This Evaluation Subscription Agreement (this “Agreement”) is between You and Fugue, Inc., a Delaware corporation (“Fugue”). Notwithstanding anything to the contrary in this Agreement, if You enter or have entered into a Master Subscription Agreement with Fugue (the “Subscription Agreement”), the Subscription Agreement, and not this Agreement, shall govern the relationship between You and Fugue in connection with the Fugue service made available to You via the Internet (the “Service”).

PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “I ACCEPT” BUTTON LOCATED ON THIS PAGE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE CLICK THE “CANCEL” BUTTON ON THIS PAGE. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE GRANTED ACCESS TO THE SERVICE.

IN ADDITION, BY CLICKING THE “I ACCEPT” BUTTON LOCATED ON THIS PAGE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE AND HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS THE COMPANY YOU WORK FOR, YOU REPRESENT TO FUGUE THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY. REFERENCES TO “YOU” AND “YOUR” IN THIS AGREEMENT REFER TO BOTH THE INDIVIDUAL ACCEPTING THIS AGREEMENT AND THE ENTITY ON WHOSE BEHALF THE INDIVIDUAL IS ENTERING INTO THIS AGREEMENT (IF APPLICABLE).

  1. GRANT OF RIGHTS

1.1 Evaluation Right.  Subject to the terms and conditions of this Agreement, Fugue shall permit You and Your employees, contractors or agents who are permitted by You to use the Service (“Users”) to access and use the Service during the Evaluation Term solely for Your internal business purposes and solely in accordance with the manuals, documentation and any other supporting materials relating to the Service provided to You by Fugue in connection with this Agreement (the “Documentation”). The Service may only be accessed through User accounts. Except as provided in this Agreement, no other right or license of any kind is granted by Fugue to You with respect to the Service.

1.2 Support; Updates.  Fugue will provide support to You and the Users in connection with the Service through Fugue’s generally available online ticketing and support system (“Support Services”). Support Services may also include certain implementation, onboarding, and other professional services at Fugue’s discretion. Notwithstanding the foregoing, Fugue has no obligation to support the Service in any way, nor to provide any modifications, error corrections, bug fixes, new releases or other updates to the Service (each, an “Update”). In the event that Fugue, in its sole discretion, makes available any Update to You, such Update shall be deemed to be part of the Service for the purposes of this Agreement and shall be subject to the terms and conditions of this Agreement. For the avoidance of doubt, Fugue will have no duty to provide any support for any software or services made available by a party other than Fugue that may be used in connection with the Service that are necessary or advisable in order for You to exploit the functionality of any part of the Service (“Third Party Products”).

1.3 Third Party Products.  It is Your responsibility to obtain the right to use any Third Party Products that may be necessary to access or use the Service. You are responsible for all fees charged by providers of such Third Party Products (“Third Party Providers”) and for complying with the terms and conditions of all agreements between You and any Third Party Providers.

1.4 Access; Limitations.  You may create User accounts to be used by Users to access and use the Service. User accounts may only be created for individuals (e.g., team or departmental accounts are prohibited). Each User must provide his or her full legal name, a valid email address, and any other information requested during the account sign-up process in order to obtain User credentials. Access to and use of the Service by the Users will be subject to the service limitations described in this Agreement. You shall ensure that all information associated with each User account remains complete and accurate and that all Users keep their credential details confidential and not share them with third parties. You will promptly notify Fugue if there is any unauthorized disclosure or misuse of any User credentials, or any unauthorized access to or use of the Service. You are solely responsible for all activities that occur using the User credentials.

1.5 Availability.  Fugue does not guarantee that access to or use of the Service will be continuous, uninterrupted or error free. Unforeseen downtime and unscheduled remedial maintenance of the Service or Fugue’s cloud provider’s equipment, software or Internet access may interrupt Your or Users’ ability to access or use the Service.

1.6 Restrictions.  You will not: (a) assign, sublicense, market, sell, lease, rent, distribute, convey or otherwise make the Service available to any third party (other than Users); (b) access or use the Service for any purposes other than as set forth in this Agreement; (c) adapt, alter, modify, translate or create derivative works of the Service or any Documentation; (d) access or use the Service in any manner not in compliance with applicable laws; (e) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code of the Service; (f) interfere with or disrupt (or attempt to interfere with or disrupt) the integrity or performance of the Service or the data contained therein; (g) access or use the Service for volume, stress, security, or performance testing activities without prior written permission from Fugue; (h) access or use the Service to develop a similar or competitive product or service; or (i) access or use the Service to permit or enable third parties to circumvent or exceed User account limitations or requirements.

1.7 Retained Rights.  Except for the rights granted to You in this Agreement, Fugue retains all right, title and interest in and to the Service and the Documentation.

 

2.  DATA AND COMPLIANCE WITH LAWS

2.1 Data.  The Service collects and stores data about Your interaction with the Service and Your cloud infrastructure (including the configuration thereof), as well as certain other information (including personally identifiable information) about You and Users (“Data”). You hereby grant to Fugue a non-exclusive and non-transferable right and license to reproduce, distribute, transmit, display, reformat, modify, create derivative works of, and otherwise use the Data during the Evaluation Term in order to operate the Service and to create Aggregated Data.  The parties agree that (i) You own all Data, and (ii) Fugue owns all Aggregated Data. “Aggregated Data” means Data in aggregated and de-identified form that will not allow a third party to identify You or Users based on such data. The Service enables You to configure the Service settings, and provides information about best practices, designed to prevent collection of Your personally identifiable information by Fugue. Fugue will have no liability to You or any third party for the transfer or provision of such personally identifiable information to Fugue in connection with the Service.

For further details on information collected by Fugue, see Fugue’s privacy policy found at https://fugue.co/privacy. In the event of any conflict in between the terms of this Agreement and Fugue’s privacy policy, the terms of this Agreement shall supersede and govern Fugue’s relationship with You regarding the Data.

2.2 Export Control.  Your and Users’ access to and use of the Service is subject to export laws, regulations, orders, or other restrictions imposed by the U.S. government (including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State). You represent, warrant, and covenant that (a) You and Users are not located in, and shall not access or use the Service from, any country sanctioned by OFAC (https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx), and (b) You and Users are not denied parties as specified in the regulations listed above. You shall comply with all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Notwithstanding any other provision of this Agreement to the contrary, You will not import, export or re-export, sell, transfer, divert, or otherwise dispose of, directly or indirectly, the Service or related information to any country, other destination, or person to which such import, export, or re-export is restricted or prohibited, or as to which any such government or any agency thereof requires an export license or other governmental approval at the time of such import, export, or re-export without first obtaining such license or governmental approval.

2.3 Regulated Data.  You agree that: (a) Fugue is not acting on Your behalf as a Business Associate or subcontractor; (b) the Service may not be used to store, maintain, process or transmit protected health information (“PHI”); and (c) the Service will not be used in any manner that would require Fugue or the Service to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”), payment card industry data security standards (“PCI DSS”) requirements, or other law or regulations governing personal information or sensitive data. In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected health information” and “PHI” have the meanings ascribed to them in HIPAA. The Service is not directed to children under 13 years of age and Fugue does not knowingly collect data from individuals under the age of 13.

2.4 Security.  Fugue will maintain reasonable administrative, physical, and technical measures designed to maintain the security, confidentiality and integrity of the Data stored in the Service.

2.5 Compliance with Laws.  Fugue will comply with all laws and regulations applicable to Fugue’s provision of the Service. You are solely responsible for Your and Users’ compliance with applicable laws and regulations governing Your and Users’ access to or use of the Service.

 

3.  PROPRIETARY RIGHTS


3.1
Ownership.  As between You and Fugue, Fugue or its licensors own all right, title, and interest in and to the Service and Documentation. All enhancements, improvements, and modifications to and derivative works of the Service and Documentation, whether made by You or Fugue, shall be the sole and exclusive property of Fugue, and You hereby assign to Fugue all of Your rights in such enhancements, improvements, modifications and derivative works.

3.2 Feedback.  You acknowledge and agree that any comments, ideas and/or reports provided or otherwise made available by You or Users to Fugue regarding the Service or Documentation or Fugue’s other products or services (“Feedback”) will be Fugue’s proprietary and confidential information, and You hereby irrevocably transfer and assign to Fugue all intellectual property rights embodied in or arising in connection with such Feedback, and any other rights or claims that You may have with respect to any such Feedback. Fugue, in its sole discretion, may freely utilize all Feedback, whether written or oral, furnished by You to Fugue, without attribution or compensation of any kind.

4. DISCLAIMERS; LIMITATION OF LIABILITIES


4.1
General Disclaimer.

4.1.1 THE SERVICE, THE SUPPORT SERVICES AND THE DOCUMENTATION ARE PROVIDED “AS IS” AND FUGUE DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, RELATING THERETO, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. FUGUE DOES NOT GUARANTEE THAT THE SERVICE, THE SUPPORT SERVICES, OR THE DOCUMENTATION WILL BE UNINTERRUPTED, ERROR FREE, RELIABLE OR FREE OF HARMFUL COMPONENTS OR THAT BUGS OR MALFUNCTIONS WILL BE CORRECTED. IN ADDITION, UNDER NO CIRCUMSTANCES SHALL FUGUE BE RESPONSIBLE OR LIABLE FOR ANY ACTIONS OR OMISSIONS OF ANY CLOUD SERVICE PROVIDER (FOR EXAMPLE, MICROSOFT AZURE OR AMAZON WEB SERVICES) IN CONNECTION WITH THE SERVICE OR FUGUE'S PERFORMANCE OF THE SUPPORT SERVICES.


4.1.2
FUGUE MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS. FUGUE DOES NOT REPRESENT OR IMPLY THAT IT ENDORSES ANY THIRD PARTY PRODUCTS, OR THAT IT BELIEVES THE OPERATION OF ANY THIRD PARTY PRODUCTS WILL BE ACCURATE, USEFUL OR NON-HARMFUL. THIRD PARTY PRODUCTS MAY HAVE TECHNICAL INACCURACIES, MAY CAUSE MISTAKES OR ERRORS, AND MAY TRANSMIT, STORE, OR OTHERWISE MANIPULATE DATA IN A MANNER THAT IS OBJECTIONABLE TO YOU. YOU ARE RESPONSIBLE FOR TAKING PRECAUTIONS TO PROTECT YOURSELF AND USERS (IF APPLICABLE) AND YOUR COMPUTER SYSTEMS IN CONNECTION WITH THE USE OF THIRD PARTY PRODUCTS.

 

4.2 Limitation of Liability.  IN NO EVENT WILL FUGUE BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF FUGUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FUGUE’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED FIFTY ($50) DOLLARS.


4.3
No Professional Advice.  All information, materials, content and/or advice provided by Fugue through the Service or associated Documentation or Support Services is for informational purposes only and is not intended to replace or substitute for (a) any professional advice, or (b) Your independent obligation to comply with applicable laws and regulations. Fugue expressly disclaims, and You expressly release Fugue from, any and all liability concerning any diagnosis, treatment, or action arising or learned from the information offered or provided within or through the Service.

 

5. TERM; SUSPENSION; TERMINATION


5.1
Term.  Unless earlier terminated in accordance with this Section 5, this Agreement shall commence on the date that You accept this Agreement (the “Effective Date”) and remain in effect for ten (10) days from the Effective Date (“Evaluation Term”).


5.2
Suspension or Termination.  Fugue may suspend or terminate this Agreement without notice to You at any time at Fugue’s discretion, for any or no reason, including, without limitation, if You or any User are not complying with this Agreement, or if You or any User accesses or uses the Service. in a manner that would cause liability to Fugue or otherwise disrupt the Service.

5.3 Effect of Termination.  Upon the expiration or any termination of this Agreement, all rights granted to You under this Agreement will immediately terminate. The provisions of Sections 1.6, 1.7, 2.1, 2.2, 2.5, 3, 4, 5.3, 6 - 9 will survive termination or expiration of this Agreement. Fugue reserves the right to delete all Data from its systems following expiration or termination of this Agreement, and Fugue will have no liability to You for such deletion.

 

6. CONFIDENTIALITY 


In the course of performance of this Agreement, You or Fugue may obtain information from the other party which it knows or has reason to know is of a confidential and/or proprietary nature to the disclosing party (“Confidential Information”). Without limiting the above (a) the Service, the Documentation, the Feedback, the Aggregated Data, and any product roadmap relating to the Service is Fugue’s Confidential Information, and (b) Data is Your Confidential Information. Except as expressly stated in this Agreement, during the Term and at all times thereafter, neither party may disclose any such Confidential Information to any third party, nor may either party use such Confidential Information of the other party for any purpose, other than as permitted herein. The receiving party shall take the same degree of care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid unauthorized use or disclosure of Confidential Information of the disclosing party. Confidential Information will not include any information which: (a) is or becomes readily available to the trade or public through no fault of the receiving party; (b) is subsequently lawfully and in good faith obtained by the receiving party from an independent third party without breach of this Agreement; (c) the receiving party can establish that the information was in its possession prior to the date of disclosure of such Confidential Information by the disclosing party; or (d) is developed independently by the receiving party without reference to any Confidential Information of the disclosing party. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent such disclosure is required by applicable law, a court of competent jurisdiction, or a governmental agency.

 

7.  INDEMNIFICATION

You will defend, indemnify, and hold harmless Fugue, its officers, directors, employees and agents (the “Fugue Indemnified Parties”) from and against any and all claims, damages, costs, expenses (including attorney’s fees and court costs) and liabilities (including settlements) brought or asserted by any third party against a Fugue Indemnified Party arising out of or relating to Your or any User’s breach of the terms or conditions in this Agreement.

 

8. FORCE MAJEURE

Fugue shall not be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosions, earthquakes, floods, wars, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond its reasonable control.

 

9. GENERAL

9.1 Entire Agreement.  This Agreement constitutes the complete and exclusive agreement between You and Fugue in connection with the subject matter hereof. Except as expressly set forth herein, this Agreement will not be modified unless both You and a Fugue authorized representative execute a separate written instrument modifying the Agreement.

9.2 Relationship of the Parties.  Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties.  Neither party nor its agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.

 

9.3 Severability.  If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances and in other jurisdictions, or of the remaining provisions under all circumstances. Any delay or failure by either party to this Agreement to exercise any of its rights hereunder will not constitute or be deemed a waiver or forfeiture of such rights.

9.4 Assignment.  You may not assign this Agreement, in whole or part, whether voluntarily, in connection with a merger or acquisition, by operation of law or otherwise, without the prior written consent of Fugue. Subject to the preceding sentence, the rights and liabilities of the parties hereto shall bind, and inure to the benefit of, their respective assignees and successors and is binding on the parties and their successors and assigns.  Any attempted assignment other than in accordance with this Section shall be null and void.

9.5 Governing Law.  This Agreement is to be construed in accordance with and governed by the internal laws of the State of Maryland (but expressly excluding the Uniform Computer Information Transactions Act (“UCITA”) as enacted in Maryland) without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Maryland (excluding UCITA) to the rights and duties of the parties. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. Any dispute arising out of this Agreement or the subject matter thereof shall be submitted to exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for the District of Maryland, or, if there is no jurisdiction in such court, to the state courts having jurisdiction over Fredrick County, Maryland.

9.6 Restricted Rights. All software and any technical data contained in the Service and the Documentation are “commercial items,” as defined in 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. §12.212.  The use, duplication, reproduction, release, modification, disclosure or transfer of the Service and the Documentation, and any data relating thereto or derived therefrom, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable.  This is in lieu of, and supersedes, any Federal Acquisition Regulations (“FAR”), the Defense FAR Supplement (“DFARS”), or other agency supplemental clause or provision that addresses government rights in computer software or technical data.

9.7 No Third Party Beneficiary.  This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.

9.8 Waiver.  The waiver by either party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
 

9.9 Communications.  You (a) consent to receive communications from Fugue in an electronic form; and (b) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that Fugue provides to You electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Your consent to receive Communications and do business electronically, and this agreement to do so, applies to all of Your interactions and transactions with Fugue. If You have any questions or comments about this Agreement, please contact Fugue at privacy@fugue.co.