THIS IS A LEGAL AGREEMENT BETWEEN YOU (PERSONALLY AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR A LEGAL ENTITY) (“PARTICIPANT”) AND SYMANTEC CORPORATION AND ITS AFFILIATED ENTITIES ("SYMANTEC"). SYMANTEC AGREES TO LICENSE THE PRE-GENERAL RELEASE SOFTWARE AND/OR PRE-GENERAL RELEASE HOSTED SERVICES TO PARTICIPANT ONLY IF PARTICIPANT ACCEPTS ALL THE TERMS AND CONDITIONS CONTAINED IN THIS BETA LICENSE AGREEMENT (“BETA AGREEMENT”). BY CLICKING THE "I ACCEPT" BUTTON BELOW OR INDICATING ASSENT ELECTRONICALLY OR LOADING THE APPLICABLE SOFTWARE OR OTHERWISE USING THE SOFTWARE AND/OR SERVICES, PARTICIPANT CONSENTS TO BE BOUND BY THIS BETA AGREEMENT. EACH TIME PARTICIPANT ACCESSES THE SOFTARE AND/OR SERVICES, PARTICIPANT ACCEPTS, ON EACH SUCH OCCASION, THE TERMS AND CONDITIONS OF THIS BETA AGREEMENT. IF PARTICIPANT DOES NOT ACCEPT THE TERMS AND CONDITIONS OF THIS BETA AGREEMENT, THEN CLICK THE “I DO NOT ACCEPT” BUTTON BELOW OR INDICATE REFUSAL ELECTRONICALLY OR RETURN THE SOFTWARE TO SYMANTEC AND DO NOT LOAD THE SOFTWARE OR OTHERWISE USE THE SOFTWARE AND/OR SERVICES.
This Beta Agreement is effective as of the date it is accepted by Participant (“Effective Date”) and sets forth the general terms and conditions under which Symantec may, from time-to-time, provide to Participant the pre-general release software and/or pre-general release hosting services (accompanying this Agreement or as otherwise identified on the applicable schedule to this Agreement (collectively and individually, the “Beta Offering”). In connection with this Beta Agreement, the parties may complete a schedule that identifies terms specific to the Beta Offering (“Schedule”).
1. GRANT OF RIGHTS.Symantec hereby grants to Participant a nonexclusive, nontransferable, nonsublicensable license to (i) use a binary copy of the pre-general release software specified in the Schedule or made available for download in connection with this Beta Agreement; or (ii) access certain online services, as described in the applicable Schedule, solely for Participant’s internal, non-commercial testing and evaluation purposes, or as otherwise set forth in the applicable Schedule, and solely in accordance with the terms and conditions of this Beta Agreement (the “Purpose”). Participant may use the Beta Offering in the territory specified in the Schedule or, if no such territory is specified, Participant may only use the Beta Offering in the United States and Canada (“Territory”).
If specified in an applicable Schedule, Participant may use the Beta Offering on a limited basis in a production environment, but only to the extent necessary to complete its testing and evaluation of the Beta Offering, and provided that such use is only for internal, non-commercial purposes. Participant may make one copy of the Beta Offering for backup and archival purposes or as specified on the applicable Schedule. Participant may not otherwise copy the Beta Offering. If the Beta Offering is limited to or includes hosted services, Symantec grants no license to the ancillary Symantec software used in connection with those services, except for use of the proprietary platform agent, if any. The Beta Offering may include access to and use of a secure web portal made available to Participant for use during the Test Period (defined below). In which case, Participant acknowledges and agrees that: (i) the Beta Offering requires access to and use of the internet; (ii) the internet is public and Symantec exerts no control over the internet; and (iii) Symantec does not have responsibility for operating or maintaining Participant servers and Participant’s connection to the internet to access and utilize the Beta Offering.
2. TESTING.Participant will test and evaluate the Beta Offering. Participant agrees to report the test results to Symantec as specified in the program guidelines, if any, and any other documents accompanying the Beta Offering. In addition, Participant will promptly report to Symantec any problems or defects encountered in the Beta Offering.
3. TERM AND TERMINATION.During the term of the Beta Agreement, Participant will have the right to use the Beta Offering for the Purpose until the expiration date specified in an executed Schedule or ninety (90) days from the Effective Date, if no date is otherwise specified (“Test Period”). Either party may terminate this Agreement or an applicable Schedule at any time upon advanced written noticed to the other party. Upon expiration or termination of this Beta Agreement or the applicable Schedule, Participant will immediately cease all usage of any software and other materials delivered in connection with the Beta Offering and destroy and erase from computer memory any software and other materials delivered in connection with the Beta Offering together with all copies, modifications and merged portions in any form. If requested by Symantec, Participant will certify in writing within three (3) days of the request that Participant has complied with the terms of this provision. THE BETA OFFERING MAY CONTAIN CODE THAT WILL DISABLE THE BETA OFFERING UPON EXPIRATION OF THE TEST PERIOD.
4. INSTALLATION AND USE.Participant may install the Beta software or Agent provided by Symantec to Participant in connection with the Beta offering onto the number of computers solely as specified in the applicable Schedule or as otherwise necessary to use the Beta Offering in accordance with this Agreement.
5. INTELLECTUAL PROPERTY RIGHTS.Symantec and/or its licensors shall retain all right, title and interest in the Beta Offering, including without limitation, any and all copies, improvements, enhancements, modifications and derivative works thereof. Participant does not acquire any rights, express or implied, in the Beta Offering, other than those specified in this Beta Agreement. Participant shall reproduce all titles, trademarks, copyright, and restricted rights notices contained in the original Beta Offering in any copies made, and all such copies shall be subject to the terms and conditions of this Beta Agreement.
6. OTHER BETA AGREEMENT RESTRICTIONS.Participant agrees not to cause or permit the (i) reverse engineering, disassembly, decompilation or other attempt (a) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in, or (b) to derive the source code of the underlying ideas, algorithms, structure or organization from the Beta Offering, except to the extent required by law; (ii) distribution, use, copying, modification, rental, lease, sublease, sublicense, or transfer of the Beta Offering or documentation thereto (“Documentation”), except as expressly provided in this Beta Agreement; (iii) create any derivative works based on the Beta Offering or Documentation; (iv) use the Beta Offering or Documentation by or on behalf of any party other than Participant. In addition, if applicable, Participant may only use the Beta Offering on a device that is the designated system (as specified in the Schedule) to which such Beta Offering is licensed.
7. FEEDBACK.Any test results, comments or suggestions provided by Participant regarding the Beta Offering (the "Feedback") shall be deemed non-confidential to Participant. By providing such Feedback, Participant grants to Symantec, under Participant’s intellectual property rights, a worldwide, perpetual, royalty-free, irrevocable and non-exclusive license, with the right to sublicense to Symantec’s licensees and customers, to use and disclose the Feedback in any manner Symantec chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of Symantec’s and its sublicensee’s products embodying such Feedback in any manner and via any media Symantec or its sublicensees choose, without reference or obligation to Participant. Participant will not give Symantec any Feedback (i) that Participant has reason to believe is subject to any patent, copyright, or other intellectual property claim or right of any third party; or (ii) subject to license terms that seek to require any Symantec product incorporating or derived from any Feedback, or other Symantec intellectual property, to be licensed to or otherwise shared with any third party. Unless otherwise set forth in the applicable exhibit or authorized by Participant in writing, Symantec shall not use or reference Participant’s name in its public use of such Feedback.
8. PRIVACY. With respect to any and all data, including, but not limited to, third party data, personally identifiable information and associated metadata, provided by Participant to Symantec pursuant to Participant’s use of the Beta Offering (collectively, the “Data”), Participant represents and warrants that all such Data is either: the sole property of Participant or has been collected from a third party by Participant in accordance with Participant’s privacy policy; Participant’s privacy policy is in compliance with all applicable federal (national), state, provincial, municipal and/or local laws, regulations, rules, judicial decrees, decisions and judgments in each and every jurisdiction applicable to Participant, Symantec, the subject matter of this Agreement and the Beta Offering contemplated hereunder (collectively, “Laws”); and Participant has obtained all consents required by the Laws to transfer the Data to Symantec for storage by Symantec within the United States and/or Canada. Participant agrees that Symantec may comply with any (1) subpoena or (ii) similar order of a court or other governmental entity (or agency thereof) related to the Data that is the subject of the Beta Offering pursuant to this Agreement; provided that Symantec notifies Participant promptly upon the receipt thereof, unless such Participant notice is prohibited by law. Participant agrees to pay Symantec’s reasonable expenses and charges for such compliance.
9. CONFIDENTIAL INFORMATION.The Beta Offering, Documentation, Beta Offering-related information and any other proprietary technology or know how provided to Participant by Symantec under this Beta Agreement is the confidential information of Symantec (“Confidential Information”). Participant will hold all Confidential Information in confidence for a period of five (5) years from the date of termination or expiration of this Beta Agreement. Participant will use the Confidential Information only as expressly authorized in this Beta Agreement and Participant will protect the Confidential Information by using the same degree of care as Participant would use to protect its own Confidential Information of like nature, but no less than a reasonable degree of care, from the unauthorized use, dissemination or publication of the Confidential Information. Participant is not obligated with respect to Confidential Information that Participant can prove: (a) is or becomes a matter of public knowledge through no fault of Participant; (b) is rightfully received by Participant from a third party without a duty of confidentiality; (c) is independently developed by Participant (excluding the Feedback) without use or reference to the Confidential Information; (d) is disclosed under operation of law or (e) is disclosed by Participant with Symantec’s prior written consent. Unauthorized use or disclosure of Confidential Information may cause Symantec irreparable harm; therefore, Symantec will have the right to enforce this agreement and any of its provisions by injunctive or other equitable relief. Participant agrees that Symantec may comply with any (1) subpoena or (ii) similar order of a court or other governmental entity (or agency thereof) related to the Data that is the subject of the Beta Offering pursuant to this Agreement; provided that Symantec notifies Participant promptly upon the receipt thereof, unless such Participant notice is prohibited by law. Participant agrees to pay Symantec’s reasonable expenses and charges for such compliance.
10. NO OBLIGATION.Symantec is under no obligation to provide technical support for the Beta Offering; however, Symantec may at its sole discretion elect to provide certain support for the Beta Offering. Any updates or support deliverables provided by Symantec are included in the definition of “Beta Offering” for purposes of this Beta Agreement. Symantec is under no obligation to develop, maintain or market the Beta Offering or to release production or general availability versions. Future versions of the Beta Offering, if any, may not be compatible with the current evaluation version of the Beta Offering.
11. DISCLAIMERS OF WARRANTY.PARTICIPANT ACKNOWLEDGES THAT THE BETA OFFERING IS EXPERIMENTAL IN NATURE AND IS PROVIDED TO PARTICIPANT ON AN “AS IS" BASIS. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SYMANTEC AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES REGARDING THE BETA OFFERING, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT TO LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
12. LIMITATION OF LIABILITY.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL SYMANTEC OR ITS SUPPLIERS BE LIABLE TO PARTICIPANT FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS BETA AGREEMENT, EVEN IF SYMANTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. INDEMNIFICATION.Participant agrees to defend, indemnify and hold harmless Symantec from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of Participant’s use of the Beta Offering or breach of any provision of this Beta Agreement. Symantec reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Participant. Participant will provide reasonable cooperation in the defense of any claim.
14. SURVIVING TERMS AND CONDITIONS.Sections 3 (“Term and Termination”), 5 (“Intellectual Property Rights”), 6 (“Other Beta Agreement Restrictions”), 8 (“Privacy”), 9 (“Confidential Information”), 10 (“No Obligation”), 11 (“Disclaimer of Warranties”), 12 (“Limitation of Liability”), 13 (“Indemnification”), 14 (“Surviving Terms and Conditions”), 15 (“Government Restricted Rights”), 16 (“Export Compliance”), and 17 (“General Terms”) will survive expiration or termination of this Beta Agreement.
15. GOVERNMENT RESTRICTED RIGHTS.The Beta Offering and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Beta Offering and accompanying documentation by the U.S. Government shall be governed solely by the terms of this Beta Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Beta Agreement. Participant must affix the following legend to each copy of the Beta Offering: “Use, duplication, reproduction, or transfer of this commercial software and accompanying documentation is restricted in accordance with FAR 12.212 and DFARS 227.7202 and the terms of this Beta Agreement. Contact Legal Department, Symantec Corporation, 350 Ellis Street, Mountain View, California 94043, U.S.A."
16. EXPORT COMPLIANCE. The Beta Offering may be controlled under the United States Export Administration Regulations (“EAR”) and may be subject to the approval of the United States Department of Commerce prior to export or re-export. Any export or re-export, directly or indirectly, in contravention of the EAR, or any other applicable national law, regulation, or order, is prohibited, including but not limited to the laws of members of the European Union and Singapore. The Beta Offering is prohibited for export or re-export to Cuba, Iran, North Korea, Sudan, and Syria and to any country or its nationals subject to embargo or sanction, or to any entity or person for which an export license is required per US and other national restricted party lists. Use or facilitation of the Beta Offering in connection with chemical, biological, or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons is prohibited, in accordance with U.S. law.
17. GENERAL TERMS.This is the entire agreement between Participant and Symantec and supersedes any terms of any other agreement that may be included with the Beta Offering, including any shrink-wrap or click wrap. This Beta Agreement will be governed by and construed under the laws of the State of California, without giving effect to such state’s conflict of laws principles. Any legal action or proceeding related to this Beta Agreement shall be instituted in a state or federal court in Santa Clara County, California. Symantec and Participant agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. Symantec shall have the right to verify Participant’s compliance with its obligations under this Agreement by performing a reasonable review of Participant’s applicable business records and the Participant’s use of the Beta Offering within Participant’s computing environment. If any provision of this Beta Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this Beta Agreement. No amendment to this Beta Agreement will be binding unless evidenced by a writing signed by an authorized representative of the party against whom it is sought to be enforced. No waiver by either Symantec or Participant of any breach or default under this Beta Agreement shall be deemed to be a waiver of any other breach or default under this Beta Agreement. Participant may not assign this Beta Agreement, in whole or in part and whether by operation of contract, law or otherwise, without the prior express written consent of Symantec. A change of control in the ownership of Participant shall constitute an assignment.