MENTAL CANVAS END USER LICENSE AGREEMENT

PLEASE READ THIS END USER LICENSE AGREEMENT (THE “EULA”) CAREFULLY BEFORE DOWNLOADING, ACCESSING, INSTALLING, OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY OR ON BEHALF OF MENTAL CANVAS, INC. (“MENTAL CANVAS,” “US,” “WE,” OR “OUR”).

By entering into this EULA and/or by downloading, accessing, installing, or otherwise using the Software, you expressly acknowledge that you have read, understood, agree, and are authorized, on behalf of you and your company (“CUSTOMER,” “YOU,” OR “YOUR”) to be bound by this EULA, which constitutes a legally binding agreement between you and Mental Canvas. Mental Canvas reserves the right, at its sole discretion, to change, modify, add, or remove portions of this EULA, at any time, by posting changes to this page. Your continued access to or use of the Software or the Services after such posting confirms your consent to be bound by this EULA, as amended. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, YOU MAY NOT USE THE SOFTWARE OR THE SERVICES.

PLEASE TAKE SPECIAL NOTICE THAT THIS EULA CONTAINS A BINDING ARBITRATION PROVISION THAT INCLUDES A JURY TRIAL WAIVER AND CLASS ACTION WAIVER, AND A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE FOR ANY DISPUTES.

Our Privacy Notice describes our practices concerning personal information that you provide or that we may collect in connection with your use of the Software, and by accepting this EULA, you consent to our collection, use, disclosure, and transfer of personal information in compliance with our Privacy Notice. Your use of the Software and the Services is subject to all additional terms, policies, rules, or guidelines of the Software or the Services that we may post or provide (the “Additional Terms”). All Additional Terms are incorporated by reference into, and made a part of, this EULA.

1. Definitions

“Access Credentials” means any user name, identification number, password, PIN, or other security code or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Software.

“Authorized User” means your employees, independent contractors, or agents who are authorized by you to access and use the Software under the rights granted to under this EULA.

“Claim” means any third-party claim, suit, action, or proceeding.

“Customer Content” means information, data, and other content, in any form or medium, that is submitted by, received from, created by you or any of your Authorized Users by or through the Software, or created by Mental Canvas for you as part of the Services. For the avoidance of doubt, Customer Content does not include Usage Data or any Mental Canvas Materials.

“Customer Systems” means your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks (including Internet access), whether operated directly by you or through the use of third-party services.

“Damages” means any losses, damages, liabilities, and costs (including reasonable attorneys’ fees).

“Disabling Device” means any software, hardware, or other technology, device, or means used by Mental Canvas or its designee to disable your or any Authorized User’s access to or use of the Software automatically with the passage of time or under the positive control of Mental Canvas or its designee.

“Documentation” means the documentation that Mental Canvas makes generally available to its customers at [URL] and any other documentation made available to you in any form related to the Software or the Services.

“Effective Date” means the earlier of the date set forth in an Order Form or the date on which the Software is first made available to you.

“Fees” means all fees associated with the Software and the Services purchased hereunder, as may be set forth in the applicable Order Form.

“IP Rights” means all patent, copyright, trademark, trade secret, rights in know-how, designs, and other proprietary and intellectual property rights recognized in any jurisdiction worldwide, including moral rights.

“Law” means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, or local government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“License Term” means the license term set forth in the applicable Order Form. If no License Term is set forth in the Order Form or there is no Order Form, the License Term shall be one (1) year.

“Mental Canvas Materials” means the Software, Services, Documentation, and any and all other information, documents, or materials that are provided or used by Mental Canvas in connection with the Software or the Services including any information, data, or other content derived from Mental Canvas’ monitoring of Customer’s access to or use of the Software or the Services, but excluding Customer Content.

“Order Form” means any orders entered into between the parties in writing (including via a web interface), specifying, among other things, the Software and the Services, Fees, payment terms, and other relevant terms as agreed to between the parties, each of which are incorporated herein by reference and governed by the terms of this EULA. Not all purchases require an Order Form.

“Services” means those services (as may be set forth in an Order Form), as may be altered from time to time by the mutual agreement of the parties, including creative and strategic support, training, and tutorials. The Services that may be provided or offered to you can be found here.

“Software” means the Mental Canvas software product(s) (including without limitation, the Professional Authoring Suite and Mental Canvas WebGL Player) provided in connection with this EULA, including any Updates and/or added functionality. The Software offerings can be found here, which may be subject to change.

“Trial Period” means the trial period specifically set forth in an Order Form or as otherwise mutually agreed to in writing. Use of the Mental Canvas Materials during the Trial Period is subject to the terms of this EULA, as modified by Section 13.

“Updates” means any maintenance releases, bug fixes, and minor updates to Customer’s current version of the Software.

“Usage Data” means any anonymized and aggregated data that is derived from the processing of Customer Content or the access or use of the Services by or on behalf of Customer, that in no way identifies or refers to Customer or Authorized Users, and any statistical or other analysis, information, or data based on or derived from the foregoing. 

2. License Grant and Restrictions

2.1. Grant of License.  Subject to the terms and conditions of this EULAs, Mental Canvas hereby grants to you: (a) a non-transferable (except in compliance with Section 13.1), non-sublicensable, non-exclusive, worldwide license to use the Software and Documentation for your internal business purposes; and (b) a right to access and use the Services solely in connection with your use of the Software.

2.2. Access Credentials.  Your license shall commence as of the Effective Date. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form or as otherwise determined by Mental Canvas, except as may expressly be agreed to in writing by the parties from time to time and subject to the appropriate adjustment of the Fees payable hereunder. All Authorized Users must have valid Access Credentials.

2.3. Restrictions.  You may only access or use the Mental Canvas Materials as expressly permitted by this EULA and shall not, and shall not permit any other party to:  (a) decompile, disassemble, or otherwise reverse engineer the Software; (b) distribute, sell, sublicense, rent, lease, or otherwise commercially exploit (except as expressly agreed to by Mental Canvas) or make available the Mental Canvas Materials to any third party or use the Software for service bureau or time-sharing purposes; (c) remove, delete, or alter any copyright, trademark, patent, or other IP Rights notices from the Mental Canvas Materials; (d) copy (except as expressly permitted in this EULA), modify,, create derivative works or improvements of any part of the Mental Canvas Materials, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by Mental Canvas; (e) attempt to circumvent or disable the Disabling Device or access or use the Mental Canvas Materials other than by an Authorized User through the his or her own then-valid Access Credentials; (f) use or host the Software in a virtual server environment; (g) input, upload, transmit, or otherwise provide to or through the Software, any  information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, worm, malware, or other malicious computer code; (h) access or use the Mental Canvas Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any IP Right or other right of any third party, or that violates any Law; (i) access or use the Mental Canvas Materials for purposes of competitive analysis of the Software, the development, provision, or use of a competing software service or product, or any other purpose that is to Mental Canvas’ detriment or commercial disadvantage; or (j) remove, circumvent, disable, damage, or otherwise interfere with or disrupt the integrity or performance of the Software or any security-related features therein.

2.4. Suspension or Termination.  Mental Canvas may, directly or indirectly, and by use of a Disabling Device or any other means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of the Mental Canvas Materials without incurring any resulting obligation or liability, if: (a) Mental Canvas receives a judicial or other governmental demand, order, subpoena, or law enforcement request that requires Mental Canvas to do so, or Customer or any Authorized User is in violation of any Law; or (b) Mental Canvas believes, in its sole reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term herein, or has accessed or used the Mental Canvas Materials beyond the scope of the rights granted or for a purpose not authorized under this EULA; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the use of the Mental Canvas Materials; (iii) Customer’s or any Authorized User’s access to or use of the Mental Canvas Materials is contrary to the best interests of Mental Canvas or its customers; or (iv) this EULA expires or is terminated. This Section 2.4 does not limit any of Mental Canvas’ other rights or remedies, whether at law, in equity, or otherwise.

3. Customer Obligations

3.1. Cooperation.  Customer shall at all times during the License Term provide all reasonable cooperation and assistance as Mental Canvas may reasonably request to enable Mental Canvas to exercise its rights and perform its obligations under and in connection with this EULA. Customer acknowledges and agrees that proper functioning of the Software (including installation, updates, and maintenance set forth in Section 4 below) is dependent on Customer’s implementation and use of the Customer Systems, including those specified by Mental Canvas. Mental Canvas is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this EULA.

3.2. Corrective Action and Notice.  If Customer becomes aware of any actual or threatened activity prohibited by Section 2.3 (Restrictions), Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Mental Canvas Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Mental Canvas of any such actual or threatened activity.

3.3. Customer Content.  Customer is solely responsible for the accuracy, content, and legality of all Customer Content. Customer hereby grants to Mental Canvas a non-exclusive, worldwide, fully paid, royalty-free, right and license to download, receive, collect, access, modify, copy, store, retain, and otherwise use Customer Content in order to provide and support the Software and the Services in accordance with this EULA and to develop, improve, and provide products and services that are ancillary to the Software and the Services. In the event you have purchased additional Services that enable third parties to access and view Customer Content via a link provided to you by Mental Canvas, you acknowledge and agree that any third party you provide such link to will have access to Customer Content and Mental Canvas will have no liability whatsoever for your provision of, or any access to, such link. 

3.4. Compliance with Laws.  Customer acknowledges that the Software may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not, and shall not allow any third party to, remove or export from the United States or allow the export or re-export the Software in violation of any export or import restrictions, laws, or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. Customer is responsible for complying with all Laws in its and its Authorized Users’ use of the Mental Canvas Materials.

4. Software Installation, Updates, and Maintenance

4.1. Installation.  Mental Canvas will make available the Software and Documentation for download on Customer’s hardware in electronic form. Customer is responsible for ensuring and monitoring valid Access Credentials for all Authorized Users. Customer may copy and install on computers for use only by its Authorized Users the number of copies of the Software for which Customer has paid the applicable license Fee. Customer may transfer the Software from one computer to one other computer, provided that each copy of the Software may only be used by an Authorized User on one computer at any given time.

4.2. Software Updates and Maintenance.  Any Updates will install automatically when you are connected to the Internet and all necessary Customer Systems are functioning. Mental Canvas offers ongoing support for the Software as set forth herein or in the Order Form. Mental Canvas has and will retain sole control over the operation, provision, maintenance, and management of the Software.

5. Fees and Payment

5.1. Payment.  Customer shall pay all the Fees within thirty (30) days of the Effective Date, unless otherwise specified in an Order Form. Except as expressly set forth herein, all Fees are non-refundable once paid. Customer shall be responsible for all taxes, withholdings, duties, and levies arising from the Fees (excluding taxes based on the net income of Mental Canvas). If Customer fails to pay all Fees due in accordance with this Section 5 then Mental Canvas may take all action to discontinue Customer’s and its Authorized Users’ use of the Mental Canvas Materials, in addition to all other remedies that may be available to it, including exercising its termination rights under this EULA.

5.2. Additional Fees.  Any modifications to the Software and/or Services to be provided may be subject to additional Fees. If any Fees are recurring annual Fees, Mental Canvas may increase such Fees annually by an amount equal to the increase, if any, in the Consumer Price Index “Urban.” You will reimburse Mental Canvas for reasonable travel expenses previously approved and actually incurred by Mental Canvas in connection with the provision of any of the Services.

6. Proprietary Rights

6.1. Mental Canvas IP.  Mental Canvas owns all rights, title, and interest in and to: (a) Mental Canvas’ logos and trademarks and all product names associated with the Mental Canvas Materials; (b) the Mental Canvas Materials and all derivative works thereof; (c) the Usage Data; (d) any other documents, user interfaces, technology, know-how, trade secrets, designs, inventions, and other tangible or intangible technical material or information used to provide the Mental Canvas Materials, and/or conceived, inferred, or developed as part of the Mental Canvas Materials; and (e) all IP Rights in the foregoing (collectively, the “Mental Canvas IP”).  Except as expressly set forth in this EULA, no license or other rights in the Mental Canvas IP are granted to Customer, and all such rights are hereby expressly reserved.

6.2. Customer IP.  As between Customer and Mental Canvas, Customer owns all right, title, and interest in and to: (a)  Customer Content; (b) Customer’s logos and trademarks and all product names associated with Customer; and (c) all IP Rights in the foregoing (collectively, the “Customer IP”). Except as expressly set forth in this EULA, no license or other rights to any of the Customer IP are granted to Mental Canvas, and all such rights are hereby expressly reserved.

6.3. Feedback.  By submitting any Feedback, Customer hereby assigns to Mental Canvas all right, title, and interest in and to the Feedback. For purposes of this Agreement, “Feedback” means any comments, feedback, potential errors and improvements, reports, and ideas about the Software and the Services that Customer may provide to Mental Canvas. All results and findings relating to the performance of the Software and the Services will be deemed Confidential Information of Mental Canvas, and upon Mental Canvas’ request, Customer will provide the findings resulting from any evaluation or use of the Software or the Services to Mental Canvas.

7. Term

7.1. Term.  This EULA is effective as of the Effective Date and expires at the end of the License Term or if terminated prior to such date. The License Term will automatically renew for subsequent one (1) year periods unless a party notifies the other party of its intent not to renew at least thirty (30) days’ prior to the renewal date.

7.2. Termination by Mental Canvas.  In addition to Mental Canvas’ rights under Section 2.4, Mental Canvas may terminate this EULA or Customer’s use of the Mental Canvas Materials, effective upon written notice to Customer, if Customer: (a) fails to pay all Fees due and payable pursuant to Section 5; (b) breaches any of Customer’s obligations under Section 2.3 or Section 12; (c) ceases operation without a successor; or (d) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against Customer (and not dismissed within sixty (60) days).

7.3. Effects of Termination.

7.3.1. Upon any expiration or termination of Customer’s use of the Mental Canvas Materials, or of this EULA, Customer shall cease any and all use of any Mental Canvas Materials and Mental Canvas shall, through utilization of a Disabling Device or other means, disable all access to the Software by Customer and any of its Authorized Users.

7.3.2. In the event that at the time of termination there are any Fees outstanding in connection with the Software or any Services, all such Fees shall be immediately due and payable.

7.3.3. In the event of Customer’s termination of its use of the Services or Software, Mental Canvas may issue Customer a pro-rated refund of any prepaid, unused Fees for the Software.

7.4. Survival.  Sections 2.3 (Restrictions), 3.4 (Compliance with Laws), 5 (Fees and Payment), 6 (Proprietary Rights), 7.3 (Effects of Termination), 7.4 (Survival), 8 (Warranty Disclaimer), 9 (Indemnification), 10 (Limitations of Liabilities), 12 (Confidential Information), and 14 (Miscellaneous) (together with all other provisions, including any Order Forms, that may be reasonably interpreted as surviving termination or expiration of this EULA) shall survive any termination or expiration of this EULA.

8. Warranty Disclaimer

THE MENTAL CANVAS MATERIALS ARE PROVIDED “AS IS.” MENTAL CANVAS DOES NOT MAKE ANY OTHER WARRANTIES, CONDITIONS, OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. MENTAL CANVAS MAKES NO WARRANTY: (a) THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS; (b) THAT THE SOFTWARE WILL BE ERROR-FREE OR BUG-FREE; (c) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SOFTWARE; (d) THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; AND (e) REGARDING THE RESULTS OR OUTPUT OF THE SOFTWARE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS.

9. Indemnification

9.1. By Customer.  Customer agrees to hold harmless and indemnify Mental Canvas and its subsidiaries, affiliates, officers, directors, agents, and employees from and against any Damages arising from or in any way related to any Claim that: (a) alleges Customer’s misuse of the Mental Canvas Materials or a violation of this EULA; or (b) relates to Customer Content or Mental Canvas’ use of Customer Content in accordance with this EULA, including without limitation, any assertion that Customer Content or the use thereof may infringe or misappropriate any IP Rights or other rights of any individual or entity, or contain any libelous, defamatory, disparaging, pornographic, or obscene materials. If Mental Canvas requests that Customer defends a Claim, Customer will not agree to any settlement without Mental Canvas’ prior written consent, and Mental Canvas will have the right to participate, at its own expense, in the defense of any Claim with counsel of its own choosing (including in-house counsel).

9.2. By Mental Canvas.  Mental Canvas agrees to hold harmless and indemnify Customer and its subsidiaries, affiliates, officers, directors, agents, and employees from and against any Damages arising from or in any way related to any Claim that alleges that the Mental Canvas Materials or Customer’s use of the Mental Canvas Materials in accordance with this EULA may infringe or misappropriate any IP Rights or other rights of any individual or entity. The foregoing obligation does not apply to any Claim arising out of or related to: (a) modifications to the Mental Canvas Materials not authorized or made by Mental Canvas; (b) materials supplied by Customer, including without limitation Customer Content; (c) combination of the Mental Canvas Materials with products or services not provided by Mental Canvas; (d) designs or instructions provided by Customer to Mental Canvas; (e) Customer’s continued use of the allegedly infringing material after being notified thereof or after being informed of modifications that would have avoided such alleged infringement; or (f) Customer’s use of the Mental Canvas Materials not strictly in accordance with this EULA. Mental Canvas’ obligations pursuant to this Section 9.2 will be excused to the extent that Customer’s failure to provide prompt notice of the Claim or its failure to reasonably cooperate materially prejudices Mental Canvas’ defense. If Mental Canvas or a court or other body of competent jurisdiction determines that the Mental Canvas Materials are or may be infringing, Mental Canvas may, at its option and expense: (i) replace or modify the Mental Canvas Materials to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Customer a license to continue using the Mental Canvas Materials; or (iii) if neither of the foregoing is commercially practicable, terminate this EULA and Customer’s rights hereunder and provide Customer a refund or credit for any prepaid, unused Fees.   THE REMEDIES SET FORTH IN THIS SECTION 9 STATE THE SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY OF MENTAL CANVAS TO CUSTOMER IN RELATION TO INFRINGEMENT OF IP RIGHTS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF IP RIGHTS.

10. Limitations of Liabilities

10.1. Waiver of Certain Damages.  MENTAL CANVAS SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

10.2. Limitation of Liability.  NOTWITHSTANDING ANY OTHER PROVISION IN THIS EULA, MENTAL CANVAS’ ENTIRE LIABILITY TO CUSTOMER ARISING FROM THIS EULA SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO MENTAL CANVAS UNDER THIS EULA IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.

11. Arbitration

For any dispute with Mental Canvas, you agree to first contact us at business@mentalcanvas.com and attempt to resolve the dispute with us informally. In the unlikely event that Mental Canvas has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any of Mental Canvas’ claims for injunctive or other equitable relief) arising out of or in connection with or relating to this EULA, or the breach or alleged breach thereof (collectively, “Disputes”), by binding arbitration by the American Arbitration Association (‘’AAA’’) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in New York, New York unless you and Mental Canvas agree otherwise. Each party will be responsible for paying any AAA filing, administrative, and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  Nothing in this Section shall prevent either party from seeking injunctive infringement, misappropriation, or violation of that party’s data security, IP rights, or other proprietary rights. YOU AGREE THAT BY ENTERING INTO THIS EULA, YOU AND MENTAL CANVAS ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND MENTAL CANVAS AGREE THAT EACH MAY BRING DISPUTES AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLANTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATORS AND CLASS ACTIONS ARE NOT PERMITTED.

12. Confidential Information

12.1. Confidential Information.  The Mental Canvas Materials and any other technical, administrative, or similar information provided by Mental Canvas, including by its employees, agents, and independent contractors, shall be deemed “Mental Canvas Confidential Information” without any marking or further designation. Except as expressly authorized herein, Customer will hold in confidence and not use or disclose any Mental Canvas Confidential Information. Customer acknowledges that disclosure of Mental Canvas Confidential Information would cause substantial harm to Mental Canvas that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by Customer, Mental Canvas shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law. In the event that Customer requests Mental Canvas’ consulting services in connection with a confidential project to be produced using the Authoring Suite component of the Software, the details and existence of Customer’s project shall be deemed “Customer Confidential Information” without any marking or further designation. Mental Canvas will hold in confidence and not disclose any Customer Confidential Information during or after Mental Canvas’ consultation in connection with the Customer Confidential Information until such time as the project is made generally available to the public or members of Customer’s industry.

12.2. Protection.  Each party will not disclose the other party’s Confidential Information, or use the other party’s Confidential information, for any purpose other than to perform its obligations or exercise its rights under this EULA, and will protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The receiving party may disclose Confidential Information to its employees, agents, contractors, affiliates, and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the disclosing party than this Section 12 and that the receiving party remains responsible for compliance by any such representative with the terms of this Section 12. If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it will provide the disclosing party with prior written notice of such compelled disclosure and reasonable assistance (at disclosing party's cost) if the disclosing party wishes to contest the disclosure.

13. Trial.  If specifically set forth in an Order Form or as otherwise mutually agreed to in writing, you may evaluate the performance and functionality of the Software at no cost the (“Trial”). At the end of the Trial Period, the License Term will automatically commence. Notwithstanding the foregoing, either party may terminate this EULA at any time during the Trial Period. As part of the Trial, you will provide Mental Canvas with Feedback associated with your use of the Software during the Trial Period. Fees for the License Term must be paid prior to the start of the License Term. MENTAL CANVAS’  REPRESENTATIONS AND WARRANTIES HEREIN AND OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.2 WILL NOT APPLY TO YOUR USE OF THE SOFTWARE DURING THE TRIAL PERIOD.

14. Miscellaneous

14.1. Assignment.  This EULA will bind and inure to the benefit of each party’s permitted successors and assigns. Mental Canvas may assign this EULA to any affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of Mental Canvas’ assets or voting securities. Customer may not assign or transfer this EULA, in whole or in part, without Mental Canvas’ written consent. Any attempt to transfer or assign this EULA without such written consent will be null and void.

14.2. Severability.  If any provision of this EULA shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this EULA shall otherwise remain in effect.

14.3. Governing Law.  This EULA is governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.

14.4. Notices and Reports.  Any notice hereunder shall be in writing to the address and recipient set forth in the applicable Order Form or as otherwise provided to each party.  Notices shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service.

14.5. No Waivers.  No waiver will be implied from conduct or failure to enforce or exercise rights under this EULA or any Order Form, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.

14.6. Entire Agreement.  This EULA constitutes the complete and exclusive statement of the mutual understanding of the parties. If Customer has entered into another agreement with Mental Canvas concerning specific Services or Software, then the terms of that agreement will apply solely to those Services or Software. In the event of a conflict between this EULAs and any Order Form, the terms of the Order Form shall control.

14.7. Independent Contractors.  Customer and Mental Canvas are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

14.8. Force Majeure.  Neither party shall be liable to the other for any delay or failure to perform any obligation under this EULA (except for a failure to pay the Fees) if the delay or failure is due to unforeseen events, which occur after the Effective Date and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license, or changes in law or regulations by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure event at reasonable cost.

14.9. Audit.  Upon Mental Canvas’s written request, Customer shall certify in a signed writing that its and its Authorized Users’ use of the Software is in full compliance with this EULA (including any restrictions in the applicable Order Form). Mental Canvas, or its authorized representative, may, upon prior reasonable notice, inspect and audit Customer’s records and use of the Software to confirm its compliance with this EULA (including the identities of its users). All such inspections and audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with Customer’s business activities. Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use is not in accordance with the licensed scope of use and for unpaid Fees.

14.10. Publicity.  Mental Canvas may list Customer on its website and in marketing materials. Neither party shall issue any press releases without the prior written approval of the other (email shall suffice and such approval not to be unreasonably conditioned, delayed, or withheld). If you have made any Customer Content created using the Software public: (a) Mental Canvas may include a link and/or posting of such Customer Content on the Mental Canvas website or social media properties with a citation to the original hosting by Customer; and (b) you must include on such Customer Content a visible mark or credit designating the Customer Content as “Created with Mental Canvas.”