SaaS Evaluation Terms and Conditions

These MasterControl SaaS Evaluation Terms and Conditions are by and between MasterControl Solutions, Inc., a Delaware corporation with principal offices located at 6350 South 3000 East, Salt Lake City, Utah 84121 (“MasterControl”), and the party (“Customer”) executing any quotation or other agreement incorporating these terms (the “Evaluation Agreement”). These terms govern Customer’s usage of MasterControl products for evaluation purposes during the period of time set forth in the Evaluation Agreement (the “Evaluation Period”).

1. Access and Use.

(a) Provision of Access. Subject to the terms and conditions set forth herein and in the Evaluation Agreement, MasterControl grants Customer a non-exclusive, non-transferable right during the time period set forth in the Evaluation Agreement to: (a) access and use the software-as-a-service offering described in the Evaluation Agreement (the “Services”) solely for Customer’s internal evaluation purposes by those employees or contractors of Customer that Customer permits to access and use the Services and/or Documentation (“Authorized Users”); and (b) use the MasterControl’s user manuals, handbooks, and guides relating to the Services provided by MasterControl to Customer either electronically or in hard copy form/end user documentation relating to the Services (the “Documentation”) solely for Customer’s internal evaluation purposes in connection with Customer’s use of the Services. Customer will not use the Services and Documentation for any purpose other than evaluating and testing such Services internally in connection with assessing whether Customer desires to enter into a commercial agreement with MasterControl for access to and use of the Services. The Evaluation Agreement does not provide a commercial access grant, and Customer’s access to and use of the Services after the Evaluation Period is subject to the Parties entering into and executing a separate agreement.

(b) Use Restrictions. Customer shall not use the Services or Documentation for any purposes beyond the scope of the access granted in the Evaluation Agreement. Except as otherwise set forth in the Evaluation Agreement, Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

(c) Reservation of Rights. MasterControl reserves all rights not expressly granted to Customer in the Evaluation Agreement. Except for the limited rights and licenses expressly granted under the Evaluation Agreement, nothing in the Evaluation Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Services, the Documentation, or any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing (“MasterControl IP”).

2. Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of the Evaluation Agreement. Without limiting the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Evaluation Agreement if taken by Customer will be deemed a breach of the Evaluation Agreement by Customer.

3. Evaluation Fee. The Parties agree that no fees will be payable under the Evaluation Agreement in exchange for the access granted under the Evaluation Agreement. Customer acknowledges and agrees that this fee arrangement is made in consideration of the mutual covenants set forth in the Evaluation Agreement, including, without limitation, the disclaimers, exclusions, and limitations of liability set forth herein.

4. Confidential Information. From time to time during the Evaluation Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under the Evaluation Agreement, including to make required court filings. On the expiration or termination of the Evaluation Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire two (2) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Evaluation Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

5. Intellectual Property Ownership; Feedback.

(a) MasterControl IP. Customer acknowledges that, as between Customer and MasterControl, MasterControl owns all right, title, and interest, including all intellectual property rights, in and to the MasterControl IP.

(b) Customer Data. MasterControl acknowledges that, as between MasterControl and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services (“Customer Data”). Customer hereby grants to MasterControl a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for MasterControl to provide the Services to Customer.

(c) Aggregated Statistics. MasterControl may monitor Customer’s use of the Services and collect and compile data and information related to Customer’s use of the Services that is used by MasterControl in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between MasterControl and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by MasterControl. Customer acknowledges that MasterControl may compile and use, in a manner permitted under applicable law, Aggregated Statistics based on Customer Data input into the Services.

(d) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to MasterControl suggesting or recommending changes to the MasterControl IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), MasterControl is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. All Feedback is and will be treated as non-confidential.

6. Disclaimer of Warranties. THE MASTERCONTROL IP IS PROVIDED “AS IS” AND MASTERCONTROL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MASTERCONTROL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MASTERCONTROL MAKES NO WARRANTY OF ANY KIND THAT THE MASTERCONTROL IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

7. Limitations of Liability. IN NO EVENT WILL MASTERCONTROL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; OR (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, IN EACH CASE REGARDLESS OF WHETHER MASTERCONTROL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL MASTERCONTROL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED $100.

8. Term and Termination. The term of the Evaluation Agreement begins on the Effective Date and, unless terminated earlier pursuant to the Evaluation Agreement’s express provisions, will continue in effect until the expiration of the Evaluation Period. Either Party may terminate the Evaluation Agreement at any time, without cause. Upon expiration or earlier termination of the Evaluation Agreement, Customer shall immediately discontinue use of the MasterControl IP and, without limiting Customer’s obligations under Section 4, Customer shall delete, destroy, or return all copies, if any, of the MasterControl IP and certify in writing to the MasterControl that the MasterControl IP has been deleted or destroyed. This Section 8 and Sections 5, 6, 7, and 9 survive any termination or expiration of the Evaluation Agreement. No other provisions of the Evaluation Agreement survive the expiration or earlier termination of the Evaluation Agreement.

9. Miscellaneous.

(a) Amendment and Modification; Waiver. No amendment to or modification of the Evaluation Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving.

(b) Severability. If any provision of the Evaluation Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Evaluation Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

(c) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah. Any legal suit, action, or proceeding arising out of the Evaluation Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States in Salt Lake City, Utah, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.