Trial Use and Confidentiality Agreement

1. Services, Rights and Obligations

Services to be Provided/Purpose. To assist Prospect in evaluating the features and functionality of FairWarning^® for Salesforce (“Trial Use Services”), Prospect shall provide to Vendor access to copies of certain confidential business records (“Prospect Data”), which may include but not be limited to confidential data of Prospect’s clients, customers or investors that is protected under federal or state data protection laws and regulations (“Protected Data”).

Ownership of Prospect Data and Records. All Prospect Data provided for the Trial Use shall remain the property of Prospect. Vendor shall destroy all Prospect Data upon termination or expiration of this Agreement, or upon completion of the Trial Use as provided below. This provision shall survive termination or expiration of this Agreement, and Vendor shall not acquire or retain any ownership or intellectual property right interest in Prospect Data.

Access Rights to Vendor’s Reports and Documentation. During the evaluation period, Vendor herby grants to Prospect (for Prospect’s internal use and only to evaluate the Services) a limited, non-exclusive, non-transferable, and non-sublicensable right to access and use the Services, as well as the written materials, reports, specifications, manuals, guidebooks, forms, and similar documents furnished by Vendor that describe the features, functionality, or operation of Vendor’s Services (“Documentation”) solely for the Trial Use and in accordance with the terms and conditions of this Agreement. The Services and Documentation may only be accessed and used by Prospect’s employees who are authorized by Prospect to evaluate the Trial Use Services and who are acting under the direction of Prospect as part of the Trial Use (“Evaluation Users”). Except as otherwise provided this Agreement, Prospect shall not (i) allow any third party to access or use the Services and Documentation, (ii) permit any competitor of Vendor to access or use the Services or Documentation, regardless of whether such competitor is an Evaluation User, (iii) modify, copy, or make derivative works based on any part of the Services or Documentation, (iv) access or use the Services or Documentation for competitive purposes nor in any way detrimental to Vendor, or (v) otherwise use the Trial Use Services in any manner other than is not expressly permitted herein. Prospect represents and warrants that it will be solely responsible for determining and controlling which members of its workforce shall have access to Vendor’s Services, Documentation and any demonstrations of the Trial Use Services, which may incidentally expose persons receiving such access or viewing such demonstrations to individually identifiable information protected under federal or state laws or regulations.

Ownership of Vendor Services & Documentation. The Services and Documentation (including all copies, improvements, enhancements, modifications and derivative works thereof) and all worldwide intellectual property rights or proprietary rights relating thereto, are Vendor’s exclusive property. Vendor reserves all rights in and to the Services and Documentation that are not expressly granted to Prospect in this Agreement, and no other licenses or rights are granted by implication, estoppel or otherwise. This provision shall survive termination or expiration of this Agreement.

Costs/No Further Obligations. Each Party shall bear its own expenses in relation to its performance of its obligations under this Agreement. The Parties hereby acknowledge and agree that nothing in this Agreement creates any obligation (1) on the part of Prospect, to purchase, license, or otherwise acquire any software, products, or services from Vendor; or (2) on the part of Vendor, to agree to offer and deliver the same to Prospect. Any subsequent negotiations that the Parties may voluntarily enter into for the sale and purchase of Services at the end of the Trial Use will be conducted in good faith. Any subsequent sale and purchase that might result from those negotiations will be governed by the resulting mutually agreed-upon terms and conditions that are to be wholly separate from this Agreement.

2. Term/Termination

Term. The term of this Agreement shall begin on the Effective Date and shall continue for a term of 14 days thereafter, unless sooner terminated as provided herein, or extended by advance written agreement of the Parties.

Termination. Either Party may terminate this Agreement with or without cause, without penalty or liability, upon two (2) business days’ prior written notice to the other Party.

Data Destruction. Upon termination or expiration of this Agreement, whether with or without breach or cause, (i) Vendor shall promptly destroy all Prospect Data in Vendor’s possession or control, (ii) all access rights related to the Services and Documentation that have been granted to Prospect in this Agreement will immediately cease to exist, (iii) Prospect must promptly discontinue all use of the Services and Documentation, and (iv) Prospect will promptly either return to Vendor or destroy all copies of the Documentation and other Confidential Information of Vendor (as defined below) within Prospect’s possession or control.

3. Confidentiality

Confidential Information of Prospect. Vendor agrees that all non-public information communicated by the Prospect to Vendor (“Prospect Confidential Information”) shall be kept strictly confidential, shall be used solely for the purpose of providing the Trial Use Services or evaluating a possible transaction or venture between the Parties, and will not be used for any other business, competitive or commercial purpose, nor in any way detrimental to Prospect. This Agreement does not grant Vendor any title, interest or rights by license or otherwise, express or implied, to the Prospects Confidential Information. Except for trade secrets that shall remain confidential for so long as they constitute trade secrets under applicable law and Protected Data that shall always be protected as Confidential Information of Prospect, Vendor’s duty to protect the Prospect Confidential Information does not apply to information that: (i) is or, through no fault of Vendor, becomes generally available to the public; (ii) is acquired by Vendor from a third party that is not, to Vendor ‘s knowledge, under any confidentiality obligation to Prospect regarding such information; or (iii) is known to Vendor prior to the date of this Agreement, or that Vendor develops independently without use of the Prospect Confidential Information. In no event shall Prospect Confidential Information be disclosed to third Parties, including Vendor’s affiliates, partners, employees, agents, or representatives, other than (A) as necessary for Vendor to perform the Trial Use Services hereunder; (B) or as required by applicable law, judicial or administrative process, professional standards, or a court or government agency of competent jurisdiction; provided that Vendor promptly notifies Prospect in writing of such required disclosure and cooperates with Prospect, at Prospect’s request, in any lawful action to contest or limit the scope of such required disclosure. This provision shall survive termination or expiration of this Agreement.

Vendor’s Confidential Information. “Vendor’s Confidential Information” shall include all Vendor information that is disclosed by Vendor to Prospect or which Prospect has access to in connection with the Trial Use, including without limitation all Documentation (as defined above), information regarding the Trial Use Services, and information that should reasonably have been understood by Prospect to be proprietary and confidential to Vendor, whether disclosed to Prospect in written or other tangible form or by oral, visual or other means. Prospect will keep Vendor’s Confidential Information strictly confidential, and will disclose such Confidential Information only to its employees who have a need to know such Confidential Information in connection with the Trial Use permitted hereunder and who are under a duty of confidentiality no less restrictive than Prospect’s duty hereunder. Prospect agrees that the Vendor Confidential Information shall be used solely for the purpose of evaluating a possible transaction or venture between the Parties or otherwise on behalf of Vendor. Prospect shall not use the Vendor Confidential for any other business, competitive or commercial purpose, nor in any way detrimental to Vendor, and Prospect shall not reverse engineer, disassemble or decompile prototypes, software or other tangible objects, whether in whole or in part, that embody the Vendor Confidential Information. This Agreement does not grant Prospect any title, interest or rights by license or otherwise, express or implied, to the Vendor’s Confidential Information or to any invention, discovery or derivative work of Vendor’s Confidential Information that is made, conceived or acquired prior to or after the date of this Agreement. Except for trade secrets that shall remain confidential for so long as they constitute trade secrets under applicable law, Prospect’s obligations under this Section 3.b with respect to any Vendor Confidential Information will terminate if such information (i) is, or through no fault of Prospect, becomes generally available to the public, (ii) is acquired by Prospect from a third party that is not, to Prospects ‘s knowledge, under any confidentiality obligation to Vendor regarding such information; or (iii) is known to Prospect prior to the date of this Agreement, or that Prospect develops independently without use of the Vendor Confidential Information. In addition, Prospect will be allowed to disclose Vendor Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that Prospect promptly notifies Vendor in writing of such required disclosure and cooperates with Vendor, at Vendor’s request, in any lawful action to contest or limit the scope of such required disclosure. This provision shall survive termination or expiration of this Agreement.

5. Indemnification

Indemnification by Vendor. Vendor agrees to defend Prospect against any claim, demand, suit or proceeding made or brought against Prospect by a third party alleging that the use of any Trial Use Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Prospect”), Vendor will indemnify Prospect from any damages, attorney fees and costs finally awarded against Prospect as a result of, or for amounts paid by Prospect under a court-approved settlement of a Claim Against Prospect; provided that Prospect (i) promptly gives Vendor written notice of the Claim Against Prospect, (ii) gives Vendor sole control of the defense and settlement of the Claim Against Prospect (except that Vendor may not settle any Claim Against Prospect unless it unconditionally releases Prospect of all liability), and (iii) gives Vendor all reasonable assistance, at Vendor expense. If Vendor receives information about an infringement or misappropriation claim related to a Trial Use Service, Vendor may in its discretion and at no cost to Prospect (A) modify the Trial Use Service so that it no longer infringes or misappropriates, (B) obtain a license for Prospect’s continued use of that Trial Use Service in accordance with this Agreement, or (C) terminate this Agreement in accordance with Section 2 above. The above defense and indemnification obligations do not apply to the extent a Claim Against Prospect arises from Prospect’s breach of this Agreement.

Indemnification by Prospect. Prospect will defend Vendor against any claim, demand, suit or proceeding made or brought against Vendor by a third party alleging that any Prospect Data or Prospect’s use of any Prospect Data in the Trial Use Services infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Vendor”). Prospect will indemnify Vendor from any damages, attorney fees and costs finally awarded against Vendor as a result of, or for any amounts paid by Vendor under a court-approved settlement of a Claim Against Vendor; provided that Vendor (i) promptly gives Prospect written notice of the Claim Against Vendor, (ii) gives Prospect sole control of the defense and settlement of the Claim Against Vendor (except that Prospect may not settle any Claim Against Vendor unless it unconditionally releases Vendor of all liability), and (iii) gives Prospect all reasonable assistance, at Prospect’s expense.

3. Survival. For any liabilities, damages, costs, or claims that accrue or are incurred under this Section 5 prior to termination or expiration of this Agreement, this provision shall survive such termination or expiration.

6. Limitation of Liability.

EXCEPT WITH REGARDS TO DAMAGES ARISING FROM SECTION 1 (SERVICES, RIGHTS AND OBLIGATIONS) OR SECTION 3 (CONFIDENTIALITY); EITHER PARTY’S GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; OR INDEMNITY OBLIGATIONS UNDER SECTION 5 (INDEMNIFICATION) FOR THIRD-PARTY CLAIMS; NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES RELATING TO EACH PARTY’S RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT OR THEIR BREACH THEREOF.

7. Miscellaneous

Entire Agreement/Amendment. This Agreement and any attachments constitute the entire agreement between the Parties hereto with respect to the Trial Use and shall supersede all previous negotiations, comments, and writings. This Agreement may be amended only by a written instrument executed by both Parties.

Governing Law. This Agreement shall be construed in accordance with the laws of the State of Florida, without regard to its conflict of laws provisions. Only the federal or state courts located in Pinellas County, Florida shall have jurisdiction to hear any dispute under this Agreement.

Miscellaneous. The term “affiliate” herein as to either party means any one or more persons or entities directly or indirectly controlling, controlled by or under common control with such party. This Agreement may be executed in two or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. Paragraph headings are for convenience only and do not define or delimit the terms hereof. Except for the right to enforce this Agreement upon breach by the non-assigning party, any attempted assignment of rights or benefits by either party without the other party’s prior express written consent shall be null and void. However, this Agreement will be binding upon and inure to the benefit of the parties and their personal representatives, heirs, successors and permitted assigns. This Agreement has been negotiated equally by both parties and shall not be construed against one party or the other on the basis that it was drafted by one or the other. Any person signing this Agreement represents that he or she has been fully and duly authorized to do so by and his or her signature is binding upon the applicable party and that all transactions contemplated by this Agreement have been fully and duly authorized by such party. In the event any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder of this Agreement, which shall remain in full force and effect and enforceable in accordance with its terms.

BY USING THE FREE TRIAL SERVICES, YOU AGREE TOTHE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS.

Trial Use and Confidentiality AgreementTristan Eason2018-08-20T14:14:29-05:00