IMPORTANT: THIS TEST AGREEMENT (THE "AGREEMENT") CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN TAWALA SYSTEMS ("COMPANY") AND YOU (AND THE ORGANIZATION YOU REPRESENT) ("YOU") AND IT GOVERNS YOUR TESTING, EVALUATION AND USE OF THE VERSION OF THE COMPANY'S TAWALA SOFTWARE APPLICATION, WEBSITE AND RELATED SERVICES TO WHICH COMPANY IS PROVIDING YOU ACCESS (collectively, "COMPANY APPLICATION"). WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF COMPANY SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY.
Accordingly, the parties hereby agree as follows:
1. Evaluation. During the time period permitted by Company (the "Term"), Company grants You a personal, nonsublicensable, nonexclusive license to use the Company Application in accordance with the documentation supplied by Company solely for Your internal evaluation and testing. The Company shall at all times retain all title to and ownership of the Company Application and all copies thereof. You agree to use the Company Application only in the ordinary course of testing and evaluation, and You will not reproduce or modify the Company Application or any portion thereof. You shall maintain and not remove or obscure any proprietary notices on the Company Application, and You shall not rent, sell, lease or otherwise transfer the Company Application or any part thereof to any third party. You shall not reverse assemble, reverse compile or reverse engineer the Company Application, or otherwise attempt to discover any Company Application source code or underlying Confidential Information (as that term is defined below).
2. Content Terms. As a condition to Your use of the Company Application, You represent, warrant and covenant that You will not use the Company Application: (i) to infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any law, statute, ordinance or regulation (including but not limited to policies and laws related to spamming, privacy and consumer and child protection); (iii) to disseminate information or materials in any form or format ("Content") that You know or should know are harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) to disseminate any viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You, not Company, remain solely responsible for all Content that You upload, post, e-mail, transmit, or otherwise disseminate using, or in connection with, the Company Application. You acknowledge that all Content that You accesses using the Company Application is at Your own risk and You will be solely responsible for any damage to any party resulting therefrom. Although Company has no obligation to monitor the Content provided by Customer or Customer's use of Tawala Application, Company may do so and may remove any such content or prohibit any use of the Tawala Application it believes may be (or alleged to be) in violation of the foregoing. You shall indemnify and hold harmless Company from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Your use of the Company Application as well as from Your failure to comply with any term of this Agreement. Further, You acknowledge and agree that if You use the Company Application to contribute Content to the Company?s public website, Company is hereby granted a non-exclusive, worldwide, royalty-free, transferable right to fully exploit such Content and all related intellectual property rights and to allow others to do so; however, the foregoing license does not apply to Content that is deployed by You as part of a private Tawala project (and not uploaded or posted to the Company's public website), as described below.
3. Project Deployment and Publication When you deploy a Tawala project to the Company Web Hosting Service, that project, and any data you collect in connection with such project, is stored in Your proprietary space in the Web Hosting Service. The project itself is accessible only to You, those You invite to use the project and the Company, while any data you collect is generally only accessible to You and Company (unless you specifically designate otherwise). Company will not disclose information and data regarding Your Private projects to third parties, unless required to do so by law, to enforce or apply this or other agreements, or to protect the rights, property, or safety of Company, our employees, our customers, or others. However, if you issue a public invitation regarding Your project, the general public may experience your project as a user (but they will not have access to your code or data unless you explicitly share it with them). Further, if you choose to publish a project on the Company's publicly available website, the license granted in Section 2 above applies to such project, and all users are free to fully exploit such projects, code and data as they see fit. Of course, you are under no obligation to publish any project on the Company website. For more information regarding Project deployment and publication, please see our FAQ's.
4.1 You acknowledge that, in the course of evaluating the Company Application, You will obtain information relating to the Company and the Company Application which is confidential in nature ("Confidential Information"). Such Confidential Information shall belong solely to Company and includes, but is not limited to, the existence of the Company Application, its features and mode of operation, this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, software documents, and other technical, business, product, marketing and financial information, plans and data. You agree that You will hold Confidential Information in strict confidence, will not disclose it to any third party and will not use it for any purpose not expressly authorized herein, unless such Confidential Information becomes part of the public domain through no fault of Yours.
4.2 In consideration of the Company providing you early access to the Tawala Application at no cost prior to its commercial launch, You hereby assign to Company any invention, work of authorship, idea or know-how (whether or not patentable) that is conceived, learned or reduced to practice in connection with this Agreement or your use or evaluation of the Company Application (including, without limitation, any improvement, modification, extension or derivative based on or relating to the Company Application that You may make or propose) and any patent rights, copyrights (including moral rights, which to the extent non-assignable are hereby waived to the extent permitted by law), trade secret rights, mask work rights and all other intellectual and industrial property rights of any sort with respect thereto. You agree to take any action reasonably requested by Company to evidence, perfect, obtain, maintain, enforce or defend the foregoing and you hereby waive any rights you may have as an inventor (or co-inventor) of any of the foregoing. YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING ASSIGNMENT IS A MATERIAL, BARGAINED FOR BASIS OF THIS AGREEMENT AND THAT SUCH ASSIGNMENT IS A CRITICAL CONDITION TO COMPANY'S DECISION TO ENTER THIS AGREEMENT AND ALLOW YOU EARLY ACCESS TO THE TAWALA APPLICATION.
5. Reports. You agree to provide Company reports at agreed upon intervals, which reports shall disclose: (1) which portions of the Company Application have been used, (2) the nature and extent of use, and (3) the characteristic conditions and symptoms of any errors and difficulties discovered, in sufficient detail to allow the Company to recreate the errors and difficulties itself. You agree to notify Company by by email or in one the the Tawala Discussion Forums within 5 days of the discovery of a material error or difficulty in the Company Application.
6. Term/Termination. This Agreement will commence on the date that you first accept the terms of this Agreement and shall continue for the Term; however, either party may terminate this Agreement for any reason or no reason upon written or email notice to the other party. Upon any such termination (i) the license granted herein shall automatically terminate and (ii) Sections 2-4 and 6-10 of this Agreement will survive.
7. WARRANTY DISCLAIMER. The parties acknowledge that the Company Application is experimental in nature and will likely contain bugs and errors. Accordingly, the Company Application is provided "AS IS" without warranty of any kind. COMPANY DISCLAIMS ALL WARRANTIES RELATING TO THE COMPANY APPLICATION, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Electronic Communications Privacy Act Notice (18USC 2701-2711): COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED IN CONNECTION WITH THE COMPANY APPLICATION. Company will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Company's equipment, transmitted over networks accessed by the Company Application, or otherwise connected with Your use of the Company Application. Further, during the testing period, any Content that is deployed by you as part of a Tawala project will not be preserved or maintained by Company.
8. Limitation of Remedies and Damages. COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, OR (C) FOR ANY AMOUNTS IN THE AGGREGATE IN EXCESS OF ONE HUNDRED DOLLARS ($100). COMPANY SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
10. Miscellaneous. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions 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 constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by You, and any such attempted assignment or transfer shall be void and without effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions therein.