This BETA TEST Agreement (“Agreement”) is entered into between TwinUp LLC (“TwinUp”) and the user identified below (“User”) as of the last date signed below.
1. License Grant. Subject to the terms and conditions hereof, TwinUp grants to User, for the BETA Test Period identified below, a limited non-exclusive, nontransferable, revocable license to use the TwinUp software products identified below (“Software”) solely for the purpose of TwinUp’s internal evaluation of the Software. User shall not use the Software for any commercial purpose.
2. No Services. TwinUp shall be under no obligation to provide User with any services except as explicitly set forth in section 5 herein.
3. Termination. The licenses granted hereunder terminate on expiration of the BETA Test Period. Additionally, either party may terminate this Agreement upon written notice to the other party at any time. Within five days after termination, User will (i) return to TwinUp the Software and all copies thereof in the form provided by TwinUp or (ii) upon request by TwinUp destroy the Software and all copies thereof and certify in writing that it has been destroyed. Sections 2 through 10 shall survive termination of this Agreement.
4. Proprietary Rights; Confidentiality; Restrictions. User acknowledges that the Software contains confidential information and trade secrets of TwinUp and its licensors. User will not: copy (except as strictly necessary to use the Software in accordance with the terms of section 1 hereof), distribute, sell, sublicense or otherwise transfer or make available the Software or any portion thereof to any third party; remove from view any copyright legend, trademark or confidentiality notice appearing on the Software or Software output; a modify, adapt, translate, reverse engineer, decompile or derive the source code for the Software, or authorize a third party to do any of the foregoing. User will reproduce all of TwinUp’s and its licensors’ copyright notices and any other proprietary rights notices on all copies of the Software that User makes hereunder. User will not use the Software or any documentation provided therewith for any purpose other than User’s internal evaluation and the provision of feedback to TwinUp, and not to disclose to any third party without the prior written approval of TwinUp, the Software, its features, feedback (as defined in Section 8), related technical information identified as confidential or the results of any performance or functional evaluation or test of the Software (the “Confidential Information”). User will use no less than all reasonable efforts to protect the Confidential Information from unauthorized use or disclosure. User may disclose Confidential Information only to those of its employees who have a bona fide need to know such information for User’s evaluation of the Software and who have first executed a written agreement that contains use and nondisclosure restrictions at least as protective as those set forth herein. User will immediately report any violation of this provision to TwinUp and shall employ all reasonable means to mitigate any damages or losses that TwinUp may incur as a result of any such violation. User’s rights in the Software will be limited to those expressly granted in Section 1. TwinUp and its licensors reserve all rights and licenses in and to the Software not expressly granted to User hereunder.
5. Delivery and Installation. TwinUp will provide the Software via electronic delivery. User will be responsible for installing the Software. TwinUp may provide reasonable assistance in connection with such installation.
6. Warranty. THE SOFTWARE IS PROVIDED “AS-IS.” TWINUP DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE IN TRADE.
7. Acknowledgment of Beta Software. User acknowledges and agrees that: (a) the Software is not an official product and has not been commercially released for sale by TwinUp; (b) the Software may not operate properly, be in final form or fully functional; (c) the Software may contain errors, design flaws or other problems; (d) it may not be possible to make the Software fully functional; (e) the information obtained using the Software may not be accurate and may not accurately correspond to information extracted from any database or other source; (f) use of the Software may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) TwinUp is under no obligation to release a commercial version of the Software; and (h) TwinUp has the right unilaterally to abandon development of the Software, at any time and without any obligation or liability to User. User acknowledges and agrees that it should not rely on the Software for any reason. User is solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the Software. User will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of User’s use of the Software.
8. Limitation of Liability. EXCEPT AS OTHERWISE REQUIRED BY LAW, THE LIABILITY OF TWINUP AND ITS LICENSORS TO USER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SOFTWARE, OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE, OR FOR THE PROVISION OF TECHNICAL SUPPORT INSTALLATION, TRAINING OR OTHER SERVICES IN CONNECTION THEREWITH, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED ANY FEES PAID TO TWINUP HEREUNDER. IN NO EVENT WILL TWINUP OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR
LOSS OF PROFITS, BUSINESS, REVENUE, DATA OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. The limitations of liability set forth in this Agreement reflect the allocation of risk negotiated and agreed to by the Parties. The Parties would not enter into this Agreement without these limitations on its liability. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy.
9. Feedback. User will provide reasonable feedback to TwinUp concerning the features and functionality of the Software. If User provides feedback to TwinUp, all such feedback will be the sole and exclusive property of TwinUp. User hereby irrevocably transfers and assigns to TwinUp and agrees to irrevocably assign and transfer to TwinUp all of User's right, title, and interest in and to all feedback including all intellectual property rights therein (collectively, “Intellectual Property Rights”). User will not earn or acquire any rights or licenses in the Software or in any TwinUp Intellectual Property Rights on account of this Agreement or User's performance under this Agreement, even if TwinUp incorporates any feedback into the Software.
10. Audit. TwinUp may, at any time during the term of this Agreement, upon reasonable written notice and during User’s normal business hours, audit User’s use of the Software at User’s premises, as reasonably necessary to confirm that User is using the Software in accordance with the terms and conditions of this Agreement. TwinUp may use a third-party organization reasonably acceptable to User to assist TwinUp in conducting such an audit. User will cooperate with TwinUp in such audit and will promptly make available to TwinUp all information and materials reasonably required by TwinUp to conduct such an audit.
11. General. User may not assign or otherwise transfer, by operation of law or otherwise, any of its rights under this Agreement without TwinUp’s prior written consent, and any attempted assignment without such consent will be null and of no effect. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements, communications and understandings with respect to the evaluation of the Software and shall be construed in accordance with the laws of the State of Illinois (excluding its body of law controlling conflicts of law). The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of Illinois and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission or by overnight delivery service and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth below or to such other address as may be specified by either party to the other in accordance with this Section.