APRIMO EVALUATION TERMS AND CONDITIONS

These Evaluation Terms and Conditions (this “Agreement”) govern the access and use of the software-as-a-service platform (the ”System”) provided by Aprimo US LLC, a Delaware limited liability  company, having an address at 230 W Monroe Street, Suite 1200, Chicago, IL 60606, and its affiliates (“Aprimo”).

The individual accessing and using the System (the “Customer”) accepts this Agreement as a condition of Customer’s access and use of the System.  If Customer is accepting this Agreement on behalf of a company or other legal entity, Customer represents that it has the authority to bind the company or legal entity to this Agreement.

  1. Right to Access and Use

Aprimo hereby grants Customer a non-exclusive, non-transferable, revocable right to access and use the System solely for the purposes of internal review and evaluation.  Aprimo and its licensors own and retain all right, title and interest in and to the System, including all enhancements, modifications, improvements, and derivatives works thereof.  Other than as expressly set forth in this Agreement, no license or other rights in or to Aprimo intellectual property rights are granted to Customer, and all such licenses and rights are expressly reserved.

  1. Customer Responsibilities

Customer shall not directly or indirectly reverse engineer, attempt to derive the source code, copy or reproduce all or any portion of the System, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. Customer shall use the System solely for its intended purposes, in accordance with the terms of this Agreement, and shall not use the System for the benefit of any third party except as specifically contemplated under this Agreement.

Customer shall not: (i) use the System for any content or activity that is libelous, slanderous, defamatory, offensive, scandalous, or obscene, or infringes on any third party’s rights, or violates any applicable law;  or (ii) introduce into the System any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (iii) perform load or similar testing; or (iv) enter data that contains sensitive personally identifiable information, including but not limited to credit card numbers, bank account numbers, identification numbers, social security numbers, etc.

  1. Confidentiality

Each party agrees (i) to treat as confidential all non-public information, confidential information and/or trade secrets of the other party, (ii) not to use such confidential information for any purpose other than to the limited extent necessary to perform under this Agreement, and (iii) not to disclose such confidential information to any third party except affiliates, subcontractors, and partners as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by the other party, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. The parties hereby agree that the terms set forth in this Agreement constitute confidential information of both parties and as such, neither party will disclose such terms to any third party other than such party’s legal counsel.

The obligations set forth in this section shall not extend to information that:

(a) becomes publicly available without breach of this Agreement;

(b) is known by the receiving party prior to disclosure without a duty of confidentiality;

(c) is rightfully received from a third party without an obligation of confidence;

(d) is independently developed without resort to the information provided by the disclosing party; or

(e) is required to be disclosed by law or legal process, provided the other party is given prompt written notice of the requirement for such disclosure.

  1. Disclaimer of Warranty

THE SYSTEM IS PROVIDED “AS-IS” WITHOUT WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

  1. Limitation of Liability

APRIMO SHALL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, THE AGGREGATE LIABILITY OF APRIMO TO THE CUSTOMER FOR ANY DIRECT DAMAGES CLAIMED HEREUNDER SHALL NOT EXCEED $100.

  1. Term and Termination

This Agreement begins on Customer’s first access of the System and will continue until terminated as set forth herein.  Either party may terminate this Agreement upon ten (10) business days prior written notice to the other party.  Upon termination of the Agreement, Customer shall cease accessing and using the System.

  1. General

The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of law principles. Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. Aprimo shall be entitled to enter into contracts with third parties to carry out Aprimo’s obligations under this Agreement, it being understood that Aprimo shall be responsible for actions taken by each such subcontractor hereunder. This Agreement supersedes all prior written or oral agreements between the parties regarding the subject matter hereof. The relationship between the parties under this Agreement is that of independent contractors. This Agreement may only be amended by written agreement of the parties. The waiver or failure of any party to exercise in any respect any right provided for under this Agreement shall not be deemed a waiver of any future right hereunder. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by either party other than in the event of change of control, including but not limited to an entity acquiring substantially all of its assets, equity or business and assuming the obligations hereunder. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.