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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 1 Waters Park Drive, 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. DELIVERY OF PRODUCT. Upon EXABEAM’s acceptance of the Order, EXABEAM shall have delivered to CUSTOMER the hardware product identified in the Order (“Product”) with related Proprietary Information.
2. USE OF PRODUCT. EXABEAM authorizes the CUSTOMER to use the Product SOLELY for internal evaluation of the Product for CUSTOMER’s 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 any breach of these terms.
3. PILOT PEROD. CUSTOMER shall have a period of FORTY FIVE (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 Product; or (2) CUSTOMER’s payment for the Product. EXABEAM may terminate this Agreement by providing FIVE (5) DAYS prior written notice to CUSTOMER. Notwithstanding anything else herein, 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.
4. RETURN OF PRODUCT
(1) EXPIRATION. To return the Product to EXABEAM, CUSTOMER must deliver the Product to EXABEAM no later than FIVE (5) business days following completion of the Pilot Period. To deliver the Product, CUSTOMER must either: (i) return the Product to EXABEAM using the then-current RMA process; or (ii) if CUSTOMER is given prior written approval by EXABEAM, then provide EXABEAM with access to the Product during CUSTOMER’s regular business hours to allow EXABEAM to retrieve the Product. If the Pilot Period ends and the Product has not been returned to EXABEAM as set forth herein, then CUSTOMER’s right to return the Product shall be null and void.
(2) TERMINATION. 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 based on this Order for payment by CUSTOMER.
6. FEEDBACK. During the term of this Agreement, CUSTOMER may communicate to EXABEAM bugs, modifications, design changes or improvements of the Product (collectively “Feedback”), but Feedback is not required. As between EXABEAM and CUSTOMER, Feedback is Proprietary Information of EXABEAM. CUSTOMER agrees to and hereby assigns all of CUSTOMER’s rights, title and interest in and to such Feedback to EXABEAM.
7. OWNERSHIP. 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. If the Product is delivered with pre-installed software, then said software is provided under the terms of a separate license agreement.
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 Product documentation. CUSTOMER will not remove or alter any legend or marks stating the Product is the property of EXABEAM, or its vendor as applicable. The Product must be returned to EXABEAM in the same condition as when the 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. CONFIDENTIALITY. CUSTOMER acknowledges that, in the course of using the Product and performing its activities under this Agreement, it may obtain information relating to the Product and/or EXABEAM (“Proprietary Information”). Such Proprietary Information shall belong solely to EXABEAM and includes, but is not limited to, Product features and mode of operation, related documentation, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. With respect to Proprietary Information: (1) CUSTOMER shall not use (except as expressly authorized by this Agreement) or disclose Proprietary Information without the prior written consent of EXABEAM unless such Proprietary Information becomes readily and publicly available without breach of this Agreement by CUSTOMER, its officers, directors, employees or agents; (2) CUSTOMER agrees to take reasonable measures to maintain the Proprietary Information and Product in confidence; (3) CUSTOMER will disclose the Product and 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.
10. 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.
11. 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 DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF 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).
12. GENERAL TERMS. CUSTOMER has no right to assign this Agreement. EXABEAM may assign its rights and obligations without consent, and this Agreement will bind and inure to the benefit of EXABEAM’s permitted successors and assigns. Any notice, report, approval or consent required or permitted hereunder shall be in writing. 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 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 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. Any waivers or amendments shall be effective only if made in writing and agreed to 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. 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.