EVERNOTE TERMS OF SERVICE ADDENDUM
EARLY TESTING PROGRAM
This Evernote Terms of Service Addendum (the “Addendum”) governs your access to and use of a non-public, not generally available, early prototype version of the Evernote Service (collectively, the “Prototype Service”), and hereby amends and is incorporated into the Evernote Terms of Service between Evernote and you as of the date you agree to this Addendum (“Addendum Effective Date”).
You are invited to evaluate the Prototype Service beginning on the Addendum Effective Date, and ending on the sooner of either (a) the date Evernote launches a public beta of the Prototype Service, or (b) Evernote terminates this Addendum in accordance with Section 8 below (such period, the “Evaluation Period”).
Any capitalized terms in this Addendum shall have the meanings supplied herein or in the Evernote Terms of Service, or other applicable agreement relating to your use of the Evernote Service (collectively, the “Standard Terms”). The Standard Terms shall apply to the Prototype Service except as otherwise agreed. If there is any conflict between the Addendum and the Standard Terms, the Addendum shall govern with respect to the Prototype Service only, and the Standard Terms shall govern in all other matters. This Addendum shall have no applicability to any Service other than the Prototype Service.
Clicking “I ACCEPT”, checking a box stating that you have read and agree to the Addendum, or otherwise indicating your acceptance to the Addendum is a necessary condition to receiving access to the Prototype Service. By indicating your acceptance to the Addendum you are agreeing to the terms set forth herein.
1. License. Evernote hereby grants you a limited-term, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the Prototype Service internally during the Evaluation Period. Except as expressly provided in this Addendum, you have no rights to access or use the Prototype Service. For clarity, Evernote and its licensors shall own all right, title, and interest in and to the Prototype Service. Evernote reserves all rights not expressly granted to you in this Addendum.
2. Use and Responsibility. You acknowledge that you responsible for any use and access to the Prototype Service originating from your account. The Prototype Service (including any Prototype Service feature names) is the Confidential Information of Evernote, and is experimental, pre-release, and may not function as expected.
3. Trade Secrets and Confidentiality. You acknowledge that the Prototype Service is confidential and proprietary to Evernote and contains trade secrets. You hereby agree that you shall not disclose any information relating to the Prototype Service (including, but not limited to, its existence, name, design and performance capabilities, the results of any performance/benchmark tests, and any authorization codes or license keys) to third parties without the prior written permission from Evernote. You shall treat all information regarding the Prototype Service provided by Evernote as Evernote Confidential Information, subject to non-disclosure obligations under the Standard Terms.
4. Feedback. Feedback and other information which is provided by your or derived by Evernote in connection with this Addendum may be used by Evernote to improve or enhance its Service and Evernote shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, modify and otherwise exploit such feedback and information without restriction, provided that the public disclosure of any such feedback or information identifiable to you shall only be by the mutual agreement of you and Evernote.
5. Support and Updates. Notwithstanding anything to the contrary in the Standard Terms:
a. Evernote shall have no obligation to support or provide support services to you relating to the Prototype Service. Evernote may, however, make such services available to you at its sole discretion.
b. Evernote may from time to time make available updates, enhancements and/or modifications to the Prototype Service and may, at its sole discretion, provide such updates to you, but is under no obligation to do so. The provision by Evernote to you of such updates, enhancements and/or modifications to the Prototype Service shall be subject to all covenants and conditions of this Addendum, including, but not limited to, the restrictions on your use of the Prototype Service and Evernote’s disclaimer of warranties.
6. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL EVERNOTE OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PARTY FOR DAMAGES OF ANY KIND ARISING FROM THIS ADDENDUM OR THE USE OF THE PROTOTYPE SERVICE, WHETHER RESULTING FROM TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHER FORM OF ACTION, INCLUDING BUT NOT LIMITED TO LOSS OR INACCURACY OF DATA, INTERRUPTION OF USE, LOSS OF PROFITS OR REVENUE, OR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF EVERNOTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Warranty. YOU ACKNOWLEDGE AND AGREE THAT THE PROTOTYPE SERVICE IS IN AN EARLY STAGE OF DEVELOPMENT, IS EXPERIMENTAL AND THAT EVERNOTE DOES NOT WARRANT THE PROTOTYPE SERVICE IN ANY WAY, INCLUDING BUT NOT LIMITED TO PERFORMANCE OR FEATURES OF THE PROTOTYPE SERVICE. ALL WARRANTIES REGARDING THE PROTOTYPE SERVICE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED BY EVERNOTE.
THE PROTOTYPE SERVICE IS PROVIDED “AS IS” FOR EVALUATION AND TESTING PURPOSES ONLY, AND OWING TO ITS EXPERIMENTAL NATURE, YOU ARE ADVISED NOT TO RELY ON THE FEATURES OR PERFORMANCE OF THE PROTOTYPE SERVICE FOR ANY REASON. YOU AGREE TO USE THE PROTOTYPE SERVICE WITH ALL DUE CAUTION, AND TO TAKE EVERY PRECAUTION TO ENSURE THE INTEGRITY OF DATA, HARDWARE, AND SOFTWARE IN THE SOFTWARE'S OPERATING ENVIRONMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE STANDARD TERMS, YOU FURTHER AGREE THAT EVERNOTE SHALL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF EVERNOTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Term and Termination. Evernote shall have the right, at its sole discretion, to terminate this Addendum immediately with or without cause upon written notice to you. In addition, this Addendum shall terminate automatically upon any termination of the Evernote Terms of Service between you and Evernote. Sections 3 and 5 - 9 shall survive any termination or expiration of this Addendum.
9. Commercial Availability. Nothing in this Addendum shall be deemed to require Evernote to make the Prototype Service commercially available on any particular date nor does Evernote make any such representation or warranty, express or implied, regarding any such commercially available version. Nothing in this Addendum shall be deemed to convey to you the rights to use a commercially released version of the Prototype Service or any components thereof, if and when such are available. Use of such commercial product shall be subject to the Evernote Terms of Service or such other terms and conditions as Evernote requires in connection with such service.
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