SEISMIC TRIAL TERMS

THESE TRIAL TERMS CONSTITUTE A LEGAL AGREEMENT BETWEEN THE ENTITY SPECIFIED IN THE ORDER FORM AND/OR ENTITY THAT IS USING A TRIAL OF CERTAIN SEISMIC OFFERINGS (“CUSTOMER”) PROVIDED BY SEISMIC SOFTWARE, INC. AND/OR ITS AFFILIATES (COLLECTIVELY, OR INDIVIDUALLY, “SEISMIC”). THESE TRIAL TERMS ARE ALSO SUPPLEMENTED BY THE TERMS OF THE SEISMIC MAIN SERVICES AGREEMENT TERMS (“AGREEMENT”), AS APPLICABLE, WHICH SUCH TERMS ARE INCORPORATED INTO THESE TRIAL TERMS. BY USING ONE OR MORE SEISMIC TRIAL OFFERINGS, CUSTOMER IS AGREEING TO ALL OF THE APPLICABLE TERMS OF THE AGREEMENT AND THESE TRIAL TERMS. IF CUSTOMER DOES NOT AGREE TO ANY OR ALL OF THESE TRIAL TERMS OR THE AGREEMENT TERMS, OR THE INDIVIDUAL AGREEING TO THESE TRIAL TERMS DOES NOT HAVE AUTHORITY TO BIND THE CUSTOMER TO THESE TERMS, CUSTOMER AND ITS USERS MAY NOT ACCESS OR USE, AND CUSTOMER WILL NOT PERMIT OTHERS TO ACCESS OR USE, ANY TRIAL OFFERINGS. DEFINED TERMS USED AND NOT OTHERWISE DEFINED HEREIN SHALL HAVE THEIR ORDINARY MEANING OR SHALL HAVE THE MEANINGS DEFINED IN THE AGREEMENT. IN THE EVENT OF A CONFLICT OR INCONSISTENCY AMONG THESE TRIAL TERMS, THE RELEVANT ORDER FORM AND/OR THE AGREEMENT TERMS, THESE TRIAL TERMS SHALL CONTROL WITH RESPECT TO THE SUBJECT MATTER HEREIN. TERMS OR CONDITIONS THAT ARE MORE RESTRICTIVE, SPECIFIC, OR PARTICULAR THAN THOSE CONTAINED IN ANOTHER DOCUMENT SHALL NOT BE CONSTRUED AS BEING IN CONFLICT OR INCONSISTENT.

TRIAL EFFECTIVE DATE. These Trial Terms are effective, and binding on the Customer, as of the earlier of (i) the date separately specified by Seismic in a relevant Order Form offering a Trial; and (ii) the first time any Customer employee, representative, contractor, agent and/or non-human user (each, a “User”) accesses a Trial Offering (“Trial Effective Date”).

TRIAL TERM OF USE. The Trial will commence on the Trial Effective Date and is expected to last through the date specified by Seismic in the relevant Order Form (“Trial Term”), unless terminated earlier by Seismic as permitted herein, or until provided commercially as part of a purchase by Customer of certain purchased Seismic products and services (collectively, “Paid Services”) under an executed and paid Order Form.

TRIAL. For purposes of these Trial Terms, “Trial” means the use of any Seismic Offering that Seismic makes available to Customer to try, at Customer’s option or which is accessed by Customer, and which is designated as “complimentary,” “audit,” “demo,” “beta,” “free,” “free period,” “trial,” “test,”, “pre-release,” ”early access,” pre-GA,” “pilot,” “non-production,” “preview,” “trial,” “evaluation,” “proof of concept,” “POC,” or by a similar designation. For the duration of the Trial Term, Customer shall have a global, nonexclusive, non-transferable, non-assignable, non-sublicensable, royalty-free, revocable, and limited right to use the specified Trial Offerings subject to the terms of these Trial Terms, the Agreement, the Order Form and solely for Customer’s internal business purposes (“Limited Trial License”). Customer may use the number of Trial Offerings and/or licenses that Seismic has expressly specified in an Order Form or otherwise approved (“Trial Usage Limits”). Customer acknowledges and agrees that the Trial Offerings may be experimental, developmental, and pre-commercial in nature. The Trial Offerings may contain Malicious Elements and may not function as intended. Customer is responsible for all of its Users’ (i) acts and omissions in the use of the Trial Offerings, and (ii) compliance with these Trial Terms, Agreement, and relevant Order Form in using the Trial Offerings. Each Trial User will have to register separately to access the Trial Offerings, and registration account log-in credentials may only be used by the individual User to which they are assigned. The Limited License shall terminate upon the expiration or earlier termination of the Trial Term as provided herein. Upon expiration or earlier termination of the Trial, Customer agrees to, and to cause its Users to, immediately cease usage of the Offerings under the Trial.

The term “Offerings” includes anything Seismic makes available to Customer or its Users during the Trial, including Services, platforms, portals, communities, programs, technology, content, third-party content, downloadable elements, features, functionality, Documentation, user guides, updates, and other materials, services or products. Customer grants to Seismic and its Affiliates a worldwide, perpetual, irrevocable, assignable, transferable, royalty-free license to use, distribute, disclose, sublicense, commercialize, and incorporate into its services and products any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation or use of Seismic Offerings (“Feedback”), provided that such Feedback does not identify Customer, its Affiliates, or their respective Users, or include any Customer Content. Seismic will have no obligation to use Feedback to make any Improvement.

Seismic reserves the right to make changes or updates to, suspend, or discontinue, and terminate any or all of the Offerings at any time, without notice. If Seismic changes the name of a particular Offering, use or access to such Offering under a different name is still subject to these Trial Terms, the Agreement and the relevant Order Form

NO FEES FOR TRIAL. Unless otherwise expressly agreed in an Order Form, there are no fees for the Trial of the Offerings during the Trial Term for the specific Trial Usage Limit. Customer’s usage of the Trial Offerings in excess of the Trial Usage Limits will require Customer’s purchase of Paid Services.

CUSTOMER USE OF TRIAL OFFERINGS. Customer’s use of the Trial Offerings is subject to all restrictions on Customer’s use of Services in the Agreement, including Section 4.4. Customer agrees to provide reasonable cooperation to Seismic in connection with the Trial Offerings, including but not limited to: (a) implementing the Trial Offerings in accordance with Seismic's reasonable instructions and guidelines; and (b) promptly reporting any issues, bugs, or problems encountered with the Trial Offerings.

AVAILABILITY. Seismic does not offer a Service Level Agreement or commitment (“SLA”) for the Trial Offering or guarantee that any Trial Offering will be available to Customer or continued for Trial use unless and until Seismic elects to either make it commercially available as a part of a Seismic Service (which Customer agrees that Seismic has no obligation to do), and Customer purchases such Offering as Paid Services subject to a paid Order Form.

NO WARRANTIES OR LIABILITY. ANY STATEMENT, REPRESENTATION OR COMMUNICATION, OF ANY KIND, AMONG CUSTOMER, ITS AFFILIATES, THEIR RESPECTIVE PERSONNEL AND SEISMIC ABOUT ANY OF THE OFFERINGS OR THE TRIAL, ANY PUBLIC STATEMENTS OR WEBSITE INFORMATION ABOUT THE OFFERINGS OR SERVICES, PAID SERVICES, AND ANY RFP/RFI/SECURITY QUESTIONNAIRE RESPONSES, DO NOT CONSTITUTE A TERM OF THE OFFERINGS, TRIAL TERMS, AGREEMENT AND/OR ORDER FORM, OR AN EXPRESS OR IMPLIED WARRANTY. THE TRIAL OFFERINGS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. SEISMIC, ITS AFFILIATES AND THEIR RESPECTIVE THIRD-PARTY LICENSORS DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, INDEMNITIES AND GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ABOUT THE TRIAL OFFERINGS, INCLUDING WARRANTIES OF OR RELATING TO, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, TITLE, DATA LOSS, MALICIOUS ELEMENTS, QUALITY, SECURITY, PARTICULAR RESULTS, ERROR-FREE OR UNINTERRUPTED OPERATION, THIRD-PARTY CONTENT OR NON-SEISMIC PRODUCTS. THE TRIAL OFFERINGS ARE PROVIDED AS A CONVENIENCE, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT SEISMIC IS NOT OBLIGATED TO PROVIDE ANY PARTICULAR LEVEL OR KIND OF TECHNICAL SUPPORT, PHONE OR ONLINE SUPPORT, OR UPDATES OR IMPROVEMENTS FOR THE OFFERINGS. CUSTOMER AGREES THAT SEISMIC AND ITS AFFILIATES SHALL HAVE NO LIABILITY WHATSOEVER OF ANY TYPE WITH RESPECT TO A TRIAL AND TRIAL OFFERINGS, INCLUDING FOR (A) ANY ACTUAL OR ANTICIPATED LOST BUSINESS, SALES, DATA, PROFITS, REVENUES, GOODWILL, (B) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, BUSINESS INTERRUPTION OR PUNITIVE OR DAMAGES, OR (C) COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR TECHNOLOGY, IN EACH OF THE FOREGOING CASES WHETHER AN ACTION IS IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANOTHER THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE, UNLESS ANY SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE SEISMIC’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A TRIAL FOR THE TRIAL TERM IS ONE THOUSAND U.S. DOLLARS (US $1,000.00). CUSTOMER SHALL NOT USE THE TRIAL OR OFFERINGS IN A MANNER THAT VIOLATES APPLICABLE LAWS AND WILL BE FULLY LIABLE TO SEISMIC FOR ANY DAMAGES CAUSED BY ITS’ AND ITS USERS’ USE OF A TRIAL AND THE OFFERINGS. ANY CUSTOMER CONTENT, DATA AND CONFIGURATIONS ENTERED INTO CUSTOMER’S TRIAL ACCOUNT MAY BE PERMANENTLY LOST UPON EXPIRATION OR EARLIER TERMINATION OF THE TRIAL. ANY AND ALL SEISMIC INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT OR ANY OTHER CONTRACT BETWEEN SEISMIC AND CUSTOMER ARE NOT APPLICABLE TO THE TRIAL AND TRIAL OFFERINGS AND ARE HEREBY EXPRESSLY DISCLAIMED BY SEISMIC.

PROPRIETARY RIGHTS. As between the Parties, all right, title and interest in the Offerings, Services, all content, intellectual property therein and all other materials made available by Seismic during the Trial (“Seismic Property”) are owned solely by Seismic, its Affiliates, or its third-party licensors, as applicable. Seismic, its Affiliates and their respective third-party licensors do not convey to Customer, its Affiliates, and their respective Users or other employees, contractors, agents and representatives (“Personnel”) any interests, rights, or ownership in the Seismic Property or any derivatives, except the Limited Trial License subject to these Trial Terms. Seismic Property does not constitute work product or ‘work made for hire,’ and Customer, its Affiliates and their respective Personnel may not create, distribute, or use derivative products of the Trial Offerings or of any Seismic Property. As between the Parties, Customer reserves all of its rights, title and interests in and to its Customer Content.