Repsly Beta Subscription Agreement

(EXISTING CUSTOMER)

The following Repsly Beta Subscription Amendment, together with any executed purchase order referencing it (an “Order”) combine to constitute an agreement (the “Agreement”) between Repsly, Inc., a Delaware corporation located at 55 Summer Street, 3rd Floor, Boston, MA 02110 (“Repsly” or “we”), and the customer identified in the Order (“Customer” or “you”). Customer is an existing customer of Repsly, and this Amendment modifies the existing agreement between Customer and Repsly (the “Existing Agreement”) as of the date of the Order (the “Effective Date”), solely with respect to Customer’s use of, and Repsly’s provision of, the Beta Service (defined below) and the Beta Software (defined below). Capitalized terms used in this Amendment and not otherwise defined shall have the meanings given to them in the Existing Agreement.

By executing the signature page to an Order, and in consideration of the mutual promises, intending to be legally bound, Repsly and Customer hereby agree as follows:

WHEREAS, Customer desires to obtain a short-term, royalty-free subscription to evaluate certain new features and/or functionality that Repsly is contemplating making generally available to determine whether to enter into a paid subscription for such additional features and/or functionality after their improvement and general commercial release; and

WHEREAS, Repsly is willing to grant such a subscription, subject to Customer’s providing information and feedback concerning Customer’s use of the new features and/or functionality.

NOW THEREFORE, in consideration of the mutual promises set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1. DEFINITIONS

(a) “Approved Users” means individuals who are authorized by Customer to access and use the Beta Software and who have been supplied user identifications and passwords pursuant to the Existing Agreement.

(b) “Beta Service” means access to the Beta Software, as more fully described in the Order Form, that Customer licenses or otherwise receives the right to access from Repsly pursuant to the terms set forth herein and in the Existing Agreement on a “software-as-a-service” basis.

(c) “Beta Software” means a beta version of Repsly computer software program for additional features and functionality made available by Repsly for remote access and use by Customer hereunder.

(d) “Order Form” means the order form attached hereto as Exhibit A.

1.1 Grant of License. Subject to Customer’s performance of its obligations under the Agreement, Repsly grants to Customer a limited, non-exclusive, non-assignable right and license to use the Beta Service and the Beta Software remotely during the Term of the Agreement for the number of Approved Users specified in the Order Form (the “License”).

Updates and Enhancements. The Beta Software and its features and functionality are subject to change by Repsly from time to time as implemented in updated or enhanced versions of the Beta Software.


2. RESTRICTIONS

Customer agrees that it shall not itself, or through any parent, subsidiary, affiliate, agent or any other third party: (a) make the Beta Software available to anyone other than Approved Users, (b) sell, resell, lease, license, sublicense, or otherwise transfer to others any rights in the Beta Software; (c) use the Beta Software or the Beta Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the Beta Software or the Beta Service or third-party data contained therein, (e) except for use as contemplated in Section 1 herein, use the Beta Software or the Beta Service to provide processing services to third parties, to provide commercial timesharing, rental or sharing arrangements to any third parties, on a “service bureau” basis or otherwise; or (f) use any portion of the Beta Software or the Beta Service in any manner except as expressly provided in the Agreement.

3. INFORMATION AND FEEDBACK

As consideration for the royalty-free subscription granted herein, Customer agrees to advise Repsly in writing (including e-mail) of any problems or bugs in connection with the operation of the Beta Service or Beta Software. Additionally, Customer agrees to meet with Repsly at mutually agreed times during the period to report on the operation of the Beta Service. Customer grants Repsly, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: to make, use, copy, modify, and create derivative works of, the Customer’s suggestions, comments and other feedback provided hereunder (the “Feedback”) and to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties. The rights granted to Repsly hereunder shall survive any termination or expiration of this Amendment.

4. LIMITED CUSTOMER SUPPORT

Customer acknowledges that Repsly has not yet fully developed a technical support manual and has not fully developed its technical support parameters for the Beta Software. Repsly reserves the right to cease any and all customer support in the event Customer is delinquent in the payment of any fees due and payable to Repsly.


5. LIMITED WARRANTIES AND LIMITATION OF LIABILITY; RESPONSIBILITY FOR THIRD PARTIES

5.1 Warranty Exclusions.

BETA CUSTOMER ACKNOWLEDGES THAT THE BETA SOFTWARE IS BETA TEST SOFTWARE AND MAY CONTAIN BUGS AND MAY CAUSE DATA LOSS.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AMENDMENT, THE BETA SOFTWARE IS PROVIDED AS-IS AND AS AVAILABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AMENDMENT REPSLY AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. BETA CUSTOMER AND USERS ASSUME ALL RESPONSIBILITY FOR THEIR USE OF THE BETA SERVICE AND THE BETA SOFTWARE, AND REPSLY ASSUMES NO RESPONSIBILITY FOR SUCH USE.
BETA CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF THE BETA SERVICE AND THE BETA SOFTWARE, INCLUDING BUT NOT LIMITED TO THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR SOFTWARE PROGRAMS OR UNAVAILABILITY OR INTERUPTION OF OPERATIONS. BETA CUSTOMER IS SOLELY REPSONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USE OF THE BETA SERVIUCE AND ASSUMES ALL RISKS ASSOCIATED WITH ITS USE.

5.2 Liability Limitations.

REPSLY SHALL NOT BE LIABLE TO BETA CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF RECREATING LOST DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AMENDMENT. IN CONSIDERATION OF THE ROYALTY-FREE NATURE OF THE SUBSCRIPTION HEREUNDER, BETA CUSTOMER AGREES THAT REPSLY SHALL HAVE NO LIABILITY TO BETA CUSTOMER UNDER THIS AMENDMENT.

6. CONFIDENTIAL INFORMATION

Data and information provided under this Amendment shall be treated as “Confidential Information” under the Existing Agreement (or “Proprietary Information” or such other defined term used in the Existing Agreement).

7. TERM AND TERMINATION

7.1 Initial Term.

This Amendment shall be effective commencing on the Effective Date until otherwise terminated in accordance with this Amendment (the "Initial Term").

7.2 Termination for Convenience.

Either party may terminate this Amendment for any reason or no reason, by written notice to the other party, to take effect ten (10) days after such notice.

7.3 Effect of Termination.

(a) POST TERMINATION OBLIGATIONS. Upon termination of this Amendment, Customer will immediately cease, and cause all Users to cease, any use of the Beta Service and the Beta Software.

Customer may only extend its use of the Beta Service pursuant to an executed services agreement on mutually acceptable terms, including the payment of subscription fees.

(b) SECTION 5, SECTION 6, and SECTION 7.3 shall survive any termination or expiration of the Agreement. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.

8. GENERAL

Except as expressly provided herein, this Amendment makes no changes to the Existing Agreement.