Evaluation Agreement Terms & Conditions
These Evaluation Agreement Terms and Conditions form a part of and are incorporated by reference into the separate Evaluation Agreement Sales Order Form (“SOF”) referencing these Evaluation Agreement Terms and Conditions, and, together with the SOF, constitute the Agreement between PlanGrid, Inc., a Delaware corporation with its principal place of business located at 2111 Mission St., 4th Floor, San Francisco, CA 94110 (“Licensor”) and the Customer whose name and address are set forth on the SOF (“Licensee”).
WHEREAS, Licensor markets, licenses and otherwise makes available a “software-as-a-service” offering, which, among other things, permits subscribers to utilize PlanGrid’s field collaboration platform, as more fully described in the SOF (the “PlanGrid Service”); and
WHEREAS, Licensor desires to license to Licensee, and Licensee desires to obtain a license to, the PlanGrid Service solely for Licensee’s internal evaluation purposes during the time period set forth on the SOF and otherwise subject to the terms and conditions of this Agreement,
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- License Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants Licensee, and the “Quantity” of permitted Licensee “Users” set forth in the SOF (the “Authorized Users”), a non-exclusive, non-sublicenseable, and non-transferable license during the time period set forth in the SOF (the “Evaluation Period”) to: (a) access and use the PlanGrid Service solely for Licensee’s internal evaluation purposes; and (b) use the Licensor’s documentation relating to the PlanGrid Service (the “Documentation”) solely for Licensee’s internal evaluation purposes.
- Use Restrictions. Licensee will not access or use the Plangrid Service for any purpose other than evaluating and testing the PlanGrid Service internally in connection with assessing whether Licensee desires to enter into a commercial license agreement with Licensor. This Agreement does not provide a commercial license and Licensee’s access to and use of the PlanGrid Service after the Evaluation Period is subject to the parties' entering into and executing a separate commercial license agreement on PlanGrid’s standard terms and conditions. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (a) reproduce, download, frame, mirror, or create derivative works of the PlanGrid Service, any Documentation, or any portions thereof; (b) decompile, disassemble, or otherwise reverse engineer the PlanGrid Service or any portion thereof; (c) access or use the PlanGrid Service in order to build any competing product or service; (d) license, sub-license, sell, rent, lease, transfer, assign, distribute, disclose, or otherwise make available the PlanGrid Service to any third party, other than Authorized Users or invitees with PlanGrid accounts, or use the PlanGrid Service on a service bureau basis; (e) access or use any portion of the PlanGrid Service in violation of any law, regulation, or agreement with any third party; (f) remove, obscure or alter any trademarks, brand names, or other proprietary notices appearing on or contained within the PlanGrid Service; (g) conduct security, integrity, penetration, vulnerability or similar testing on the PlanGrid Service or use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as robots) in conjunction with the PlanGrid Service; (h) attempt to gain any unauthorized access to the PlanGrid Service or any portion thereof; or (i) access or use the PlanGrid Service other than as expressly permitted by this Agreement.
- Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the PlanGrid Service.
- Licensee Responsibilities. Licensee is responsible and liable for all uses of the PlanGrid Service and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee 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 this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee, including, without limitation, any uploading, storing, creating, modifying, downloading, sharing, or erasing of any Content or other information on the PlanGrid Service. Licensee shall take reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User’s use of the PlanGrid Service, and shall cause Authorized Users to comply with such provisions and otherwise abide by all applicable laws, treaties, ordinances and regulations in connection with accessing and using the PlanGrid Service. Licensee further represents and warrants that its and all of its Authorized Users’ access to and use of the PlanGrid Service will not violate any agreement between Licensee and a third party.
- Support. Licensor has no obligation under this Agreement to provide support, maintenance, upgrades, modifications, or new releases of the PlanGrid Service or Documentation to Licensee. However, Licensor agrees to use its reasonable efforts to correct errors in the PlanGrid Service and Documentation within a reasonable time, and shall provide Licensee with any corrections it makes generally available to other evaluation participants, if any.
- Evaluation Fee. Licensor agrees to waive its standard evaluation license fee and agrees that no license fees or other fees will be payable under this Agreement in exchange for the licenses granted under this Agreement. Licensee acknowledges and agrees that this fee arrangement waiver is made in consideration of the mutual covenants set forth in this Agreement, including, without limitation, the disclaimers, exclusions, and limitations of liability set forth herein.
- 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. Whether or not Content (as defined below) uploaded by Licensee or its Authorized Users into the PlanGrid Service during the Evaluation Period is deemed to be Licensee’s Confidential Information, Licensee expressly authorizes Licensor to make such Content available within the PlanGrid Service to its Authorized Users and to any other third parties Licensee invites to a project within the PlanGrid Service (it being understood and agreed that Licensee grants Licensor all necessary licenses, consents and approvals necessary or required for Licensor to make such Content available in the PlanGrid Service). 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, if legally permissible, 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 this Agreement, including to make required court filings. On the expiration or termination of the 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 five years from the date first disclosed to the receiving party; provided, however, that 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 this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. “Content” shall mean building plan prints, photos, images, cut sheets, and other documents uploaded by Authorized Users and any annotations, notes or other written or electronic additions to those documents whether owned by Licensee or a third party (and, if owned by a third party, Licensee represents and warrants that it has all rights and licenses necessary to provide Licensor with the third party content and hereby grants Licensee the right to host, use, process, display and transmit such third party content via the PlanGrid Service).
- Intellectual Property Ownership; Feedback.
(a) Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all right, title, and interest, including all intellectual property rights, in and to the PlanGrid Service and Documentation.
(b) If Licensee or any of its employees, contractors or Authorized Users submits, orally or in writing, suggestions or recommended changes to the PlanGrid Service or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Licensee hereby assigns to Licensor on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Licensor is not required to use any Feedback.
- Disclaimer of Warranties. THE PLANGRID SERVICE AND DOCUMENTATION ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR 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. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE PLANGRID SERVICE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’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.
- Indemnification. Licensee agrees to indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding based on (a) Content uploaded to the PlanGrid Service by Licensee or any Authorized Users and (b) use of the PlanGrid Service or Documentation in a manner not authorized or contemplated by this Agreement. In the event Licensor seeks indemnification or defense from Licensee under this provision, Licensor shall promptly notify Licensee in writing of the claim(s) brought against Licensor for which Licensor seeks indemnification or defense. Licensor reserves the right, at its option and in its sole discretion, to assume full control of the defense of claims with legal counsel of Licensor’s choice. Licensee may not enter into any third-party agreement, which would, in any manner whatsoever, affect Licensor’s rights, constitute an admission of fault by Licensor or bind Licensor in any manner, without Licensor’s prior written consent.
- Limitations of Liability. IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND 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; (C) LOSS OF GOODWILL OR REPUTATION; OR (D) 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 LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL LICENSOR'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 $1,000.00.
- Term and Termination. This Agreement is effective only for the Evaluation Period, unless terminated earlier pursuant to this Section 12. Either party may terminate this Agreement at any time, without cause, upon five (5) days prior written notice. Licensor may terminate this Agreement immediately on written notice to Licensee if Licensee materially breaches or fails to comply with any terms or conditions of this Agreement regardless of whether or not such breach is curable. Upon expiration or earlier termination of this Agreement, the licenses granted hereunder will also terminate and Licensee shall cease using the PlanGrid Service and delete, destroy, or return all copies of the Documentation and certify in writing to the Licensor that the Documentation has been deleted or destroyed. This Section 12 and Sections 3, 7 through 12, and 13 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
- (a) Entire Agreement. This Agreement, together with the SOF and any confidentiality or nondisclosure agreement between the parties, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
- (b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
- (c) Amendment and Modification; Waiver. No amendment to or modification of this 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. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- (d) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- (e) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California 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 California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco and County of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- (f) Assignment. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Licensor. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- (g) Export Regulation. The PlanGrid Service may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the PlanGrid Service to, or make the PlanGrid Service accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the PlanGrid Service available outside the US.
- (h) Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 7 or 8 this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.