THE CIPHERCLOUD BETA SOFTWARE (THE “SOFTWARE”) YOU SEEK TO ACCESS FROM CIPHERCLOUD, INC’S WEBSITE IS LICENSED ONLY ON THE CONDITION THAT YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE READ THE TERMS OF THIS ONLINE BETA USER EVALUATION AGREEMENT (THIS “AGREEMENT”) CAREFULLY. IF YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PLEASE CLICK ON THE BOX ON THIS PAGE LABELED “I ACCEPT”.

 

This Agreement sets forth the terms under which you may use the Software. Evaluation of the Software is by permission of CipherCloud, Inc. (“CipherCloud”) only, and only for applicants who accept this Agreement and receive CipherCloud’s approval. CipherCloud may grant or withhold approval in its sole discretion. If CipherCloud approves, CipherCloud will issue a user identification (the “User ID”) and a password (the “Password”) that will authorize access to the Software.

 

Based on the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you and CipherCloud agree as follows:

 

  1. LICENSE GRANT. CipherCloud hereby grants to you a limited, nonexclusive, nonassignable, nonsublicensable license, for the applicable evaluation period only (the “Evaluation Period”), to access and use the Software hosted in the cloud and any related documentation available online, subject to the terms and conditions of this Agreement. Unless earlier terminated as provided below, this license shall terminate automatically on expiration of the Evaluation Period, and you will receive no further access to the Software unless and until you have agreed to purchase access to the Software from CipherCloud under CipherCloud’s standard license agreement.

 

  1. OWNERSHIP. CipherCloud owns the Software and all copyright and other intellectual property rights in the Software. This Agreement transfers to you neither title to nor any proprietary or intellectual property rights in or to the Software, or any updates or derivative works thereto, or any copyrights, patent rights, or trademarks embodied or used in connection therewith, except for the rights expressly granted in this Agreement. The Software is protected by United States laws and international treaty provisions.

 

  1. RESTRICTIONS. To the maximum extent permitted by law, you may not: (a) modify, reverse engineer, decompile, or disassemble the Software; (b) rent, lease, loan, sell, sublicense, distribute, transmit, or otherwise transfer the Software access to any third party; (c) make any copy of or otherwise reproduce the Software (or any of the browser screens comprising the Software user interface) except for those copies necessarily made by the personal computer and Internet browser that are running the Software; (d) disclose your User ID or Password to any third party; or (e) use the Software to provide service bureau or time-sharing services. You agree to take all reasonable steps to safeguard your User ID and Password for the Software so as to ensure that no unauthorized person will have access to it, and that no persons authorized to have access will make any unauthorized use. You shall promptly report to CipherCloud any unauthorized use of the Software of which you become aware and shall take such further steps as may reasonably be requested by CipherCloud to prevent unauthorized use thereof.

 

  1. SUPPORT. Notwithstanding the foregoing, and for the avoidance of doubt, CipherCloud is under no obligation to support the Software in any way or to provide any Updates to you. In the event CipherCloud, in its sole discretion, supplies any Update to you, such Update shall be deemed Software hereunder and shall be subject to the terms and conditions of this Agreement. “Updates” means a modification, error correction, bug fix, new release, or other update to or for the Software.

 

  1. OPEN SOURCE SOFTWARE. Open Source Software is licensed to you under such Open Source Software’s own Open Source License Terms, which can be found in the Documentation. Such Open Source License Terms are consistent with the license granted herein, and may contain additional rights benefiting you. The Open Source License Terms shall take precedence over this Agreement to the extent that this Agreement imposes greater restrictions on you than the applicable Open Source License Terms. You acknowledge that Software may be distributed alongside or contain or use certain Open Source Software or other Third Party Software that may be covered by the terms of a different license or agreement. “Open Source Software” means various open source software, including GPL software which is software licensed under the GNU General Public License as published by the Free Software Foundation, and components licensed under the terms of applicable open source license agreements included in the materials relating to such software. “Open Source License Terms” means license terms and conditions for the Open Source Software that: (a) create, or purport to create, obligations of the user with respect to the user’s proprietary software programs or any derivative work thereof; or (b) grant, or purport to grant, to any third party any rights to or immunities under the user’s intellectual property or proprietary rights in the user’s software programs or any derivative work thereof. “Third Party Software” means any software licensed by CipherCloud from third parties incorporated into the Software, excluding Open Source Software.

 

  1. YOUR OBLIGATIONS. You shall be solely responsible for the following: (a) providing all hardware, software, and communications capabilities required for use of the Software; and (b) providing and maintaining, at all times during the Evaluation Period, the Internet access necessary for your use of the Software.

 

You agree to use and test the Software during the Evaluation Period. During such testing, you agree to report in writing to CipherCloud in reasonable detail: (i) all occurrences of errors, faults, and problems encountered (including the procedures and tests used to discover and diagnose such errors, faults, or problems) during the operation of the Software; and (ii) your observations on the operation of the Software, its functionality, performance, deficiencies, and limitations, together with your recommendations for enhancements to and modifications of the Software. You agree to provide such reports to CipherCloud from time to time during the term of this Agreement.

 

You understand that the purpose of this Agreement is to solicit your input and comments on the Software and any input or comments you provide are the property of CipherCloud. You agree that any material, data, information, images, sounds, text, and other communications you transmit or post to a CipherCloud website or provide to CipherCloud shall not be considered confidential (the “Communications”). CipherCloud and its designees shall be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense through multiple tiers of distribution and licensees, incorporate, and otherwise use the Communications, including derivatives thereof, for any and all commercial or noncommercial purposes without obligation to you of any kind. You hereby assign, and agree to assign, all Communications to CipherCloud.

 

  1. TERM AND TERMINATION. The term of this Agreement and the license grant herein shall commence on CipherCloud’s approval and transmission to you of your User ID and Password. Immediately on expiration of the Evaluation Period, this license shall automatically terminate, your User ID and Password will expire, and you will no longer be able to access the Software. This license shall also terminate automatically on your failure to comply with any of the terms of this Agreement. On termination of this Agreement, you agree to promptly destroy all printed copies and delete all electronic copies of any documentation that you have downloaded, printed, or created relating to the Software.

 

  1. CONFIDENTIALITY. You agree that you will not disclose to any third party the Software or any portion thereof, any technical, product, or business information, or any information that CipherCloud identifies as confidential (collectively, “Confidential Information”) related to the Software without the prior written consent of CipherCloud. You shall take all reasonable measures to maintain the confidentiality of all Confidential Information in your possession or control, which in no event shall be less than the measures that you employ to maintain the confidentiality of your own information of similar importance. Notwithstanding the foregoing, Confidential Information does not include information that you can demonstrate was: (a) publicly available at the time of disclosure, or later became publicly available through no act or omission by you; (b) in your possession before disclosure by CipherCloud; or (c) disclosed to you by a third party not in violation of any obligations of confidentiality to CipherCloud or to any third party.

 

  1. LIMITATION OF LIABILITY. You are not entitled to receive damages from CipherCloud for any cause relating to this Agreement, to your use of the Software, to any services provided by CipherCloud under this Agreement, or to any services provided by any third party in connection with your use of the Software. In addition, in no event shall you be entitled to obtain any injunctive relief or otherwise enjoin, restrain, or otherwise interfere with CipherCloud or with the distribution, operation, development, or performance of the Software or any related products.

 

IN NO EVENT SHALL CIPHERCLOUD BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. AS SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

  1. DISCLAIMER. THE SOFTWARE IS FURNISHED TO YOU “AS IS” WITHOUT ANY WARRANTY. CIPHERCLOUD EXPRESSLY DISCLAIMS ALL WARRANTIES ON THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES OF NONINFRINGEMENT AND WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR A COURSE OF DEALINGS BETWEEN THE PARTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CIPHERCLOUD SHALL HAVE NO LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF THE SOFTWARE. IN ADDITION, CIPHERCLOUD DOES NOT WARRANT OR GUARANTEE THAT YOU WILL BE ABLE TO ACCESS THE SOFTWARE AT ALL TIMES. YOU UNDERSTAND AND ACKNOWLEDGE THAT INTERNET CONGESTION AND OUTAGES, AS WELL AS MAINTENANCE, DOWNTIME, AND OTHER INTERRUPTIONS AT CIPHERCLOUD’S PLACE OF BUSINESS, MAY INTERFERE AT TIMES WITH YOUR ABILITY TO ACCESS THE SOFTWARE.

 

  1. GOVERNING LAW. This Agreement shall in all respects be governed by and be construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions.

 

  1. SEVERABILITY. If any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement.

 

  1. NO ASSIGNMENT. You may not assign this Agreement or any of the rights granted by CipherCloud hereunder, in whole or in part, without the prior written consent of CipherCloud, and any attempt to do so shall be void. This Agreement is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.

 

  1. EXPORT CONTROL. You agree to obey and comply with any and all applicable laws, rules, and regulations governing the export of software.

 

  1. ARBITRATION. All disputes arising out of or relating to this Agreement shall be finally settled by arbitration conducted in San Jose, California, under the rules of commercial arbitration of the American Arbitration Association (the “Rules”). Both parties shall bear equally the cost of arbitration (exclusive of legal fees and expenses, all of which each party shall bear separately). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, if a party breaches its obligations under this paragraph, the nonbreaching party may seek injunctive or other equitable relief in any court of competent jurisdiction.

 

  1. WAIVERS; AMENDMENT. No waiver of any terms or conditions of this Agreement shall be valid or binding on a party unless such party makes the waiver in hardcopy writing signed by an authorized representative of that party. The failure of one party to enforce any of the provisions of this Agreement, or the failure to require at any time the performance of the other party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every provision thereafter. This Agreement may not be altered, amended, modified, or otherwise changed in any way except by a hardcopy written instrument signed by the authorized representatives of each party.

 

  1. ACKNOWLEDGMENT AND EXCLUSIVITY. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND CIPHERCLOUD, AND THAT IT SUPERSEDES ANY PROPOSAL, PRIOR AGREEMENT, OR UNDERSTANDING, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND CIPHERCLOUD RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE CHANGED, ALTERED, OR MODIFIED EXCEPT BY A WRITING SIGNED BY THE PARTIES.

 

18.        DATA PORTABILITY AND DELETION. Upon the termination or expiration of this Agreement for any reason you will have no further rights to the Software hereunder except as set forth in this Section 18. Upon your request made within 30 days after the effective date of termination or expiration of this Agreement, so long as you provide CipherCloud with access to your account, CipherCloud will make your data available to you for export or download as provided in the documentation. After that 30-day period, CipherCloud will have no obligation to maintain or provide your data, and will thereafter delete or destroy all copies of your data in CipherCloud systems or otherwise in CipherCloud’s possession or control as provided in the documentation, unless legally prohibited.