This BETA SOFTWARE LICENSE AGREEMENT (this "Agreement") is a legal agreement between you and Pictorus, Inc. ("Pictorus"). By clicking "I AGREE" at the end of these Terms, registering as a user, or using the Beta Software (as defined below) you acknowledge and agree that you have reviewed, understand, and accept this Agreement. If you are agreeing to this Agreement as an individual, then the term "you" refers to you individually. If you are agreeing to these Terms as a representative of an entity, then you represent that you have the authority to bind that entity and the term "you" refers to that entity.
Your access to and use of the Beta Software and all the content made available on and through the Beta Software is subject to this Agreement and all applicable laws.
DEFINITIONS. The following term will have the following meaning: "Beta Software" means the object code form of Pictorus' proprietary software application known as Pictorus and any related documentation made available to you by Pictorus.
BETA LICENSE. Subject to the terms of this Agreement, Pictorus hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-assignable right and license to access and use the Beta Software solely for your own personal, non-commercial use on up to 10 personal hardware devices ("Authorized Devices") until such time as this Agreement has been terminated pursuant to Section 6 or testing has been suspended pursuant to Section 4 (the "Beta Period"). There is no fee for your use of the Beta Software under this Agreement during the Beta Period and, by entering into this Agreement, you are not obligated to enter into any paid license agreement regarding the Beta Software; provided, however, you must test, evaluate and provide feedback to Pictorus about the Beta Software as contemplated herein. NOTHING CONTAINED IN THIS AGREEMENT WILL OBLIGATE PICTORUS TO COMMERCIALLY LAUNCH THE BETA SOFTWARE OR TO CONTINUE TO OFFER YOU THE FEATURES AND FUNCTIONALITY AND PERFORMANCE OF THE BETA SOFTWARE AND NOT TO CHANGE, IMPROVE, OR REMOVE THEM. ANY EVENTUAL COMMERCIAL LAUNCH OF THE BETA SOFTWARE WILL BE AT PICTORUS’ SOLE DISCRETION.
RESTRICTIONS. The license granted to you under this Agreement is granted solely to you and not, by implication or otherwise, to any parent, subsidiary or affiliate of yours. You may not assign, sell, rent, lease, sublicense, lend, transfer, resell or distribute the Beta Software to any third party or use the Beta Software on behalf of any third party unless otherwise agreed to in advance in writing by Pictorus in its sole discretion. You agree not to copy the Beta Software, in whole or in part. You agree not to modify, obscure or delete any intellectual property or proprietary rights notices included in or on the Beta Software or documentation and you agree to include all such notices on all copies. You may not modify the Beta Software, make derivative works based on the Beta Software, or merge the Beta Software into any other computer programs. You may not reverse engineer, disassemble or decompile the Beta Software, in whole or in part, or otherwise attempt to derive its source code, object code or underlying structure, ideas, know-how or algorithms. You agree to use the Beta Software in compliance with all applicable laws and regulations, including, without limitation, applicable export control laws and regulations of the United States and other jurisdictions. The license granted to you under this Agreement is limited to the number of Authorized Devices set forth in Section 2 above. The number of Authorized Devices is subject to change with no notice at any time at Pictorus’ sole discretion. You agree not to do any of the following: (a) use the Beta Software, directly or indirectly, in conjunction with any dangerous machines, equipment, or systems that may pose a risk to life, property, or the environment, or (b) engage in any hazardous activities or utilize the Beta Software for purposes that could potentially cause harm, injury, death, or damage or risk to persons or property.
YOUR OBLIGATIONS. You agree to (a) test the Beta Software and cooperate with Pictorus in evaluating the Beta Software; and (b) work with Pictorus to identify and resolve any errors, problems or defects in the Beta Software discovered by you or Pictorus. All feedback, comments, input, and suggestions for improvements for the Beta Software that you provide to Pictorus are referred to collectively as "Feedback." You acknowledge that the Beta Software may automatically record certain information about how you use the Beta Software ("Log Data"). Log Data may include information such as your device Internet Protocol (IP) address, and other user engagement and interaction metrics and other statistics. Pictorus may use and analyze Log Data to administer, improve, customize and enhance the Software. You acknowledge that Pictorus has full, unrestricted rights to use and analyze and exploit the Feedback and Log Data and incorporate into any software, technology and/or other offered services of Pictorus any and all Feedback and Log Data. You hereby assign to Pictorus any and all proprietary interest in and to any and all such Feedback without further compensation. Feedback is providing on a non-confidential basis. Pictorus has no obligation to use Feedback.
TITLE. Title and full ownership in and to the Beta Software and all trade secret, copyright and patent rights and all other intellectual property and proprietary rights in and to the Beta Software (including without limitation, any third-party software incorporated therein) remain with Pictorus and its licensors. You are granted the limited license rights to use the Beta Software as described in this Agreement. Pictorus expressly reserves all intellectual property and proprietary rights not expressly granted under this Agreement. There are no implied rights.
TERM. This Agreement continues until the end of the Beta Period or until earlier terminated in accordance with this Section 6, whichever occurs first. Pictorus may immediately terminate this Agreement upon written notice if you fail to comply with any term of this Agreement . Upon termination of this Agreement, you agree to stop using the Beta Software immediately and to destroy any related documentation together with all copies in any form. THE BETA SOFTWARE MAY CONTAIN CODE THAT WILL DISABLE YOUR ACCESS TO THE BETA SOFTWARE UPON EXPIRATION OR TERMINATION OF THIS AGREEMENT. Those provisions of this Agreement that by their terms should survive any termination or expiration of this Agreement will be deemed to survive and remain in full force and effect, including, without limitation, Sections 5, 6, 7, 8, 9, 10, 11, 12 and 13. DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT: (A) THE BETA SOFTWARE LICENSED HEREUNDER IS EXPERIMENTAL AND IT HAS NOT YET BEEN COMPLETELY TESTED, IMPLEMENTED OR DEBUGGED BY PICTORUS, (B) YOUR USE OF THE BETA SOFTWARE IS AT YOUR OWN RISK AND (C) THE BETA SOFTWARE IS OFFERED "AS IS" AND YOU WILL NOT RECEIVE ANY WARRANTY OR SUPPORT OF ANY KIND. PICTORUS SPECIFICALLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET ENJOYMENT, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING AND USAGE OF TRADE.
INDEMNITIES. You agrees to indemnify and hold harmless Pictorus from and against any and all liabilities, losses, penalties, fines, costs, damages and expenses (including reasonable attorneys' fees and legal costs, which shall be reimbursed as incurred) arising from or relating to or based on any of the following: (a) your use of the Beta Software or (b) any material breach of this Agreement by you.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PICTORUS BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE OR DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT SHALL PICTORUS’ LIABILITY EXCEED THE AMOUNT PAID BY YOU TO PICTORUS UNDER THIS AGREEMENT OR FIFTY DOLLARS (USD $50), WHICHEVER IS GREATER.
INJUNCTIVE RELIEF. You agree that in the event of a material breach of this Agreement by You, including, without limitation, a breach of Sections 2 or 3, Pictorus shall be entitled to seek immediate injunctive relief in any court of competent jurisdiction, without limiting its other rights and remedies and without the need to post bond or prove no adequate remedy at law.
CONFIDENTIALITY.
CONFIDENTIAL INFORMATION. You will (and will ensure that your employees, subcontractorsand agents will) maintain the strict confidentiality of the Beta Software and all information and materials contained in or available through the Beta Software and all information and materials conveyed by Pictorus to you hereunder, including but not limited to, financial records, marketing information and the Beta Software’s features and modes of operation, inventions (whether or not patentable), techniques, processes, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, analysis and performance information, user documentation and other technical information, plans and data (collectively, the "Pictorus Proprietary Information"). Your confidentiality obligations do not apply to information that becomes part of the public domain through no act or omission of yours or is in your lawful possession without violation of obligations to Pictorus prior to the date of this Agreement, as demonstrated by written documentation.
NON-DISCLOSURE. You will not permit anyone other than your employees with a bona fide need to know to access or use the Pictorus Proprietary Information. You will not disclose the Pictorus Proprietary Information to any third party and will not use the Pictorus Proprietary Information other than to perform testing of the Beta Software as provided in this Agreement as expressly authorized hereunder.
GOVERNING LAW AND JURISDICTION. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without giving effect to any principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco, California and the parties irrevocably consent to the personal jurisdiction and venue therein.
MISCELLANEOUS.
ASSIGNMENT. You may not transfer or assign your rights under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Pictorus. For purposes of this Section, an assignment includes any change of control of you and any merger or acquisition of you, regardless of whether you are the surviving or disappearing entity. Any attempted assignment without such consent will be null and of no effect. Pictorus may assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
SEVERABILITY. In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed will be deleted and the remaining provisions of this Agreement will continue in full force and effect.
NOTICES. All notices provided hereunder will be in writing, delivered personally, by e-mail or sent by overnight courier, registered or certified mail to an address as may be specified in writing by notice given in accordance with this Section 13.3. All such notices will be deemed to have been given: (a) upon receipt when delivered personally, (b) upon receipt when delivered by e-mail, or (c) in the case of overnight courier, one weekday after delivery to the overnight courier.
WAIVER. Performance of any obligations required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described therein. 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.
INDEPENDENT CONTRACTORS. You and Pictorus are and will be deemed to be, independent contractors with respect to the subject matter of this Agreement and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between you and Pictorus.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement.