Product Evaluation Agreement
This Product Evaluation Agreement ("Agreement") is made and entered by and between BrightEdge Technologies, Inc., a Delaware corporation located at 999 Baker Way, Suite 500, San Mateo, CA 94404 ("BrightEdge", "we", "us" or "our") and you and is made effective as of the date of your electronic acceptance. The terms "you", “your” or “User” shall refer to any individual or entity who accepts this Agreement, receives, has access to, or uses the Product (as defined herein). If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms "you", "your" or "User" shall refer to such corporate entity. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
This Agreement constitutes a binding and enforceable legal contract between BrightEdge and you - so please read it carefully. You may receive and/or use the Product only if you fully agree to this Agreement - and by electronically accepting the terms and conditions of this Agreement, you signify and affirm your informed consent to this Agreement. If you do not read, fully understand and agree to this Agreement, you must not affirm your electronic acceptance of this Agreement and must immediately discontinue all use of the Product. This Agreement sets forth the general terms and conditions of your use of the Product and any and all BrightEdge services performed to provide the Product to you and is in addition to (not in lieu of) any specific terms and conditions that apply to any and all other BrightEdge services provided to you.
BrightEdge is the owner of the prototype product identified as Intelligent Experiences (the "Product") which it desires to have tested by you. BrightEdge agrees to provide the Product to you, and you accept the Product, subject to the terms of this Agreement. You agree to test and evaluate the Product's suitability to your business, and report to BrightEdge with respect to the usefulness and functionality of the Product, all pursuant to this Agreement.
NOW, THEREFORE, in consideration of the promises set forth herein, the parties hereto agree as follows:
1. LICENSE. You acknowledge that you shall have only a limited, nonexclusive, nontransferable license to use the Product solely in connection with the evaluation of the Product, for a period not to extend beyond your current Subscription End Date set forth in a mutually agreed-upon Order Form by and between you and BrightEdge ("Evaluation Period").
2. REPRESENTATIONS. You represent and warrant: (i) you own all rights in and to any content uploaded by you or by BrightEdge at your direction ("User Content") to the Product, including any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials, or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the User Content, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such User Content; (ii) the User Content is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for you to possess, post, transmit or display in the country in which you or the Product’s visitors and users ("End Users") reside, or for BrightEdge and/or your End Users to use or possess in connection with the Product; and (iii) you have obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of the User Content, and you will adhere to all laws applicable thereto.
3. REPORT. You shall report to BrightEdge, as soon as practical, any perceived defect in the Product. As reasonably requested by BrightEdge from time-to-time during the Evaluation Period, you shall provide to BrightEdge an evaluation of the Product, including both positive and negative aspects.
4. RESTRICTIONS. You recognize that the license herein is granted solely for the purpose of your evaluation of the Product and thus you will not (and will not allow any third party to): (i) decompile, disassemble, or otherwise reverse engineer the Product or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Product by any means whatsoever; or (ii) use or copy the Product, in whole or in part, except as expressly allowed herein. You further acknowledge and agree that: (a) your use of the Product, including any content you submit, will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations; (b) you will not use the Product in a manner (as determined by BrightEdge in its sole and absolute discretion) that: (1) is illegal, or promotes or encourages illegal activity; (2) infringes on the intellectual property rights of any other person or entity; (3) violates the privacy or publicity rights of any other person or entity, or breaches any duty of confidentiality that you owe to any other person or entity; (4) interferes with the operation of the Product; and (5) contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any BrightEdge software or hardware; (c) you will not copy or distribute in any medium any part of the Product, except where expressly authorized by BrightEdge; and (d) you will not modify or alter any part of the Product or any of its related technologies. You agree to back-up all of your User Content so that you can access and use it when needed. BrightEdge does not warrant that it backs-up any User Content, and you agree to accept as a risk the loss of any and all of your User Content.
5. USER CONTENT OWNERSHIP. As between BrightEdge and you, you shall own all intellectual property pertaining to your User Content, including to any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials created by you. You hereby grant BrightEdge a royalty-free, perpetual, irrevocable, non-exclusive, transferable and sublicensable right and license to use your User Content (in whole or in part) worldwide in order to provide you with the Product as set forth in this Agreement.
6. BRIGHTEDGE OWNERSHIP. All rights, title and interest in and to the Product, including any and all copyrightable materials or any other content thereof which is or may be subject to any intellectual property rights under any applicable law (including any artwork, graphics, images, website templates and widgets, literary work, source and object code, computer code (including html), applications, audio, music, video and other media, designs, animations, interfaces, the "look and feel" of the Product, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customized URLs, trademarks, service marks, trade names and other proprietary identifiers, whether or not registered and/or capable of being registered (collectively, "Intellectual Property"), and any derivations thereof, are owned by and/or licensed to BrightEdge. This Agreement does not convey any right or interest in or to BrightEdge’s Intellectual Property (or any part thereof), except only for the limited license expressly granted herein. Nothing in this Agreement constitutes an assignment or waiver of BrightEdge’s Intellectual Property rights under any law. Any rights not expressly granted herein are reserved to BrightEdge.
7. FEEDBACK. You hereby grant BrightEdge a royalty-free, nonexclusive, perpetual, irrevocable, worldwide, transferable (only to a successor by way of merger, reorganization or sale of all or substantially all assets or equity), sublicensable license to use, copy, modify, or distribute, including by incorporating into the Product, any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the functionality of the Product.
8. BRIGHTEDGE WARRANTIES. BrightEdge represents and warrants that it has the requisite right and legal authority to grant the license and provide the Product and the Confidential Information as contemplated by this Agreement. Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to make the Product available on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that the Product may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of the Product on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto. THE PRODUCT IS PROVIDED "AS IS". BRIGHTEDGE MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT OR ANY OTHER CONFIDENTIAL INFORMATION AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HERBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. CONFIDENTIALITY. You acknowledge and agree that in providing the Product, BrightEdge may disclose to you certain confidential, proprietary and trade secret information of BrightEdge (the "Confidential Information"). Confidential Information may include, but is not limited to, the Product, computer programs, flowcharts diagrams, manuals, schematics, development tools, specifications or design documents. During this Agreement, you agree that you will not, without the express prior written consent of BrightEdge, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information: a) is or becomes generally available to the public through no fault of User; b) is rightfully received by you from a third party without limitation as to its use; or c) is independently developed by you without use of the Confidential Information. At the termination of this Agreement, you will immediately return the Product and all other Confidential Information to BrightEdge.
10. TERMINATION. BrightEdge may terminate this Agreement upon notice to you, subject to your obligation to return the Product, BrightEdge Confidential Information and all copies thereof. If not earlier terminated, this Agreement shall terminate automatically upon the end of the Evaluation Period set forth in Section 1. Upon termination, you shall immediately return, as applicable, the Product and all other Confidential Information to BrightEdge, and you agree to remove any and all computer files related to the Product in your control. Upon termination, you further agree BrightEdge shall cease provision of the Product to you.
11. INDEMNIFICATION. You agree to defend, indemnify and hold harmless BrightEdge, its officers, directors, shareholders, employees, affiliates and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including attorneys' fees) arising from: (a) your violation of any third party right, including any copyright, property, or privacy right, resulting from your User Content and/or your use of the Product; and/or (b) any other type of claim that your User Content caused damage to a third party.
12. LIMITATION OF LIABILITY. IN NO EVENT WILL BRIGHTEDGE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS ARISING FROM, CONNECTED WITH, OR RELATED TO THIS AGREEMENT, WHETHER SUCH LIABILITY IS FORESEEABLE, EVEN IF BRIGHTEDGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. THE LIMITATIONS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14. MISCELLANEOUS. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and shall be governed by the internal laws of the State of California, excluding its conflict of law rules, and applicable federal law. Notwithstanding anything in this Agreement to the contrary, in no circumstances may BrightEdge be considered as a "publisher" of any User Content, does not in any way endorse any User Content, and assumes no liability for any User Content uploaded, posted, published and/or made available by you or any other party on and/or through the Product, for any use by any party, or for any loss, deletion or damage thereto or thereof or any loss, damage, cost or expense that you or others may suffer or incur as a result of or in connection with publishing, accessing and/or relying on any User Content. Furthermore, BrightEdge shall not be liable for any mistakes, defamation, libel, falsehoods, obscenity, incitement and/or any other unlawful and/or infringing User Content you or any other party may encounter. You may not assign this Agreement without the prior written consent of BrightEdge. This Agreement shall be binding upon and inure to the benefit of the parties and their respective administrators, successors and assigns. You acknowledge and agree that the Product and any affiliated services to provide the Product to you may be provided by independent contractors or third party service providers. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. BrightEdge may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this site. Your use of the Product after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) the Product. In addition, BrightEdge may occasionally notify you of changes or modifications to this Agreement by email. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. (Version 10072015)