THIS BETA LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND LICENSOR REGARDING THE MAINCONCEPT SOFTWARE (“SOFTWARE”). IF YOU ARE LOCATED IN NORTH, CENTRAL, OR SOUTH AMERICA, “LICENSOR” SHALL MEAN MAINCONCEPT LLC; AND IF YOU ARE NOT LOCATED IN NORTH, CENTRAL, OR SOUTH AMERICA, “LICENSOR” SHALL MEAN MAINCONCEPT GMBH; PLEASE READ IT CAREFULLY. THESE RIGHTS ARE THE ONLY RIGHTS YOU HAVE TO THE SOFTWARE. UNLESS YOU ACCEPT THIS AGREEMENT BY CLICKING THE “I AGREE” BUTTON BELOW (“ACCEPTANCE”), YOU WILL NOT BE ABLE TO USE THIS SOFTWARE.
BY INSTALLING THIS SOFTWARE, YOU AGREE: (1) YOU HAVE A RIGHT TO ENTER INTO THIS AGREEMENT, (2) THIS AGREEMENT IS A LEGALLY BINDING AND VALID CONTRACT BETWEEN YOU AND LICENSOR, (3) YOU WILL ABIDE BY ALL OF THE PROVISIONS OF THIS AGREEMENT, AND (4) YOU WILL TAKE ALL NECESSARY STEPS TO ENSURE THAT THE PROVISIONS OF THIS AGREEMENT ARE NOT VIOLATED BY ANY PERSON OR ENTITY, INCLUDING YOUR EMPLOYEES (SOLELY TO THE EXTENT THE LICENSE EXPRESSLY PROVIDES FOR ACCESS TO THE SOFTWARE BY ANY PERSON OTHER THAN YOU). IF YOU DO NOT AGREE TO ANY TERM OR CONDITION, YOU MAY NOT INSTALL OR RUN THIS SOFTWARE.
1. License. (a) Beta License. Subject to your compliance with the terms and conditions of this Agreement, Licensor hereby grants you a limited, non-exclusive, non-assignable, non-transferable, personal and revocable license to use the Materials (defined below) solely for the purpose of your internal evaluation of the Materials (the “Permitted Use” and not for general commercial use during the Beta Test Term (defined below) (“Beta License”). You shall not use the Materials for the processing of any production data.
(b) The “Materials” are all software applications, software codecs, related components, software development kits, samples, documents, and beta versions of some or all of the preceding ordered through this website.
(c) Upon expiration or termination of this Agreement you must cease any and all use of the Materials.
Licensor shall be under no obligation to provide any services, maintenance or
support except as expressly provided for herein. Licensor may, however, make
such services available to you at its sole discretion. You shall address
technical questions to firstname.lastname@example.org, allow
forty-eight hours (excluding weekend and holidays) from the time of receipt of
your request for an initial response.
2. Restrictions. This Agreement is subject to the following restrictions: (i) the Beta License is NOT VALID for any use, including commercial use, unauthorized demonstrations, display, copying, modification, sale, or distribution of the Materials or portions thereof, or products incorporating the Materials or portions thereof, other than the Permitted Use above; (ii) the Beta License is NOT VALID for use of any other intellectual property of Licensor, including without limitation additional or future versions of the Materials; (iii) Licensor shall retain sole and exclusive ownership of all right, title, and interest in and to the Materials and any intellectual property rights in such Materials; (iv) the parties agree that a separate license agreement is required for additional uses of the Materials other than the Permitted Use, or for additional or future versions of the Materials; and (v) you shall under no circumstances engage, directly or indirectly, in the disassembly, reverse-engineering or decompilation, modification, or translation of the Materials.
3. Term. This Agreement is intended to cover Confidential Information (defined below) disclosed by a party (“Disclosing Party”) and received by the other (“Receiving Party”) prior or subsequent to the Acceptance of this Agreement. This Agreement will commence upon your Acceptance (“Acceptance Date”) and will automatically expire one hundred and eighty (180) days from the Acceptance Date. Additionally, either party may terminate this Agreement upon written notice to the other party at any time. Sections 2, 3, 5, 6, 7, 8, 9, 10, 11 and12 shall survive any expiration or termination of this Agreement.
4. Deliverables. The Materials will be delivered either via internet download.
5. Acknowledgment of Beta Software. You acknowledge and agree that: (a) the Materials are not an official product and have not been commercially released for license or distribution by Licensor; (b) the Materials may not operate properly, be in final form or fully functional; (c) the Materials may contain errors, design flaws or other problems; (d) it may not be possible to make the Materials fully functional; (e) the information obtained using the Materials may not be accurate and may not accurately correspond to information extracted from any other source; (f) use of the Materials may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) Licensor is under no obligation to release a commercial version of the Materials; and (h) Licensor has the unilateral right to abandon development of the Materials, at any time without any obligation or liability to you. You acknowledge and agree that you will not rely on the Materials for any reason. You are solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the Materials. You will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of your use of the Materials.
6. Feedback. You will provide reasonable feedback to Licensor concerning the features and functionality of the Materials. If you provide feedback to Licensor, all such feedback will be the sole and exclusive property of Licensor. You hereby irrevocably transfer and assign to Licensor all of your right, title, and interest in and to all feedback including all intellectual property rights therein (collectively, “Intellectual Property Rights”). You will not earn or acquire any rights or licenses in the Materials on account of this Agreement or in any Licensor Intellectual Property Rights on account of this Agreement or your performance under this Agreement, even if Licensor incorporates any feedback into the Materials or any other products or services. All feedback shall be Licensor’s Confidential Information.
7. Definition. “Confidential Information” means any information, technical data, or know-how, including without limitation that which relates to business plans, financial projections, agreements with third parties, patents, patent applications, trade secrets, research, product plans, products, services, suppliers, customers, prices and costs, markets, software, developments, inventions, processes, technology, designs, drawings, engineering, hardware configuration, marketing, licenses, budgets, or finances of the Disclosing Party, or that is otherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the premises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential. Confidential Information also includes the Materials and all information concerning the existence and progress of the parties’ dealings. Confidential Information does not include information, technical data, or know-how that (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) is rightfully received from a third party who did not acquire or disclose such information by a wrongful or tortious act; or (iv) can be shown by documentation to have been developed by the Receiving Party without reference to any Confidential Information. The Receiving Party may disclose Confidential Information to a governmental entity with jurisdiction over it provided that the Receiving Party shall disclose only such information as is legally required and shall provide the Disclosing Party prompt written notice prior to any such disclosure to allow the Disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the information to be so disclosed and a copy of the order requiring its disclosure.
8. Use of Confidential Information. The Receiving Party agrees not to use any Confidential Information disclosed to it by the Disclosing Party for its own use or for any purpose other than to carry out the Permitted Use or discussions concerning, or the undertaking of, a possible business relationship (“Relationship”). The Receiving Party will restrict the possession, knowledge, development, and use of Confidential Information to its employees, agents, and subcontractors and entities that it wholly controls or that wholly control it (collectively, “Personnel”) and who have a need to know Confidential Information in connection with the Permitted Use and/or the Relationship and each of whom has executed a written agreement with you restricting their possession or usage of the Confidential Information at least as restrictive as this Agreement. You, however, shall remain liable for any misuse of the Confidential Information by Personnel or any breach of this Agreement by Personnel. Personnel will have access only to the Confidential Information they need for such purposes and the Receiving Party will ensure that its Personnel comply with this Agreement. Except as expressly authorized in writing by the Disclosing Party, the Receiving Party will not (i) copy or modify any Confidential Information, or any copy, adaptation, transcription, or merged portion thereof, or (ii) reverse-engineer or reverse-compile object code versions of software programs. The Receiving Party agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the Disclosing Party and to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include, without limitation, those measures that the Receiving Party uses to protect its own Confidential Information, which shall be no less than reasonable care. The Receiving Party agrees to notify the Disclosing Party in writing of any misuse or misappropriation of the Disclosing Party’s Confidential Information. Nothing in this Agreement is intended to grant any rights under any patent, copyright, trade secret, or other intellectual property right of the Disclosing Party, nor shall this Agreement grant the Receiving Party any rights in or to the Disclosing Party's Confidential Information other than the limited right to review such Confidential Information in connection with the Permitted Use or the Relationship. The Receiving Party's obligations with respect to the Disclosing Party's Confidential Information disclosed or received prior to termination or expiration will survive two (2) years from the expiration or termination of this Agreement.
Upon request of the Disclosing Party, but no later than the expiration or termination of this Agreement, the Receiving Party (or you, as applicable regarding Materials) shall promptly return or destroy (or in the case of electronic embodiments, permanently erase) all Confidential Information, together with all copies, excerpts, and summaries thereof, as well as all notes or other records related to the Confidential Information or to the knowledge gained therefrom. In the case of Confidential Information that is destroyed, you or the Receiving Party, as applicable, shall upon Disclosing Party’s request provide the Disclosing Party with written confirmation of such destruction.
9. Warranty Disclaimer. You expressly acknowledge and agree that use of the Materials is at your sole risk. The Materials are provided “AS IS” and without warranty of any kind and Licensor and its licensor(s) EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MATERIALS WILL MEET YOUR BUSINESS REQUIREMENTS, OR THAT THE OPERATION OF THE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE MATERIALS WILL BE CORRECTED. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR A LICENSOR AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE MATERIALS PROVE DEFECTIVE, YOU (AND NOT LICENSOR OR A LICENSOR AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY.
10. Limitation of Liability. IN NO EVENT SHALL LICENSOR BE LIABLE OR OBLIGATED TO YOU IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER INDIRECT DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, INCURRED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF OR OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. EACH PARTY ACKNOWLEDGES AND AGREES THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
11. Remedies. The Receiving Party (or you, as applicable regarding Materials) agrees that its obligations provided in this Agreement are necessary and reasonable to protect the Disclosing Party (or Licensor, as applicable regarding Materials) and its business, and the Receiving Party expressly agrees that any breach or threatened breach of this Agreement may cause the Disclosing Party irreparable harm for which there is no adequate remedy at law, and as a result of which, the Disclosing Party shall be entitled to the issuance by a court of competent jurisdiction of an injunction, restraining order or other equitable relief in favor of itself, without the necessity of posting bond, restraining the Receiving Party from committing or continuing to commit any such violation. Any right to obtain an injunction, restraining order, or other equitable relief shall not be deemed a waiver of any right to assert any other remedy that may be available in law or in equity.
12. Miscellaneous. You may not assign, transfer or delegate this Agreement to any other party, in whole or in part, without the prior written consent of Licensor, and any attempt to do so will be null and void. This Agreement constitutes the complete and exclusive agreement between you and Licensor with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. This Agreement may not be modified except in a writing duly signed by an authorized representative of you and Licensor. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of the remaining provisions hereof under all circumstances. This Agreement and any disputes that may arise under, out of or in connection with this Agreement, shall be governed by and construed and enforced in accordance with the internal laws of the State of New York and shall be binding on the parties to this Agreement worldwide. Jurisdiction over and venue of any suit arising out of or related to this Agreement shall be exclusively in the courts of the State of New York. This Agreement sets forth the entire Agreement between the parties relative to the subject matter and supersedes all prior or contemporaneous oral or written understandings, statement, representations, or promises.