Introductory Language
You are invited to participate in the FOSSA Private Alpha, Testing and Evaluation project. You are not required to participate, but if you do, you must agree to be bound by the terms and conditions of the FOSSA Private Alpha, Testing and Evaluation Agreement (the Evaluation Agreement). To review the Evaluation Agreement terms please read below. If you do not agree to be bound by the Evaluation Agreement, you may not participate in the testing and evaluation and you should close this browser window immediately. If you do agree to the terms, you agree that those terms govern your access to and participation in the project, and you agree to be bound by them. By clicking on the below “Agree & Continue” button, you agree that you have read and understand the terms and conditions of the Evaluation Agreement and that you are bound by those terms.
By clicking the below “Agree & Continue” button or accessing or using the FOSSA Software/Website you acknowledge that you have read the Evaluation Agreement and that you agree to be bound by its terms and conditions.
Terms and Conditions
This confidential Private ALPHA Testing and Evaluation Agreement and Evaluation Addendum (collectively the “Evaluation Agreement”) effective upon the Authorization Date (below) (the “Effective Date”), confirms an agreement between you, an individual, or if you represent a company, the company as well as you (collectively hereinafter referred to as “Company”) and FOSSA, INC., a Delaware C-Corp (“FOSSA”), under which Company may test and conduct an evaluation of a version of the website and related technologies and software specified below, and accompanying content, data, materials, and documentation (collectively, the “Software”) only through the access means specified below (“Permitted Access”) only during the term specified below (the “Term”) and only for the purpose specified below (the “Purpose”). Capitalized terms used, but not defined, in this Evaluation Agreement shall have the meaning given to such terms elsewhere in the Evaluation Addendum (as specified below).
Software/Website: FOSSA Website [http://fossa.io or https://fossa.io]
Term: The Term shall begin on the Authorization Date (the date you agreed to the terms of this Evaluation Agreement, or when you accessed the Software, whichever occurs first) and shall end on the Termination Date.
Authorization Date: (date of agreement to terms)
Termination Date: N/A
Permitted Access: Access is authorized only via the following link following FOSSA’s directions: http://fossa.io
Permitted Purpose (Evaluation): Company is invited to participate in this private confidential testing effort and to provide Feedback on the Software to FOSSA (“Evaluation”). The Software shall not be used for any other purpose.
Authorized Employees: The Authorized Employees shall be limited to those individuals agreeing to be and who are bound by the terms and conditions of this Agreement and with a need to participate in the testing and evaluation.
Addendum: The terms and conditions of the attached Evaluation Addendum are hereby incorporated by this reference.
This Evaluation Addendum (the “Addendum”) sets forth the terms and conditions under which Company may test and conduct its evaluation and provide Feedback (“Evaluation”) of one or more versions of the Software identified in the Evaluation Agreement agreed to by Company and FOSSA (each an “Evaluation Agreement”) and accompanying content, data, materials, and documentation (collectively, the “Software”) through the access means specified in the Evaluation Agreement (“Permitted Access”) during the Term identified in the Evaluation Agreement.
1. Company agrees:
1.1. Eligibility. The Evaluation is open only to individuals who are age 18 years or older, who are legal residents of the United States at the time of participation, who are invited to participate by FOSSA and who agree to be bound by the Evaluation Agreement. FOSSA reserves the right to disqualify or reject any participant that FOSSA, in its sole discretion, determines does not meet the requirements to participate. Participation in the Evaluation is limited to those Companies FOSSA invites to participate and FOSSA reserves the right to extend, shorten, or terminate the Evaluation without formal notice.
1.2. During the Term only, Company has a limited, personal, as-is, as available, non-exclusive, non-sublicensable, non-transferable license to use, and permit only Authorized Employees to use, via the Permitted Access and inspect any associated documents provided by FOSSA hereunder, the Software, but only (a) in accordance with any designated documentation, and (b) for the permitted Purpose only (and not for production use or any other purposes). Company shall ensure that each Authorized Employee fully complies with this Addendum and each Evaluation Agreement to the fullest extent it applies to Company and/or Authorized Employees. “Authorized Employees” means Company authorized full-time employees. Except as otherwise expressly permitted herein, Company shall not use (or authorize or permit any third party to use) any portion of the Software for any other purpose. Company shall not (i) delegate any rights or obligations under this Addendum or any Evaluation Agreement to any third party; (ii) distribute any content or other portion of the Software to any third party (other than Authorized Employees); (iii) use the Software (or any portion thereof) for the benefit of any third party; or (iv) attempt to reverse engineer or decompile any object or source code, underlying ideas, or algorithms contained in any portion of the Software.
1.3. Company shall comply with all authentication and use policies for the Software, as specified and amended from time to time by FOSSA. Company shall immediately notify FOSSA of any unauthorized access or use of any portion of the Software or any CI (defined in Section 1.5). Company shall not transmit or otherwise provide to FOSSA (through use of the Software or otherwise) any data or content that (a) is tortious or unlawful or violates any third party contractual, privacy, intellectual property or other rights or interests, or (b) contains disabling devices. Company shall use commercially reasonable efforts to not include in any such provided data and content any viruses, worms, Trojan horses, or other malicious code.
1.4. Company agrees that any Feedback provided to FOSSA hereunder is NOT confidential information of Company or any third party and that Company has the unqualified rights to disclose such Feedback to FOSSA. “Feedback” means any recommendations, ideas, suggestions, comments, know-how, concerns, testing scenarios, code, bug fixes, workarounds, software, and other feedback in any form related to the actual or any proposed design, functionalities, content, use, implementation, and/or any other elements of the Software provided to FOSSA hereunder by Company or any of its personnel. FOSSA may contact Company Employees directly for the purpose of collecting Feedback.
1.5. That the Software, any passwords enabling Permitted Access, the existence and terms of this Addendum or any Evaluation Agreement , and any Feedback are (apart from any information that is or becomes part of the public domain through no improper action by Company) FOSSA’ confidential information (collectively, “CI”). Company will maintain the CI in the strictest confidence. Company may disclose CI only to Authorized Employees and FOSSA. Company may not disclose any CI to any other person or entity.
1.6. That, as between Company and FOSSA, FOSSA shall exclusively own all right, title and interest in and to the Software and all Feedback and all copies, portions, improvements, and derivative works of any of the foregoing and all intellectual property rights, including but not limited to patents, copyrights, trade secrets or trademarks (“Intellectual Property”) anywhere in the world related to any of the foregoing. Without any compensation owing to Company, Company hereby automatically and irrevocably assigns to FOSSA (and shall ensure that all Authorized Employees automatically and irrevocably assign to FOSSA) all right, title and interest in and to all Feedback provided by Company to FOSSA, including all Intellectual Property rights therein.
1.7. Company shall limit Authorized Employees conducting the Evaluation via the Permitted Access to the number specified in or to specific individuals named in the Evaluation Agreement, and if no such limitation is included, shall limit the number to those Authorized Employees who have the reasonable need to participate.
1.8. Unless otherwise expressly agreed to in an Evaluation Agreement, each party shall pay all expenses associated with its participation in and/or performance under this Addendum and any Evaluation Agreement, including any travel, incidental or other expenses of any type. No compensation whatsoever shall be payable to Company for its participation in the Evaluation or for any Feedback, and all Company participation shall be at Company’s own cost and expense.
2. Disclaimer of All Warranties; Notices and Warnings. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL INFORMATION AND MATERIALS PROVIDED OR MADE AVAILABLE BY FOSSA HEREUNDER ARE EXPERIMENTAL IN NATURE, ARE BEING PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND MAY CONTAIN SIGNIFICANT ERRORS, OMISSIONS, AND OTHER PROBLEMS. FOSSA DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE FOREGOING, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. FOSSA does not promise, warrant, or make any representation that it will complete development, release, or otherwise make available to Company (or anyone else) any new release or version of any Software (or any component or variation thereof) or incorporate any Feedback therein. No information provided by any representative of FOSSA shall create any warranty of any kind by FOSSA or otherwise modify this Addendum or any Evaluation Agreement. Company understands that any Software may perform differently and/or have different functionalities from any software that FOSSA may release in the future. Accordingly, Company should not rely on the performance or functionality characteristics of any Software to determine the performance of or scope of functionalities that will be included in any future releases of software Company has separately licensed from FOSSA.
3. Disclaimer of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOSSA WILL NOT BE LIABLE FOR: (I) ANY LOST OR CORRUPTED DATA OR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH ANY SOFTWARE OR THIS ADDENDUM OR ANY EVALUATION AGREEMENT, EVEN IF FOSSA HAS BEEN ADVISED OF SUCH DAMAGES OR THE POSSIBILITY OF SUCH DAMAGES; (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR (III) AGGREGATE LIABILITY IN EXCESS OF $10.
4. Term and Termination. The Evaluation Agreement commences on the applicable Effective Date and will continue until the end of the Term or until terminated by FOSSA. At any time, FOSSA may terminate this Addendum and any Evaluation Agreement for any reason or no reason immediately upon notice to Company. Immediately upon termination of this Addendum or any Evaluation Agreement, Company will stop all access to and use of all applicable Software and CI and either return to FOSSA or destroy all such materials, cease all access to, and destroy any and all copies and portions of the foregoing. Company’s confidentiality obligations and the provisions regarding Intellectual Property ownership and assignment hereunder shall survive the termination of this Addendum or any Evaluation Agreement.
5. General Provisions.
5.1. Company represents that neither Company nor any Authorized Employee is (a) an agency, agent, or other instrumentality of the U.S. Government, (b) employed using any U.S. Government funds, or (c) entering into or performing under this Agreement (including providing any Feedback) pursuant to a U.S. Government contract or with the use of U.S. Government funds. The Software is “Commercial Computer Software” within the meaning of FAR 2.101 (November 2007), FAR Part 12.212 (October 1995), FAR 27.405-3 (November 2007), DFARS Part 227.7202 (June 1995) and DFARS 252.227-7014 (a) (June 1995). Use and disclosure are strictly governed by this Addendum or any Evaluation Agreement.
5.2. Company will not assign or transfer this Addendum or any Evaluation Agreement to any person or entity without FOSSA’s prior written consent and any purported assignment by Company without FOSSA’s consent will be void. This Addendum and any Evaluation Agreement is freely assignable by FOSSA.
5.3. This Agreement shall be governed by and interpreted, construed, and enforced in accordance with the laws of the State of California, USA, without regard to conflict of law provisions thereof. The parties agree to venue in the appropriate courts located in Santa Clara County in the State of California. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
5.4. Each party is acting as an independent contractor. This Addendum and any Evaluation Agreement is to be interpreted under Delaware law without regard to the conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The parties consent to the exclusive jurisdiction and venue of the state and federal courts having within their jurisdiction the location of FOSSA principal place of business. The prevailing party in any action brought under this Addendum or any Evaluation Agreement will be entitled to recover its costs and expenses, including attorneys’ fees. In the event that any of the provisions of this Addendum or any Evaluation Agreement are held to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Addendum and any Evaluation Agreement shall otherwise remain in full force and effect and enforceable.
5.5. This Addendum and each Evaluation Agreement entered into subject to this Addendum constitutes the complete and entire agreement of the parties with respect to its subject matter and supersedes any and all previous communications. No waiver or modification of this Addendum or any Evaluation Agreement will be binding unless in writing and signed by a duly authorized representative of each party and no failure or delay in enforcing any right will be deemed a waiver. Nothing in this Addendum or any Evaluation Agreement shall restrict the right of FOSSA to engage in any business or provide any software, services, or other products to any customers on any terms. Nothing herein shall obligate either party to proceed with any transaction between them. This Addendum and any Evaluation Agreement and any amendment hereto or thereto may be executed in counterparts, and electronically scanned or facsimile signatures will have the same effect as original manual signatures.
5.6. Company shall comply with the U.S. Foreign Corrupt Practices Act and all applicable export laws, restrictions and regulations of any U.S. or foreign agency or authority.
