***IMPORTANT READ CAREFULLY***
Updated September 8, 2017
THIS EVALUATION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR EVALUATION OF THE PHISHME PRODUCT(S) PROVIDED BY PHISHME, INC., AND/OR ITS AFFILIATES (“PHISHME”) UNLESS YOU (OR THE BUSINESS, GOVERNMENT OR ENTITY YOU REPRESENT) HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH PHISHME GOVERNING THE EVALUATION OF SUCH PRODUCT(S). PLEASE READ THIS EVALUATION AGREEMENT CAREFULLY. CLICKING ON THE “YES” OR “I ACCEPT” BUTTON (OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THE TERMS OF THIS AGREEMENT), DOWNLOADING, INSTALLING, ACCESSING OR USING PHISHME PRODUCTS CONSTITUTES ACCEPTANCE OF THIS EVALUATION AGREEMENT.
IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF A BUSINESS, GOVERNMENT, OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH BUSINESS, GOVERNMENT, OR OTHER ENTITY TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF SUCH BUSINESS, GOVERNMENT, OR OTHER ENTITY. IN THAT EVENT, “YOU” AND “YOUR” REFER HEREIN TO SUCH BUSINESS, GOVERNMENT, OR OTHER ENTITY.
IF YOU ARE UNWILLING TO AGREE TO THIS AGREEMENT, OR YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND THE APPLICABLE BUSINESS, GOVERNMENT, OR OTHER ENTITY, DO NOT CLICK ON THE BUTTON AND DO NOT INSTALL, DOWNLOAD, ACCESS, OR OTHERWISE USE THE PRODUCT(S).
- Grant of Evaluation License. PhishMe grants you a limited, nontransferable, non-assignable, non-sublicensable right to use the product(s) made available to you by PhishMe for evaluation, in addition to any services, software, technology platform, application, subscriptions, and any other related materials and documentation provided by PhishMe hereunder (collectively, the “Product(s)”) for your own internal evaluation purposes, subject to the terms of this Agreement, and if applicable, subject to any recipient limits expressly set forth in an activation email. In addition, if PhishMe grants you a license to evaluate PhishMe SimulatorTM pursuant to this Agreement, such license (along with your rights and obligations herein) will apply to any evaluation of PhishMe IntelligenceTM and PhishMe LMSTM made in conjunction with such evaluation of PhishMe Simulator. You may only use such Product(s) from the earlier of (a) the date this Agreement is accepted by you, or (b) the date in which you first installed, downloaded or accessed the Product(s), until the expiration date set forth in applicable activation email, or, if no expiration date is set forth in the applicable activation email, thirty (30) days after the earlier of either (a) or (b) herein (the “Evaluation Period”). You and PhishMe may extend the Evaluation Period upon mutual written agreement (including via email). In the event PhishMe, in its sole discretion, supplies to you any modification, error correction, bug fix, new release, or other update to or for the Product(s) (collectively, “Update(s)”), such Update will be deemed a Product hereunder and will be subject to the terms and conditions of this Agreement. PhishMe may, at its sole discretion, provide reasonable maintenance and support for the Product(s) during the Evaluation Period. Subject to earlier termination as provided below, this evaluation license will terminate automatically on expiration of the Evaluation Period, and you will discontinue use and/or access to the Product(s) unless and until you have agreed to purchase a production license to access and/or use such Product(s). If you agree to purchase a production license for the Product(s), your access and/or use of such Product(s) will be subject to and governed by (i) the fully executed agreement for such Product(s) by and between you (or the business, government or entity you represent) and PhishMe, or if the parties have not fully executed an agreement for the production license of such Product(s), (ii) the PhishMe Master Software and Services Agreement (displayed at https://phishme.com/legal/MSSA).
- OWNERSHIP. You acknowledge and agree that PhishMe and its licensors own all rights, title and interest, in and to the Products(s). Except for the rights expressly granted in this Agreement, you will acquire no other rights, express or implied, in or to the Product(s), and all rights not expressly provided to you hereunder are reserved by PhishMe and its licensors. You will not, nor permit anyone else to, directly or indirectly: (i) copy, modify, rent, lease or distribute the Product(s); (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Product(s) (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited); (iii) use the Product(s) to help develop any other product or service; and (iv) disclose the results of any benchmark tests on the Product(s) without PhishMe’s prior written consent. You will maintain and not remove or obscure any proprietary notices on the Product(s).
- TERM AND TERMINATION. Unless otherwise terminated in accordance with this Section, this Agreement will remain in effect until the expiration of the Evaluation Period. Either party may terminate this Agreement (i) for material breach, immediately upon written notice to the other party; or (ii) for convenience, upon ten (10) days’ prior written notice. Upon expiration or termination of this Agreement, all evaluation licenses granted herein will automatically terminate and you must delete all Product(s), and confirm such deletion in writing to PhishMe. If applicable, you understand that PhishMe may disable access to the Product(s) automatically at the end of the Evaluation Period, without notice to you.
- DISCLAIMER. EACH PRODUCT IS PROVIDED TO YOU “AS IS”, AND ANY USE BY YOU OF THE PRODUCT(S) WILL BE AT YOUR SOLE RISK. PHISHME MAKES NO WARRANTIES RELATING TO THE PRODUCT(S) AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
- CONFIDENTIALITY. “Confidential Information” means any information disclosed by one party (“Discloser”) to the other (“Recipient”), directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or some similar designation, or learned by Recipient under circumstances in which such information would reasonably be understood to be confidential. Confidential Information may include information disclosed in confidence to Discloser by third parties. For the purposes of this Agreement, the Product(s), and the results of any performance, functional or other evaluation of the Product(s), will be deemed Confidential Information of PhishMe. The Recipient agrees that it will: (i) not use any Confidential Information for any purpose except to evaluate the Product(s) and engage in discussions concerning a potential business relationship between the parties; (ii) use at least the same degree of care as the Recipient uses to protect its own Confidential Information, but in no event less than a reasonable degree of care, to prevent the unauthorized use, dissemination of publication of the Confidential Information; (iii) limit disclosure of Confidential Information to those persons within Recipient’s organization who have a need to know and who have previously agreed in writing, prior to receipt of Confidential Information, either as a condition of their employment or in order to obtain the Confidential Information, to obligations similar to the provisions hereof; and (iv) not disclose any Confidential Information to third parties without the prior written consent of the Discloser. Recipient acknowledges that the disclosure of Confidential Information may cause irreparable injury to the Discloser. Discloser will, therefore, be entitled to seek injunctive relief upon a disclosure or threatened disclosure of any Confidential Information, without a requirement that the Discloser prove irreparable harm and without the posting of a bond. This provision will not in any way limit such other remedies as may be available to the Discloser at law or in equity. Within ten (10) business days of the termination of this Agreement or upon the Discloser’s written request, the Recipient will (at the Recipient’s election) promptly destroy or return all of Discloser’s Confidential Information in the Recipient’s possession.
- LIMITATION OF LIABILITY. IN NO EVENT WILL PHISHME BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTON OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS EVALUATION. THE FOREGOING LIMITATIONS ON PHISHME’S LIABILITY WILL APPLY WHETHER OR NOT PHISHME WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE TOTAL LIABILITY OF PHISHME ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED USD $1000.
- U.S. GOVERNMENT RESTRICTED RIGHTS. The Products are “commercial items”, “commercial computer software” and “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Sections 12.211-12.212, as applicable. All Products are and were developed solely at private expense and the use of Products by the United States Government are governed solely by this Agreement and are prohibited except to the extent expressly permitted by this Agreement.
- MISCELLANEOUS. You will comply with all applicable laws. You will not assign this Agreement or any right or delegate any performance without PhishMe’s prior written consent. This Agreement is the complete statement of the agreement of the parties with regard to the subject matter hereof and may be modified only by a writing signed by both parties. This Agreement is governed by the laws of the State of Virginia, excluding its conflict of law rules and The U.N. Convention on Contracts for the International Sale of Goods. Section 2 and Sections 4 through 8 will survive any termination or expiration of this Agreement.