to these materials is at Participant’s risk.
2.1 ParticipantData. “Participant Data” means information, dataand other content whichis or has been (i) inputted or submitted into the Service by Participant,and (ii) the Participant-specific output that is generated by Participant’s useof the Service. As between Factor and Participant,Participant Data is owned by Participant. Participant is solely responsible for any and all obligations withrespect to the accuracy, quality and legality of Participant Data. Participant will obtain all third partylicenses, consents and permissions needed for Factor to use the Participant Datato provide the Service. Participanthereby grants to Factor a non-exclusive license to use and analyze theParticipant Data as necessary for purposes of operating and providing theService to Participant. Notwithstanding anything to the contrary herein, Participantacknowledges and agrees that Factor has the right, during and after the LicenseTerm, to collect, analyze, use, and disclose any anonymized information anddata derived from the Participant Data (collectively, the “Anonymized Data”) for Factor’s lawful business purposes, includingto improve and enhance the Service and for development, diagnostic,benchmarking and marketing purposes in connection with the Service and anyother Factor offerings. Factor shall ownall Anonymized Data.
2.2 ParticipantData Warranty. Participant represents and warrants that no Participant Datawill (a) infringe or misappropriate any intellectual property rights, includingany privacy rights, of any other person; (b) contain any viruses, worms orother malicious computer programming codes intended to damage Factor’s systemsor data; and (c) otherwise violate the rights of a third party or anyapplicable law.
2.3 DataSecurity. Factor will maintain industry standard administrative, technical andphysical safeguards designed to protect the security, confidentiality andintegrity of the Service and any Participant Data stored on, or accessible via,the Service. Participant willhave access to the Participant Data and will be responsible for all changes toand/or deletions of Participant Data and the security of all passwords andother access protocols required in order the access the Service. Participantwill have the ability to export Participant Data out of the Service and isencouraged to make its own back-ups of the Participant Data.
2.4 UsageData. “Usage Data” meansaggregated and anonymized data related to the performance of the Service andgenerated by Participant’s testing and use of the Service, including averageprocessing and response times, activity logs, and other performance relateddata and usage statistics. Usage Data isowned by Factor. For clarity, Usage Datawill not include any personally identifiable information. Notwithstanding anything to the contraryherein, Participant acknowledges and agrees that Factor shall have the right,during and after the License Term, to collect, analyze, use, and disclose UsageData for the purposes of contributing to analytical models used by Factor,improving the Service, performing services related to the Service, and forother development, diagnostic, and corrective purposes in connection with the Serviceand any other Factor offerings. Participant herebyconsents to Factor’s collection and use of Usage Data.
3. SUPPORT. Factor will use reasonable efforts to provide Participant withreasonable support services during Factor’s regular business hours to helpParticipant test and evaluate the Service. The parties may agree to additional specific services on a case-by-casebasis and Factor reserves the right to charge additional fees for suchadditional services. Notwithstanding theforegoing, Factor provides no assuranceregarding any uptime of the Service or that any specific errors or issues inthe Service will be corrected.
4. FEES. Participant agrees to pay to Factor the feesset forth in Exhibit B (if any) attached hereto in accordance with theschedule set forth therein. The feesdo not include any taxes, duties or similar assessments that may be imposed onParticipant’s use of the Service, and Participant will be responsible forpaying all such taxes, duties or similar assessments (except for taxes based onFactor’s income). Participant acknowledges that Factormay charge different fees to access and use the commercial-launch version of the Service on terms more fully described in aseparate license agreement between the parties.
5. CONFIDENTIALITY. “Confidential Information” means any nonpublic information of aparty (the “Disclosing Party”),whether disclosed orally or in written or digital media, that is identified as“confidential” or with a similar legend at the time of such disclosure or thatthe receiving party (the “ReceivingParty”) knows or should have known is the confidential or proprietaryinformation of the Disclosing Party. Forthe avoidance of doubt, the Service and all enhancements and improvementsthereto will be considered Confidential Information of Factor, and ParticipantData will be considered Confidential Information of Participant. Informationwill not constitute the Disclosing Party’s Confidential Information if it (i)is already known by the Receiving Party without obligation of confidentiality;(ii) is independently developed by the Receiving Party without access to or useof the Disclosing Party’s Confidential Information; (iii) is publicly knownwithout breach of this Agreement; or (iv) is lawfully received from a thirdparty without obligation of confidentiality. The Receiving Party will not useor disclose any Confidential Information except as expressly authorized by thisAgreement and will protect the Disclosing Party’s Confidential Informationusing the same degree of care that it uses with respect to its own confidentialinformation, but in no event with safeguards less than a reasonably prudentbusiness would exercise under similar circumstances. The ReceivingParty will limit access to Confidential Information of the Disclosing Party tothose of its employees who need such access to perform obligations under thisAgreement and who are subject to confidentiality obligations containingprotections no less stringent than those in this Agreement. The Receiving Party will take promptand appropriate action to prevent unauthorized use or disclosure of theDisclosing Party’s Confidential Information. If any Confidential Information must be disclosed to any third party byreason of legal, accounting or regulatory requirements, the Receiving Partywill promptly notify the Disclosing Party of the order and, if requested, reasonablyassist the Disclosing Party (at its own expense) to seek an appropriateprotective order.
6. Disclaimer of Warranties. the VERSION OF THE SERVICE THAT IS PROVIDED TOPARTICIPANT PURSUANT TO THIS AGREEMENT IS A PRERELEASE, UNTESTED VERSION AND ISPROVIDED “AS IS” AND “AS AVAILABLE.” FactorAND ITS SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR covenAnts, whether STATUTORY,EXPRESS, IMPLIED, BY COURSE OF COMMUNICATION OR DEALING, OR OTHERwiSE WITHRESPECT TO THE SERVICE. Factor AND ITSSUPPLIERS SPECIFICALLY DISCLAIM ANY WARRANTY WITH REGARD TO TITLE,MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THEFOREGOING, FACTOR MAKES NOWARRANTY OF ANY KIND THAT THE SERVICE OR THE RESULTS OF THE USE OF THE SERVICEWILL MEET PARTICIPANT’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANYINTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEM OR OTHERSERVICES, OR BE ACCURATE, COMPLETE, OR ERROR FREE.
7. Limitation ofLiability. TO THE FULLEST EXTENT PERMITTED BYAPPLICABLE LAW, IN NO EVENT WILL (I) FACTOR BE LIABLE TO PARTICIPANT UNDER ANYTHEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OREXEMPLARY DAMAGES ARISING OUT THIS AGREEMENT OR PARTICIPANT’S USE OF THE SERVICE;AND (II) FACTOR’S TOTAL LIABILITY ARISING UNDER THIS AGREEMENT EXCEED $1,000.
8. Term andTermination.
8.1 Term. The term of this Agreementcommences on the Effective Date and terminates on expiration of the LicenseTerm, unless terminated earlier in accordance with this Agreement.
8.2 Termination of Service for Cause. If eitherparty materially breaches any provision of the Agreement, the non-breachingparty has the right to terminate the Agreement if the breaching party has notcured the breach within ten (10) days after notice thereof.
8.3 Effect of Termination. Termination of the Agreement includes terminationof the license set forth in Section 1.3, removal of access to the Service andbarring of further use of the Service. Uponany termination of this Agreement, each party must return or permanently destroyall tangible embodiments of the other party’s Confidential Information (definedbelow) within its possession or control and, upon request, certify in writingthis obligation has been satisfied. All provisions of the Agreement which bytheir nature should survive, shall survive termination of the Agreement,including without limitation, ownership provisions, warranty disclaimers, andlimitations of liability.
9.1 Governing Law. ThisAgreement and any action related thereto will be governed and interpreted byand under the laws of the State of California, without giving effect to anyconflicts of laws principles that require the application of the law of adifferent jurisdiction. Each party hereby expressly consents to the personaljurisdiction and venue in the state and federal courts located in [SanFrancisco, California or San Jose, California] for any lawsuit arising from orrelated to this Agreement.
9.2 Publicity. Participant acknowledges andagrees that Factor shall have the right, during the License Term, to listParticipant as a beta test participant for the Service on Factor’s website andother marketing materials, and to use Participant’s name and logo for suchpurpose.
9.3 Notice. Each party shall givenotice to the other party at the address set forth at the beginning of thisAgreement. Such notice shall be deemedgiven when received by letter delivered by nationally recognized overnightdelivery service or first class postage prepaid mail at the above address.
9.4 Assignment. Participant may not assign or otherwise transfer this Agreement, orany of its rights or obligations under this Agreement, without Factor’s priorexpress written consent. Any attemptedassignment in violation of the prior sentence constitutes a breach of thisAgreement.
9.5 Waiver. Any waiver or failure toenforce any provision of this Agreement on one occasion will not be deemed awaiver of any other provision or of such provision on any other occasion.
9.6 Severability. If any provision of this Agreement is, for anyreason, held to be invalid or unenforceable, the other provisions of thisAgreement will remain enforceable and the invalid or unenforceable provisionwill be deemed modified so that it is valid and enforceable to the maximumextent permitted by law.
9.7 Entire Agreement. ThisAgreement is the final, complete and exclusive agreement of the parties withrespect to the subject matter hereof and supersedes and merges all priordiscussions between the parties with respect to such subject matter.