This Pre-Release Agreement (“Agreement”) contains the exclusive terms and conditions between AppDynamics, Inc., a Delaware corporation, (“AppDynamics”) and you (and the organization you represent) (“You” or “Evaluator”) with respect to, and it governs your testing, evaluation and use of, the early-access, pre-release, alpha, beta or development build software provided by AppDynamics under this Agreement (“Software”). By accessing the Software described herein, you are consenting to be bound by and are becoming a party to the terms and conditions of this Agreement. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS THE SOFTWARE. Solely with respect to the Software, this Agreement applies in lieu of any other agreement you may have with AppDynamics.
1. Evaluation; Term.
For the period of time authorized by AppDynamics (or, if no time has been specified, 30 days) (the “Term”), You may download and/or access the Software and test the Software’s functionality and look and feel, but only to test, evaluate and provide feedback on the Software for its intended purpose internally within your organization. AppDynamics may terminate the Term upon notice to you at any time. You will not rent, sell, lease or otherwise transfer or allow access to the Software or any part thereof or use it for the benefit of a third party. AppDynamics reserves the right to change the Software at any time, for any reason and without notice or compensation to you. AppDynamics does not commit to provide any support or maintenance for the Software. This Agreement is not a guarantee of future product features and should not be relied upon in making any purchasing decisions. Actual product results may vary from forward-looking statements due to changes in AppDynamics and customer technologies, factors related to the economy and target markets, acquisitions of other companies, the hiring and termination of personnel and other factors. You will not reverse assemble, reverse compile or reverse engineer the Software, or otherwise attempt to discover any such Software source code or underlying Confidential Information (as defined below). From time to time as requested by AppDynamics you agree to provide feedback related to the Software as reasonably requested by AppDynamics. AppDynamics will own all right, title, and interest in such feedback and You hereby make all assignments necessary to accomplish the same. This agreement will commence on the date that you agree to this Agreement below and will continue for the Term. Sections 2 and 4-5 of this Agreement will survive any expiration or termination of this Agreement.
You acknowledge that, in the course of evaluating the Software, You will obtain information relating to the AppDynamics and the Software that is confidential in nature (“Confidential Information”). You agree that You will not disclose and will not use (except as expressly authorized by this Agreement) Confidential Information without the prior written consent of AppDynamics unless such Confidential Information becomes part of the public domain. For purposes hereof, the existence of this Agreement and any information related to the Software shall be Confidential Information.
3. WARRANTY DISCLAIMER
The parties acknowledge that the Software is experimental in nature and provided “AS IS.” APPDYNAMICS DISCLAIMS ALL WARRANTIES RELATING TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
4. Limitation of Remedies and Damages
OTHER THAN FOR A BREACH OF SECTION 1 OR 2, NEITHER PARTY WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SOFTWARE OR TECHNOLOGY, OR FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, OR (B) ANY OTHER AMOUNTS THAT EXCEED $5,000.
5. Equitable Relief, Miscellaneous.
You acknowledge and agree that due to the unique nature of AppDynamics’ Confidential Information, there can be no adequate remedy at law for any breach of Your obligations hereunder, that any such breach may allow You or third parties to unfairly compete with AppDynamics resulting in irreparable harm to AppDynamics, and therefore, that upon any such breach or threat thereof, AppDynamics will be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law, without any obligation to post a bond. In the event that any of the provisions of this Agreement will be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties pertaining to the Software, and any and all written or oral agreements previously existing between the parties are expressly cancelled. For the avoidance of doubt, solely with respect to the Software, this Agreement supersedes click-through agreements that may be presented to You. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by You, and any such attempted assignment or transfer will be void and without effect. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions therein.