SOFTWARE BETA LICENSE AGREEMENT
This Software Beta License Agreement (the “Agreement”) is entered into by and between Contact Mapping, Inc. a Delaware corporation (“Contact Mapping”) and the individual downloading the Software or, if applicable, the entity on whose behalf the individual downloading the Software is acting (“Licensee”) as of the date Licensee clicks “I Accept” (the “Effective Date”).
Both parties desire that Licensee use and evaluate Contact Mapping’s software and related documentation made available by Contact Mapping for download (the “Software”) subject to the terms and conditions of this Agreement. Contact Mapping is willing to provide, within the protection of a confidential relationship, access to the Software to Licensee during the Evaluation Period set forth below. In consideration of the foregoing and the mutual covenants herein, the parties hereby agree as follows:
1. License Grant. During the Evaluation Period and subject to Licensee’s compliance with the terms and conditions of this Agreement, Contact Mapping grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable license to install and use the Software only: (a) in object code form; and (b) to test and evaluate the Software and provide Contact Mapping Feedback. Licensee acknowledges that Contact Mapping may modify the Software at any time, with or without notice, and such modifications may add or remove or change features or functionality of the Software.
2. Restrictions. The license granted in Section 1 is granted solely to Licensee and not to any parent, subsidiary or affiliate of Licensee. Licensee acknowledges that the Software and its structure, sequence, organization and source code contain valuable trade secrets of Contact Mapping and its suppliers. Accordingly, Licensee shall not, nor shall it permit, assist or encourage any third party to: (a) modify, adapt, alter, translate or create derivative works from the Software; (b) merge the Software with other software; (c) sublicense, lease, rent, or loan the Software, or otherwise transfer the Software to any third party; (d) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (e) remove, obscure or alter Contact Mapping’s copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Software; or (f) otherwise exercise rights to the Software except as expressly allowed under Section 1.
3. Ownership. As between the parties, the Software, and all worldwide intellectual property rights and proprietary rights relating thereto or embodied therein, are the exclusive property of Contact Mapping and its suppliers. Contact Mapping and its suppliers reserve all rights in and to the Software not expressly granted to Licensee in Section 1, and no licenses or rights are granted by implication, estoppel or otherwise. Contact Mapping reserves the right to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability, documentation or any other characteristics of any commercial release of the Software.
4. Feedback. Contact Mapping would like Licensee to promptly report problems to Contact Mapping whenever the Software does not perform in accordance with the documentation. Licensee may provide to Contact Mapping comments, criticisms, suggested improvements and other feedback, about the use, operation, functionality and features of the Software (collectively, the “Feedback”). Licensee agrees that Contact Mapping has the right to use the Feedback at its sole discretion, including incorporating all or some of the Feedback into the goods and Software of Contact Mapping or any other party, all without notice to, payment of or consent from Licensee. Licensee hereby assigns to Contact Mapping all right, title, and interest in and to its Feedback to Contact Mapping. To the extent that Licensee cannot assign rights in Feedback to Contact Mapping, Licensee hereby grants Contact Mapping an unlimited, perpetual, fully paid-up, worldwide, non-exclusive, fully transferable, fully sublicensable and irrevocable right to execute, reproduce, distribute, perform, display, modify, create derivative works of, make, have made, use, import, sell, offer to sell and otherwise transfer the Feedback and to practice or have practiced any process or method involved in any use thereof. Contact Mapping will not use Licensee’s name or trademarks in communications outside of Contact Mapping without the prior written consent of Licensee.
5. Support. Contact Mapping has no obligation to provide any maintenance or support services to Licensee under this Agreement.
6. Termination; Return of Software. This Agreement is effective on the Effective Date and shall continue for [one hundred eighty (180)] days (the “Evaluation Period”) unless sooner terminated by either party. Either party may terminate this Agreement, with or without cause, immediately upon written notice to the other party. Upon the expiration or any termination of this Agreement, the license granted to Licensee hereunder will terminate and Licensee, at its expense, will immediately cease use of the Software and uninstall and return all copies of the Software and all Confidential Information in its possession to Contact Mapping. The provisions of Sections 2, 3, 5, 7 through 11 shall survive termination or expiration of this Agreement for any reason.
7. Confidentiality; Publicity. “Confidential Information” means the Software, all information provided by Contact Mapping about the Software, all Feedback, and all information provided by Contact Mapping that is clearly marked as confidential. Licensee shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than to evaluate the Software during the Evaluation Period. In particular, Licensee will maintain the existence, features and capabilities of the Software as secret and confidential until the Software is introduced for license to the general public or publicly announced by Contact Mapping. Licensee agrees that it shall treat all Confidential Information with the same degree of care as it accords to its own confidential information which, in no event, shall be less than reasonable care. Licensee shall not disclose the existence of this Agreement or any of the activities pursued hereunder without Contact Mapping’s prior written consent.
8. Software. Disclaimer. Licensee’s use of the Software is entirely at its own risk. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. CONTACT MAPPING, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. TO THE EXTENT THAT, AS A MATTER OF APPLICABLE LAW, ANY IMPLIED OR STATUTORY WARRANTY MAY NOT BE DISCLAIMED, THE DURATION AND SCOPE OF SUCH WARRANTY SHALL BE THE MINIMUM PERMISSIBLE UNDER SUCH APPLICABLE LAW.
9. Limitation of Liability.
(a) IN NO EVENT WILL CONTACT MAPPING OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE SOFTWARE OR THIS AGREEMENT, EVEN IF CONTACT MAPPING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT, AS A MATTER OF APPLICABLE LAW, LIABILITY FOR CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES MAY NOT BE EXCLUDED OR LIMITED, CONTACT MAPPING’S LIABILITY FOR SUCH DAMAGES SHALL BE LIMITED TO THE MINIMUM PERMISSIBLE UNDER SUCH APPLICABLE LAW.
(b) CONTACT MAPPING’S AND ITS SUPPLIERS’ TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED TEN DOLLARS ($10). LICENSEE ACKNOWLEDGES THAT THE LICENSE FEES (OR LACK THEREOF) REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT CONTACT MAPPING WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
10. General. Licensee shall comply with all laws, regulations, rules, ordinances and orders applicable to its use of the Software. Without limiting the foregoing, Licensee shall comply with the relevant export administration and control laws and regulations, as may be amended from time to time, including, without limitation, the United States Export Administration Act, to ensure that the Software is not shipped, transferred or exported (directly or indirectly) in violation of U.S. law. Licensee may not assign or delegate, directly or indirectly, by operation of law, change of control or otherwise, this Agreement or any of its rights or obligations under this Agreement to any third party, and any attempt to do so will be void and of no effect. This Agreement will be subject to and governed by the laws of the State of Colorado as applied to agreements made, entered into and performed solely in Colorado by Colorado residents. For any litigation arising from or related to this Agreement, the parties hereby consent to the exclusive jurisdiction of and venue in the state and federal courts located in Denver County, Colorado. Notwithstanding the foregoing, Contact Mapping shall be entitled to seek equitable relief in any court of competent jurisdiction to prevent any threatened or ongoing breach of this Agreement. All modifications, waivers and amendments must be in writing and signed by both parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and continue in full force and effect. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communications, whether written or oral