THIS PINGER BETA AGREEMENT (THE “AGREEMENT”), ISSUED BY PINGER, INC., A DELAWARE CORPORATION (“PINGER,” “WE,” “US” OR “OUR”), SETS FORTH THE TERMS BY WHICH YOU (“YOU” OR “YOUR”) MAY USE PINGER’S PRE-RELEASE VERSION OF PINGER’S SIDELINE TEST APP MOBILE APPLICATION AND RELATED SERVICES (COLLECTIVELY, THE “BETA APP”). BY EXECUTING CLICK-THROUGH ACCEPTANCE PROCEDURES OR BY USING THE BETA APP, YOU AGREE TO ALL THE TERMS OF THIS AGREEMENT.

NOTICE REGARDING AUTHORIZATION TO USE MESSAGE CONTENT

FOR THE BETA APP, PINGER WILL BE TESTING THE EFFICACY OF VARIOUS TYPES OF AUTOMATED RESPONSES AND COMMUNICATIONS SENT FROM THE BETA APP. THAT TESTING REQUIRES THAT PINGER PERSONNEL REVIEW AND ANALYZE THE CONTENT OF MESSAGES SENT BY AND TO YOU USING THE BETA APP (“MESSAGE CONTENT”). PER THE REQUIREMENTS OF 18 U.S.C. §2702(b), PINGER NEEDS YOUR EXPRESS CONSENT AS A SUBSCRIBER OF THE BETA APP, FOR PINGER AND ITS EMPLOYEES AND CONTRACTORS (“PERSONNEL”) TO USE AND ACCESS THAT MESSAGE CONTENT FOR THE PURPOSE OF ANALYZING MESSAGES, CREATING AND TESTING MESSAGE REPONSES, AND OTHERWISE IMPROVING THE BETA APP (COLLECTIVELY, “MESSAGE ANALYSIS”). ACCORDINGLY, BY EXECUTING CLICK-THROUGH ACCEPTANCE PROCEDURES OR BY USING THE BETA APP YOU HEREBY GRANT US AND OUR PERSONNEL A LIMITED LICENSE TO REVIEW YOUR MESSAGE CONTENT FOR THE PURPOSES OF MESSAGE ANALYSIS. SHOULD YOU WISH TO REVOKE THIS LICENSE, CONTACT PRIVACY@PINGER.COM, AND PINGER WILL STOP ACCESSING YOUR MESSAGE CONTENT FOR MESSAGE ANALYSIS.

Applicability

These terms incorporate by reference the terms made available by the particular app store from which You downloaded the App (“App Store”) applicable to apps downloaded from that App Store, if any (“App Store Terms”). These terms also incorporate by reference the Privacy Policy located at https://www.pinger.com/privacy_policy/ (“Privacy Policy”). These terms control in the event of any conflict with the Privacy Policy or the App Store Terms.

License Grant from Pinger

Subject to the terms and restrictions set forth in this Agreement, Pinger grants You a non-exclusive, non-transferable license during the term of this Agreement to access the Beta App solely as made available by Pinger for the sole and limited purpose of evaluating and testing of the Beta App by You. You shall be solely responsible for the purchase, installation, and subsequent performance of any and all third-party software, equipment and any related services which may be required to use or access the Beta App. Ownership of all right, title and interest in and to the Beta App is and shall remain with Pinger and its suppliers. YOU ACKNOWLEDGE AND AGREE THAT (I) THE LICENSES GRANTED TO YOU BY PINGER UNDER THIS AGREEMENT MAY BE TERMINATED BY PINGER AT ANY TIME WITHOUT LIABILITY OR FURTHER OBLIGATION TO YOU; AND (II) PINGER MAY IN ITS SOLE DISCRETION, AND WITHOUT ANY LIABILITY TO YOU, DELETE OR REMOVE SOME OR ALL DATA STORED BY YOU ON OR THROUGH THE BETA APP.

License Grant from You

In order to make the hosted version of Beta App available to You, we need Your permission to store and transmit any data You elect to post or transmit through the Beta App (“Customer Data”). Accordingly, in addition to the license grant to Message Content set forth above, You hereby grant to Pinger a license to use, copy, transmit, store and cache Customer Data, and publish such Customer Data on and through the Beta App. We respect the privacy and confidentiality of Customer Data, so other than Customer Data which You elect to post through the Beta App, we agree never to disclose Customer Data to anyone unless You instruct us to do through use of the Beta App or as otherwise provided in the Privacy Policy. You acknowledge and agree that Pinger may track Your usage of the Beta App, including but not limited to taking screenshots of Your use and that such information also constitutes Customer Data. You hereby grant Pinger a royalty-free, irrevocable, perpetual, worldwide right and license to use, copy and modify Customer Data for Pinger’s further product development and for its internal business purposes.

Limitations

Pinger reserves the rights to impose feature and access limitations on the Beta App and to otherwise constrain Your use of the Beta App at any time, for any reason and without liability to you. Pinger does not guarantee availability of the Beta App or that the Beta App will remain operational at all times. You acknowledge and agree that Pinger shall not have any liability to You for any unavailability of the Beta App, and is under no obligation to provide You with maintenance, technical support or updates for the Beta App.

Confidentiality

Any suggestions, information or feedback provided by You regarding the Beta App and the results of Your use or testing of the Beta App (collectively, “Feedback”), together with the information regarding the features of the Beta App being tested by You, are the proprietary and confidential information of Pinger, and You hereby assign all right, title and interest in and to such Feedback, including all intellectual property rights therein, to Pinger. You agree not to disclose or provide such information to any third party. However, You may disclose confidential information in accordance with judicial or other governmental order, provided You shall give Pinger reasonable written notice prior to such disclosure and shall provide Pinger with the opportunity to obtain a protective order or equivalent protection.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PINGER OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION OR DATA, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF THIS AGREEMENT OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE BETA APP OR ANY RELATED SERVICE EVEN IF PINGER OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Term and Termination

This Agreement is effective until terminated. This Agreement will terminate immediately without notice to You upon the earlier of (i) release of a commercial (non-beta) version of the Beta App; (ii) upon Pinger’s election to cease availability of the Beta App or a majority of its features, or (iii) Your breach or failure to comply with any term or condition of this Agreement. Pinger reserves the right to modify or terminate this Agreement, or any of its services and/or product offerings, at any time in its sole discretion. You may terminate this Agreement at any time by uninstalling the Beta App. Upon termination, the license grants herein shall cease The liability limitations and protections afforded to Pinger as set forth in this Agreement, the ownership provisions of this Agreement, provisions which by their terms are to survive expiration or termination of this Agreement, this paragraph, and following Sections, including any subsections, shall survive termination or expiration of this Agreement: “Applicability” (other than any license rights included in App Store Terms), “Limitations,” “Confidentiality,” “Limitation of Liability,” “Term and Termination,” “Limitation of Liability,” “Indemnification” and “General.” YOU ACKNOWLEDGE AND AGREE THAT ALL DATA STORED ON OR BY THE BETA APP MAY BE DELETED BY PINGER UPON EXPIRATION OR TERMINATION OF THIS AGREEMENT UNLESS OTHERWISE AGREED UPON IN WRITING BETWEEN YOU AND PINGER.

Beta Addendum

By electing to use the Beta Features (“Beta Features”) with Sideline you acknowledge and agree that: (i) Pinger will be testing the efficacy of various types of automated responses and communications sent from the Beta Features; (ii) testing requires that Pinger personnel review and analyze the content of messages sent by and to you using the Beta Features (“Message Content”) and (iii) per the requirements of 18 U.S.C. §2702(b), Pinger needs your express consent as a subscriber of the Beta Features, for Pinger and its employees and contractors (“personnel”) to use and access that Message Content for the purpose of analyzing messages, creating and testing message responses, and otherwise improving the Beta Features (collectively, “Message Analysis”). Accordingly, by executing click-through acceptance procedures or by using the Beta Features, you hereby grant us and our personnel a limited license to review your Message Content for the purposes of Message Analysis. Should you wish to revoke this license, contact privacy@Pinger.com, and Pinger will stop accessing your Message Content for Message Analysis. Messaging and data rates may apply.

You also agree that any suggestions, information or feedback provided by You regarding the Beta Features and the results of Your use or testing of the Beta Features (collectively, “Feedback”), together with the information regarding the features of the Beta Features being tested by You, are the proprietary and confidential information of Pinger, and You hereby assign all right, title and interest in and to such Feedback, including all intellectual property rights therein, to Pinger. All Feedback, the features and capabilities and design of the Beta Features, and the fact that you are a user of the Beta Features are the confidential information of Pinger. You agree not to disclose or provide such information to any third party. However, You may disclose confidential information in compelled to do so by judicial or other governmental order, provided You shall give Pinger reasonable written notice prior to such disclosure and shall provide Pinger with the opportunity to obtain a protective order or equivalent protection.

Last updated March 31, 2019