LYATISS, INC. BETA TEST AGREEMENT
This Beta Test Agreement (the “Agreement”) effective as of the date of your first use of the Product (defined below) is between Lyatiss, Inc., a Delaware Corporation with a principal place of business at 2901 Tasman Drive, Suite 210, Santa Clara, CA 95054 (“Lyatiss”) and you on behalf of the company you represent including its subsidiaries and affiliates (“You”) (collectively the “Parties”).
Whereas Lyatiss has software and associated documentation which requires objective independent testing (beta testing); and
Whereas You have agreed to conduct such beta testing using such software and associated documentation (“Product”) and to provide the results of such beta testing to Lyatiss.
Therefore, Lyatiss and You agree as follows:
1. LICENSE GRANT The terms and conditions in this Beta Test Agreement shall apply to any and all Products provided to You by Lyatiss for Beta Testing. Each individual Product shall be more fully described in the documentation that will accompany the individual Product. Lyatiss grants You a non-exclusive and non-transferable license, without right to sublicense, to use the Product for internal testing purposes only. Unless specifically agreed to by Lyatiss, You may not use the Product to operate your business, develop other hardware or software for ongoing use, or provide service to others. You may not sell or transfer to another person or entity any interest whatsoever in the Product. You may not make copies of any software or any hard-copy documentation except those copies that are necessary for use in the Beta Test process. In addition, You are not entitled to Lyatiss support services as may be outlined in any support services contract. Beta support will be provided by Lyatiss on a best efforts basis. Lyatiss reserves the right at any time not to release a commercial version of the Product or, if released, to alter prices, features, licensing terms, or other characteristics of the commercial release.
2. FEEDBACK You shall endeavor to provide to Lyatiss reasonable suggestions, comments and feedback regarding the Product, including but not limited to usability, bug reports and test results, with respect to the evaluation and testing of the, Product (“Feedback”). If you agree to provide the results of such internal testing, you shall provide all such results to Lyatiss promptly, in no event later than the date of first commercial availability for that particular Product. You grant Lyatiss, under all of Your intellectual property and proprietary rights, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, and create derivative works of, the Feedback as part of any Lyatiss offering, (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Lyatiss offering, (iii) solely with respect to Your copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties. For purposes of this Section, “Lyatiss offerings” shall mean, individually and collectively, (i) any Lyatiss product, technology, service or component of any of the foregoing, including pre-release and commercially released versions, (ii) any specification or other proposal for any such product, technology, service or component, and (iii) any Lyatiss documentation. Lyatiss covenants not to disclose the source of the Feedback to third parties without Your express written permission, which permission shall not be unreasonably denied. If the Feedback contains information You consider confidential, you shall identify such information in writing at the time you provide the Feedback to Lyatiss. The licenses of this paragraph shall not extend to such identified confidential information.
3. TERM AND TERMINATION The license granted under this Agreement commences with first use of the Product. The license grant for any particular Product shall terminate upon the date of first commercial availability. The license will automatically terminate if You fail to comply with the limitations described herein. Either Party may terminate this Agreement by written notice provided to the other Party at any time. Upon termination of this Agreement, You must return to Lyatiss, at Lyatiss’s expense, the software and documentation Lyatiss provided to You. After the date of first commercial availability for a particular Product You must return to Lyatiss, at Lyatiss’s expense, the software and documentation Lyatiss provided to You. No copies of any software provided by Lyatiss may be retained by You and all such copies shall be either returned or erased. If erased, You will certify in writing that such erasure has occurred and that no copies of the software have been retained in any form by You.
4. PROPRIETARY RIGHTS Legal title, ownership rights, and intellectual property rights in the Product shall remain in Lyatiss and/or its suppliers. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Lyatiss’s or its supplier’s ownership of or rights with respect to the Product.
5. RESTRICTIONS Except as otherwise expressly permitted in this Agreement, and in addition to any other restrictions herein, You may not (i) modify or create any derivative works of the Product, including translation or localization; (ii) decompile, unbundle, disassemble or reverse engineer the Product, or attempt to derive the source code for the Product (except to the extent applicable laws specifically prohibit such restriction); (iii) redistribute, encumber, sell, rent, lease, sublicense, use the Products in a timesharing or service bureau arrangement, or otherwise transfer rights to the Product; (iv) copy the Product (except for an archival copy which must be stored on media other than a computer hard drive and which must be returned to Lyatiss upon the expiration of this Agreement) or its documentation; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Product; (vi) modify any header files or class libraries in the Product; (vii) publish any results of benchmark tests run on the Product or disclose Product features, errors or bugs to a third party without Lyatiss’s prior written consent; (viii) use the Product for any purpose other than internal testing purposes; or (ix) use the Product in any manner after the date of first commercial availability for that particular Product.
6. CONFIDENTIALITY You acknowledge that the Product, its existence, its features, its capacities, its capabilities, its thresholds, its limitations, and mode of operation, any related materials provided by Lyatiss, including this Agreement, the beta test results compiled by You, and other technical, business, product, marketing, and financial information, plans, and data relating to the Product and Lyatiss are Confidential Information of Lyatiss. You agree (i) to hold the Confidential Information in strict confidence, (ii) not to disclose any Confidential Information to any third parties, and (iii) not to use any Confidential Information for your own use or for any purpose except the purposes of this Agreement. You may disclose Confidential Information to employees who have a bona fide need to know such Confidential Information, and then only to the extent necessary to carry out testing under this Agreement. You will have executed or shall execute appropriate written agreements with your employees sufficient to enable You to comply with the provisions of this Agreement. You agree to take all reasonable measures to protect the secrecy of Confidential Information and avoid disclosure or use of Confidential Information other than expressly authorized herein, which measures shall take the form of the highest degree of care that You utilize to protect your own information of a similar nature and importance, but in any case not less than reasonable care. You agree to notify Lyatiss in writing of any misuse or misappropriation of Confidential Information that may come to your attention. All copies of tangible items, including but not limited to documents and magnetic media, containing or embodying Confidential Information which have been provided by Lyatiss will be promptly returned after the beta testing.
7. DISCLAIMER OF WARRANTY THE PRODUCT IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY YOU. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LYATISS MAY SERVICE, REPAIR OR REPLACE THE PRODUCT AT ITS CHOICE AND EXPENSE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
8. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LYATISS OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. LYATISS IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
9. EXPORT CONTROL You understand that the Product may be subject to export control laws and regulations. YOU MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT PRODUCT(S) OR ANY UNDERLYING INFORMATION OR TECHNOLOGY.
10. U.S. GOVERNMENT END USERS The Product is a “commercial item,” as that term is defined in 48 C. F. R. 2.101 (Oct. 1995), consisting of “commercial computer software,” “commercial computer hardware” and “commercial computer software documentation” as such terms are used in 48 C. F. R. 12.212 (Sept. 1995). Consistent with 48 C. F. R. 12.212 and 48 C. F. R. 227.7202-1 through 227.7202-4 (June 1995), all U. S. Government End Users acquire the Product with only those rights set forth in this Agreement.
11. MISCELLANEOUS (a) This Agreement and any attached appendices constitutes the entire agreement between the parties concerning the subject matter hereof. (b) This Agreement may be amended only by a writing signed by both parties. (c) This Agreement shall be governed by the laws of the State of California, U. S. A., excluding its conflict of law provisions. (d) Unless otherwise agreed in writing, all disputes relating to this Agreement will be adjudicated in Santa Clara County, California. (e) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (f) If any provision in this Agreement is held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (g) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (h) Sections 2 through 11, inclusive, shall be enforceable notwithstanding said expiration or termination. (i) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein without the prior express written consent of Lyatiss, which will not be unreasonably withheld. (j) Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (k) The relationship between Lyatiss and You is that of independent contractors and neither You nor your agents shall have any authority to bind Lyatiss in any way. (l) If any disputes arise under this Agreement, the prevailing party will be reimbursed by the other party for any and all legal fees and cost associated therewith.