IMPORTANT: THIS EVALUATION AGREEMENT (THE "AGREEMENT") CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN MATCHBOX, INC., A DELAWARE CORPORATION ("MATCHBOX") AND YOU (AND THE ORGANIZATION YOU REPRESENT) ("YOU" OR "EVALUATOR") AND IT GOVERNS YOUR TESTING, EVALUATION AND USE OF THE EVALUATION VERSION OF THE MATCHBOX SOFTWARE AND RELATED SERVICES TO WHICH MATCHBOX GIVES YOU ACCESS (COLLECTIVELY, "MATCHBOX SERVICES").
BY ACCESSING THE MATCHBOX SERVICES FOR THE EVALUATION PURPOSES 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 MATCHBOX SERVICES. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF MATCHBOX SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY.
WHEREAS, Evaluator is interested in evaluating the Matchbox Services and is aware of the experimental and untested nature of the Matchbox Services, and
WHEREAS, Matchbox is interested in allowing Evaluator to evaluate the Matchbox Services:
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, the parties hereby agree as follows:
1. Evaluation. For a period of 30 days beginning from the date that you click on the accept button below (the "Term"), you may access the Matchbox Services and test the Matchbox Services functionality and look and feel, but only to evaluate the Matchbox Services for the intended purpose of the Matchbox Services. Matchbox shall own all right, title, and interest in the feedback and suggestions you provide and you hereby make all assignments necessary to accomplish the same. YOU ACKNOWLEDGE THAT CERTAIN SOFTWARE OR ASPECTS OF THE MATCHBOX SERVICES PROVIDED HEREUNDER MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE EVALUATION PERIOD AND/OR USE INCONSISTENT WITH THIS AGREEMENT.
2. Confidentiality; Security. You acknowledge that, in the course of evaluating the Matchbox Services, you will obtain information relating to the Matchbox and the Matchbox Services which is confidential in nature (“Confidential Information”). You agree that you will not disclose Confidential Information without the prior written consent of Matchbox unless such Confidential Information becomes part of the public domain. Matchbox agrees to take reasonable steps to hold in confidence the sample applicant data you provide via the Matchbox Services and not to use (except for the performance of the Matchbox Services) any such applicant data. Note that Matchbox may retain and collect data with respect to and report on the aggregate response rate and other aggregate measures of the Matchbox Services’ performance. You agree not to send any sample applicant data via e-mail to Matchbox. Matchbox will provide a file repository to you for the exchange of such sample applicant data, and such data will be deleted from the repository upon the earlier of the termination of this Agreement or your request prior to the termination date.
3. Term/Termination. This agreement will commence on the date that you first accept the terms of this agreement by clicking "yes" below and shall continue for the Term. Sections 2 and 4-8 of this Agreement will survive any expiration or termination of this Agreement.
4. WARRANTY DISCLAIMER. The parties acknowledge that the Matchbox Services are experimental in nature and that the Matchbox Services are provided "AS IS." MATCHBOX DISCLAIMS ALL WARRANTIES RELATING TO THE MATCHBOX SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
5. Limitation of Remedies and Damages. MATCHBOX SHALL NOT 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, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. MATCHBOX SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
6. Equitable Relief. You acknowledge and agree that due to the unique nature of Matchbox's 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 Matchbox resulting in irreparable harm to Matchbox, and therefore, that upon any such breach or threat thereof, Matchbox shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
7. Miscellaneous. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by you, and any such attempted assignment or transfer shall be void and without effect. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the conflicts of laws provisions therein.
8. BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.