ALPHA TEST LICENSE AGREEMENT

Transcription

1 ALPHA TEST LICENSE AGREEMENT IMPORTANT NOTICE! PLEASE READ THIS STATEMENT AND THE ALPHA TEST LICENSE AGREEMENT COMPLETELY BEFORE USING THIS ALPHA SOFTWARE. BY CLICKING ON THE BUTTON MARKED YES BELOW OR BY CONTINUING TO USE THIS ALPHA SOFTWARE, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) INDICATE YOUR INTENTION TO BE BOUND BY AND ACCEPT THE TERMS AND CONDITIONS OF THIS ALPHA TEST LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS YOU MAY NOT ACCESS OR OTHERWISE USE THIS ALPHA SOFTWARE AND WILL IN FACT BE PROHIBITED FROM DOING SO. THIS ALPHA SOFTWARE MAY BE USED ONLY PURSUANT TO THE TERMS AND CONDITIONS SET FORTH BELOW. Trial License BeaconsInSpace LLC. ( BIS ) a Massachusetts limited liability company hereby grants to you a non-exclusive, non-transferable, revocable at will by BIS, trial license (the Trial License ), to use (and if applicable, to permit your authorized employees to use), at no cost and solely in accordance with the terms and conditions of this Alpha Test License Agreement, this pre-commercial release software program (the Alpha Program ) and any accompanying documentation (the Documentation ) for its internal, end-use purposes only (excluding the commercialization of information technology products), in the ordinary course of its business. (The Alpha Program, any updates to the Alpha Program, and the Documentation shall hereinafter collectively be referred to as the Alpha Software ). Use of the Alpha Software shall begin on the date of installation and shall end when terminated in accordance with the termination provisions of this Alpha Test License Agreement (the Trial Period ). This Trial License granted hereunder permits you to use only this Alpha Software and does not entitle you to evaluate any future Alpha version of any other BIS software. Restrictions You shall not: (a) copy (except as provided below), adapt, modify the Alpha Software; (b) publish, display, disclose the Alpha Software or any part thereof; (c) de-compile or translate, disassemble, create or attempt to create, by reverse engineering or otherwise, the source code form of the Alpha Program from the executable code of the Alpha Program; (d) remove any proprietary notices, labels or marks from the Alpha Software; (e) rent, lease, distribute or transfer all or any part of the Alpha Software to any person or entity without the prior written consent of BIS; (f) use the Alpha Software to provide outsourcing, service bureau, time sharing or other services to any third party; or (g) sublicense, assign, delegate or otherwise transfer your rights in the Alpha Software, under the Alpha Test License Agreement or any of the related rights or obligations for any reason without the

2 prior written consent of BIS. Any attempt to do so shall result in automatic termination of this Trial License without prejudice to all other legal rights and remedies of BIS. Your Trial Period Obligations In consideration for participating in the evaluation, testing and development of the Alpha Software, during the Trial Period, you shall: (a) appoint an individual as the contact coordinator in order to coordinate the collection of information concerning use of the Alpha Software and to respond to questions from BIS; (b) provide a proper operating environment for the Alpha Program as specified by BIS; (c) provide troubleshooting, debugging, and maintenance assistance (such as system backup and program module replacement) according to BIS s request and detailed instructions; (d) monitor its use of the Alpha Program and communicate its observations and problems regarding the Alpha Program (including errors, failures, unconforming results, and unexpected performances) in writing to BIS on a regular basis; (e) install, as soon as practical, all fixes, releases, and updates to the Alpha Software delivered to you; and (f) provide to BIS such further documentation, information and assistance as may reasonably be requested by BIS. You agree that BIS will have no confidentiality obligations with respect to any feedback, data or information provided to BIS pursuant to your above obligations. Further, you agree that BIS and its designees will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense through multiple tiers of distribution and licensees, incorporate and otherwise use the feedback, data and information, including derivative works thereto, for any and all commercial and non-commercial purposes. Copying Restrictions You may make one (1) copy of the Alpha Software for backup or archival purposes, provided that you reproduce all proprietary notices of BIS on any such copy. Non Transferable You may not transfer or assign the Alpha Program or this Alpha Test License Agreement or any rights or obligations hereunder. Any attempt to do so will be void and shall result in automatic termination of this Trial License without prejudice to all other legal rights and remedies of BIS. Intellectual Property Rights The Alpha Software is and includes intellectual property of BIS. All associated intellectual property rights, including, without limitation, worldwide patent, trademark, copyright and trade secret rights, are reserved. BIS retains all right, title and interest in and copyrights to the Alpha Software, regardless of the form or media in or on which the original or other copies may subsequently exist. This Alpha Test License Agreement shall not constitute a sale of the Alpha Software and no title or proprietary rights to the Alpha Software are transferred to you hereby. You acknowledge that the Alpha Software is a unique, confidential and valuable asset of BIS, and BIS shall have the right to seek all equitable and legal redress, which may be available to it for the breach or threatened

3 breach of this Alpha Test License Agreement including, without limitation, injunctive relief. Unauthorized copying of the Alpha Software or failure to comply with the above restrictions shall result in automatic termination of this Trial License and this Alpha Test License Agreement without prejudice to all other legal rights and remedies of BIS. Confidentiality You acknowledge and agree that in connection with using the Alpha Software, you shall have access to and knowledge of confidential and proprietary information of BIS. You shall treat as confidential and keep secret all information contained in the Alpha Software as well as all information that is conveyed to you by BIS or learned by you during the Trial Period to the extent that such information is by its nature confidential and/or a trade secret, including but not limited to the Alpha Software s features and modes of operation, inventions (whether or not patentable), techniques, processes, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, analysis and performance information, user documentation and other technical information, plans and data. This undertaking shall not apply to information that becomes part of the public domain through no act or omission of your own or is in your lawful possession prior to disclosure of it. This undertaking shall also not apply to disclosure of information by requirement of statute or other law. You acknowledge that the Alpha Software contains proprietary trade secrets of BIS and you hereby agree to maintain the confidentiality of the Alpha Software using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information. You agree to reasonably communicate the terms and conditions of this Alpha Test License Agreement to those persons employed by you who come into contact with the Alpha Software, and to use reasonable best efforts to ensure their compliance with such terms and conditions, including, without limitation, not knowingly permitting such persons to use any portion of the Alpha Program for the purpose of deriving the source code of the Alpha Program. Enforcement Obligations In the event you become aware that any person or entity in your employ or under your control in a manner not authorized by this Alpha Test License Agreement is using the Alpha Software, you shall immediately use reasonable best efforts to have such unauthorized use of the Alpha Software immediately cease. You shall promptly notify BIS in writing of any unauthorized use of the Alpha Software of which you become aware. Limited Warranties THE ALPHA SOFTWARE IS NOT A FULLY TESTED PRODUCT OFFERING, AND HAS NOT BEEN COMPLETED ACCORDING TO BIS s NORMAL DEVELOPMENT PROCEDURES. YOUR USE OF THE ALPHA SOFTWARE IS AT YOUR SOLE RISK; THE ALPHA SOFTWARE AND ASSOCIATED DOCUMENTATION MAY

4 CONTAIN DEFECTS, FAIL TO COMPLY WITH APPLICABLE SPECIFICATIONS, AND PRODUCE UNINTENDED OR ERRONEOUS RESULTS WHEN OPERATED EITHER BY ITSELF OR IN COMBINATION WITH OTHER SYSTEMS OR PRODUCTS. THE ALPHA SOFTWARE IS PROVIDED "AS IS". BIS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE ALPHA SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BIS IS NOT OBLIGATED TO PROVIDE ANY UPDATES TO THE ALPHA SOFTWARE. SHOULD THE ALPHA SOFTWARE PROVE DEFECTIVE, YOU (AND NOT BIS, ITS DISTRIBUTOR, OR RETAILER) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION AND ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU SHALL BE RESPONSIBLE FOR ANY USE OF THE ALPHA SOFTWARE IN YOUR OPERATIONS, INCLUDING USE BY YOUR OFFICERS OR EMPLOYEES. YOU SHALL BE RESPONSIBLE FOR VERIFYING ANY OUTPUT RESULTING FROM USE OF THE ALPHA SOFTWARE IF YOU INTEND TO USE OR RELY ON SUCH OUTPUT FOR OPERATIONAL PURPOSES. YOU SHALL FOLLOW PROPER BACKUP PROCEDURES FOR ANY OTHER PROGRAMMING AND ALL DATA TO PROTECT AGAINST LOSS OR ERROR RESULTING FROM USE OF ANY OR ALL OF THE ALPHA SOFTWARE. Limitation of Liability IN NO EVENT WILL BIS, OR ITS EMPLOYEES, SHAREHOLDERS OR SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR IN CONNECTION WITH THIS ALPHA TEST LICENSE AGREEMENT OR THE SUBJECT MATTER HEREOF EVEN IF BIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BIS s ENTIRE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS ALPHA TEST LICENSE AGREEMENT OR OTHERWISE SHALL NOT EXCEED THE GREATER OF THE AMOUNT OF THE FEES PAID BY YOU FOR THE ALPHA SOFTWARE OR FIVE DOLLARS (U.S. $5.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. Indemnification You shall indemnify and hold harmless BIS, its officers, directors, employees, suppliers and agents from and against all losses, settlements, claims, actions, suits, proceedings, judgments, awards, damages, liabilities, costs and expenses including, without limitation, reasonable attorneys fees (collectively Losses ) which arise out of or as a result of any breach of this Alpha Test License Agreement by you or your employees, agents, resellers,

5 dealers or sub-dealers and shall reimburse BIS for any and all legal, accounting and other fees, costs and expenses reasonably incurred by any of them in connection with investigating, mitigating or defending any such Losses. Termination BIS may, in its sole discretion, revoke the Trial License for this Alpha Software at any time upon notice to you or the entity on whose behalf, for whose benefit or at whose direction you are using this Software. In any event, the Trial License shall expire and the Trial Period shall end upon any of: (a) the commercial release of the Alpha Software by BIS; (b) a new version of the Alpha Software by BIS (at which time you will be required to agree to a new Trial License for such Alpha software) and/or (c) the purchase by you of a license for a commercial release version of the Alpha Software. Within five (5) days of any such expiration, you shall return to BIS (or, at BIS s sole discretion and direction, destroy) the Alpha Software. Upon return of the Alpha Software (with notice of the destruction of the Software, as appropriate), you shall have no further right to use the Alpha Software and BIS shall have no further obligations to you regarding such Alpha Software. General This Alpha Test License Agreement shall be construed, interpreted and governed by the laws of the state of Massachusetts, without regard to conflicts of law provisions. The sole jurisdiction and venue for any litigation arising from or related to this Alpha Test License Agreement or the subject matter hereof shall be in an appropriate state or federal court located in Boston, Massachusetts, and you hereby submit to the jurisdiction of such courts. This Alpha Test License Agreement shall constitute the entire agreement between you and BIS with respect to the subject matter hereof. Any waiver or modification of this Alpha Test License Agreement shall be valid only if it is in writing and signed by both parties hereto. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably effect the intention of the parties. Survival All provisions of this Alpha Test License Agreement relating to confidentiality, nondisclosure, BIS s proprietary rights, disclaimers, and limits of liability, or indemnification by Customer shall survive termination of this Trial License for any reason. Reservation of Rights All rights not expressly granted are reserved by BIS. IF YOU AGREE WITH THIS TRIAL LICENSE, CLICK YES. IF YOU CLICK YES, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTAND THIS ALPHA TEST LICENSE AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS.