CAREFULLY READ THIS PILOT AGREEMENT (“AGREEMENT”) BEFORE USING THE PRODUCT DELIVERED TO YOU. THE AFFIRMATIVE ACT OF USING THE PRODUCT OR SUBMITTING THE EXABEAM PILOT ORDER FORM TO EXABEAM MEANS YOU ACCEPT THE PRODUCT AND YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANOTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCT. YOU MAY HAVE A WRITTEN AND SIGNED AGREEMENT DIRECTLY WITH EXABEAM THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.
This Agreement is by and between Exabeam, Inc., with offices at 2 Waters Park Drive, Suite 200, San Mateo, CA 94403 (“EXABEAM”) and the party identified in the Exabeam Pilot Order Form (“Order”), which may be you individually if you ordered the Product in your own capacity, or the company or organization identified in the Order for whose benefit you act (“CUSTOMER”). This Agreement is effective the earlier of CUSTOMER’s first use of the Product or submission of the Order to EXABEAM (“Effective Date”).
1.1 “Customer Data” means all: (i) any data uploaded to the SaaS, including but not limited to PII; and (ii) any output from CUSTOMER’s use of the SaaS.
1.2 “PII” means personal information that is, without limitation, names, phone numbers, mailing addresses, credit card information, social security numbers, and/or account or financial information of CUSTOMER that is hosted in the SaaS environment.
1.3 “Product” means EXABEAM’s data security and analytics product(s) (proprietary hardware, software, and/or SaaS) and any related updates, materials and documentation made available to CUSTOMER by EXABEAM in connection with this Agreement.
1.4 “Proprietary Information” means any and all information disclosed by a party (“DISCLOSER”) to the other party (“RECIPIENT”) in confidence that is labeled or identified as “confidential” or “proprietary”; and if disclosed orally or otherwise in tangible form, is confirmed as such in writing within 30 days of such disclosure; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary under the circumstances. Proprietary Information includes, without limitation, business and financial information, software, source code and specifications, trade secrets, technical information, business forecasts and strategies, personnel information, and proprietary information of third parties.
1.5 “SaaS” means the provision of software Product(s) by EXABEAM to CUSTOMER as a service hosted by or on behalf of EXABEAM under this Agreement, which may include, but is not limited to, hosting, management and maintenance of the applicable software Product(s) made available in the hosted environment.
2. DELIVERY OF PRODUCT
Upon EXABEAM’s acceptance of the Order, Exabeam shall deliver or make available to CUSTOMER the Product identified in the Order with related Proprietary Information.
3. RIGHTS AND RESTRICTIONS
3.1 USE. EXABEAM authorizes the CUSTOMER to use the Product solely for internal evaluation of the Product for CUSTOMER’s own business purposes in accordance with test criteria mutually agreed to by the parties. CUSTOMER is only authorized to use the Product at the install site identified in the Order for the length of the Pilot Period. CUSTOMER may not use the Product for any other purpose and shall be solely liable to EXABEAM for breach of any of these terms.
3.2 SOFTWARE. For Orders that include the evaluation of the software Product and subject to the terms and conditions of this Agreement, EXABEAM hereby grants CUSTOMER a non-sublicensable, non-transferable, non-exclusive license to perform and display the software Product, in object code form only, solely in accordance with documentation and materials supplied by EXABEAM, and solely for CUSTOMER’s own internal evaluation of the Products during the Pilot Period.
3.3 SAAS. For Orders that include the evaluation of SaaS , and subject to the terms and conditions of this Agreement, EXABEAM hereby grants to CUSTOMER a non-exclusive, non-transferable license to perform, display and access the software Product through SaaS, solely in accordance with the documentation and materials supplied by EXABEAM, and solely for CUSTOMER’s own internal evaluation purpose during the Pilot Period.
3.4 PILOT PERIOD. CUSTOMER shall have a period of 45 days from delivery of the Product to complete an evaluation (“Pilot Period”). This Agreement, if not terminated, will expire upon the earlier of: (1) EXABEAM’s receipt of the returned hardware Product; or (2) CUSTOMER’s payment for the hardware Product received under this Agreement.
4. RETURN OF THE PRODUCT
4.1 HARDWARE. To return the hardware Product to EXABEAM, CUSTOMER must deliver the hardware Product to EXABEAM no later than five business days following completion of the Pilot Period. To deliver the hardware Product, CUSTOMER must either: (i) return the hardware Product to EXABEAM using the then-current return merchandise authorization process; or (ii) if CUSTOMER is given prior written approval by EXABEAM, then provide EXABEAM with access to the hardware Product during CUSTOMER’s regular business hours to allow EXABEAM to retrieve the hardware Product. If the Pilot Period ends and the hardware Product has not been returned to EXABEAM as set forth herein, then CUSTOMER’s right to return the hardware Product shall be null and void, and CUSTOMER shall pay for the hardware Product in accordance with Section 5.
4.2 SOFTWARE. Unless CUSTOMER submits an Order to purchase the evaluated SaaS or software Product(s), upon expiration of the Pilot Period or termination of this Agreement, CUSTOMER shall return or destroy all documentation and materials made available by EXABEAM in connection with this Agreement.
4.3 TERMINATION. EXABEAM may terminate this Agreement by providing written notice to CUSTOMER. Nothwithstanding anything else in this Agreement, EXABEAM may terminate this Agreement immediately and without notice, and will be entitled to take immediate possession of the Product, if EXABEAM believes in its sole and absolute discretion that CUSTOMER is in breach of this Agreement or specifically that the Product; (i) is being misused or used in breach of this Agreement; (ii) is in the possession of any third party not authorized by EXABEAM; or (iii) is in danger of being seized by others. In the event this Agreement is terminated for any reason other than for the expiration of the Pilot Period, EXABEAM shall be entitled to retrieve the Product immediately from CUSTOMER at CUSTOMER’s sole expense.
5. PAYMENT FOR PRODUCT
If the Product has not been returned as set forth in Section 4, then EXABEAM, or EXABEAM’s channel partner designated in the Order, will present an invoice. For invoices presented by EXABEAM at the then current list prices, CUSTOMER hereby agrees to pay such invoice within 30 days from the date of the invoice.
CUSTOMER agrees to meet regularly with EXABEAM to discuss and provide EXABEAM information and feedback regarding: (1) the nature and extent of CUSTOMER’s use or operation of the Product; (2) any changes or suggestions regarding the Product; (3) all errors or feature requests; and (4) the characteristic conditions and symptoms leading to the errors or suggested feature requests in sufficient detail to allow EXABEAM to recreate them itself. EXABEAM may also give CUSTOMER access to its error tracking system, which will allow CUSTOMER to directly input information regarding errors and feature requests, and CUSTOMER agrees to do so. In addition, CUSTOMER agrees to notify EXABEAM promptly by telephone of errors, discoveries, ideas, concepts, feature requests or suggestions relevant to the Product or EXABEAM’s business, technology or Proprietary Information related thereto (“Feedback”). CUSTOMER hereby assigns to EXABEAM all right, title and interest in and to such Feedback, including all intellectual property rights therein (including moral rights; provided that any non-assignable moral rights are waived to the extent permitted by law) and will provide commercially reasonable assistance at the request of EXABEAM to perfect such assignment.
7.1 EXABEAM. EXABEAM and its licensors retain all right, title and interest in and to the Product. This Agreement transfers none of EXABEAM’s, or its vendor’s, as applicable, right, title or interest in and to the Product, including all intellectual property rights therein, and CUSTOMER may not transfer the Product to anyone else. CUSTOMER will not rent, sell, lease, pledge, encumber, allow any lien or otherwise transfer the Product or any part thereof or use either for the benefit of any third party. CUSTOMER will not reverse assemble, reverse compile or reverse engineer the Product, or otherwise attempt to discover any Product source code or underlying Proprietary Information. Purchase of the Product will require payment of the invoice as set forth in Section 5 of the Agreement.
7.2 CUSTOMER. As between CUSTOMER and EXABEAM, CUSTOMER retains all right, title and interest in and to CUSTOMER Data. EXABEAM’s use of CUSTOMER Data shall be solely for the purpose of delivering SaaS during the Pilot Period.
7.3 RESTRICTIONS. CUSTOMER represents and warrants that they will not use the SaaS environment in a way that is illegal or promotes illegal activities nor authorize or permit an individual or entity to do so. Furthermore, CUSTOMER represents and warrants that CUSTOMER Data: (i) does not violate, misappropriate or infringe any rights of EXABEAM or any third party; (ii) does not constitute defamation, invasion of privacy or publicity; or (iii) is not designed for use in any illegal activity or promotes illegal activities. As used herein, “illegal activity or promotes illegal activities” includes, without limitation, any manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
8. RISK OF LOSS
Upon delivery of the Product, CUSTOMER bears all risk of loss until it is returned to the possession of EXABEAM. CUSTOMER agrees to maintain the Product in an undamaged condition and operate the Product in the manner set forth in the Product documentation. CUSTOMER will not remove or alter any legend or marks stating that the Product is the property of EXABEAM or its vendor, as applicable. The hardware Product must be returned to EXABEAM in the same condition as when the hardware Product was delivered to CUSTOMER with the exception of reasonable wear and tear. EXABEAM is authorized to have CUSTOMER invoiced, and CUSTOMER hereby agrees to pay, for any and all damage to the Product, as determined by EXABEAM in its sole and absolute direction.
9. DISCLAIMER OF WARRANTY
NOTWITHSTANDING ANY OTHER WARRANTY THAT MAY ACCOMPANY THE PRODUCT WHEN SUCH PRODUCT IS PURCHASED, EXABEAM PROVIDES THE PRODUCT UNDER THIS AGREEMENT ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, EXABEAM MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY
EXABEAM WILL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER OR TO ANY THIRD PARTY WITH RESPECT TO THE PRODUCT OR ANY SUBJECT MATTER RELATED TO THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (1) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (2) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS PROFITS, EVEN IF EXABEAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (3) AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT IN AN AMOUNT GREATER THAN ONE THOUSAND DOLLARS ($1,000.00).
11.1 RECIPIENT agrees: (1) to hold DISCLOSER’s Proprietary Information in strict confidence; (2) not to disclose the DISCLOSER’s Proprietary Information to any third parties, except as described below; and (3) not to use any Proprietary Information except to perform its obligation and exercise its rights under this Agreement. RECIPIENT may disclose DISCLOSER’s Proprietary Information to its officers, directors, employees or agents; (2) RECIPIENT agrees to take reasonable measures to maintain the Proprietary Information in confidence; (3) RECIPIENT will disclose Proprietary Information only to those of its employees and contractors as are necessary for the use expressly and unambiguously set forth in the Agreement, and only after such employees and contractors have agreed in writing to be bound by terms no less restrictive than the provisions of this Agreement; and (4) CUSTOMER will not remove or export the Product or any Proprietary Information or any direct product thereof in violation of any applicable law or regulation.
11.2 The restrictions set forth in this section shall not apply to any Proprietary Information that the RECIPIENT can demonstrate (1) was known to it prior to its disclosure by the DISCLOSER; (2) is or becomes publicly known through no wrongful act of the RECIPIENT; (3) has been rightfully received from a third party authorized to make such disclosure without restriction; (4) is independently developed by the RECIPIENT; or (5) has been approved for release by the DISCLOSER’s prior written authorization.
11.3 The parties agree that a breach of this section may cause immediate and irreparable harm for which monetary damages would be an inadequate remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the DISCLOSER shall be entitled to seek equitable relief, including injunctive relief, from any court having jurisdiction, to protect its rights and interests pursuant to this section.
12.1 GOVERNING LAW; INJUNCTIVE RELIEF. This Agreement shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California for resolution of any disputes arising out of this Agreement, provided that EXABEAM may seek injunctive relief to protect its ownership rights and Proprietary Information in any court of law or equity of competent jurisdiction. The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorney’s fees and costs in connection with such action.
12.2 WAIVERS; AMENDMENTS; ENTIRE AGREEMENT. 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. Any waivers or amendments shall be effective only if made in writing and agreed by both parties. 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.
12.3 SEVERABILITY. 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.
12.4 COUNTERPARTS; AUTHORIZATION. This Agreement may be executed in counterparts. Each party represents that the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement on behalf of such party.