ALPHA VERSION END USER LICENSE AGREEMENT
THIS ALPHA VERSION END USER LICENSE AGREEMENT (“AGREEMENT”) APPLIES TO THE USE OF ANY ALPHA VERSION SOFTWARE (“SOFTWARE”) AND RELATED DOCUMENTATION (“DOCUMENTATION”) PROVIDED BY SWIRLDS, INC. (“SWIRLDS”), A DELAWARE CORPORATION.
BY CHECKING THE “ACCEPT” BOX AND/OR DOWNLOADING, INSTALLING AND USING ANY PORTION OF THE SOFTWARE, (I) A CONTRACT IS FORMED BETWEEN SWIRLDS AND YOU OR THE COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT (“LICENSEE”) AND (II) YOU AND YOUR COMPANY ARE BOUND BY THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT COMPANY OR LEGAL ENTITY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR YOU ARE NOT AN AUTHORIZED REPRESENTATIVE OF LICENSEE, DO NOT CHECK THE “ACCEPT” BOX AND YOU WILL HAVE NO LICENSE TO, AND MUST NOT ACCESS OR USE, THE SOFTWARE.
THIS AGREEMENT INCLUDES THE FOLLOWING TERMS AND CONDITIONS. LICENSEE’S USE OF THE SOFTWARE MUST BE IN ACCORDANCE WITH THE AGREEMENT. IF THE SOFTWARE IS LICENSED PURSUANT TO SEPARATE WRITTEN AGREEMENT SIGNED BY THE PARTIES, THEN THE TERMS OF LICENSEE’S LICENSE TO USE THE SOFTWARE SHALL BE AS SET FORTH IN THAT SIGNED WRITTEN AGREEMENT.
1. ALPHA VERSION DISCLAIMER
THE SOFTWARE LICENSED HEREUNDER IS AN ALPHA VERISON AND IS BELIEVED TO CONTAIN DEFECTS. LICENSEE IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SOFTWARE AND/OR DOCUMENTATION. LICENSEE USES THE SOFTWARE AT ITS SOLE RISK.
2. LICENSE GRANT; RESTRICTIONS
a. Grant of License. Subject to all of the terms and conditions of this Agreement, Swirlds hereby grants to Licensee a limited, non-exclusive, non-sublicensable and non-transferrable license to (i) install, run and use the Software for Licensee’s own internal business operations and (ii) use the Documentation provided by Swirlds in connection with the licensed use of the Software. As an alpha version, the Software is still under development and is likely to contain bugs and other defects. Thus, Licensee is solely responsible for ascertaining the fitness of the Software for its permitted use, and for checking that it is sufficiently free from error and malfunction for such use.
b. Restrictions. The Software and Documentation is protected by United States copyright laws, international treaties and other applicable laws. Licensee shall not alter or remove any proprietary markings on the Software or Documentation, including copyright, trademark, service mark, trade secret, confidentiality or other proprietary notices. In addition, Licensee shall not, or permit any third party to, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to determine the internal manner of functioning of the Software; (ii) copy, modify or create derivative works from the Software or Documentation (code written to published APIs (application programming interfaces) for the Software shall not be deemed derivative works); (iii) sublicense, rent, lease or otherwise distribute or transfer the Software or Documentation; (iv) use the Software or Documentation for any third-party use including, but not limited to, service bureau use, time-sharing or training; or (v) take any actions to create any claim, encumbrance or lien with respect to the Software.
c. Reservation of Rights. The Software and related Documentation are licensed and not sold, and all rights not expressly granted to Licensee are reserved, including any and all worldwide rights in or to all intellectual property rights in and to the Software and Documentation. Licensee acknowledges that it obtains no ownership rights in the Software or the Documentation under the terms of this Agreement.
3. ALPHA VERSION SUPPORT
Alpha version software products are not supported. Swirlds is under no obligation to provide technical support with respect to the Software, and Swirlds provides no assurance that any errors or discrepancies in the Software will be corrected. Provision of any Software under this Agreement is experimental and does not create any obligation sf Swirlds to continue to develop, productize, support, correct, repair, offer for sale or in any other way continue to provide or develop Software either to Licensee or any other party.
4. NO CHARGE; FEEDBACK
The Software is provided to Licensee at no cost. However, Swirlds reserves the right to charge fees in connection with the sale, license or other distribution of any future version of the Software or any other computer software developed, sold, licensed or otherwise distributed by Swirlds. Licensee may, regardless of whether or not formally requested to do so, provide to Swirlds reasonable suggestions, comments and feedback regarding the Software, including but not limited to usability, bug reports and test results (collectively, "Feedback"). If Licensee provides such Feedback to Swirlds, Licensee hereby grants Swirlds the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any Swirlds product, technology, service, specification or other documentation (individually and collectively, "Swirlds Products"); (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 Swirlds Product; and (iii) solely with respect to Licensee's copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties. Further, Licensee warrants that its Feedback is not subject to any license terms that would purport to require Swirlds to comply with any additional obligations with respect to any Swirlds Products that incorporate any Feedback.
The license granted under Section 1 of this Agreement is perpetual and shall remain in effect unless this Agreement is terminated in accordance with this Section 5. Without prejudice to any other rights or remedies available to Swirlds, this Agreement will automatically terminate upon Licensee’s failure to comply with any term or condition of this Agreement. Licensee may also terminate this Agreement at any time by destroying all copies of the Software in Licensee’s possession or control. If Swirlds makes a request via public announcement or press release to stop using the copies of the Software, Licensee will comply immediately with this request. Upon termination of this Agreement for any reason: (i) use of the Software by Licensee will immediately cease; and (ii) Licensee will delete and/or remove all Software from all computer hardware and storage media within Licensee’s possession or control. Sections 2.b, 2.c, 2.d, 4(b), 5, 6, 7, 8 and 12 hereof shall survive any termination of this Agreement.
6. CONFIDENTIAL INFORMATION
Licensee agrees that the Software and the Documentation constitute valuable trade secrets and confidential proprietary information of Swirlds. Licensee shall permit only authorized users to use the Software or to view the Documentation. Authorized users means the Licensee (if Licensee is an individual) or employees and contractors of Licensee (if Licensee is a legal entity) that have a reasonable need to use the Software and who are bound by similar non-disclosure obligations. Licensee agrees not to transfer, copy, disclose, provide or otherwise make available the Software or the Documentation in any form to any third party without the prior written consent of Swirlds. Licensee shall use its best efforts to maintain the security of the Software and the Documentation.
Except as specifically licensed to Licensee hereunder, Swirlds (or its third party licensors, if any) own and shall retain all right, title and interest, including all intellectual property rights, in and to the Software, Documentation and the Confidential Information of Swirlds. Any modifications to, or derivative works (code written to published APIs (application programming interfaces) for the Software shall not be deemed derivative works) of, the Software or Documentation will be solely owned by Swirlds notwithstanding any Feedback, input or contribution by Licensee to such modifications or derivative works.
8. DISCLAIMERS; LIMITATIONS ON LIABILITY
a. Disclaimers. IT IS UNDERSTOOD THAT THE SOFTWARE HAS NOT BEEN THOROUGHLY TESTED AND MAY CONTAIN DEFECTS. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTS WHATSOEVER. ALL USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SWIRLDS DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTIBILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY OR ACCURACY. WITHOUT LIMITATION OF THE FOREGOING, SWIRLDS EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ASSUMES RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE LICENSEE’S INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM LICENSEE’S USE OF THE SOFTWARE. LICENSEE SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE. THE FOREGOING DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.
b. Limitations of Liability. IN NO EVENT WILL SWIRLDS OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES, INCLUDING LOSS OF DATA, LOST PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE USE, PERFORMANCE OR FAILURE OF THE SOFTWARE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SWIRLDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTWITHSTANDING ANY DAMAGES THAT LICENSEE MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF SWIRLDS AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR US$5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. LICENSEE ACKNOWLEDGES THAT THE PRICE OF THE PRODUCT REFLECTS THIS ALLOCATION OF RISK.
9. INHERENTLY DANGEROUS USES OR ACTIVITIES
THE SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE IN CONNECTION WITH INHERENTLY DANGEROUS ACTIVITIES, INLCUDING, WITHOUT LIMITATION, MEDICAL LIFE SUPPORT SYSTEMS AND SERVICES, ON-LINE CONTROL OF AIRCRAFT, AIR TRAFFIC, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATIONS, OR IN THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY. THE SOFTWARE SHOULD NOT BE USED FOR ANY SUCH PURPOSE(S) AND SWIRLDS DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSE(S).
10. EXPORT CONTROL LAWS
Licensee acknowledges that the Software is of U.S. origin and that the Software and all related technical information, documents and materials are subject to U.S. and international import and export regulations, including export controls under the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the United States and other governments. Licensee shall comply strictly with all United States and international export controls and shall not export, re-export, transfer or divert any of the Software or any direct product thereof, to any destination, end-use or end user that is prohibited or restricted under any United States or international export control laws and regulations. Licensee shall indemnify and hold Swirlds and its suppliers harmless from and against any claim, loss, liability or damage suffered or incurred by Swirlds and its suppliers resulting from or related to Licensee’s violation or breach of this Section 10.
11. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software is commercial in nature and developed solely at private expense. The Software is delivered as "Commercial Computer Software" as defined in DFARS 252.227-7014 or as a commercial item as defined in FAR 2.101(a) and as such is provided with only such rights as are provided in this Agreement, which is Swirlds’ standard commercial license for the alpha version of the Software. Technical data is provided with limited rights only as provided in DFAR 252.227-7015 or FAR 52.227-14, whichever is applicable.
12. GENERAL PROVISIONS
a. Governing Law; Venue. This Agreement shall be governed by the laws of the State of Texas, without giving effect to its choice of law principles. The United Nations Conventions on Contracts for the International Sale of Goods shall not apply to this Agreement nor shall the Uniform Computer Information Transactions Act apply to this Agreement. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal courts situated within the Southern District of Texas, Houston Division. To the maximum extent permitted by law, Licensee hereby consents to the jurisdiction and venue of such courts and waives any objections to the jurisdiction or venue of such courts.
b. Right to Injunctive Relief. Licensee acknowledges that Licensee’s material breach of Sections 2 or 6 may likely cause irreparable injury to Swirlds and may entitle Swirlds to seek injunctive or other equitable relief in the event of any such material breach.
c. Entire Agreement; Assignment; Waiver; Severability. This Agreement constitutes the entire understanding between the parties, and supersedes all prior discussions, representations, understandings or agreements, whether oral or in writing, between the parties with respect to the subject matter of this Agreement. This Agreement may not be modified or amended, except by a writing that is signed by an authorized representative of Swirlds. This Agreement and all rights and obligations hereunder shall not be assignable by Licensee, except with the prior written consent of Swirlds. This Agreement shall be binding upon each party’s successors and permitted assign. Neither the failure nor any delay to exercise a right, remedy or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of a right, remedy or privilege preclude any further exercise of the same. A determination that any provision of this Agreement is invalid, illegal or unenforceable shall not affect the enforceability of any other provision.