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Preview agreement

Last updated: 5 July, 2020

Welcome to Particular Software's Preview Program. We encourage your use of the Preview software and very much welcome your feedback about the Preview software.

IMPORTANT - READ CAREFULLY THE TERMS AND CONDITIONS OF THIS PREVIEW AGREEMENT (THIS "AGREEMENT") BEFORE CLICKING ON THE "I AGREE" BUTTON. BY CLICKING ON THE "I AGREE" BUTTON, INSTALLING OR USING ALL OR ANY PORTION OF THE PREVIEWS (AS DEFINED BELOW), YOU, ON YOUR OWN BEHALF AS AN INDIVIDUAL, AND ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY WHICH HAS NOT YET DONE SO (COLLECTIVELY "YOU", "YOUR" OR "CUSTOMER"), ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT WITH NSERVICEBUS LTD. DOING BUSINESS AS PARTICULAR SOFTWARE ("Particular Software"). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT DOWNLOAD, INSTALL OR USE THE PREVIEWS AND RELATED DOCUMENTATION. IF YOU WISH TO USE THE PREVIEWS AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT.

For clarity, this covers your use of Previews. If you have entered into a separate written license agreement with Particular Software for use of other Particular Software products, the terms and conditions of such other agreement does not apply to Previews.

Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

  1. Definitions:

    1. "Customer Application"

      means computer software, hardware, systems or other applications owned or licensed by the Customer. For clarity, Integrated Products and Derivative Works are not "Customer Applications."
    2. "Derivative Work(s)"

      means any software or work of authorship, whether in Source Form or Object Form, that is based on or derived from Previews. For the purposes of this Agreement, Derivative Works shall not include works that merely link to the Previews.
    3. "End Users"

      means those users of an Integrated Product, either pursuant to a subscription license agreement with Customer or as employees or contractors of Customer (for purposes other than Customer’s internal development and testing).
    4. "Feedback"

      means any feedback, questions, comments, suggestions, or the like, regarding any Preview.
    5. "Integrated Product"

      means the product resulting from integrating a copy of Previews or a Derivative Work with one or more Customer Applications, by or on behalf of Customer. The Integrated Product must add meaningful value or functionality to the Preview or Derivative Work.
    6. "Object Form"

      shall mean computer software in the form not readily perceivable by humans and suitable for machine execution without the intervening steps of interpretation or compilation.
    7. "Preview/s"

      means any pre-release features and/or software offered by Particular Software to obtain Customer Feedback, available at: https://go.particular.net/previews.
    8. "Privacy Policy"

      means Particular Software’s privacy policy which is available at https://particular.net/privacy.
    9. "Source Form"

      shall mean computer software in human readable source code form that is not suitable for machine execution without the intervening steps of interpretation or compilation.
    10. "Third-Party Software"

      shall mean software that Particular Software licenses from third parties and distributes or makes available as a part of, or together with, Previews, and does not include software labeled as "community" in the documentation (https://particular.net/third-party-licenses).
  2. Grant of License:

    1. Subject to Your compliance with the terms of this Agreement, Particular Software grants You a non-exclusive, revocable, non-transferable, non-sublicensable, license to do the following during the Term (the "License"):
      1. to create, develop and test Integrated Products by integrating the Previews with Customer Applications;
      2. to create, develop, and test Derivative Works of the Previews. Such Derivative Works shall be solely owned by (and irrevocably and unconditionally assigned to, if necessary) Particular Software and Particular Software shall license the Derivative Works to Customer under the same terms and conditions set forth herein.
      3. to use Previews and Derivative Works to support and maintain distributed copies, or SaaS offerings, of an Integrated Product; and
      4. to make Previews and Derivative Works available to End Users as part of an Integrated Product.
    2. Restrictions.
      1. Previews are licensed, not sold, and this Agreement grants only certain rights to use the Previews. You must not, and shall not permit any third party (including the End Users) to, directly or indirectly: (i) use, sublicense, resell, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Previews, except as permitted under this Agreement; (ii) remove or alter any copyright, trademark or proprietary notice in the Previews; (iii) transfer, use or export the Previews in violation of any laws or regulations of any government or governmental agency; (iv) use any portion of the Previews to create a competitive service, product or technology with that of Particular Software; or (v) use Particular Software's name, logo or trademarks without prior written consent from Particular Software.
      2. All restrictions on the use of the Previews set forth in this Section also apply to Derivative Works.
    3. You agree (i) to be solely responsible and liable to End Users for their use of any Customer Application or Integrated Product; and (ii) that, to the maximum extent permitted by applicable law, Particular Software will have no warranty, indemnification or other obligation to End Users with respect to an Integrated Product or any support therefor, and claims, losses, liability, damages, costs or expenses in connection with an Integrated Product shall be Customer’s sole responsibility. Without limitation to the foregoing, Customer shall be liable for any act or omission of an End User or any other third party user of Previews, Derivative Works or Integrated Products, which, if such act or omission had been done by Customer would constitute a breach of this Agreement, as if such act or omission had been done by Customer itself. For clarity, the End Users shall not receive the license rights set forth in this Section 1.
    4. You agree that Particular Software at its sole discretion may choose at any time to stop providing and/or supporting any Preview(s).
  3. Ownership Rights:

    1. Customer acknowledges and agrees that all right, title, and interest in and to Previews and any Derivative Works, including associated intellectual property rights, are exclusively owned by, and shall remain solely with, Particular Software. This Agreement does not convey to Customer any ownership interest in Previews. If Particular Software receives any Feedback, Customer hereby grants to Particular Software a non-exclusive, perpetual, irrevocable, worldwide, fully- paid and royalty-free license to such Feedback, and Customer warrants that the Feedback will not include any confidential or proprietary information, and, absent a separate written agreement, the Feedback will not include or create any confidentiality obligation for Particular Software. It is further understood that use of Feedback, if any, may be made by Particular Software at its sole discretion, and that Particular Software in no way shall be obliged to make use of any kind of the Feedback or part thereof. Any anonymous information, which is derived from the use of Previews (i.e., metadata, aggregated and/or analytics information) and which is not personally identifiable information is Particular Software's exclusive property.
    2. Customer retains all right, title and interest in and to the Customer Application and Integrated Products (but in all cases excluding any Previews or Derivative Works integrated therein, or any rights of Particular Software as set forth in this Agreement).
  4. Term and Termination:

    1. This Agreement and Customer’s license to use a Preview shall remain in effect until (i) Particular Software releases a commercial version of such Preview; or (ii) Particular Software announces that it has decided to stop such Preview (the "Term").
    2. If Particular Software releases a commercial version, and You are an existing customer, the commercial license agreement(s) covering Your use of Particular Software products will apply, provided that it may need to be amended (including amending the pricing) to account for Previews.
    3. If Particular Software releases a commercial version, and You are not an existing customer, You will need to enter into a commercial license agreement with Particular Software.
    4. Unauthorized copying of Previews or otherwise failing to comply with this Agreement will result in immediate termination of this Agreement and will make available to Particular Software any applicable legal remedies.
    5. Particular Software may choose not to make a Preview generally available, at its sole discretion, and may terminate this Agreement and the license granted to You herein at any time and for any reason, without liability of any kind to You in connection with such termination.
    6. If Particular Software decides to stop the Preview, your rights to Preview under this Agreement terminate, but Particular Software will grant access to the code under an open source license. If you choose to continue using the Preview thereafter, you will be deemed to consent to the terms of that open source license, and not this Agreement.
  5. Non-Disclosure:

    Any information related to Previews that is not part of the public domain, is owned solely by Particular Software and is considered its confidential information. As such, You confirm that You shall keep such information provided by or on behalf of Particular Software confidential and under access and use restrictions sufficient to protect copying, usage or disclosure thereof. Such restrictions will be at least as stringent as those applied to Your confidential and proprietary information. No confidential information shall be disclosed by You to any third party, unless Particular Software has agreed to such disclosure in writing and in advance. You acknowledge and confirm that the confidentiality obligations under this Section 5 shall survive the Term and continue to be in full force and effect after the termination.

  6. Privacy Policy:

    Particular Software will collect and use information about your use of Previews in accordance with Particular Software’s Privacy Policy, as may be amended from time to time, and by using Previews you agree that Particular Software may do so. Notwithstanding the foregoing, you are aware that you are not obligated to provide Particular Software with personal information, and you hereby confirm that when you provide Particular Software with personal information, you do so of your own free will.

  7. Third-Party Terms:

    You acknowledge that Previews may include Third-Party Software (including open source software) that may be subject to the terms and conditions imposed by the licensors of the Third-Party Software ("Third-Party Terms"). In order to comply with the Third Party Terms a list of the Third Party-Software and related Third-Party Terms is available at https://docs.particular.net/nservicebus/upgrades/third-party-licenses. Customer agrees (i) that its use of the Third-Party Software is subject to and governed by the Third-Party Terms; and (ii) to comply with all Third-Party Terms. To the extent of any conflict between any Third-Party Terms and the terms of this Agreement, the Third-Party Terms shall prevail in connection with the related Third-Party Software. Notwithstanding anything to the contrary in this Agreement, Particular Software makes no warranty or indemnity with respect to any Third-Party Software.

  8. Support:

    Previews are supported under reduced commitments from the rest of Particular Software products, as further explained in the Particular Software Preview support policy at https://docs.particular.net/previews/support-policy. If a Preview is moved to a commercial version, and You are an existing customer, You will receive the same support as Your other Particular software products. Otherwise, You will need to enter into a commercial license, and You will receive support pursuant to that license.

  9. Disclaimer of Warranty:

    PREVIEWS ARE PROVIDED TO YOU AT NO CHARGE ON AN "AS-IS" BASIS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, PARTICULAR SOFTWARE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

  10. Liability:

    NOTWITHSTANDING ANYTHING TO THE CONTRARY, INCLUDING ANY PROVISION OF THIS AGREEMENT:

    1. IN NO EVENT SHALL PARTICULAR SOFTWARE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, CONSEQUENTIAL, DIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PREVIEWS;
    2. THE TOTAL CUMULATIVE LIABILITY OF PARTICULAR SOFTWARE FOR ALL DAMAGES AND LOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE PREVIEWS, SHALL NOT IN ANY CIRCUMSTANCES EXCEED THE AMOUNT OF FEES OR OTHER PAYMENTS, IF ANY, ACTUALLY PAID BY YOU TO PARTICULAR SOFTWARE DURING THE TERM FOR THE USE OF THE PREVIEWS PURSUANT TO THE LICENSE GRANTED HEREIN;
    3. THE LIMITATIONS ON PARTICULAR SOFTWARE’S LIABILITY SET FORTH IN THIS SECTION 10 SHALL APPLY EVEN IF PARTICULAR SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY). SOME STATES MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
  11. Indemnification:

    1. Particular Software will defend Customer against a third party claim that Customer’s use of Previews (excluding Third-Party Software) infringes its copyright ("Infringement Claim"), and will hold Customer harmless and pay any amounts (including reasonable attorney’s fees) finally awarded to that third party by a competent court or arbitration panel or paid in settlement to that third party in connection with the Infringement Claim, provided that Customer must (i) promptly notify Particular Software in writing of the Infringement Claim; (ii) reasonably cooperate with Particular Software (at Particular Software’s cost) in connection with the defense and settlement of the Infringement Claim; (iii) not make any admission of liability or fault without Particular Software’s prior written approval in connection with the Infringement Claim; and (iv) allow Particular Software to have sole control of the defense, including all related settlement negotiations, of the Infringement Claim.
    2. Injunctive Relief. If an injunction is sought or obtained against Customer’s use of Previews, or if Particular Software believes a claim of intellectual property infringement is reasonably foreseeable, Particular Software may, at its sole option and expense: (i) procure for Customer the right to continue using the potentially infringing Previews; (ii) replace or modify the potentially infringing Previews so that it becomes non-infringing while giving equivalent performance; or, if Particular Software determines, at its sole discretion, that either (i) or (ii) is not commercially feasible, (iii) notwithstanding any other provision herein, terminate this Agreement and the License (in which event Customer agrees to immediately refrain from all use of Previews).
    3. Particular Software shall have no defense or indemnity obligation under Section 11.1 herein (i) to the extent the Infringement Claim is based upon (a) use of Previews other than in accordance with the Documentation or as permitted in this Agreement; (b) a modification of Previews by anyone other than Particular Software; (c) use of any version or release of Previews other than the then-current version or release of Previews, unless the infringing portion is also in the then-current version or release; or (d) use, operation, or combination of Previews with non-Particular Software programs, data, equipment or documentation, products or services (all of the foregoing, "Non-Particular Software Products") if such infringement would have been avoided but for such use, operation or combination. This Section 11 states the entire liability of Particular Software, and Customer's sole and exclusive remedy, with respect to any Infringement Claim and Particular Software shall have no additional liability hereunder or otherwise with respect to any alleged or proven infringement.
    4. You agree to defend, indemnify and hold harmless Particular Software and its affiliates, and its respective officers, directors, employees, contractors and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney's fees) arising from: (i) your use of, or inability to use, Previews; (ii) your violation of this Agreement; and (iii) your alleged violation, or that of a Customer Application or Integrated Product (except for Previews or Derivative Works made by Particular Software), of any third party right, including without limitation any copyright, property, or privacy right. Without limiting or excusing your obligations under this Section, Particular Software reserves the right, but is not under any obligation, to defend (at Your expense) any of the above claims if you choose not to defend or settle them. You agree not to settle any matter subject to indemnification by You without first obtaining our express approval.
  12. Government Use:

    If Customer is part of an agency, department, or other entity of the United States Government (the "Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of Previews is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. Previews are a "commercial item", "commercial computer software" and "commercial computer software documentation". In accordance with such provisions, any use of Previews by the Government shall be governed solely by the terms of this Agreement.

  13. Governing Law/Jurisdiction:

    This Agreement shall be deemed to be made in, and the validity, interpretation and enforcement of this Agreement, and any disputes between you and Particular Software, shall be governed by and construed in accordance with the laws of, the State of New York, excluding its conflicts of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or relating to this Agreement shall be submitted to the exclusive jurisdiction of the courts of competent jurisdiction located in New York, NY, and each party irrevocably consents to such personal jurisdiction and waives all objections to such venue. Notwithstanding the foregoing, Particular Software may seek injunctive relief in any court of competent jurisdiction worldwide.

  14. Miscellaneous:

    This Agreement represents the complete agreement concerning Previews between Particular Software and You. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Particular Software. The terms of this Agreement are personal to You and may not be assigned or transferred without the prior written consent of Particular Software and any action or conduct in violation of the foregoing shall be void and without effect. Particular Software may assign this Agreement and delegate any of its obligations hereunder without restriction. This Agreement may only be amended by a written instrument signed by both parties. All notices hereunder must be in writing and in English, and sent by email to legal@particular.net. It will be deemed given upon an email reply confirmation of receipt by the receiving party which should be sent within two business days of the originating email. This Section (Miscellaneous) and Sections 2.2, 2.3, 2.4, 3 (Ownership Rights), 4.6, 5 (Non-Disclosure), 7 (Third-Party Software), 9 (Disclaimer of Warranty), 10 (Liability), 11 (Indemnification), 13 (Governing Law/Jurisdiction), and any outstanding rights and obligations, and any provisions intended to survive, shall survive termination or expiration of this Agreement. YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE AGREE BUTTON AND/OR CONTINUING TO INSTALL OR USE PREVIEWS, YOU EXPRESSLY CONSENT TO BE BOUND BY THESE TERMS.

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