BY CLICKING “I AGREE,” ACCESSING, DOWNLOADING, INSTALLING, UPLOADING, COPYING OR USING THE BETA SOFTWARE, YOU AGREE TO THIS BETA LICENSE AGREEMENT (“Agreement”) IN A LEGALLY BINDING MANNER WITH X INNOVATIONS, LLC, AN OREGON LIMITED LIABILITY COMPANY LOCATED AT 52696 NE 1st ST., SCAPPOOSE, OR 97056 (“X Innovations”). IN THE FOLLOWING, THE TERM “Licensee” SHALL REFER, JOINTLY AND SEVERALLY, TO YOU INDIVIDUALLY AND ANY ORGANIZATION ON WHOSE BEHALF YOU ACT. IF YOU DO NOT AGREE TO THE TERM SO OF THIS BETA LICENSE AGREEMENT THEN YOU ARE NOT AUTHORIZED TO USE THE BETA SOFTWARE.
2. Evaluation Feedback. The purpose of this limited license is the testing and evaluation of the Beta Software and, where appropriate, development by Licensee of Licensee products that interoperate with the Beta Software. In furtherance of this purpose, Licensee shall provide feedback to X Innovations concerning the functionality and performance of the Beta Software from time to time as reasonably requested by X Innovations, including (but not limited to) identifying potential errors and improvements (collectively the “Feedback”). Licensee will provide Feedback in a manner that is mutually agreeable to the parties. X Innovations may use Feedback, without restriction, to improve or enhance its products and, accordingly, Licensee hereby grants to X Innovations a non-exclusive, perpetual, irrevocable, royalty-free, transferable, sublicensable, worldwide right and license: (i) to use, reproduce, disclose, distribute, modify, prepare derivative works of and otherwise exploit the Feedback and other information Licensee provides to X Innovations under this Agreement, and (ii) to make, use, sell, offer to sell, import and export any product or service that incorporates the Feedback and other information Licensee provides to X Innovations under this Agreement.
3. Ownership. X Innovations owns and retains all right, title and interest in and to the patents, copyrights, trademarks, trade secrets and any other intellectual property rights (collectively "Intellectual Property Rights") in the Beta Software and any derivative works thereof, subject only to the limited license set forth in this Agreement. Licensee does not acquire any other rights, express or implied, in the Beta Software and all rights not expressly granted in this Agreement are expressly reserved to X Innovations.
4 License Restrictions. Licensee shall not disclose, provide, or disseminate in any manner the Beta Software or Confidential Information (defined in Section 5) to any third party, including (but not limited to) its partners, affiliates or subsidiaries. Except to the extent contrary to any applicable laws, Licensee will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Beta Software. Without limiting the foregoing, Licensee shall not use the Beta Software for Licensee’s product development or any other commercial purpose, including, but not limited to sales or marketing activities, except as expressly permitted in this Agreement. The Beta Software and all performance data and test results, including without limitation, benchmark test results (collectively “Performance Data”), relating to the Beta Software are the Confidential Information of X Innovations, and will be treated in accordance with the terms of Section 5 (Confidential Information) of this Agreement. Accordingly, Licensee shall not publish or disclose to any third party any Performance Data relating to the Beta Software.
5. Confidential Information. "Confidential Information" means the Beta Software, all information regarding the Beta Software (including any trade secrets, know-how, inventions, techniques, processes, and algorithms embodied in the Beta Software), Performance Data, X Innovation products, product roadmaps, and other technical, business, financial and product development plans, forecasts and strategies, and other information provided by X Innovations to Licensee under this Agreement, whether disclosed orally, in writing, or by examination or inspection, other than information that Licensee can demonstrate (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by X Innovations. If Licensee wishes to disclose to X Innovations any information under this Agreement that Licensee considers proprietary or confidential to Licensee (“Licensee Information”), then Licensee agrees such disclosure will be governed by a separate non-disclosure agreement (“NDA”) by and between the parties. If Licensee is required to disclose Confidential Information by applicable law or court order, Licensee shall notify X Innovations of the required disclosure promptly in writing and shall cooperate with X Innovations in any lawful action to contest or limit the scope of the required disclosure. Licensee shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. In no event shall Licensee use the Beta Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service, including any X Innovations products except as expressly set forth in this Agreement. Licensee shall not disclose any Confidential Information to any third party. Without limiting the foregoing, Licensee shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information.
6. Disclaimers. The Beta Software is pre-release code and is not at the level of performance or compatibility of a final, generally available product offering. The Beta Software has not been completely tested and will contain defects or deficiencies, some of which cannot or may not be corrected. Beta Software may not operate correctly and may be substantially modified prior to first commercial release or withdrawn. X Innovations has no express or implied obligation to announce or introduce the Beta Software or any similar or compatible product. Licensee acknowledges that all use, testing, research and development performed by Licensee pursuant to this Agreement is done entirely at Licensee's own risk.
THE BETA SOFTWARE IS PROVIDED “AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY THAT THE BETA SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS. EXCEPT TO THE EXTENT PROHIBITED BY LAW, X INNOVATIONS DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
a. Term. The term of this Agreement begins on the date of Licensee's acceptance of this Agreement ("Effective Date") and will continue until terminated as set forth in this Section 7.
b. Automatic Termination. This Agreement will automatically terminate without notice upon the earlier of: (i) the initial commercial release by X Innovations of a generally available version of the Beta Software; (ii) automatic expiration of the Beta Software based on the system date; or (iii) in the event Licensee discloses the Beta Software in breach of Section 5.
a. Termination with Notice. Either party may terminate this Agreement at any time for any reason or no reason, by providing the other party with written notice.
a. Effect of Termination. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will destroy or render practically inaccessible the Beta Software and all other tangible items in Licensee’s possession or control that contain Confidential Information. The rights and obligations of the parties set forth in Sections 2, 3, 4, 5, 6, 7, 8, 9 and 10 survive termination or expiration of this Agreement for any reason.
8. No Support Services.X Innovations is under no obligation to support the Beta Software in any manner or to provide any updates to Licensee. In the event X Innovations, in its sole discretion, supplies any update to Licensee, the update shall be deemed Beta Software under this Agreement and shall be subject to the terms and conditions of this Agreement
9. Limitation of Liability. IN NO EVENT WILL X INNOVATIONS BE LIABLE TO LICENSEE OR ANY PARTY FOR, WITHOUT LIMITATION, ANY LOSS OF USE; INTERRUPTION OF BUSINESS; OR ANY DIRECT; INDIRECT; SPECIAL; INCIDENTAL; EXEMPLARY OR PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT; TORT (INCLUDING NEGLIGENCE); STRICT PRODUCT LIABILITY OR OTHERWISE; WHETHER ARISING OUT OF THE USE OR INABILITY TO USE THE BETA SOFTWARE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY LICENSEE OR THIRD PARTIES OR A FAILURE OF THE BETA SOFTWARE TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF X INNOVATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. General Terms.. a. Disputes. The rights and liabilities of the parties arising out of or relating to this agreement will be governed by the laws of the State of Oregon, without regard to choice of law principles or statutes. Any litigation between the parties will be conducted exclusively in state or federal courts in Oregon. The prevailing party in any litigation arising out of or relating to this agreement will be entitled to recover all reasonable attorneys’ fees and other expenses (in addition to statutory “costs” of litigation), including attorneys’ fees and expenses in connection with any trial, appeal, or petition for review. b. Notices. All notices under this Agreement will be in writing. Each notice will be deemed to have been received by the party to which it was addressed: (i) when delivered if delivered personally, (ii) when received by the addressee if sent by overnight courier, (iii) on the fifth business day after the date of mailing if sent by certified mail, or (iv) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. c. Assignment; Binding Effect; Severability. Licensee shall not assign this Agreement or any rights or obligations under this Agreement, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise without the prior written consent of X Innovations. Any attempted assignment or transfer in violation of this section will be null and void. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. If any term or provision of this Agreement is deemed invalid or unenforceable, the remainder of this Agreement will be valid and enforced to the fullest extent permitted by law. d. Entire Agreement; Amendment; Waiver. This Agreement constitutes the entire understanding of the parties with respect to its subject matter and supersedes all prior agreements and understandings of the parties. No modification, change, amendment, or any waiver of rights with respect to this agreement will be binding unless in writing signed by both parties. No waiver of any violation or nonperformance of this Agreement in one instance will be deemed to be a waiver of any subsequent violation or nonperformance.