BETA LICENSE AGREEMENT
By clicking the “accept” or “ok” button and/or by using the Product (as defined bellow) you expressly acknowledge and agree that you, on behalf of yourself or your organization (the “Customer” or “you”), are entering into a legal agreement with Sighted Technologies Inc., a company incorporated under the laws of the State of Delaware having its principal place of business at 251 Little Falls Drive, Wilmington, County of New Castle, Delaware 19808.] (“Company”) (each, a “Party” and collectively, the “Parties”), and have understood and agree to comply with, and be legally bound by, the terms and conditions of this Agreement (“Agreement”). You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by this Agreement, please do not use the Product.
1. Subscription. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, worldwide, non-exclusive, non-sublicensable, non-transferable and revocable right and license to install, remotely access (i.e. through a web portal) and/or use (as the case may be) the Canonic Security solution (the “Product”) during the Term (as defined below), solely for Customer's internal purposes. Unless otherwise indicated, the term “Product” also includes any appliance and any manual or documentation (“Documentation”) provided or made available to Customer in connection with the operation of the Product. Customer may only use the Product in accordance with the Documentation, subject to any use limitations indicated in the Company's website and in the applicable laws and regulations. Customer shall be solely responsible for providing all equipment, systems, assets, access, and ancillary goods and services needed to access and use the Product, for ensuring their compatibility with the Product.
2.1 Company shall provide reasonable support and maintenance services, the Product and any services provided shall be referred to as the “Services”).
2.2 The Product may be accessed solely by Customer's employees or service providers who are explicitly authorized by Customer to access and use the Product (each, a “User”). Customer shall immediately report any unauthorized access or use of the Product to Company. In order to access the Product, Customer and/or its Users may be required to set up an administrative account with Company ("Account"). Customer warrants and represents that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities of its Users and all activities that occur under or in its Account.
3. Beta Mode. Customer acknowledges that the Product and Services are in a “beta” state of development and are provided on an “as is” and “as available” basis. The Product and Services are currently undergoing testing and features and functionality of the Product and Services may not be fully implemented or refined. As with any beta version, there may be unresolved issues and Company may not offer full or any technical support for the beta version of the Product and Services. Customer is advised to safeguard its data, to use caution and not to rely in any way on the correct functioning or performance of the Product and / or accompanying materials or Services. The possibility of the corruption of data and / or loss of data exists.
5. Prohibited Uses. Except as specifically permitted herein, without the prior written consent of Company, Customer must not, and shall not allow any User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of, make available or distribute, publically perform, or display any part of the Product (including by incorporation into its products), or use the Product to develop any service or product that is the same as (or substantially similar to) it; (ii) sell, license, lease, assign, transfer, pledge, rent, sublicense, or share Customer's rights under this Agreement with any third party (including but not limited to offering the Product as part of a time-sharing, outsourcing or service bureau environment); (iii) use any “open source” or “copyleft software” in a manner that would require Company to disclose the source code of the Product to any third party; (iv) disclose the results of any testing or benchmarking of the Product to any third party; (v) disassemble, decompile, decrypt, reverse engineer, extract, or otherwise attempt to discover the Product’s source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms); (vi) remove or alter any trademarks or other proprietary right notices displayed on or in the Product; (vii) circumvent, disable or otherwise interfere with security-related features of the Product or features that enforce use limitations; (viii) export, make available or use the Product in any manner prohibited by applicable laws; and/or (ix) store or transmit any malicious code (i.e., software viruses, Trojan horses, worms, robots, malware, spyware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Product.
6. Mutual Warranties. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
7.1 The Product is not for sale and is Company’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Product (and any and all improvements, modifications and derivative works thereof) and any other products, deliverables or services provided by Company, are and shall remain owned solely by Company or its licensors. This Agreement does not convey to Customer any interest in or to the Product other than a limited right to use the Product in accordance herewith. Nothing herein constitutes a waiver of Company’s intellectual property rights under any law.
7.2 It is understood that Customer may provide Company with suggestions and/or comments with respect to the Services (collectively, “Feedback”). Customer represents that it is free to do so and that it shall not knowingly provide Feedback that infringes upon third parties’ intellectual property rights. Customer further acknowledges that all rights, including intellectual property rights in such Feedback shall belong exclusively to Company and such shall be considered Company's Confidential Information. Customer hereby irrevocably and unconditionally transfers and assigns to Company all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company in no way shall be obliged to make use of the Feedback.
7.3 Any anonymous information, which is derived from the use of the Services (i.e., metadata, aggregated and/or analytics information and/or intelligence relating to the operation, support, and/or Customer’s use of the Product) which is not personally identifiable information and which does not identify Customer (“Analytics Information”) may be used for, without limitation, providing the Service, for development, publication and/or for statistical purposes. Such Analytics Information is Company's exclusive property.
8. Publicity. Customer agrees: (i) that Company shall be entitled to refer to Customer as a user of its Services in its marketing materials, including, without limitation in its website and in press releases and for the purposes of disclosure to potential investors; (ii) to coordinate with Company in building a success story and testimonials; and (iii) Company may use Customer’s logo/s and trademark/s.
9. Third Party Components. The Software may use or include third party open source software, files, libraries or components that may be distributed to Customer and are subject to third party open source license terms.
10. Privacy. Customer hereby warrants, represents and, to the extent relevant, covenants, that it has and will (i) provide(d) all appropriate notices, (ii) obtain(ed) all required informed consents and/or (will) have any and all ongoing legal bases, and (iii) complied/comply at all times with any and all applicable privacy and data protection laws and regulations, for allowing Company to use and process the data for the provision of the Services and the performance of this Agreement. To the extent that Customer needs a data processing agreement, Customer shall download the Company’s Data Processing Agreement (“DPA”) available on the Company’s website and return it signed to Company as described therein.
11. Confidentiality. Each Party may have access to certain non-public information and materials of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, use of, or reliance on, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party's Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein; in any event, the receiving party shall remain liable for any acts or omissions of such persons. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that it promptly notifies the disclosing Party in writing of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure and cooperates reasonably with disclosing party in connection therewith. All right, title and interest in and to Confidential Information is and shall remain the sole and exclusive property of the disclosing Party.
12. DISCLAIMER OF WARRANTIES. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT, SERVICES AND THE RESULTS THEREOF ARE PROVIDED ON AN “AS IS” AND "AS AVAILABLE" BASIS. THE INFORMATION CONTAINED IN THE PRODUCT IS FOR GENERAL INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. SUCH INFORMATION ONLY INCLUDES INFORMATION AVAILABLE ON PUBLICLY AVAILABLE SOURCES AND HAS NOT BEEN INDEPENDENTLY VERIFIED FOR ITS ACCURACY OR CORRECTNESS. WHILE COMPANY ENDEAVORS TO KEEP THE INFORMATION UP TO DATE AND CORRECT, COMPANY DOES NOT ENSURE THAT THE INFORMATION IS INDEED UP TO DATE AND CORRECT, AND HENCE COMPANY MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, ABOUT THE COMPLETENESS, ACCURACY, RELIABILITY, SUITABILITY OR AVAILABILITY WITH RESPECT TO THE INFORMATION CONTAINED IN THE PRODUCT. ANY RELIANCE YOU PLACE ON SUCH INFORMATION OR ITS USE IS THEREFORE STRICTLY AT YOUR OWN RISK. IN ADDITION, COMPANY DOES NOT WARRANT THAT: (i) THE PRODUCT AND/OR THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR (ii) THE PRODUCT WILL OPERATE UNINTERRUPTED, ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. EXCEPT AS SET FORTH IN SECTION 6, THE COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, SATISFACTORY QUALITY TITLE, NON- INFRINGEMENT, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR CUSTOMER'S HOSTING SERVICES. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY WARRANTIES AND REPRESENTATIONS MADE BY ANY PARTNER TO CUSTOMER.
13. LIMITATION OF LIABILITY.
13.1 EXCEPT FOR ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, WILLFUL MISCONDUCT, AND/OR CUSTOMER'S MISAPPROPRIATION OR OTHERWISE VIOLATION OF COMPANY'S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE LICENSE BY CUSTOMER); (I) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, PROFITS, DATA, OR DATA USE, OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; (II) EITHER PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID OR PAYABLE TO COMPANY BY CUSTOMER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO COMPANY UNDER THIS AGREEMENT (INCLUDING ITS EXHIBITS).
14. Term and Termination.
14.1 This Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for the period set out in the Company's website.
14.2 Either Party may terminate this Agreement with immediate effect upon written notice if (a) the other Party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof; or (b) a receiver is appointed for the other Party, if the other Party makes a general assignment for the benefit of its creditors, or if the other Party commences proceedings under any bankruptcy or insolvency law.
14.3 Upon termination or expiration of this Agreement: (i) the Product license granted to Customer under this Agreement shall expire, and Customer shall discontinue any further use thereof; and (ii) Customer shall immediately delete and dispose of all copies of the Documentation in Customer’s or any of its representatives’ possession or control. The provisions of this Agreement (including its exhibits) that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive, including but not limited to Sections 11 and 13 hereof. The termination of this Agreement shall not limit Company from pursuing any other remedies available to it under applicable law.
15. Miscellaneous. This Agreement, and any exhibits attached or referred hereto, represents the entire agreement between the Parties concerning the subject matter hereof, replaces and supersedes all prior and contemporaneous oral or written understandings and statements, and may be amended only by a written agreement executed by both Parties. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and such provision shall be reformed only to the extent necessary to make it enforceable. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of such Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. Without derogating from and subject to the abovementioned, this Agreement will bind and benefit each Party and its respective successors and assigns. This Agreement shall be governed by and construed under the laws of the State of New York, without reference to principles and laws relating to the conflict of laws. The competent courts of the city of New York shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction in order to protect its proprietary rights. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Company will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of Company. This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.