IMPORTANT–READ CAREFULLY:
This Beta Test Agreement is a legal contract between you and Bongiovi Acoustics, LLC and will be effective when Licensee accepts this Agreement and provides the contact information requested by Bongiovi.
Recital
Bongiovi is developing a new software product, including documentation and related material (the “Software”). Bongiovi desires that the Software be tested prior to general release (“Beta Test”), and Licensee wishes to serve as a Beta Test site for the Software subject to the terms and conditions below.
Agreement
In consideration of the foregoing and the mutual obligations undertaken herein, the parties do hereby agree as follows:
1. License. Subject to the terms and conditions of this Agreement, Bongiovi hereby grants to Licensee a limited, non-transferable, non-exclusive license to install and use a single copy of the Software at Licensee’s location solely for Beta Test purposes within the context of Licensee’s normal activities until the beta release period expires. Licensee agrees to log in to the Beta Test area of the Bongiovi website and download any updates to the Software on a regular basis; such updates are part of the Software under this Agreement.
2. Proprietary Rights. Except for the foregoing limited license, Bongiovi retains all right, title and interest in and to the Software. Bongiovi will be the sole owner of any improvements or enhancements it makes to the Software, even if such improvements or enhancements are based on feedback provided by Licensee, and Licensee hereby assigns to Bongiovi all rights in such improvements or enhancements.
3. License Restrictions. Licensee acknowledges and agrees that the Software contains Bongiovi’s proprietary information, and in order to protect such information, Licensee will not (a) make any copies of the Software, (b) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code of the Software; (c) alter, merge, modify, translate, adapt, or prepare any derivative work based upon the Software; or (d) sell, rent, lease, network, loan, sublicense, assign, disclose, distribute, or otherwise transfer the Software.
4. Testing. In consideration of the right to use the Software without payment of any fees, Licensee will serve as a Beta Test site for the Software and will (a) report to Bongiovi any errors or problems with the Software that come to Licensee’s attention and (b) provide other information about Licensee’s experience with the Software as requested by Bongiovi. Licensee agrees that Bongiovi may contact Licensee by telephone, electronic mail or postal mail in order to obtain Licensee’s comments and that all feedback, as well as any suggestions or ideas regarding the Software that Licensee provides to Bongiovi, will be the property of Bongiovi and may not be communicated to any third party.
5. Termination. The license grant and right to use the Software will expire when Bongiovi notifies Licensee that it has completed its Beta Test process. Prior to such expiration either Bongiovi or Licensee may terminate this Agreement by written notice to the other party. On termination or expiration of this Agreement, Licensee must uninstall the Software and destroy any copies in Licensee’s possession unless Bongiovi gives written authorization for Licensee to retain the Software. The provisions of Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 shall survive termination of this Agreement.
6. Confidential Information. All information regarding the Software, including the existence, content, purpose, performance, design, features, and function of the Software, shall be deemed “Confidential Information” of Bongiovi. Licensee agrees not to disclose any Confidential Information to any third party and not to use the Software or Confidential Information for any purpose not specified in this Agreement. Licensee agrees that it will use reasonable care in protecting the confidentiality of Bongiovi’s Confidential Information.
7. Warranty Disclaimer. The Software is pre-release code and is not at the level of performance or compatibility of a final, generally available product offering. LICENSEE AGREES THAT BONGIOVI IS NOT RESPONSIBLE FOR ANY LOSS, DESTRUCTION, OR ALTERATION OF PROGRAMS, DATA OR OTHER INFORMATION RESULTING FROM USE OF THE SOFTWARE. LICENSEE EXPRESSLY ACKNOWLEDGES THAT THE USE OF THE SOFTWARE IS AT LICENSEE’S OWN RISK AND THAT THE SOFTWARE IS PROVIDED TO LICENSEE ON AN AS IS BASIS AND WITHOUT ANY WARRANTY OF ANY KIND. BONGIOVI EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL BONGIOVI BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES RELATING TO THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BONGIOVI’S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) EXCEED US$10.
9. Marketing. Upon completion of the Beta Test, Licensee may be asked to provide a quote to Bongiovi that may be used in a press release and will allow Bongiovi to use the information provided by Licensee regarding its use of the Software that is not confidential to Licensee’s business in press releases, customer testimonials, and as a reference in marketing and sales initiatives.
10. General Provisions. Any required notice under this Agreement may be by fax, email, or certified postal mail. Licensee may not assign this Agreement or transfer any of the rights, duties, or obligations arising under this Agreement, whether by merger, operation of law, or otherwise, without the prior written consent of Bongiovi. This Agreement will be governed by and construed according to the laws of Florida, without regard to conflicts of law principles. In the event of any dispute or claim arising out of this Agreement, venue shall be in St. Lucie County, Florida, and the parties hereby submit to the jurisdiction of the federal and state courts located in such County, as applicable. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found invalid or unenforceable, that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous representations, discussions, negotiations and agreements, whether written or oral.