BETA TEST AGREEMENT
This Beta Test Agreement ("Agreement") is between Senzing, Inc. ("Senzing") and the person or entity that has agreed to the terms of this Agreement ("You," “Your” or “Yours”). This Agreement describes the terms under which You may: (a) access and use this website (the “Website”); (b) access, download and use the Beta Software (as defined below) in order to test and experience such Beta Software in a non-production environment solely to assess whether You may have an interest in entering into a commercial license agreement for the Beta Software when, if ever, Senzing makes the Beta Software commercially available, all subject to the terms of this Agreement.
By indicating Your acceptance before accessing or downloading the Beta Software, You are agreeing to comply with and be bound by all the terms of this Agreement
YOU REPRESENT THAT YOU ARE AT LEAST THE AGE OF MAJORITY IN THE JURISDICTION IN WHICH YOU RESIDE, THAT YOU ARE A RESIDENT OF THE UNITED STATES, THAT YOU MAY LEGALLY ENTER INTO THIS AGREEMENT, THAT YOU OR YOUR AFFILIATES DO NOT AND SHALL NOT PROVIDE GOODS OR SERVICES THAT ARE COMPETITIVE WITH, OR WOULD REASONABLY BE SEEN AS A SUBSTITUTE, FOR ANY GOODS OR SERVICES PROVIDED BY Senzing, AND THAT YOU AGREE WITH ALL THE TERMS OF THIS AGREEMENT.
1. License.
1.1 Grant.
Subject to the terms of this Agreement including without limitation Subsection 1.2 (“Limitations”), Senzing hereby grants You a limited, revocable, royalty-free, nontransferable, nonexclusive license (without the right to grant sublicenses) to access from Senzing’s secure GitHub account via the Website (and by use of a Password as described in Section 4 (“Password Delivery”)) and to use on a computer device owned or controlled by You, the executable object code version of software accompanying this Agreement, including such versions, releases, updates, enhancements, modifications, and additions, and also associated documentation, as may be made available by Senzing in its discretion from time to time (collectively, “Beta Software”). For the elimination of doubt, Senzing has established a private repository in such GitHub account, whereby You shall be added as an outside collaborator. Accordingly, You shall provide to Senzing a list of Your regular full-time employees who shall, acting as Your agents, use the Beta Software under this Agreement. You may access and use Beta Software solely for Your internal, non-productive business purposes, and solely: (a) to evaluate the technical and commercial viability of the Beta Software; (b) to evaluate the reliability and functionality of the Beta Software in a working environment; (c) to determine whether the features of the Beta Software perform as designed and are useful; (d) to determine whether the Beta Software will work for its intended purpose; and (e) to generate Feedback as defined in Subsection 2.2 (“Ownership”). Such testing shall be deemed the “Beta Test” hereunder. You may not make any copies, backup or otherwise, of the Beta Software. Except as and only to the extent expressly permitted in this Agreement, You shall not use, sublicense, sell, assign, convey, transfer, disclose, publish, display, copy, duplicate, adapt, merge, embed, disassemble, reverse engineer, reverse compile, reverse assemble or otherwise attempt to obtain or disclose any source code or other Confidential Information contained in the Beta Software or the Beta Test Materials.
1.2 Limitations.
The license granted in this Agreement shall apply to no more than two hundred and fifty (250) data source records ("DSRs"); provided, however, that where separately agreed to by You and Senzing, such DSR limit may be a number greater than two hundred and fifty (250). You understand and agree that the Beta Software may include automatic timers or “time bombs,” and therefore may automatically cease to function at the end of the license period. You also understand and agree that such Beta Software may include DSR limiters without any buffer over the foregoing permitted DSR limit.
2. Proprietary Rights and Ownership.
2.1 Proprietary Rights.
You acknowledge and agree that the Beta Software is being developed and will be developed by and on behalf of Senzing at great expense to Senzing, that the Beta Software and all reports, evaluations, surveys and other information and materials evidencing or relating thereto or to the Beta Test, including without limitation the nature and results of the Beta Test (collectively, the “Beta Test Materials”) are, and shall be at all times considered, Confidential Information for purposes of [Section 3 (“Confidential Information”),]{.smallcaps} and that Senzing has and will have exclusive, worldwide proprietary and other rights in the Beta Software and Beta Test Materials, including without limitation any and all worldwide patent, copyright, trademark, trade secret and other intellectual property rights, however and wherever arising (collectively, the “Proprietary Rights”). You acknowledge and agree that: (a) no title or ownership with respect to the Beta Software or Beta Test Materials is transferred to You by this Agreement; (b) the Beta Software, Beta Test Materials and all Proprietary Rights therein are and shall remain the exclusive property of Senzing; and (c) except for the license expressly granted by this Agreement, You shall not have any right or interest in the Beta Software or Beta Test Materials. There are no implied licenses under this Agreement.
2.2 Ownership.
You shall not make any claim or representation of ownership, or act as the owner, of any of the Beta Software or Beta Test Materials or permit or facilitate the performance of any act that is inconsistent with or in violation of this Agreement. You shall not remove, alter, cover or obscure any ownership, copyright, patent or other notice in or on the Beta Software or Beta Test Materials, nor shall You permit any third party to do any of the foregoing. You may, but are not required to, provide ideas, concepts and suggestions from time to time to Senzing regarding possible improvements or changes to the Beta Software or Beta Materials (collectively, “Feedback”). There shall be no amounts owed or paid to You under this Agreement for Feedback or otherwise, and the parties understand and agree that Senzing shall be free to use and disclose Feedback without notice to or permission from You or any third party, during or after the term of this Agreement.
3. Confidential Information.
Both during and after the term of this Agreement, You shall keep strictly confidential, and not disclose or use other than as expressly permitted by this Agreement, any non-public information of Senzing or provided by Senzing, including without limitation the Password, the Beta Software and the Beta Test Materials (collectively, “Confidential Information”). You shall advise all persons who have access to the Confidential Information of the confidential nature thereof, and of the restrictions imposed by this Agreement. You shall limit access to the Confidential Information solely to such a limited number of Your employees as is necessary to conduct the Beta Test. You shall cause such employees to protect the confidentiality of the Confidential Information consistent with Your obligations hereunder, and You shall fully indemnify, defend and hold harmless Senzing against any failure by such employees to do so.
4. Your Responsibilities.
During the term of this Agreement, You shall, at no charge to Senzing: (a) provide a supportive environment that allows for the free exchange of comments and information between Your employees and Senzing; (b) provide a technical support employee who is conversant with the computer equipment on which the Beta Software is used to assist in training and problem resolution; (c) assist Senzing in recreating and defining Beta Software and Beta Test Materials problems; (d) document problems, comments and suggestions (including without limitation Feedback) to Senzing; (e) use all new Beta Software and Beta Test Materials versions, updates, enhancements, modifications and additions that Senzing provides to You as part of the Beta Software and Beta Test Materials; and (f) participate in reasonable telephone conferences, surveys and meetings scheduled by Senzing to evaluate Beta Test progress. In addition, You shall: (t) not allow any third party to access, use or copy the Beta Software; (u) not adapt, alter, modify, translate or create derivative works of the Beta Software or documentation, or create any unauthorized copies thereof; (v) not cause or permit use of the Beta Software for unlawful purposes which would constitute a felony or crime or violate fundamental human rights guaranteed under the United Nations Universal Declaration of Human Rights; (w) not copy any ideas, features, functions or graphics of the Beta Software; (x) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption; (y) have and maintain in place throughout the term of this Agreement Your own policies and procedures to ensure such compliance; and (z) promptly report to Senzing any request or demand for any undue financial or other advantage of any kind received by You in connection with the performance of this Agreement. Breach of this provision shall be deemed to be a material breach of the Agreement.
5. Term.
Unless sooner terminated according to the terms of this Agreement, this Agreement, including any licenses granted herein, shall have a term of ninety (90) days following the date upon which You agree to the terms of this Agreement (but subject to Subsection 1.2 (“Limitations”)), and shall immediately expire upon the general commercial release by Senzing of SDK Version 4.0. The term of this Agreement may extend beyond such period only with the mutual written consent of both parties.
6. Termination.
Senzing may suspend Your access to the Beta Software at any time and for any reason, or no reason. Additionally, either party may terminate this Agreement upon two (2) days’ written notice to the other party for any reason or no reason. Upon the expiration or termination of this Agreement, You shall: (a) immediately discontinue exercising any rights granted under this Agreement and such rights shall immediately terminate; and (b) within three (3) days thereafter, certify in writing that all of the Beta Test Materials including, without limitation, all copies and duplicates thereof in whatever form, have been returned to Senzing or have been destroyed. Such expiration or termination shall not relieve You of any of Your confidentiality or other obligations.
7. No Commercial Release.
The parties acknowledge and agree that this Agreement does not constitute and is not intended to be a sale, offer for sale or public disclosure of Beta Software or any invention contained therein or developed during the Beta Test.
8. Disclaimer.
SENZING DOES NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL, WARRANTIES WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR ARISING BY USAGE OF TRADE OR COURSE OF DEALING, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES THAT: (I) THE BETA SOFTWARE AND BETA TEST MATERIALS ARE STILL IN DEVELOPMENT, ARE EXPERIMENTAL IN NATURE, AND WILL BE UNDERGOING TESTING; AND (II) THE OPERATION OR USE THEREOF WILL NOT BE UNINTERRUPTED OR ERROR-FREE.
9. Indemnity and Limitation of Liability.
9.1 Indemnity.
You hereby agree to indemnify, defend and hold harmless Senzing, its affiliates, agents and personnel harmless from and against all claims, demands, threats, suits or proceedings, and all associated losses and liabilities, arising out of or relating to Your breach or alleged breach of this Agreement or Your use of the Beta Software or the Beta Test Materials, and You hereby irrevocably release Senzing, its affiliates, agents and personnel with respect thereto.
9.2 Limitation of Liability.
Senzing SHALL NOT BE LIABLE FOR ANY: (A) ECONOMIC, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER CLAIMED UNDER CONTRACT, INDEMNITY, TORT OR ANY OTHER LEGAL THEORY; (B) LOSS OF OR DAMAGE TO CLIENT DATA OR PROGRAMMING; OR (C) COMPUTER SOFTWARE OR HARDWARE INTERRUPTION OR MALFUNCTIONS. IN NO EVENT SHALL THE LIABILITY OF Senzing UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE BETA SOFTWARE OR THE BETA MATERIALS EXCEED ONE HUNDRED DOLLARS ($100), REGARDLESS OF THE CAUSE OF ACTION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL LICENSOR HAVE ANY LIABILITY FOR RESULTS OF THE USE OF THE BETA SOFTWARE THAT PRODUCE, IN WHOLE OR IN PART, A: (Y) FALSE INDICATION OF A POSITIVE RESULT, WHERE A NEGATIVE RESULT IS ACTUALLY CORRECT; OR (Z) FALSE INDICATION OF A NEGATIVE RESULT, WHERE A POSITIVE RESULT IS ACTUALLY CORRECT.
10. Contacts.
Any notices or communications to Senzing under this Agreement shall be directed to the following technical contact:
Mr. Brian Macy
Vice President of Product Development and Operations
Senzing Inc.
Any notices or communications to You under this Agreement shall be directed to Your technical contact via the email address You provided to Senzing. Either party may change its technical contact by giving notice to the other party.
11. Injunctive Relief.
You hereby acknowledge that because of the confidential and proprietary nature of the Beta Software and Beta Test Materials, neither termination of this Agreement nor an action at law would be an adequate remedy for a breach by You of this Agreement. Accordingly, You agree that, in the event of such breach, Senzing will be irreparably harmed and, in addition to all other remedies which Senzing may have, Senzing shall be entitled to relief in equity, including a temporary restraining order, temporary or preliminary injunction, and permanent mandatory or prohibitory injunction to restrain the continuation of any such breach or to compel compliance with the provisions of this Agreement without the necessity of proof of actual damage.
12. Remedies.
All rights and remedies conferred under this Agreement or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently.
13. Choice of Law and Jurisdiction.
This Agreement shall be governed by and construed under and pursuant to the laws of the State of Delaware as apply to contracts entered into and performed in Delaware between Delaware residents, and without regard to conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
14. No Assignment.
You may not assign, sell, convey, sublicense or otherwise transfer the Beta Software, Beta Test Materials, any component thereof or any right or interest therein, this Agreement, or any of Your rights or obligations under this Agreement, to any other party, either voluntarily or involuntarily, directly or indirectly, whether by operation of law or otherwise. For purposes of this Agreement, any merger, consolidation, or direct or indirect change in control of You or Your business shall be deemed an assignment. Senzing may assign this Agreement in whole or in part upon notice. Any purported assignment of this Agreement by You shall be void.
15. Severability.
If any term, clause or provision of this Agreement shall be judged invalid for any reason whatsoever by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to have been modified, to the extent necessary to make it valid and enforceable or, if such term, clause or provision cannot be so modified, it shall be deemed deleted from this Agreement.
16. No Waiver.
The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
17. Survival.
Notwithstanding the termination or expiration of this Agreement or otherwise, the provisions of Section 2 (“Proprietary Rights and Ownership”), Section 3 (“Confidential Information”), Section 6 (“Termination”), Section 8 (“Disclaimer”), Section 9 (“Indemnity and Limitation of Liability”), Section 11 (“Injunctive Relief”), Section 12 (“Remedies”), Section 13 (“Choice of Law and Jurisdiction”), Section 15 (“Severability”), Section 16 (“No Waiver”), Section 17 (“Survival”) and Section 19 (“Entire Agreement”) shall survive.
19. Entire Agreement.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all other communications between the parties with respect thereto. This Agreement may not be released, discharged, changed or modified other than in accordance with its terms except by an instrument in writing signed by a duly authorized representative of each of the parties hereto.