Beta Software License Agreement

READ THE TERMS OF THIS BETA LICENSE AGREEMENT (THE "AGREEMENT") CAREFULLY BEFORE INSTALLING THE CLOUDSPLIT BETA PRODUCT. THIS AGREEMENT CONTAINS LIMITATIONS OF LIABILITY AND EXCLUSIONS OF WARRANTIES.

By installing the Beta Product (as defined below), you ("Licensee") are accepting and agreeing to the terms of this Agreement. If you are licensing the Beta Product on behalf of a company, you warrant that you have the authority to bind that company to the terms of this Agreement. If you are not willing to be bound by the terms of this Agreement, you should not install the Beta Product.

This Agreement is effective as of the date you download the Beta Product ("Effective Date") and is made by and between [CloudSplit] an Irish-registered company ("Coudsplit") with its primary office located at 100 Homefarm Road, Drumcondra, Dublin 9, Ireland and you ("Licensee"), either on your own behalf of on behalf of your company.

In consideration of the license of the Beta Product for evaluation purposes, in consideration of Licensee agreeing to provide Feedback to CloudSplit in respect of the Beta Product and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged CloudSplit and Licensee hereby agree as follows:

1. DEFINITIONS

The following definitions also apply to the terms of this Agreement:

  1. "Beta Product" means CloudSplit's, downloadable client package and its online offering at cloudsplit.com and any documentation, specifications, support materials and training materials related thereto.
  2. "Confidential Information" means (i) the Beta Product (in source code or object code form) which consists of non-commercially available Beta software and documentation and, as such, also constitutes a trade secret of CloudSplit; (ii) either party's business or financial information and plans, documents, works in progress, work processes, trade secrets, or other secret or confidential matter related to either party's business or projects and/or their affiliated, related or subsidiary companies, including, without limitation, customer information; and (iii) any other information that either party designates as confidential, or which, under the circumstances of disclosure, should be treated as confidential.
  3. "Feedback" means suggestions, comments, ideas, and all other types of information, including without limitation, source code, which (a) is given or communicated directly or indirectly by Licensee to CloudSplit or its agents; and (b) relates to the Beta Product and/or its components.

2. LICENSE

  1. Subject to the terms and conditions of this Agreement, CloudSplit hereby grants to Licensee a nonexclusive, nontransferable, internal, limited license to use the Beta Product at Licensee's premises only for internal purposes of evaluation, demonstration and testing.

    2. 3. OWNERSHIP

    1. The Beta Product, and all associated copyrights and other intellectual property rights, are the property of CloudSplit or its licensors. Licensee acquires no title, right or interest in the Beta Product other than the license granted herein by CloudSplit. CloudSplit reserves all rights not expressly granted to Licensee under this Agreement.

    4. LICENSE LIMITATIONS

    1. Licensee will not copy, display or disclose the Beta Product (in whole or in part), or the results of use thereof, to third parties, and will not rent, lease, loan, sublicense, modify, adapt, translate, reverse engineer, disassemble or decompile the Product or any portion thereof, or create derivative works of the Beta Product even for purposes of interoperability or error correction. Licensee shall promptly report to CloudSplit any actual or suspected violation of this section and shall take further steps as may reasonably be requested by CloudSplit to prevent or remedy any such violation.
    2. Licensee shall not remove any trademark, trade name, copyright notice or other proprietary notice from the Beta Product.
    3. Licensee will not use the Beta Product for the purpose of developing software based on concepts, functions, or operations similar to those disclosed in Confidential Information.

    5. EVALUATION REPORT; FEEDBACK

    1. Licensee will report any errors or quality issues relating to the Beta Product to CloudSplit as soon as practicable. Licensee will not publish or otherwise disclose any results of use, statements of quality, benchmark or performance testing of the Beta Product.
    2. Evaluation Report. Licensee will use reasonable efforts to perform a genuine and realistic evaluation of the Beta Product and will allocate sufficient relevant personnel to perform the evaluation. CloudSplit encourages Licensee to provide an evaluation report concerning Licensee's use of the Beta Product. In Licensee's report, CloudSplit encourages Licensee to address how the Beta Product was evaluated along with any metrics used and provide feedback to CloudSplit regarding, without limitation, the performance of the Beta Product, whether it met Licensee's expectations, Licensee's recommended improvements. Licensee also may use the report to detail any system problems and unexpected results.
    3. Feedback. Any and all Feedback shall be subject to CloudSplit's underlying rights in the subject matter of such feedback and Licensee hereby grants to CloudSplit a non-exclusive, fully-paid, royalty-free, worldwide, perpetual, irrevocable, sublicensable, non-terminable, transferable, assignable license to reproduce, distribute, publicly perform, publicly display, make, sell, import, modify and make derivative works based on, and otherwise use and exploit any and all Feedback. Licensee agrees to any further agreements required in order for CloudSplit to make use of this Feedback.

    6. NON-DISCLOSURE

    1. Each Party (the "Receiving Party") acknowledges that, in the course of performing its duties and exercising its rights under this Agreement, it may obtain Confidential Information of the other Party (the "Disclosing Party") The Receiving Party shall keep in trust and confidence all Confidential Information and shall not use Confidential Information except in furtherance of, or as authorised by, this Agreement; nor shall the Receiving Party disclose any Confidential Information to any person without the Disclosing Party's prior written consent except that the Receiving Party may disclose the Confidential Information to its officers, employees and agents on a "need-to-know" basis, provided that such employees and agents execute a written agreement with materially the same terms and conditions as this Section 6 and the Receiving Party remains ultimately liable for any breaches hereof.
    2. The obligations of confidentiality herein shall continue during the term of this Agreement and thereafter, unless and until such Confidential Information falls within one of the exceptions outlined in Section 6.3 below.
    3. This Section 6 shall not apply with respect to information the Receiving Party can document: (a) is in the public domain as a result of no act or omission of the Receiving Party or its employees, or agents, including as a result of criminal acts of a third party where the Receiving Party (i) took reasonable steps to protect the Confidential Information from disclosure considering the nature of such Confidential Information and (ii) followed all reasonable instructions and procedures communicated by the Disclosing Party in relation to maintaining the confidentiality of the Confidential Information; (b) is lawfully received by the Receiving Party from third parties without restriction and without breach of a duty of nondisclosure by such third party; (c) was independently developed by the Receiving Party without reliance on the Confidential Information; or (d) is required to be disclosed by operation of law or by order of a court or administrative body of competent jurisdiction (provided that, prior to such disclosure, the Receiving Party shall first give notice to the Disclosing Party such that the Disclosing Party has the opportunity to contest such order or requirement of disclosure or seek appropriate protective order).
    4. Licensee acknowledges that disclosure or use of Confidential Information in violation of this Agreement will cause immediate and irreparable harm to CloudSplit for which monetary damages may be difficult to ascertain or an inadequate remedy. CloudSplit will have the right to seek and obtain, which Licensee will not oppose, preliminary and final injunctive relief to enforce this Agreement in case of any actual or threatened breach, in addition to other rights and remedies that may be available to CloudSplit.

    7. WARRANTIES

    1. The Beta Product consists of a preliminary release version of the Beta Product and is being provided to Licensee solely for evaluation of upcoming product releases by CloudSplit. Licensee assumes the responsibility for determining the suitability of the Beta Product for Licensee's needs and for results obtained. The entire risk as to the quality and performance of the Beta Product is borne by Licensee. Licensee should not use the Beta Product in a critical system environment.
    2. CLOUDSPLIT SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE BETA PRODUCT OR THE RESULTS OF USE WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THE OPERATION OF THE BETA PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. THE BETA PRODUCT IS PROVIDED TO LICENSEE "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE SUITABILITY, QUALITY AND PERFORMANCE OF THE BETA PRODUCT IS WITH LICENSEE AND NOT WITH CLOUDSPLIT.

    LIMITED LIABILITY

    1. IN NO EVENT SHALL CLOUDSPLIT, ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DATA, GOODWILL OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE BETA PRODUCT, EVEN IF FORSEEABLE OR IF CLOUDSPLIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF CLOUDSPLIT IS HELD LIABLE UNDER THIS AGREEMENT, CLOUDSPLIT, ITS SUPPLIERS' AND LICENSORS' LIABILITY SHALL BE LIMITED TO ONE HUNDRED EURO (€100).

    9. TERM AND TERMINATION

    1. This Agreement shall terminate six (6) months after delivery or as otherwise agreed in writing between the parties. The license to use a particular version of the Beta Product will terminate upon delivery of any new version of the Beta Product or upon release of a Generally Available (GA) version of the product (whether or not Licensee has licensed the GA version).
    2. The license to use the Beta Product may be terminated at any time at the sole discretion of CloudSplit by giving Licensee ten (10) business days' notice. This Agreement and Licensee's right to use the Beta Product terminate automatically if Licensee violates any part of this Agreement.
    3. Termination of this Agreement shall be without prejudice to or limitation of any other remedies or any accrued obligations of either party. Upon termination of this Agreement, Licensee shall (i) immediately cease its use of the Beta Product, and (ii) immediately destroy or return to CloudSplit (at CloudSplit's option) all copies of the Beta Product and certify in writing its compliance with this obligation.
    4. The provisions of Sections 6, 7.3, 8, 9.2, 9.3 and 10 and the definitions of this Agreement shall survive the termination of this Agreement (for any reason).

    10. MISCELLANEOUS

    1. Assignment. This Agreement and any rights granted hereunder may not be assigned, sub-licensed or otherwise transferred by Licensee to any third party without the prior written consent of CloudSplit. CloudSplit may assign or transfer its rights and obligations under this Agreement at any time without notice to or the consent of Licensee.
    2. Amendment; Waiver. No modification or waiver of any provision of this Agreement shall be binding on either party unless specifically agreed upon in a writing signed by both parties. Any failure or delay by CloudSplit to exercise or enforce any of the rights or remedies granted hereunder will not operate as a waiver thereof. No waiver by CloudSplit of any breach of this Agreement will operate as a waiver of any other or subsequent breach.
    3. Severability. If any provision of this Agreement is found invalid or unenforceable, that provision will be reformed, construed and enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.
    4. Law And Jurisdiction. This Agreement will be governed by the laws of Ireland and the parties hereto submit to the exclusive jurisdiction of the courts of Dublin.
    5. Export. Licensee will not import, export or re-export the Product (or portion thereof) to or from any country in contravention of any applicable import or export laws.
    6. U.S Government Users. The Product is a "commercial item" as that term is defined in applicable U.S. FAR or DFARS provisions; if the licensee hereunder is the U.S. Government or any agency or department thereof, the Product is licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
    7. Entire Agreement. Licensee has read this Agreement and agrees to be bound by its terms, and further agrees that, unless the parties have entered into a signed development license agreement relating to the subject matter hereof (a "Signed Agreement"), this Agreement constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the subject matter hereof. If, however, the parties have entered into a Signed Agreement, to the extent of any inconsistency, such Signed Agreement shall take precedence over the terms of this Agreement. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party.