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Beta agreement

PLEASE READ THESE LUCIDLINK TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY LUCIDLINK CORP., a corporation incorporated under the laws of the United States of America, file number 5921484, having its official seat in the USA, State of Delaware and its principal place of business at 3500 South DuPont Highway, City of Dover, County of Kent, 19901 (“LUCIDLINK”). BY CLICKING THE “AGREE” (OR SIMILAR) BUTTON ON AN ONLINE ORDER FORM (AN “ORDER FORM”) OR BY USING THE SERVICES IN ANY MANNER, YOU OR THE ORGANIZATION OR ENTITY THAT YOU REPRESENT AND ON BEHALF OF WHICH YOU ACT (“CUSTOMER”/“YOU”) AGREE THAT YOU HAVE READ AND AGREE TO BE UNCONDITIONALLY BOUND BY AND TO BE A PARTY TO THESE TERMS OF SERVICE TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT: (i) YOU HAVE REACHED THE FULL LEGAL AGE; (ii) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; (iii) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, YOU HAVE FULL AUTHORITY TO BIND THE ORGANIZATION OR ENTITY THAT YOU REPRESENT TO THESE TERMS OF SERVICE. REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, EXCEPT THIS SENTENCE, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO COMPLY WITH AND TO BE BOUND BY THESE TERMS OF SEVICE OR DO NOT HAVE AUTHORITY TO BIND SUCH ORGANIZATION OR ENTITY, PLEASE DO NOT ACCEPT THESE TERMS OF SERVICE OR ACCESS OR USE THE SERVICES. YOU HEREBY AGREE THAT ALL AND ANY COMMUNICATION AND DOCUMENTS BETWEEN YOU AND LUCIDLINK MAY BE EXCHANGED BY EMAIL, THROUGH LUCIDLINK’S WEBSITE OR BY OTHER ELECTRONIC MEANS. YOU HEREBY AGREE THAT LUCIDLINK WILL PROVIDE YOU WITH A CONFIRMATION FOR THE CONCLUSION OF THE PRESENT AGREEMENT IN ELECTRONIC FORM ONLY AND AGREE TO NOT REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW. This Beta Agreement (this “Agreement”) is made and entered into as of the date you review and agree to these terms, for purposes of testing a potential new software-as-a-service product of LucidLink (the “Beta Product”). 

 

  1. License.  In consideration for Customer’s agreement to and performance of the Customer Obligations as outlined below, and subject to the terms and conditions of this Agreement, LucidLink hereby grants to Customer a nonperpetual, non-exclusive, non-transferable and non-sublicensable license for the online use of the Beta Product as hosted by LucidLink for a period designated by LucidLink (the “Beta Period”) for the purposes of testing and evaluating the Beta Product (the “Beta”).  Use of the Beta Product is at LucidLink’s sole discretion, based on terms communicated to Customer from time to time. 

  2. Customer Obligations.  The purpose of the Beta is for LucidLink to obtain information from Customer sufficient to determine the functionality, performance and usability of the Beta Product.  Customer agrees to use reasonable efforts to provide LucidLink with comprehensive information regarding the Beta Product (“Feedback”) as soon as possible after Customer learns of such Feedback.  Feedback shall include, but is not limited to, all information regarding any problems or defects in the Beta Product encountered by Customer.  Customer shall transmit Feedback to LucidLink in any medium reasonably requested by LucidLink, including via LucidLink’s internet customer support page, or by telephone, or written or electronic communication.  Feedback shall also include simplified test cases sufficient to adequately demonstrate problems or suspected errors Customer encounters with the Beta Product.  All Feedback and all related rights shall become the sole and exclusive property of and is hereby assigned to LucidLink and may be used, commercialized and otherwise exploited by LucidLink and those it authorizes in any way without restriction or obligation to Customer.  LucidLink has an unconditional right to use, commercialize and otherwise exploit for any purpose any ideas, concepts, know-how, or techniques resulting from LucidLink’s access to or work with any Feedback or other information exchanged pursuant to this Agreement, without any payment to Customer. Customer shall be responsible for all fees, costs, expenses, and losses relating to its use of the Beta Product. 

  3. Ownership of Beta Product and Feedback. Ownership and title to the Beta Product, Feedback, and all intellectual property and proprietary rights embedded within or arising from the Beta Product or Feedback are, and shall at all times remain, the sole and exclusive property of LucidLink, including, but not limited to, any text, graphics, user and visual interfaces, photographs, trademarks, logos, sounds, music, artwork, applications, computer code and associated documentation (collectively, the “Content”). For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory, or other jurisdiction. The Beta Products(s) and Content may not be copied, reproduced, sold, republished, transmitted, displayed, reposted, or otherwise distributed for public or commercial purposes. Customer will not represent or assert any ownership or other interest in or to such property and Customer acquires no ownership interest in or to such aforementioned LucidLink property from this Agreement or its use of the Beta Product except for the limited right to use and access for the Beta. 

  4. Restrictions.  LucidLink reserves any and all rights, implied or otherwise, which are not expressly granted to Customer hereunder, and retains all rights, title and interest in and to the Beta Product.  Customer agrees that it has no right whatsoever to modify the Beta Product or any portion thereof in any manner; provided, that Customer may integrate its systems with the LucidLink APIs for the Beta Product as required to use the Beta Product.  Customer may not reverse engineer, decompile, disassemble, modify, adapt, rent, lease, loan, create or prepare derivative works based upon the Beta Product or any part thereof.  Nothing in this Agreement entitles Customer to receive source code for any part of the Beta Product. Customer may not (i) modify, translate, localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a patent based on the Beta Product, or any part thereof, (ii) resell, provide, make available to, or permit use of or access to Beta Product or associated access credentials, by any third party; (iii) attempt to use or gain unauthorized access to LucidLink’s or to any third-party’s networks or equipment; (iv) attempt to probe, scan or test the vulnerability of any LucidLink services, or a system, account or network of LucidLink or any LucidLink customers or suppliers; (v) engage in fraudulent, offensive or illegal activity or intentionally engage in any activity that infringes the intellectual property rights or privacy rights of any individual or third party or transmit through any LucidLink service any data or information without the legal right to do so; (vi) restrict, or knowingly inhibit, interfere or attempt to interfere with the ability of any other person, regardless of purpose or intent, to use or enjoy the LucidLink services or a user’s network, or cause a performance degradation to any facilities used to provide the LucidLink services, or (v) use the Beta Product for its own internal business purposes or for any reason other than to Beta pursuant to this Agreement. Customer may not permit any thirdparty to do any of the foregoing. 

  5. Term And Termination.  This Agreement or an individual license granted hereunder may be terminated (a) by mutual agreement of LucidLink and Customer or (b) by either Party, upon ten (10) days prior written notice to the other Party.  Upon termination of this Agreement, the license granted to the Customer pursuant to this Agreement shall also terminate.  Upon any termination of this Agreement or a license granted hereunder, Customer shall immediately cease use of the applicable Beta Product and, upon request by LucidLink, certify in writing to LucidLink within thirty (30) days after termination that Customer has destroyed or returned to LucidLink any documentation related to the Beta Product and any copies thereof.  Termination of this Agreement or a license granted hereunder shall not limit LucidLink from pursuing any remedies available to it, including injunctive relief.  The provisions of Sections 2, 4, 5, 6, 9, 10, 11 and 12 will survive termination of this Agreement. 

  6. Confidential Information.  “Confidential Information” shall be defined to include the Beta Product, Feedback, any software, source code, object code, documentation and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by LucidLink to Customer under this Agreement. Customer shall observe complete confidentiality with respect to the Confidential Information and shall use its best efforts and take all reasonable steps to protect such from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement.  Customer shall promptly notify LucidLink of any known unauthorized use or disclosure of the Confidential Information and will cooperate with LucidLink in any litigation brought by LucidLink against third parties to protect its proprietary rights. Customer may not permit a third-party access to, or use of, the Confidential Information without LucidLink 's prior written authorization.  Customer agrees not to disclose, except to persons in its own organization who have a need to know the existence or contents of (i) the Beta Product, (ii) the Beta and its results, including Feedback or (iii) this Agreement. 

  7. Technical Support.  LucidLink shall have no obligation to support or provide support services to Customer relating to the Beta Product.  LucidLink may, however, make such services available to Customer at its sole discretion, including from time to time making available updates, enhancements and/or modifications to the Beta Product, but LucidLink is under no obligation to do so.  Any such updates, enhancements and/or modifications to the Beta Product shall be subject to the terms and conditions of this Agreement.   

  8. Beta Product Design and Commercial Availability.  The Beta Product is a pre-release of a LucidLink product that is not generally available for distribution and it is not intended for use in a production environment.  The design of the Beta Product may be changed prior to general availability from LucidLink without notice, and LucidLink does not guarantee that compatibility of Customer’s system can or will be maintained with versions of the Beta Product that may become generally available from LucidLink. LucidLink reserves the right to withdraw any Beta Product and never release it as a commercial product. LucidLink’s plans to market the Beta Product is subject solely to LucidLink’s internal business and technical reviews.  Nothing in this Agreement shall be deemed to convey to Customer the right or license to use a commercially released version of the Beta Product or any components thereof.  If and when a commercially released version of the Beta Product becomes available, any use by Customer of such shall be governed by the master service agreement executed by the Parties (the “MSA”) which the Parties agree to amend to incorporate the commercially-released version of the Beta Product and the applicable fees, or website Terms and Conditions, as applicable.

  9. Publicity and Marketing. You agree that, in LucidLink’s sole discretion, LucidLink may use your name and/or logo and any Feedback you provide to Company, including testimonials or quotes, (collectively “Promotional Information”) in LucidLink’s marketing materials and related assets. Pursuant to the foregoing, you hereby grant Company an unrestricted, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to reproduce, publish, distribute, display, translate, summarize, modify, adapt, incur porate, or otherwise use such Promotional Information, in whole or in part, alone or in other works in any form, media, or technology now known or later developed. 

  10. No Warranty.  The Beta Product may not be at the level of performance, compatibility or safety of generally available LucidLink products, may have errors, be incomplete, or produce unexpected results.  Customer understands and agrees that LucidLink makes no representation or warranties regarding or relating to the Beta Product or use of the Beta Product. Customer shall have sole responsibility for adequate protection and backup of its data or equipment used in connection with the Beta Product and Customer shall not claim against LucidLink for lost data, re-run time, inaccurate input, work delays or lost profits resulting from the use of the Beta Product. LucidLink shall not be liable for any errors or delays in other services LucidLink provides to Customer to the extent such errors or delays are caused by Customer’s use of the Beta Product. THE BETA PRODUCTS AND TECHNICAL SUPPORT, IF ANY, ARE EXPERIMENTAL AND PROVIDED “AS IS” WITHOUT WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NO ORAL OR WRITTEN ADVICE OR CONSULTATION GIVEN BY LUCIDLINK, ITS AGENTS OR EMPLOYEES WILL IN ANY WAY GIVE RISE TO A WARRANTY. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT’S USE OF THE BETA PRODUCT IS AT  ITS OWN RISK.  

  11. Limitation of Liability.  IN NO EVENT WILL LUCIDLINK OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH THE BETA PRODUCT, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, COST OF COVER, LOSS OF DATA, BUSINESS INTERRUPTION, LOST SAVINGS OR ANY INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY CUSTOMER BASED ON A THIRD-PARTY CLAIM. LUCIDLINK’S TOTAL LIABILITY FOR ANY CLAIM ARISING HEREUNDER MAY NOT EXCEED ONE HUNDRED DOLLARS ($100.00). 

  12. General. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state.  Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in California.  Each Party hereby agrees to submit to the jurisdiction of such courts.   If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.  Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein.  This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.  This Agreement shall control in the event of inconsistency or conflict between the Agreement, Terms and Conditions or MSA, as applicable, with respect to the Beta Product during the Beta Period.  This Agreement may only be modified or amended by a writing executed by a duly authorized representative of each Party.  No other act, document, usage or custom shall be deemed to amend or modify this Agreement.  This Agreement is legally binding only upon receipt of Customer’s signature and upon countersignature by a duly authorized representative of LucidLink.