This Evaluation License is entered into by and between Client (as defined below) and Firstup, Inc. (“Firstup”) and is applicable to Client’s evaluation of Firstup’s Products (as defined below). This Evaluation License is

Client can enter into and “accept” this Evaluation License: (a) by clicking to accept or agree, where this option is made available to Client by Firstup in the user interface within the Platform (as defined below); (b) where a link to this document appears in an order form, Schedule (as defined below), or other document provided to Client by Firstup, by signing such document; or (c) by signing this document, if there is a designated area to sign or via electronic signature (e.g., Docusign). By accepting this Evaluation License in any of the methods set forth above, you are representing that you are authorized to enter into these terms and conditions on behalf of your organization. This Evaluation License becomes effective on the date when they are accepted by Client as described above. By accepting this Evaluation License, Client agrees as follows:

1. Definitions. The following defined terms have the meanings set forth herein and may be used in Client’s ordering document or in online descriptions of Firstup’s product or services.
   1. Client” means the business entity on behalf of whom this Agreement is accepted (as described in the Preamble).
   2. “Client Content” means content, images, fonts, icons, videos, templates, information, text, audio, and other data, including but not limited to trademarks, trade names, and service marks uploaded by Client (including its Users) or created within the Platform, or otherwise transmitted by or on behalf of Client through the Platform.
   3. “Confidential Information” means (a) any proprietary information of a party to this Agreement disclosed by one party to the other that is in written, graphic, machine readable, or other tangible form and is marked “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature; and (b) a party’s non-public materials and all other non-public marketing or technical information, even if not marked as confidential, but that would reasonably be understood to be confidential. Confidential Information also includes oral disclosures if that information would reasonably be understood to be confidential from the context of disclosure.
   4. “Feedback” means any idea, suggestion, feedback, and/or proposal provided by Client to Firstup related to the Products.
   5. “Integration” means an integration between the Products with third-party products not provided by Firstup that causes the Products and such other third-party products to interact by sharing data and/or creating interoperability.
   6. “Malicious Code” means virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software.
   7. “Platform” means (i) the software as a service which is hosted by Firstup (“Firstup Platform”) or its hosting providers and which is accessed by Client and its Users via the internet, including mobile applications; and (ii) associated services, as more fully described
      in the applicable Schedule.
   8. “Product(s)” means, collectively, the Platform and all other services, products, or materials provided by Firstup to Client under the terms of this Agreement.
   9. “Schedule” means the document, schedule, quote, pricing form, statement of work, web page, order form, change order, or similar document and the terms and conditions contained therein entered into by the parties that describes order-specific information, such as a description of Products ordered, term, features, options, license details, and fees, each of which that are subject to this Evaluation License.
   10. “Scope” means Client’s evaluation of the Products for internal communications, employee engagement, and advocacy.
   11. “User” means an individual employee or contractor of Client or its Affiliates who has been invited by Client to create an account for use of an instance of the Platform or can be sent a communication through an instance of the Platform.
2. Licenses.
   1. Subject to Client’s payment of the amounts due under the applicable Schedule, if any, Firstup hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicensable license during the term set forth in the Schedule to which this Agreement relates (a) to access and use the Products within the Scope and in accordance with the terms of this Agreement, and (b) to display, reproduce, distribute, and transmit in digital form Firstup’s name and logo solely within the Scope. All rights not expressly granted in this Agreement are reserved by Firstup and its licensors.
   2. Client hereby grants to Firstup a license to: (i) use Client Content for purposes of the provision, maintenance, or support of the Platform, Products and Services; (ii) communicate with Users who have initiated a request for information from Firstup as part of their use of the Products; (iii) use Client Content in non-personal, anonymized, and aggregated form (e.g., for the analysis and improvement of its products and services) provided that such information is not traceable back to Client or a User; (iv) provide access to Client Content to Firstup's contracted third parties and vendors solely as necessary to provide the Products that are required to be delivered under this Evaluation License or as requested by Client or Users; (v) communicate with Client and/or Users regarding the Products; (vi) modify the Client Content at Client’s request; and (vii) use Client Content as otherwise permitted or required by applicable law.
3. Restrictions.
   1. Client will: (i) not use the Platform to store, transmit, publish, communicate, or otherwise distribute any Client Content that is or that may reasonably be perceived as being harmful, threatening, discriminatory, offensive, obscene, or otherwise objectionable; (ii) not attempt to gain access to any systems or networks that connect to the Services and Platform except for the express purpose of using the Platform in accordance with this Agreement; (iii) not interfere with or disrupt the integrity, security or performance of the Platform (e.g., by bypassing security measures, sharing login or password information, or unreasonably overloading the Platform’s servers); (iv) not share information about Client’s use of the Products with persons or entities that may operate or be affiliated with businesses that compete with Firstup or grant access to Client’s account to such competitors; (v) not sell, resell, distribute, host, lease, rent, license, sublicense, or make available to third parties on a service-bureau or other similar basis, in whole or in part, the Platform; (vi) not reverse engineer or decompile, decrypt, disassemble or otherwise reduce any part of the Platform to human-readable form; (vii) not disclose to any third party or publish, without Firstup’s prior written consent, performance or capacity statistics, or the results of any benchmark test performed on the Platform; (viii) not introduce any Malicious Code into the Platform; and (ix) not attempt to probe, scan, or test the vulnerability of the Platform, or disclose or cause to be disclosed any information related to any security penetration, similar tests, or vulnerabilities without Firstup’s prior written consent.
   2. Client will not itself, or through any affiliate, User, employee, consultant, contractor, agent, or other third party: (i) allow access to, provide, divulge, or make available the Products to any third parties other than Users; (ii) write or develop any derivative works based upon the Products; (iii) modify, adapt, translate, or otherwise make any changes to the Products or any part thereof; (iv) remove any identification, patent, copyright, trademark, or other notices from any Product; (v) contest or do or aid others in contesting or doing anything which impairs the validity of any proprietary or Intellectual Property Rights, title, or interests of Firstup or its licensors in and to any Products; or (vi) use the Products for other than authorized and legal purposes, consistent with all applicable laws, rules, regulations, and the rights of others, including those governing privacy and personal information.
   3. Client represents and warrants that (i) it has the necessary rights and consents to provide Client Content to Firstup, in order for Firstup to provide access to the Platform or perform the Services hereunder; (ii) the Client Content does not infringe, violate, or misappropriate the Intellectual Property Rights or privacy rights of any third party or violate any laws; (iii) it will not use the Platform to store, transmit, publish, communicate, or otherwise distribute Restricted Data; (iv) it will only use the Products in accordance with the Documentation and this Evaluation License; and (v) it will comply with all applicable laws and it will ensure that its Users do the same. Client further acknowledges and agrees that the Platform is not intended for use or transmission of any Restricted Data, and Firstup will not be responsible for complying with any laws, rules or regulations which are specific to Restricted Data.
4. Confidential Information.
   1. Each party will: (i) treat as confidential all Confidential Information of the other party and use at least the same care to protect Confidential Information as it uses for its own similar information, but in no event less than a reasonable degree of care; (ii) not disclose Confidential Information to or direct the other party to disclose the Confidential Information to any third party, except on a “need to know” basis to third parties that are subject to a non-disclosure agreement containing provisions substantially as protective of the Confidential Information as the terms of this Section, and such party so disclosing the Confidential Information to the third party or that has directed the other party to disclose the Confidential Information to such third party (e.g., to its third party risk management provider via a platform or portal, in which case any click-through or online terms purported to govern such submission will not apply, but will be governed by this Agreement) is responsible and liable for that third party’s compliance with the confidentiality obligations set forth herein; and (iii) not use that Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Each party is permitted to disclose the other party’s Confidential Information if required by law, court order or regulatory body, so long as, to the extent legally permitted, the other party is given prompt written notice of that requirement before disclosure and reasonable assistance in obtaining an order protecting that information from public disclosure. To the extent that the receiving party must disclose Confidential Information pursuant to the previous sentence, any such disclosure will be limited to only that Confidential Information required to be disclosed to comply with the order of the relevant court or regulatory body.
   2. Confidential Information will not include any information that: (a) was publicly known and made generally available before the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the lawful possession of the receiving party at the time of disclosure with no obligation to maintain its confidentiality; (d) is obtained by the receiving party from a third party on a non-confidential basis without a breach of that third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
5. Miscellaneous.
   1. Client will not export, directly or indirectly, any technical data acquired from Firstup pursuant to this Evaluation License or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.
   2. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CLIENT ACKNOWLEDGES AND AGREES THAT THE CONFIDENTIAL INFORMATION AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CLIENT EXPRESSLY AGREES THAT FIRSTUP WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF CLIENT’S USE OF THE PRODUCTS OR CONFIDENTIAL INFORMATION. FIRSTUP, ITS LICENSORS, AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY (i) WARRANTY THAT THE CONFIDENTIAL INFORMATION AND/OR PRODUCTS ARE ERROR-FREE OR “BUG”-FREE, ACCURATE, SECURE, OR RELIABLE; (ii) WARRANTY THAT THE CONFIDENTIAL INFORMATION AND/OR PRODUCTS WILL OPERATE WITHOUT INTERRUPTION; (iii) WARRANTY THAT ALL OR ANY ERRORS WILL BE CORRECTED OR THAT THE CONFIDENTIAL INFORMATION AND/OR PRODUCTS WILL COMPLY WITH ANY LAW, RULE, OR REGULATION; (iv) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND (v) IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
   3. FIRSTUP WILL NOT BE LIABLE FOR INDIRECT DAMAGES OR LOSSES (IN CONTRACT, STATUTE, TORT, OR OTHERWISE) ARISING OUT OF THIS EVALUATION LICENSE, INCLUDING DAMAGES FOR LOST PROFITS OR REVENUE, LOST SAVINGS, COST OF REPLACEMENT SERVICES, LOST DATA, LOSS OF USE OF INFORMATION OR SERVICES, OR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, WHETHER OR NOT FIRSTUP HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FIRSTUP’S TOTAL AGGREGATE LIABILITY FOR ALL MATTERS ARISING FROM OR RELATED TO THIS EVALUATION LICENSE IS LIMITED TO THE GREATER OF USD$1,000 OR THE AMOUNT OF SUBSCRIPTION FEES PAID OR PAYABLE BY CLIENT AS CONSIDERATION FOR THE SPECIFIC PRODUCT UNDER THE APPLICABLE SCHEDULE GIVING RISE TO SUCH CLAIMS DURING THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH THE FIRST CAUSE OF ACTION AROSE.
   4. Should Client choose to submit Feedback to Firstup arising out of these Beta Terms, Client acknowledges and agrees that Client hereby grants to Firstup an irrevocable, transferable, worldwide, and perpetual license to use the Feedback for any purpose whatsoever, without any obligation of Firstup to Client, including any compensation or reimbursement of any kind from Firstup.
   5. This Evaluation License will be governed by the laws of the State of California, without giving effect to the conflict of law provisions thereof. The parties irrevocably agree that any legal action or proceeding relating to this Agreement will be instituted only in the state or federal courts located in San Francisco, California. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Evaluation License.
   6. Except as expressly set forth herein, this Evaluation License constitutes the entire agreement of the parties with respect to the subject matter hereof. This Evaluation License may only be changed by mutual agreement of authorized representatives of the parties in writing. Client may not assign or transfer any rights or obligations under this Evaluation License without the prior written consent of Firstup. This Evaluation License and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees.
   7. Client may terminate this Evaluation License at any time by emailing Client’s account designated representative or following any opt-out instructions provided by Firstup, provided that any such termination will neither result in a refund of fees paid, nor excuse Client’s obligation to pay in full any and all amounts due for the term of any Schedule.
   8. Unless Client has paid a fee for this Evaluation License, Firstup may terminate this Evaluation License in its entirety at any time and for any or no reason, with or without notice. Such termination may include, without limitation, revoking access to the Products. Upon termination of this Agreement or Client’s participation, all access to the applicable the Products will cease. The rights and obligations in Section 3 (Feedback), Section 4 (Confidential Information), this Section 5 (Miscellaneous) shall survive.