Beta Software License Agreement and Warranty Disclaimer
THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE BETA TESTER (“TESTER”), AND FARALLON COMPUTING, INC. (“FARALLON”). ANY USE OF THE SOFTWARE PRODUCT (THE “PRODUCT”) CONSTITUTES YOUR AGREEMENT TO BE LEGALLY BOUND BY THIS AGREEMENT AND COMPLY WITH ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT PARTICIPATE IN THE BETA TEST PROGRAM AND DO NOT USE THE PRODUCT.
1. Product License; Title to Product.
a. Farallon hereby grants to Tester a non-exclusive and non-transferable license (this “License”) to use the Product solely for evaluation and testing. Tester may not modify, reverse engineer, decompile, create other works from, or disassemble the Product. Tester may not transfer, convey, rent, sublicense, or otherwise distribute the Product, or any rights therein to any person or entity. Any use of the Product outside of the expressed scope of this License is a violation of Farallon’s copyright in the Product.
b. Farallon shall at all times retain all right, title and interest in the Product and no title or ownership rights in the Product are transferred to Tester by operation of this Agreement. No license is granted under any patent or copyright of Farallon except as provided for herein with respect to the Product. All contributions or enhancements suggested by Tester in its review and evaluation of the Product shall be and remain the property of Farallon.
2. Confidential Information. The existence and features of the Product constitute confidential information of Farallon. Tester shall not, directly or indirectly, use or disclose such confidential information for any purpose except as necessary in its evaluation and testing of the Product The obligations of confidentiality in this Agreement shall not apply with respect to any portion of such confidential information to the extent (a) the Product has been publicly released, (b) the disclosed information was at the time of disclosure already in the public domain other than as a result of actions of Tester, or (c) Tester has rightfully received the information from third parties who were entitled to receive and transfer it.
3. Term and Termination. This License terminates on the date on which the Product is released for public distribution. In addition, either party may terminate this Agreement and this License at any time upon written notice to the other party. Paragraphs 3, 4, 5, 7 and 8 shall survive termination of this Agreement.
4. Warranty. Tester understands and agrees that the Product is experimental and is not expected to function fully upon installation and it is expected and anticipated that further testing, modification and development will be necessary to make the Product fully functional. ACCORDINGLY, TESTER UNDERSTANDS AND AGREES THAT THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS. FARALLON DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED WITH REGARD TO THE PRODUCT, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FARALLON SHALL HAVE NO LIABILITY FOR DIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF THE PRODUCT.
5. Limitation of Liability. IN NO EVENT WILL FARALLON OR ITS LICENSORS, OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS OF ANY OF THEM BE LIABLE TO TESTER FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION SPECIAL, CONSEQUENTIAL, DIRECT, INDIRECT OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT OR ANY DATA OR MATERIALS SUPPLIED WITH IT EVEN IF FARALLON OR ANYONE ELSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
6. Confidential Information. The existence and features of the Product constitute confidential information of Farallon ("Confidential Information"). Tester shall not, directly or indirectly, use or disclose the Confidential Information for any purpose except as necessary in its evaluation and testing of the Product The obligations of confidentiality in this Agreement shall not apply with respect to any portion of the Confidential Information to the extent (a) the Product has been publicly released, (b) the disclosed Confidential Information was at the time of disclosure already in the public domain other than as a result of actions of Tester, or (c) Tester has rightfully received the Confidential Information from third parties who were entitled to receive and transfer the Confidential Information.
7. Export. You agree that neither the Product nor any direct product thereof is being or will be acquired, shipped, transferred, or reexported, directly or indirectly, into any country prohibited by the United States Export Administration Act and the regulations thereunder or will be used for any purpose prohibited by the same.
8. Miscellaneous. If any portion of the Product has been licensed to Farallon by a third party for redistribution, Licensee is hereby notified that such third party is an intended third party beneficiary of this License with full rights of enforcement. The validity and performance of this License shall be governed by California law, except for that body of law dealing with conflict of laws and except as to copyrights, which are governed by United States laws and international treaties. This License constitutes the entire agreement between the parties concerning the subject matter hereof. Any waiver or amendment of any provision of this License shall be effective only if in writing and signed by you and an officer of Farallon. No distributor, dealer, or employee (other than an officer) of Farallon is authorized to change or amend any terms of this License.
