1. EVALUATION. Subject to the terms and conditions of this Agreement and Evaluator’s payment in full of any Fees (defined below) due hereunder, Productboard will provide Evaluator with access to Productboard’s cloud-based product management platform (“Service”) using access credentials provided by Productboard to permit Evaluator to evaluate and test the Service during the Evaluation Period (the “Evaluation”). Evaluator will provide, at its own expense, all equipment and third party services necessary to evaluate the Service. Evaluator must use the Service in compliance with all applicable laws and regulations and related documentation. Evaluator shall pay Productboard the fees, if any, set forth in the Order Form executed by Evaluator (“Fees”).
2. EVALUATION PERIOD. This Agreement will begin on the Effective Date and continue in effect for the Evaluation Period specified in the Order Form executed by Evaluator (and, if none is specified, for seven (7) days), unless earlier terminated in accordance with this Agreement. Productboard may immediately terminate this Agreement if Evaluator materially breaches any provision of this Agreement. Upon the expiration or termination of this Agreement, Evaluator will discontinue all use of the Service. Sections 3 through 10 will survive termination or expiration of this Agreement.
3. RESTRICTIONS. Evaluator must not modify, disassemble, decompile, reverse engineer, rent, lease, loan, transfer, or copy any portion of the Service. Evaluator must not circumvent or disable any security or other technological features of the Service.
4. OWNERSHIP. Productboard owns all right, title, and interest, including all intellectual property rights, in and to the Service, including any improvements, modifications, and enhancements to it. Except for those rights expressly granted in this Agreement, no other rights are granted, either express or implied, to Evaluator. Evaluator owns all right, title, and interest, including all intellectual property rights, in and to its Customer Property. “Customer Property” means any content (including text, images, illustrations, charts, tables and other materials) uploaded or supplied to the Service by the Evaluator to Productboard, either directly or indirectly.
5. FEEDBACK. Evaluator has no obligation to provide Productboard any suggestions, comments or other feedback regarding the Service (“Feedback”). If Evaluator nonetheless provides Feedback to Productboard on any version or part of the Service, Evaluator hereby grants to Productboard the right to freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback in any Productboard product, technology, service, specification, or other documentation.
6. CONFIDENTIALITY; DATA. Notwithstanding any nondisclosure agreement entered into between the parties (“NDA”), both parties will maintain the confidentiality of and not disclose to any third party: (a) the terms of this Agreement, (b) any non-public information disclosed by either party under this Agreement, and (c) any Feedback, Service performance data, or other information obtained through evaluation of the Service. Productboard will protect any data transmitted via Evaluator through the Service using commercially reasonable administrative, technical, and physical safeguards designed to protect against illegal or unauthorized access or disclosure of such data. Productboard will adhere to applicable laws with respect to transfers of data.
7. THIRD PARTY PRODUCTS. For purposes of this Agreement, “Third Party Products” means certain third party applications, systems, software, products, or services that are or may be used by Evaluator and are not supplied by Productboard that are designed to interoperate with the Service. If Evaluator elects to enable, access, or use of such Third Party Products, its access and use of such Third Party Products is governed solely by the terms and conditions and privacy policies of such Third Party Products, and Productboard does not endorse, is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third Party Products, including, without limitation, their content, the manner in which they handle Evaluator’s data, or any interaction between Evaluator and the provider of such Third Party Products. Productboard is not liable for any damage or loss caused or alleged to be caused by or in connection with Evaluator’s enablement, access, or use of any such Third Party Products, or Evaluator’s reliance on the privacy practices, data security processes, or other policies relating to or used in connection with the Third Party Products. The providers of Third Party Products shall not be deemed sub-processors of personal information for any purpose.
8. WARRANTY DISCLAIMER. THE SERVICE IS PROVIDED “AS IS” FOR LIMITED EVALUATION AND TESTING ONLY, AND PRODUCTBOARD DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. PRODUCTBOARD SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE. ANY CUSTOMER PROPERTY EVALUATOR SUBMITS TO THE SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO THE SERVICE OR SUBSCRIPTION UPGRADES BY OR FOR THE EVALUATOR DURING THE EVALUATION WILL BE PERMANENTLY LOST UNLESS EVALUATOR PURCHASES THE SAME SUBSCRIPTION SERVICES AS COVERED BY THE EVALUATION, OR EVALUATOR EXPORTS SUCH CUSTOMER PROPERTY BEFORE THE END OF THE EVALUATION PERIOD.
9. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF PRODUCTBOARD ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (i) THE AMOUNTS ACTUALLY DUE AND PAID BY THE EVALUATOR OR (ii) $100. IN NO EVENT WILL PRODUCTBOARD HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10. MISCELLANEOUS. This Agreement will be governed by the laws of the State of California without reference to conflict of law principles. All disputes arising out of or related to the Agreement, will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Evaluator will not assign this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of Productboard, except that Productboard shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Along with any NDA and the Order Form for the Evaluation executed by Evaluator, this is the entire agreement between the parties relating to the subject matter hereof. No waiver or modification of this Agreement will be valid unless in writing signed by each party. The terms of an Evaluator purchase order or any other document that conflicts with, or in any way purports to amend, any of the terms of this Agreement are hereby specifically objected to and will be of no force or effect.