IMPORTANT! READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR OTHERWISE USING THE BETA SOFTWARE (AS DEFINED BELOW). THIS BETA SOFTWARE LICENSE AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY ON WHOSE BEHALF YOU ARE DOWNLOADING, INSTALLING, AND/OR USING THE BETA SOFTWARE) (“YOU” OR “LICENSEE”) AND BLUETALON, INC., A DELAWARE CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS AT 541 JEFFERSON AVENUE, SUITE 202, REDWOOD CITY, CA 94063 (“BLUETALON”) FOR THE LICENSE OF THE BETA SOFTWARE. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, YOU HAVE UNDERSTAND IT, AND YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” AND/OR “LICENSEE” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT DOWNLOAD, INSTALL, AND/OR USE THE BETA SOFTWARE. BLUETALON AGREES TO LICENSE THE BETA SOFTWARE TO LICENSEE ONLY IF LICENSEE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. AS USED IN THIS AGREEMENT, BLUETALON AND LICENSEE MAY EACH BE REFERRED TO AS A “PARTY” OR COLLECTIVELY AS THE “PARTIES”.
This Agreement was last updated on February 13, 2017. It is effective between BlueTalon and You as of the date on which You accept this Agreement (the “Effective Date”).
1. Definitions. Capitalized terms used herein are defined in this section or the section where first used.
1.1 “Beta Evaluation” means accessing the Beta Software to perform tests to discover bugs, and evaluate and assess the strengths and weaknesses of the Beta Software.
1.2 “Beta Software” means the object code pre-release version of the computer software programs and accompanying Documentation provided by BlueTalon to Licensee under this Agreement, and which has been designated by BlueTalon as beta, limited release, preview, or by descriptions of similar import. Beta Software excludes non-BlueTalon software.
1.3 “Commercial Release” has the meaning set forth in Section 2.
1.4 “Confidential Information” means all information provided by BlueTalon to Licensee (or to which Licensee gains access) in connection with this Agreement, including information concerning research, development, design details and specifications, engineering, employees, business relationships, and marketing plans, as well as trade secrets and proprietary information involving ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, algorithms, software and formulae, related to BlueTalon’s current, future, or proposed products and services. Without limiting the foregoing, the Beta Software, Documentation, Feedback and related information are Confidential Information and contain valuable trade secrets of BlueTalon.
1.5 “Documentation” means the end user documentation for the Beta Software.
1.6 “Feedback” has the meaning set forth in Section 4.
1.7 “User(s)” means one or more individual(s) who is/are authorized by Licensee to use the Beta Software. Users may include but are not limited to employees, consultants, contractors and agents of Licensee or Licensee’s affiliates.
2. Beta Version. BlueTalon will make the Beta Software and Documentation available to Licensee, subject to the terms of this Agreement and the applicable Documentation. Licensee will allow only Users to access and use the Beta Software, and only for the purpose(s) described by BlueTalon. Licensee acknowledges that: (i) the Beta Software is an early-stage version of unreleased software and may contain bugs, defects and errors, (ii) the Beta Software is not expected to contain the functionality or functions of the version of such software that BlueTalon may make available for commercial distribution (the “Commercial Release”), and (iii) Feedback may be used in BlueTalon’s development of, and be incorporated into, the Commercial Release. Licensee also acknowledges and agrees that the Beta Software is for evaluation purposes only, and is not supported, and may be subject to additional terms as communicated by BlueTalon in writing.
3.1 Grant. Subject to the terms of this Agreement, BlueTalon grants Licensee a limited, non-exclusive, non-transferable, non-sublicenseable license (exercisable by Licensee and/or Users) to engage in the activities indicated below:
(a) to access the executable code of the Beta Software as installed on BlueTalon’s servers, solely for the purpose of conducting the Beta Evaluation; and/or
(b) to install and execute the Beta Software solely in executable code form, and to access the Beta Software as so installed solely for the purpose of conducting the Beta Evaluation, and to copy the Beta Software solely as necessary for the Beta Evaluation, provided that Licensee reproduces on all such copies, and does not obscure or alter, any copyright and other proprietary notices and legends that appear on or in the Beta Software and any Documentation provided therewith.
3.2 Restrictions on Use. Licensee is responsible for all Users’ acts and omissions and for Users’ compliance with this Agreement. Licensee will not, and will not permit nor permit any third party to, do any of the following: (a) copy, alter, adapt, modify, create derivative works of, translate, reverse engineer, decompile disassemble, or otherwise attempt to derive the source code of the Beta Software or Documentation or any part thereof; (b) market, distribute, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver or otherwise transfer copies of the Beta Software or Documentation to any third party; (c) rent, lease, or loan the Beta Software; or (d) provide or make available to any third party any communication that discloses the features, functions, or performance characteristics of the Beta Software.
4. Testing Requirements and Delivery of Feedback. Licensee agrees to test, use, and evaluate the Beta Software only in a non-production environment. Licensee will provide to BlueTalon comments, criticisms, suggested changes, and improvements, test results, problems, defects and other feedback regarding the function, features, and other characteristics of the Beta Software in written or oral form (“Feedback”) during the term of this Agreement and will respond to BlueTalon’s questions regarding the same
5. No Obligation; No Services. BlueTalon has no obligation under this Agreement or otherwise to correct any bugs, defects or errors in the Beta Software or otherwise to support or maintain the Beta Software. Moreover, BlueTalon has no obligation to create, distribute or otherwise offer a Commercial Release, and in the event of such Commercial Release, BlueTalon has no obligation to offer the Commercial Release to Licensee or otherwise under any discounted pricing schedules or special terms. Licensee understands and agrees that the Commercial Release may contain functions and functionality, and perform in a manner significantly different from the Beta Software. Accordingly, Licensee acknowledges that any research or development performed, or business plans made, by Licensee regarding or in reliance upon the Beta Software are done entirely at Licensee’s own risk. Licensee is not entitled to receive any support or maintenance services pursuant to this Agreement.
6. Proprietary Rights.
6.1 Ownership. BlueTalon and its suppliers and licensors retain exclusive ownership of all worldwide copyrights, trade secrets, patents, trademarks, and all other intellectual property rights throughout the world (and all rights in applications and registrations therefor), in and to (or relating to) the Beta Software and Documentation, and any full or partial copies thereof, including any additions or modifications thereto. All rights not expressly granted to Licensee in this Agreement are expressly reserved to BlueTalon and its suppliers and licensors. Licensee agrees and acknowledges that the products and services incorporating or reflecting Feedback are and will be the sole and exclusive property of BlueTalon and that Licensee will gain no right, title or interest in or to the Beta Software, Documentation or any Commercial Release by virtue of Licensee’s provision of Feedback to BlueTalon or for any other reason.
6.2 Assignment. If Licensee retains any right, title or interest (including any intellectual property rights or trade secret rights) in or to (a) the Beta Software or Documentation (including any changes, modifications or corrections thereto); or (b) any Commercial Release, then Licensee hereby irrevocably assigns to BlueTalon all such right, title and interest therein. If any such rights cannot be assigned, Licensee hereby agrees to waive enforcement worldwide of such rights against BlueTalon and its licensees and hereby grants to BlueTalon an exclusive, fully-paid, worldwide, irrevocable, perpetual license, with right to sublicense through multiple tiers of licensees, to use, reproduce, distribute, create derivative works of, publicly perform and publicly display, sell, import, manufacture and otherwise exploit, in any medium or format, whether now known or later developed, any and all property that is subject to such rights. Licensee agrees that it will not claim any proprietary rights in or to the Beta Software, Documentation, or the Commercial Release. Licensee will cooperate with BlueTalon and will take all actions, including the execution, verification, and delivery of documents, as BlueTalon may reasonably request to evidence, perfect or protect BlueTalon’s rights as set forth herein.
6.3 Relationship to Other Agreements. Licensee may potentially be or become entitled to receive access to other BlueTalon products or services or a Commercial Release of the Beta Software under a separate agreement with BlueTalon. In such event, that separate agreement will govern Licensee’s access to such other BlueTalon products or services or Commercial Release of the Beta Software, but will not govern Licensee’s right to use the Beta Software. This Agreement will govern Licensee’s rights and obligations with regard to the Beta Software, but not Licensee’s rights and obligations with regard to such other products or services, including the Commercial Release. If BlueTalon makes a Commercial Release available, the use thereof may require payment of license, subscription, support, or other fees.
7. Term and Termination. This Agreement and the licenses granted hereunder will commence on the Effective Date and will end ninety (90) days thereafter, unless earlier terminated as provided herein. BlueTalon may terminate this Agreement immediately upon notice, with or without cause. Upon expiration or earlier termination of this Agreement for any reason, all licenses to Licensee will terminate immediately. Licensee must promptly return to BlueTalon or destroy all Confidential Information, including the Beta Software and Documentation, and all copies thereof and certify to BlueTalon in writing that Licensee has done so. Sections 1, 2, 3.2, and 4 through 11 will survive the expiration or termination of this Agreement for any reason.
8. Disclaimer of Warranty. The Beta Software and all materials provided hereunder are provided “as is”, without warranty of any kind, including any implied warranties of merchantability, non-infringement, title or fitness for a particular use or purpose. BlueTalon does not warrant that the Beta Software will function without interruption or that it is error-free. Licensee bears the entire risk as to the use or performance of the Beta Software. No information or advice given by BlueTalon or its agents or employees will in any way affect this provision. The Beta Software may contain features designed to interoperate with Non-BlueTalon products, services, or data. To use such features, Licensee may be required to obtain access to such features from their providers. Any acquisition by Licensee of such non- BlueTalon products or services, and any exchange of data between Licensee and any non-BlueTalon provider, is solely between Licensee and the applicable third party provider. Except as otherwise expressly set forth in this Agreement, BlueTalon is not responsible for any disclosure, modification or deletion of data resulting from access by Licensee, any User, or any third party of the Beta Software or any non-BlueTalon application.
9. Limitation Of Liability. To the maximum extent permitted by law, in no event will BlueTalon or its suppliers or licensors be liable for lost profits or revenues, business interruption, loss of or damage to business information or data or other pecuniary loss, or for any indirect, exemplary, special, incidental, consequential or similar damages arising from or related to this Agreement or the use or inability to use the Beta Software or Documentation, even if BlueTalon has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy. In no event will BlueTalon’s total aggregate liability arising from or related to this Agreement, whether in contract or in tort or under any other legal theory (including strict liability and negligence) exceed $100. BlueTalon’s suppliers and licensors will have no liability for damages whatsoever. The foregoing limitations and exclusions of liability form an essential basis of the bargain between the parties, and BlueTalon would not enter into this agreement without such limitations and exclusions.
10. Confidential Information. Licensee will hold BlueTalon’s Confidential Information in strict confidence and will not disclose Confidential Information to any third party. Licensee will take all precautions to protect such Confidential Information as Licensee employs with respect to its most confidential materials, but in no case less than reasonable precautions. Licensee will grant access to the Confidential Information only to its employees who (i) are required to access the Confidential Information in order to conduct the Beta Evaluation, and (ii) have agreed in writing to maintain such information in confidence on terms at least as protective as the terms of this Agreement. Licensee will ensure that its employees and contractors comply with these confidentiality requirements. In the event Licensee becomes aware of any unauthorized use or disclosure of Confidential Information, Licensee will notify BlueTalon immediately in writing and will give full cooperation to minimize the effects of such unauthorized use or disclosure.
11.1 Governing Law. This Agreement will be governed by and construed under California law without regard to choice of laws principles that would require the application of the laws of a different jurisdiction. Any action or proceeding arising from or relating to this Agreement must be brought in a court in San Mateo County or Santa Clara County, California; each party irrevocably submits to the jurisdiction and venue of, and service of process by, any such court. The parties expressly exclude the application of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act.
11.2 Restricted Rights. Pursuant to FAR 52.227.14, as the inventor of all deliverables to be provided hereunder, BlueTalon hereby retains (and elects to retain) ownership of all Beta Software, Documentation, Feedback, and all related data, which for purposes of the above-cited regulation, are deemed “Inventions” comprised of “commercial computer software”, and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212, and “limited rights data” as such term is used in DEAR 927.409. The foregoing are provided to Licensee and the United States Government with Restricted Rights. Any use, modification, reproduction, release, performance, display, duplication, or disclosure of such software, documentation, or data by Licensee and the United States Government or any of its or their agencies is subject to the restrictions set forth in this Agreement and as provided in DFARS provisions: 227.7202-1(a); 227.7202-3(a); and 252.227-7013(c)(1)(ii) and FAR provisions: 12.212(a); 52.227-19; and 52.227-14, as applicable and will be prohibited except to the extent expressly permitted by BlueTalon herein. Any licenses granted hereunder are granted solely for the limited term and limited purposes described herein, and are not intended to be either perpetual or irrevocable. Contractor hereby asserts patent and copyrights in the foregoing items. Contractor/manufacturer is BlueTalon, Inc., Redwood City, California, 94063 USA.
11.3 Remedies. Licensee acknowledges that BlueTalon’s Confidential Information contains BlueTalon’s valuable trade secrets and proprietary information, that any actual or threatened breach of this Agreement may cause irreparable harm to BlueTalon for which monetary damages would be inadequate, and that injunctive relief is appropriate. Each party’s rights and remedies hereunder are cumulative, and not in lieu of, any other rights or remedies.
11.4 Relationship between the Parties. The parties hereto are independent contractors. No agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. Neither party has the power or authority to represent, bind, or create or assume any obligation on behalf of the other party.
11.5 No Assignment. Licensee may not assign or delegate this Agreement, nor any rights or obligations hereunder, by operation of law or otherwise, without BlueTalon’s prior written consent, and any purported assignment or delegation is null and void.
11.6 Compliance with Export Laws. The Beta Software and related technical information and materials are subject to United States export control laws, and may be subject to export or import regulations in other countries (collectively, “Export/Import Laws”). Licensee acknowledges that he/she shall comply fully with all applicable Export/Import Laws and will not (i) export or re-export the Software in violation of any applicable Export/Import Law; or (ii) use the Software for any purpose prohibited by any applicable Export/Import Law, including, without limitation, nuclear, chemical, or biological weapons proliferation. None of the Beta Software and related technical information and materials may be downloaded, transferred, or otherwise exported or re-exported: (i) into (or to a national or resident of) Cuba, North Korea, Iran, Sudan, Syria, the Crimea region of Ukraine or any other country subject to U.S. sanctions applicable to the export or re‐export of goods (collectively, “Restricted Countries”); or (ii) to anyone on any restricted party list maintained by the U.S. government, including the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons List and Foreign Sanctions Evaders List, or the U.S. Commerce Department’s Denied Persons List, Unverified List, Entity List, or the Department of State’s Nonproliferation Sanctions list (collectively, “Restricted Party Lists”). By accepting or using the Beta Software, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any Restricted Country or on any Restricted Party List, and you acknowledge that you are responsible for obtaining any necessary government authorization to ensure compliance with applicable Export/Import Laws.
11.7 Notice. All notices and other communications hereunder must be in writing, and mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. If mailed, such notice will be deemed received five (5) business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by written and dated receipt (or rejection) of the receiving party. The mailing address for notice to either party will be the address shown on the first page of this Agreement. Either party may change its mailing address by notice as provided by this section.
11.8 Waiver; Severability. Waivers must be in writing. A waiver to enforce any provision on one occasion will not be deemed a waiver of another provision or such provision on any other occasion. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision or portion thereof affected will be reformed to the maximum extent permissible by law in order to achieve, as closely as possible, the intent of the original provision.
11.9 Interpretation. The section headings in this Agreement are intended to be for reference purposes only and will in no way be construed to modify or restrict any of the terms or provisions of this Agreement. This Agreement will be deemed to have been written by both Parties. Unless the context requires otherwise, (i) “including” (and any of its derivative forms) means including but not limited to, (ii) “may” means has the right, but not the obligation to do something and “may not” means does not have the right to do something, (iii) “will” and “shall” are expressions of command, not merely expressions of future intent or expectation, (iv) “written” or “in writing” is used for emphasis in certain circumstances, but that will not derogate from the general application of the notice requirements set forth in the section entitled “Notices” in those and other circumstances, (v) use of the singular imports the plural and vice versa, and (vi) use of a specific gender imports the other gender(s).
11.10 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous discussions, agreements and understandings between them. No modification of or amendment to this Agreement will be effective unless in writing and signed by the party to be charged. Should any provision of this Agreement require interpretation, the Parties agree that the tribunal interpreting or construing the same will not apply a presumption that the terms of this Agreement will be more strictly construed against one party than against the other.