Limited Availability Program Agreement

 

  1. Right to Participate in Limited Availability Program. Zuora, Inc. (“Zuora”) hereby grants to the company or other legal entity (“Participant”) that signs an Order Form which is subject to this Limited Availability Program Agreement (“Agreement”) the limited, non-exclusive, non-transferable, non-assignable, revocable and worldwide right to access and use during the term of this Agreement the feature, program and/or other material provided by Zuora under this Agreement (collectively, the “Pre-Release Functionality”), solely for Participant’s internal evaluation of the Pre-Release Functionality (the “Purpose”). Participant understands that this feature is not yet generally available, is still under development and may not ever be commercially released. The Pre-Release Functionality is provided solely under the terms of this Agreement and is not subject to the terms of Participant’s Master Subscription Agreement or any other agreement with Zuora (e.g., the support, SLA, warranty, security or any other terms applicable to Zuora’s subscription Service). Zuora reserves the right to enhance or otherwise change the Pre-Release Functionality.

 

  1. Limitation on Use and Participant Responsibilities.  

2(a). Participant agrees to not release to any third party the results of any evaluation of the Pre-Release Functionality performed by or on behalf of Participant for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of Zuora.

2(b). Participant agrees to use, test, and evaluate thie Pre-Release Functionality and provide feedback to Zuora regarding the Pre-Release Functionality on a regular basis. This may come in the form of short questionnaires or live interactions with the Zuora Service and product team. Any such information shall become the sole and exclusive property of Zuora.

2(c). Participant must not (a) commercially exploit the Pre-Release Functionality by licensing, sublicensing, selling, reselling, transferring, assigning, distributing or otherwise make available to any third party the Pre-Release Functionality in any way; (b) modify or make derivative works based upon the Pre-Release Functionality; (c) reverse engineer the Pre-Release Functionality; or (d) access the Pre-Release Functionality in order to build a product or service that competes with the Pre-Release Functionality or Service. Participant is responsible for all activity occurring under Participant’s User accounts. Participant must: (i) notify Zuora immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Pre-Release Functionality; and (ii) report to Zuora immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of any proprietary information of Zuora, or Pre-Release Functionality that becomes known or suspected by Participant or Participant Users.

2(d). If the Participant has a satisfactory experience with the Pre-Release Functionality, Participant must engage with Zuora for the following:

(i) Provide quotes about the benefits of the Pre-Release Functionality that Zuora can use to market the Pre-Release Functionality (for example, in a Product Announcement or a Press Release), if and when incorporated into the Zuora Service;

(ii) Participate in press or analyst interviews on Zuora’s behalf and/or work with Zuora on a case study/success story to be published on Zuora.com; and

(iii) Use of Participant’s logo in specific marketing materials and on Zuora.com.

 

  1. Term and Termination. If Participant accesses or uses Pre-Release Functionality, then the term of this Agreement commences on the date when Participant first accesses the Pre-Release Functionality and ends at Zuora’s sole discretion by providing Participant with at least five (5) days prior notice. Zuora will not have any obligations or liability with respect to data remaining on the Pre-Release Functionality, if any, after termination.

 

  1. The Pre-Release Functionality constitutes confidential, proprietary and trade secret information of Zuora. Participant shall not, without the express prior written consent of Zuora, (a) use it for any purpose other than the Purpose, or (b) provide any third party access to the Pre-Release Functionality or disclose to any third party any features, functions or aspects of the Pre-Release Functionality. Without limiting the foregoing, Participant shall not make any public statement or discuss with any third party (including, without limitation, any representative of a broadcast media organization or a print or Web-based publication) any features, functions or aspects of the Pre-Release Functionality without Zuora’s prior written consent.

 

  1. No Warranty or Damages. THE PRE-RELEASE FUNCTIONALITY IS PROVIDED “AS-IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. ZUORA DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PRE-RELEASE FUNCTIONALITY CONTAINS BUGS AND/OR ERRORS AND IS NOT INTENDED FOR PRODUCTION USE. IN NO EVENT SHALL ZUORA’S AND ITS LICENSORS AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL ZUORA BE LIABLE TO PARICIPANT FOR ANY DIRECT, SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA, ARISING OUT OF THE USE OR INABILITY TO USE THE PRE-RELEASE FUNCTIONALITY EVEN IF ZUORA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

  1. This Agreement shall be governed by the laws of the State of California without regard to its conflicts of law rules, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Pre-Release Functionality shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara, California. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. This Agreement may be modified only if authorized representatives of both parties consent in writing. Failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. Any waiver to be effective must be signed by an authorized officer of both parties. If any provision of this Agreement is held illegal, invalid, or unenforceable, that provision shall be deemed amended to achieve an economic effect as near as possible to that provided by the original provision and the legality, validity, and enforceability of the remaining provisions of this Agreement shall not be affected. All legal notices (i.e. claimed breach or termination of this Agreement or an Order Form) required to be provided under this Agreement must be delivered in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified US mail to the other party at the address set forth in the applicable Order Form or as otherwise communicated to the other party in writing.   All other notices from Participant to Zuora may be made by emailing notices@zuora.com and Zuora may give notice by emailing Participant contact as specified on the applicable Order Form.