Saturday 22 January 2022
READ THE TERMS AND CONDITIONS OF THIS BETA TEST AGREEMENT CAREFULLY BEFORE DOWNLOADING OR USING THIS PRODUCT. THIS IS A LICENCE FOR A PRODUCT CONSISTING OF COMPUTER SOFTWARE PROGRAMS AND THE ACCOMPANYING USER DOCUMENTATION. THIS PRODUCT IS LICENSED (NOT SOLD), AND IS PROTECTED BY COPYRIGHT LAW. BY CLICKING THE I AGREE BUTTON YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENCE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE PLEASE CLICK I DISAGREE.
This Agreement for Beta Test Software (Agreement) is made by and between The Foundry, an English corporation having a place of business at 5 Golden Square, London W1F 9HT, United Kingdom and the Beta Test Site (Licensee). Licensee desires to evaluate and The Foundry agrees to provide for evaluation the unreleased software and related documentation identified as Beta (Software). Licensee and The Foundry therefore agree as follows:
Foundry makes the Software available to certain participants from time to time for the purpose of providing Foundry with feedback on the quality and usability of the Software. You understand and agree that participation is voluntary and does not create a legal partnership, agency, or employment relationship between you and Foundry. You understand that your participation does not obligate Foundry to provide you with any Software. Foundry reserves the right to modify the terms, conditions, and policies of any pre-release program from time to time, and to revoke your participation in this pre-release testing at any time. If Foundry makes changes to the terms and conditions of these TOS, then Foundry will present such revised terms and conditions to you on the relevant product pre-release web page and you will deemed to accept the same if you continue to use the Software after the revised terms are made available.
Subject to your compliance with these TOS, Foundry hereby grants you a personal, non-transferable, non-exclusive, non-sublicensable, royalty free, limited term licence to use the Software during the term of these TOS solely for the purposes of internally evaluating and testing the Software. You may not (and may not permit any third party to): (i) reverse engineer, decompile, or disassemble the Software; (ii) distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or any portion of the Software to any other person without the prior written consent of Foundry; (iii) remove, alter, or obscure any proprietary notices, labels, or marks from the Software; (iv) modify, translate, adapt, arrange, or create derivative works based on the Software for any purpose; (v) use the Software for competitive analysis, or commercial, professional or other for-profit purposes, (vi) utilise any equipment, device, software or other means designed to circumvent or remove any usage restrictions, or to enable functionality disabled by Foundry; and/or (vii) export or re-export the Software in any form without the appropriate English and foreign government licenses and the permission of Foundry. The prohibitions contained in this clause apply to the fullest extent permitted by applicable law.
The Software may be provided to you as a “timed licence” and, as such, licensed on a limited, periodic basis and continue until the end of the licence period specified by Foundry (unless Foundry suspends or terminates the Software licence earlier, as it may determine in its sole discretion). The Software licence shall terminate at the end of the relevant licence period (or earlier in accordance with these TOS), and on its termination you will return, cease all use of, and/or destroy the Software and all other Confidential Information.
You may terminate these TOS at any time, for any reason, but only by returning or destroying any Confidential Information that is in your possession or control (including, without limitation, any Software); provided however that if you are unable to purge certain Software from archival storage in your computer and/or devices, then you agree that you will continue to hold the Software as Confidential Information. Foundry may terminate these TOS at any time, with or without cause, immediately upon notice to you.
Following the expiry or termination of these TOS, the restrictions of clause 2 and the provisions clauses 4-15 (inclusive) will continue to bind the parties.
You acknowledge that the Software is a pre-release version, does not represent a final product, and may contain bugs, errors and other defects or deficiencies that may cause system failures and which may not be corrected by ACCORDINGLY, THE SOFTWARE IS PROVIDED “AS IS” AND NO REPRESENTATIONS, CONDITIONS, WARRANTIES OR OTHER TERMS OF ANY KIND ARE GIVEN IN RESPECT OF THE SOFTWARE, AND ALL STATUTORY WARRANTIES AND CONDITIONS ARE EXCLUDED TO THE FULLEST EXTENT POSSIBLE. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL USE THE SOFTWARE AT YOUR OWN RISK. Foundry expressly disclaims any warranty, express or implied, regarding the Software, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement and any warranties arising by statute or otherwise in law, or from a course of dealing or usage or trade. Foundry specifically disclaims and does not warrant that the Software will be secure or will otherwise meet your requirements.
Save for death or personal injury caused by Foundry's negligence, Foundry will have no liability of any kind in any circumstances whatever to you or any third party in respect of the Software. IN PARTICULAR, FOUNDRY SHALL HAVE NO LIABILITY IN ANY CIRCUMSTANCES WHATEVER FOR ANY LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA OR WORK PRODUCT OR ANY INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES (EVEN IF FOUNDRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). YOU BEAR ALL RISKS OF ACCESSING AND USING THE SOFTWARE AND AGREE THAT YOU HAVE SOLE RESPONSIBILITY FOR PROTECTING YOUR DATA AND WORK PRODUCT AND ASSUMING THE COST OF ANY CORRECTION REQUIRED TO YOUR SYSTEMS AS A RESULT OF OR IN CONNECTION WITH ACCESS TO AND USE OF THE SOFTWARE.
You acknowledge that Foundry will have no obligation to release any product or make available any service based on the Software provided under these TOS, and the Software may undergo significant changes prior to release of the corresponding generally available final version, if any, as Foundry may determine in its discretion.
During your participation in any Software evaluation or testing pursuant to these TOS, Foundry is not obligated to provide you with any maintenance, technical or other support for the Software. If Foundry agrees, in its discretion, to provide any support or maintenance, you agree to abide by any support terms issued by Foundry in order to receive such support.
In consideration of Foundry providing you with access to the Software and any information related thereto including the existence, features and capabilities of the Software (whether existing or planned) and any related commercially sensitive, business, technical or financial information relating to the Software or Foundry (“Confidential Information”), you undertake that you will respect and preserve the confidentiality of the Confidential Information after the date of such disclosure. You will not without the prior written consent of Foundry: (i) communicate or otherwise make available the Confidential Information to any third party; or (ii) use the Confidential Information itself for any purpose other than the internal evaluation and testing of the Software; or (iii) copy, adapt, or otherwise reproduce the Confidential Information save as strictly necessary for the purposes of these TOS. You may disclose the Software and Confidential Information or any part thereof, with the prior consent of Foundry, to any of your employees who needs access to the Software and the Confidential Information in connection with these TOS. In such an event you agree to ensure, before each such disclosure, that the employee in question is made aware of the confidential nature of the Software and Confidential Information and understands that he/she is bound by conditions of secrecy no less strict than those set out in these TOS. You agree to monitor the use of the Software and Confidential Information by these employees and to enforce their obligations of confidence at the request of Foundry. The obligations contained in this clause will not apply, or will cease to apply, to such part of the Confidential Information as you can show to the reasonable satisfaction of Foundry: (a) has become public knowledge other than through your or your employee’s breach of these TOS; or (b) was already known to you prior to disclosure to you by Foundry; or (c) has been received from a third party who neither acquired it in confidence from Foundry, nor owed Foundry a duty of confidence in respect of it. If you decide not to accept a full licence of the Software, or otherwise at any time at the request of Foundry, you will return to Foundry all copies of all or any part of the Confidential Information which have been provided to you pursuant to these TOS, together with all analyses, studies and other materials produced by you which contain, or could reveal, all or any part of the Information.
Foundry owns the Software, Confidential Information and all related documentation. You acknowledge that disclosure to you of Confidential Information and your use of the Software pursuant to these TOS will not confer on you any intellectual property or other rights in relation to the Software or the Confidential Information other than the limited right to use under and subject to the terms of these TOS. Ownership of all complete or partial copies of the Software and related documentation will at all times remain with Foundry. If you propose or make any modifications, corrections or enhancements to the Software pursuant to these TOS (other than any modifications, corrections or enhancements developed by you against public APIs offered by Foundry to which this clause will not apply), you hereby assign to Foundry all right, title and interest thereto, without further compensation. For avoidance of doubt, these TOS do not change the ownership of any and all intellectual property rights: (i) owned by you as at the date on which you agree to these TOS and/or (ii) developed independently by you without access to the Software and/or Confidential Information. In using the Software, you may provide certain comments, suggestions, input, ideas, data, or other information to Foundry relating to the Software or proposed product specifications thereof (collectively "Feedback"). You hereby grant Foundry the worldwide, exclusive, transferable, perpetual, irrevocable, royalty-free, fully paid-up rights to (a) make, use, copy, modify, and create derivative works of the Feedback as part of or in connection with any product, technology, service, content, material, specification or documentation of Foundry (including, without limitation, in connection with the marketing or sale thereof); (b) to publicly make available, display, distribute, license, offer to sell and sell, rent, or lend copies of the Feedback (and derivative works thereof and improvements thereon); and (c) to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties, without additional compensation to you. If a third party notifies you of any claim that the use of the Software infringes any right of a third party, you agree to immediately notify Foundry. If any such claim is made to you or Foundry, you will, at Foundry's request, immediately cease use of the Software. If Foundry is unable to allow you to continue evaluation of the Software, the provisions of clause 4 (Termination) will apply.
You agree that you will not export or re-export any of the Software or Confidential Information received from Foundry except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You certify that the Software will only be used for evaluation and testing purposes, and will not be rented, sold, leased, sublicensed, assigned, or otherwise transferred. Further, you certify that you will not transfer or export any product, process or service that is a direct product of the Software.
Portions of the Software may include third party software and other copyrighted material. Acknowledgements, licensing terms, and disclaimers for such material may be contained in the Software, and your use of such material is governed by such respective terms. Mention of third parties and third party products in any materials, advertising, promotions or coupons provided to pre-release participants is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third party product specifications and descriptions are supplied by the respective vendor or supplier, and Foundry shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.
The Software may include mechanisms to collect limited information and transmit it to Foundry. Such information (the “Information”) may include the profile and extent of use of the different elements of the Software. Foundry may use the Information to (a) model the profiles of usage, hardware and operating systems in use collectively across its customer base in order to focus development and support, (b) to provide targeted support to individual customers, (c) to ensure that the Software is used in accordance with these TOS, and (d) to advise customers about service issues. To the extent that any Information constitutes personal data for the purposes of the General Data Protection Regulation (“GDPR”) Foundry shall process it in accordance with the GDPR and its Privacy Notice, as is available from www.foundry.com from time to time (the current version of which is available here).
You confirm that you are authorised to enter into these TOS and to be bound by them.
You may not vary these TOS unless such variation is in writing and signed by Foundry. Foundry may vary these TOS by giving notice to you from time to time.
Foundry may provide any notice required in connection with these TOS by displaying details on the relevant product pre-release web page.
These TOS and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the law of England and Wales. However, Foundry may enforce your obligation of confidentiality in the courts of any jurisdiction having competence to issue a directly enforceable injunction. These TOS shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. These TOS and any additional Foundry software product licenses accompanying the Software, constitute the entire agreement with respect to the matters set out herein and supersedes all prior or contemporaneous oral or written agreements concerning such matters.
Foundry’s failure to exercise, or delay in exercising, a right, power or remedy provided by these TOS or by applicable law shall not constitute a waiver of that right, power or remedy. If Foundry waives a breach of any provision of these TOS or applicable law it shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision. Any waiver by Foundry must be given in writing and signed by an authorised representative of Foundry.
If any provision, or part of a provision, of these TOS, is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of the agreement between the parties and the legality, validity or enforceability of the remainder of the provisions of these TOS shall not be affected, unless otherwise stipulated under applicable law.
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