AUDINATE BETA TRIAL TECHNOLOGY
TERMS AND CONDITIONS
IMPORTANT NOTICE : THESE BETA TRIAL TERMS AND CONDITIONS (“BETA TRIAL TERMS ”) GOVERN THE ACCESS AND USE BY YOU (“YOU”, “YOUR”) OF BETA TRIAL TECHNOLOGY FROM AUDINATE PTY LTD (“ US”, “WE”, OR “OUR”) OR ITS AUTHORIZED RESELLER. WE ARE WILLING TO PROVIDE ACCESS TO THE BETA TRIAL TECHNOLOGY ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THESE BETA TRIAL TERMS. IF YOU DO NOT AGREE TO ALL OF THESE BETA TRIAL TERMS, THEN YOU ARE NOT PERMITTED TO ACCESS OR USE THE BETA TRIAL TECHNOLOGY AND YOU SHOULD NOT ACCEPT THESE BETA TRIAL TERMS OR ACCESS OR USE THE BETA TRIAL TECHNOLOGY.
If You decide to accept these Beta Trial Terms, We will be pleased to welcome You to Our Beta Trial Program, in which We will provide You with access to the Beta Trial Technology in accordance with the following terms and conditions:
1. Access to Beta Trial Technology
Subject to these Beta Trial Terms and the documentation provided to You with the Beta Trial Technology (“Documentation”), We grant You the right to use the Beta Trial Technology for beta testing purposes only. You will allow only Your employees to access the Beta Trial Technology. The rights granted to you in this clause are non-exclusive, non-sublicensable and non-transferable. We or Our licensors retain title, ownership rights, intellectual property rights and all other rights not expressly granted to You in these Beta Trial Terms.
2. Your Obligations
You agree to:
a. test and evaluate the Beta Trial Technology under normal operating conditions;
b. not access or use the Beta Trial Technology contrary to these Beta Trial Terms and, specifically, will not copy, modify, transfer, disassemble, decompile or otherwise reverse engineer, sublicense, rent, lease (including without limitation multi-tenancy, combining users or wide-use cases on single large instances), loan, timeshare, host, clone or re-use instances or make multiple instances available, transfer or assign the Beta Trial Technology, or otherwise make the Beta Trial Technology available to any third party, whether directly, virtually, in the cloud or otherwise, or act as a facility manager or service bureau or closing or automated image construction market place with respect to the Beta Trial Technology, or remove any copyright or other notices placed on or contained in the Beta Trial Technology;
c. if and as specified in the Documentation or as otherwise requested by Us, provide Us the results of Your evaluation and testing of the Beta Trial Technology (“Test Reports”); and
d. if and as specified in the Documentation or as other requested by Us, report to Us any data, information, suggestions, ideas and other feedback, including bugs, errors or other perceived problems with the Trial Technology and any potential error fixes (“Feedback”).
3. Term and Termination
a. Term. These Beta Trial Terms shall become effective upon Your acceptance of them or when You first access or use the Beta Trial Technology whichever is earlier (“Start Date”). Your right to access and use the Beta Trial Technology begins on the Start Date and ends at the expiry of the period specified in Documentation or, if no period is specified in the Documentation, after sixty (60) days, unless terminated earlier in accordance with these Beta Trial Terms.
b. Termination for Convenience. We may terminate Your right to access and use the Beta Trial Technology and these Beta Trial Terms at any time for convenience.
c. Termination for Default. If You breach a material obligation of these Beta Trial Terms, We may immediately terminate these Beta Trial Terms and right to access and use the Beta Trial Technology.
d. Insolvency. These Beta Trial Terms and Your license to use the Beta Trial Technology will automatically terminate immediately upon the occurrence of any of the following events (each, an “Insolvency Event”): (A) a receiver is appointed for You or Your property; (B) You make a general assignment for the benefit of Your creditors; (C) You commence, or have commenced against You, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within 60 days; or (D) You cease Your business operations or are liquidated or dissolved.
e. Termination upon general release. If general release of the Beta Trial Technology occurs during the Term of these Beta Trial Terms, your right to access and use the Beta Technology will automatically roll over to a non-beta, general release version (“General Release Version”). From that time, unless you have entered into a separately negotiated agreement with Us, your right to access and use the General Release Version will be governed by the terms then applicable to the access and use of the General Release Version and these Beta Trial Terms will automatically terminate.
f. Effect of Termination. Upon termination of these Beta Trial Terms, except as expressly provided in these Beta Trial Terms, all rights granted hereunder shall terminate, and You shall immediately discontinue all use of the Beta Trial Technology. Within 10 days thereafter You will (a) return to Us any hardware or hard copy components of the Beta Trial Technology; (b) provide Us with copies of and then delete all Your copies of any test results (including any Test Reports) and any confidential information We may have provided to You; and (c) unless You have rolled over to the General Release Version, destroy all other confidential information related to the Beta Trial Technology, including any notes, analyses, and memoranda in Your possession or control. Upon the termination of a paid beta trial, all amounts due to Us in relation to the trial up to the time of termination will become immediately payable.
4. No Warranty
We are providing the Beta Trial Technology to You on an “as is” basis and without warranty of any kind. We disclaim all warranties and conditions, whether express or implied, with respect to the Beta Trial Technology, including as to whether Your use of the Beta Trial Technology will be uninterrupted or error-free. TO THE MAXIMUM EXTENT ALLOWED BY LAW, WE AND OUR LICENSORS DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE TO DESCRIPTION, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT.
5. Limitation of Liability
a. Exclusion of Damages. TO THE MAXIMUM EXTENT ALLOWED BY LAW, NEITHER WE NOR OUR VENDORS OR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THESE BETA TRIAL TERMS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR LOSS OF DATA, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. Liability Limited. TO THE MAXIMUM EXTENT ALLOWED BY LAW, NEITHER WE NOR OUR VENDORS OR LICENSORS SHALL BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE, FOR ANY DAMAGES IN EXCESS OF THE GREATER OF THE AMOUNTS YOU HAVE PAID TO AUDINATE IN RELATION TO THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY OR US$100.00.
c. Acknowledgement. THE LIMITATIONS SET FORTH IN THIS CLAUSE SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS CLAUSE IS AN ESSENTIAL ELEMENT OF THEIR BARGAIN, AND ABSENT THIS CLAUSE THE ECONOMIC TERMS OF THESE BETA TRIAL TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
d. Survival. This clause shall survive the expiration or earlier termination of these Beta Trial Terms.
6. Ownership; Confidentiality
a. You agree that We own all rights to the Beta Trial Technology, Test Reports and Feedback, and that all information related thereto and to the Beta Trial Program is Our “Confidential Information”. You agree to use Confidential Information only as provided in these Beta Trial Terms, and to not disclose it to any third party.
b. Use. The party receiving Confidential Information (the “Receiving Party”) from the party disclosing it (“Disclosing Party”) will use such Confidential Information only to fulfill its obligations and as contemplated hereunder. The Receiving Party will protect the confidentiality of such Confidential Information using the same degree of care that it uses to protect its own similar information, but in no event less than a reasonable degree of care, and shall not disclose such Confidential Information to any other party, except (i) to those employees and contractors of the Receiving Party who require access to the Confidential Information to perform their duties and who are bound by written agreement not to disclose third-party confidential or proprietary information; (ii) to its legal and financial advisors on a confidential basis; or (iii) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent such disclosure. You shall not use Confidential Information for any competitive purpose, including developing any competitive or substitute products, or with the same, or substantially the same, electrical or physical interface characteristics as the Beta Trial Technology.
c. Injunctive Relief; Return. Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party shall be entitled to seek equitable relief, including temporary restraining order(s) and injunctions, in addition to all other remedies for any violation or threatened violation of this clause, without the necessity of posting bond. Within five (5) days after Disclosing Party’s request, Receiving Party shall return or destroy the Disclosing Party’s Confidential Information.
d. Survival of Confidentiality Obligations. A party’s confidentiality obligations relating to these Beta Trial Terms shall survive the expiration or earlier termination of these Beta Trial Terms for a period of five years with respect to non-trade secret information, and with respect to trade secrets, shall survive until such trade secrets are no longer subject to protection under applicable law.
7. Export; Government Rights
You acknowledge that the Beta Trial Technology may be subject to export control laws, restrictions and regulations (collectively, “Export Laws”), and You agree that You will not use, transfer, export or re-export the Beta Trial Technology in violation of any Export Laws. If the Beta Trial Technology is being acquired by or on behalf of any agency or unit of the United States Government (“U.S. Government”), the U.S. Government agrees that the Beta Trial Technology is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the U.S. Government’s rights with respect to the Beta Trial Technology are limited by these Beta Trial Terms pursuant to applicable regulations, including but not limited to FAR 12.212(a); FAR 52.227-14 and 52.227-19; DFARS 227.7202-1(a) and 227.7202-3(a); and DFARS 252.227-7013(c)(1)(ii).
8. General
You may not assign Your rights or delegate Your obligations under these Beta Trial Terms without Our prior written consent. The failure of either party to require performance by the other party of any provision of these Beta Trial Terms shall not affect its right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision of these Beta Trial Terms be taken or held to be a waiver of the provision itself. If any provision of these Beta Trial Terms is found void and unenforceable, it will be replaced to the extent possible with a provision that comes closest to the meaning of the original provision. These Beta Trial Terms, and the documents referenced in these Beta Trial Terms, form the entire agreement between You and Us relating to the Beta Trial Technology and supersede any and all prior or contemporaneous purchase order, invoice, communication, advertising, representation, understanding or agreement relating thereto. These Beta Trial Terms, which are governed by the laws of New South Wales, Australia, form the entire agreement between You and Us regarding the Beta Trial Technology.