WEBROOT SOFTWARE, INC. (ôWEBROOTö) IS WILLING TO LICENSE THE ENCLOSED SOFTWARE AND DOCUMENTATION (THE ôBETA SOFTWAREö) TO YOU (ôYOUö) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS SOFTWARE BETA LICENSE AGREEMENT (THE ôAGREEMENTö). IF YOU ARE AN EMPLOYEE OR AGENT OF A COMPANY (THE ôCOMPANYö) AND ARE ENTERING INTO THIS AGREEMENT TO OBTAIN THE BETA SOFTWARE FOR USE BY THE COMPANY FOR ITS OWN BUSINESS PURPOSES, YOU HEREBY AGREE THAT YOU ENTER INTO THIS AGREEMENT ON BEHALF OF THE COMPANY AND THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
BY CLICKING ON THE ôACCEPTö BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, WEBROOT IS UNWILLING TO LICENSE THE BETA SOFTWARE TO YOU, YOU ARE NOT AUTHORIZED TO USE THE BETA SOFTWARE FOR ANY PURPOSE, AND YOU SHOULD CLICK ON THE ôDO NOT ACCEPTö BUTTON BELOW TO DISCONTINUE THE INSTALLATION PROCESS.
WHEREAS, both parties desire that You use, evaluate and conduct tests on the Beta Software subject to the terms and conditions of this Agreement.
NOW, THEREFORE, In consideration of the foregoing and the mutual covenants herein, the parties hereby agree as follows:
1. LICENSE GRANT. During the Beta Test Period (as defined in Section 6 below) and subject to your compliance with the terms and conditions of this Agreement, Webroot grants You a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to install and use the Beta Software only in object code form solely to test and evaluate the Beta Software. You will not use the Beta Software in a production environment for the benefit of your employees or any third party.
2. RESTRICTIONS. The license granted in Section 1 is granted solely to You and not to any parent, subsidiary or affiliate, or to any third party. You acknowledge that the Beta Software and its structure, sequence, organization and source code contain valuable trade secrets of Webroot and its suppliers. Accordingly, You will not, nor will You permit, assist or encourage any third party to: (a) modify, adapt, alter, translate or create derivative works from the Beta Software; (b) merge the Beta Software with other software; (c) sublicense, lease, rent, or loan the Beta Software, or otherwise transfer the Beta Software to any third party; (d) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Beta Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (e) remove, obscure or alter WebrootÆs copyright notices, trademarks and other proprietary rights notices affixed to or contained within the Beta Software; (f) disclose, publish or present any information related to the Beta Software to a third party without the prior written consent of Webroot; or (g) otherwise exercise rights to the Beta Software except as expressly allowed under Section 1.
3. OWNERSHIP. As between the parties, the Beta Software, and all worldwide intellectual property rights and proprietary rights relating thereto or embodied therein, are the exclusive property of Webroot and its suppliers. Webroot and its suppliers reserve all rights in and to the Beta Software not expressly granted to You in Section 1, and no licenses or rights are granted by implication, estoppel or otherwise.
4. YOUR OBLIGATIONS.
(a) You may assist Webroot in testing, evaluating, refining and improving the Beta Software by completing the survey made available in the Beta Software or otherwise providing to Webroot comments, criticisms, suggested improvements and other feedback about the use, operation, functionality and features of the Beta Software (collectively, the ôFeedbackö). The Feedback may include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, user-desired features and the results of any and all benchmark or similar testing conducted within the Beta Test Period. In addition, You will report to Webroot any unusual, unplanned or out-of-the-ordinary Beta Software performance observed by You or your personnel.
(b) You agree that Webroot has the right to use the Feedback at its sole discretion, including incorporating all or some of the Feedback into the products, services, or Beta Software of Webroot or any other party, all without notice to, payment of, or consent from You. This right is an unlimited, perpetual, fully paid-up, worldwide, non-exclusive, fully transferable, fully sublicensable and irrevocable right to execute, reproduce, distribute, perform, display, modify, create derivative works of, make, have made, use, import, sell, offer to sell and otherwise transfer the Feedback and to practice or have practiced any process or method involved in any use thereof. Webroot will not use your name or trademarks in communications outside of Webroot without your prior written consent.
5. SUPPORT. Webroot may, in its sole discretion, provide You with certain reasonable support and consultation with respect to the Beta Software free of charge to assist in your evaluation and testing activities under this Agreement; provided, however, that Webroot is not obligated to correct any bugs, defects, or errors in the Beta Software or otherwise support or maintain the Beta Software. If You wish to obtain additional support or consulting services concerning the Beta Software and Webroot, in its sole discretion, agrees to provide such additional support or consulting services, such support and services will be provided at WebrootÆs then-current rates, or as otherwise agreed by the parties.
6. TERMINATION; RETURN OF BETA SOFTWARE. This Agreement is effective when You click the ôACCEPTö button and will continue for sixty (60) days thereafter (the ôBeta Test Periodö) unless sooner terminated by either party. Either party may terminate this Agreement, with or without cause, immediately upon written notice to the other party. Upon the expiration or any termination of this Agreement, the license granted to You hereunder will terminate and You, at your expense, will promptly return all copies of the Beta Software and all Confidential Information in your possession to Webroot.
7. CONFIDENTIALITY; PUBLICITY.
(a) ôConfidential Informationö means the Beta Software, all information provided by Webroot about the Beta Software, all Feedback, and all information provided by Webroot that is clearly marked as confidential. You will not disclose Confidential Information to any third party or use Confidential Information for any purpose other than as expressly permitted in this Agreement. In particular, You will maintain the existence, features and capabilities of the Beta Software as secret and confidential until the Beta Software is introduced for license to the general public or publicly announced by Webroot. You agree that You will treat all Confidential Information with the same degree of care as it accords to its own confidential information, which in no event will be less than reasonable care.
(b) You will not disclose the existence of this Agreement or any of the activities pursued hereunder without WebrootÆs prior written consent.
8. DISCLAIMER. Webroot does not guarantee that it will make a commercial release of a version of the Beta Software available. You acknowledge and agree that the Beta Software is a pre-release version, does not represent final product from Webroot, and may contain bugs, errors and other problems that could cause Beta Software failures and other damages. Your use of the Beta Software is entirely at your own risk. THE BETA SOFTWARE IS PROVIDED ôAS ISö WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. WEBROOT, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE BETA SOFTWARE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. THE BETA SOFTWARE IS NOT INTENDED FOR ANY PRODUCTIVE USE INCLUDING, WITHOUT LIMITATION, ANY USE IN CONNECTION WITH ANY NUCLEAR, AVIATION, MASS TRANSIT OR MEDICAL APPLICATION OR ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE OR MASS DESTRUCTION, AND YOU AGREE THAT WEBROOT AND ITS SUPPLIERS WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE BETA SOFTWARE. TO THE EXTENT THAT, AS A MATTER OF APPLICABLE LAW, ANY IMPLIED OR STATUTORY WARRANTY MAY NOT BE DISCLAIMED, THE DURATION AND SCOPE OF SUCH WARRANTY WILL BE THE MINIMUM PERMISSIBLE UNDER SUCH APPLICABLE LAW.
9. LIMITATION OF LIABILITY.
(a) IN NO EVENT WILL WEBROOT OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE BETA SOFTWARE OR THIS AGREEMENT, EVEN IF WEBROOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT, AS A MATTER OF APPLICABLE LAW, LIABILITY FOR CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES MAY NOT BE EXCLUDED OR LIMITED, WEBROOTÆS LIABILITY FOR SUCH DAMAGES WILL BE LIMITED TO THE MINIMUM PERMISSIBLE UNDER SUCH APPLICABLE LAW.
(b) WEBROOTÆS AND ITS SUPPLIERSÆ TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE BETA SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). YOU ACKNOWLEDGE THAT THE LICENSE FEES (OR LACK THEREOF) REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT WEBROOT WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
10. COMPLIANCE WITH LAWS. You will comply with all laws, regulations, rules, ordinances and orders applicable to your use of the Beta Software. Without limiting the foregoing, You will comply with the relevant export administration and control laws and regulations, as may be amended from time to time, including, without limitation, the United States Export Administration Act, to ensure that the Beta Software is not shipped, transferred or exported (directly or indirectly) in violation of U.S. law.
11. U.S. GOVERNMENT END USERS. The Beta Software is a ôcommercial itemö as that term is defined at 48 C.F.R. º 2.101, consisting of ôcommercial computer softwareö and "commercial computer software documentation" as such terms are used in 48 C.F.R. º 12.212. Consistent with 48 C.F.R. º 12.212 and 48 C.F.R. ºº 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Beta Software with only those rights set forth therein.
12. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement will be subject to and governed by the laws of the State of Colorado without regard to its conflicts of laws principles. For any litigation arising from or related to this Agreement, the parties hereby consent to the exclusive jurisdiction of and venue in the state and federal courts located in Denver County, Colorado. Notwithstanding the foregoing, Webroot will be entitled to seek equitable relief in any court of competent jurisdiction to prevent any threatened or ongoing breach of this Agreement.
13. MODIFICATION; WAIVER; SEVERABILITY. All modifications, waivers and amendments must be in writing and signed by both parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof will be unaffected and continue in full force and effect.
14. ASSIGNMENT. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. You may not assign any of your rights or obligations under this Agreement without the prior written consent of Webroot. Any attempted assignment or transfer in violation of the foregoing will be void.
15. SURVIVAL. The obligations of Sections 2, 3, 6, 8 and 9 through 16 will survive termination or expiration of this Agreement for any reason.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communications, whether written or oral.
