Beta Software License Agreement

This Beta Software License Agreement (“Agreement”) is made and entered into as of the date of download of the Beta Software (“Download Date”) by and between Dimensional Insight, Inc., a Massachusetts corporation with its principal place of business at 60 Burlington Mall Rd., Suite 210, Burlington, MA 01803 (“Licensor”), and the individual or entity downloading the Beta Software (“Licensee”).  By downloading, installing, or using the Beta Software, Licensee agrees to be bound by all terms of this Agreement.

1. DEFINITIONS

1.1        “Beta Software” means the pre-release version of Licensor’s Navo™ desktop application, including any fixes or updates Licensor provides, and all related Documentation. 

1.2        “Documentation” means the videos and/or other materials Licensor furnishes with the Beta Software. 

1.3        “Evaluation Period” means the forty-five (45) consecutive days beginning on the Download Date.

2. LICENSE GRANT

Subject to the terms herein, Licensor grants Licensee a limited, non-exclusive, non-transferable, revocable license to install and use one (1) copy of the Beta Software on a computer owned or controlled by Licensee solely for internal, non-production evaluation and testing purposes during the Evaluation Period. All right, title and interest in and to the Beta Software and Documentation shall remain with Licensor, and Licensee acknowledges that no such right, title or interest in or to the Beta Software and Documentation is granted under this Agreement other than the specified license granted herein.  Customer shall do nothing inconsistent with Licensor’s title to the Beta Software and Documentation.

3. LICENSE RESTRICTIONS

3.1        Licensee shall not (and shall not allow any third party to): 

(a)        place the Beta Software in the possession or under the control of any person other than an employee or agent of the Licensee;

(b)        use the Beta Software for any commercial, production, or revenue-generating purpose; 

(c)        copy, modify, adapt, translate, or create derivative works of the Beta Software or Documentation; 

(d)        reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code, except to the limited extent such activity is expressly permitted by applicable law notwithstanding this limitation; 

(e)        sell, sublicense, lease, lend, distribute, or otherwise transfer the Beta Software to any third party; 

(f)         disclose to any third party (i) the results of any performance, functional, or other evaluation of the Beta Software or (ii) any features or content not yet publicly announced by Licensor; or 

(g)        remove, obscure, or alter any proprietary notice on the Beta Software or Documentation.

3.2        Licensee is not authorized and shall not attempt to use the Beta Software after the conclusion of the Evaluation Period without the prior written consent of Licensor.

4. INSTALLATION AND TECHNICAL SUPPORT

4.1        Licensee is solely responsible for (a) downloading the Beta Software and (b) installing it on hardware and operating systems that meet Licensor’s minimum requirements. 

4.2        During the Evaluation Period, Licensor may provide updates to the Beta Software via a new installation, all of which are deemed part of the Beta Software and subject to this Agreement. 

4.3        Licensee acknowledges that Licensor is under no obligation (a) to provide technical support under the terms of this Agreement or, (b) to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop the Beta Software either to Licensee or to any other party.  Licensee further acknowledges that Licensor provides no assurance that any specific errors or discrepancies in the Beta Software will be corrected.

5. FEEDBACK

Licensee may, but is not required to, provide comments, suggestions, or other feedback regarding the Beta Software, including without limitation all ideas, modifications, suggestions, improvements and the like made by Licensee with respect to the Beta Software (“Feedback”).  Notwithstanding the foregoing, even though the Beta Software operates locally on a Licensee’s desktop computer and does not upload or transmit any user-provided data to Licensor, certain technical information, including but not limited to, error logs, performance metrics, and usage patterns necessary to improve the software (“Performance Data”), is transmitted by the Beta Software to Licensor.  Any and all Feedback and Performance Data will be the sole property of Licensor.  Licensee agrees to assign, and hereby assigns, all worldwide right, title and interest in the Feedback and Performance Data, and the related intellectual property rights thereto, to Licensor and agrees to assist Licensor, at Licensor’s expense, in perfecting and enforcing such rights.  Licensor may copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense, incorporate and otherwise use the Feedback and Performance Data for any and all commercial and non-commercial purposes.  Licensor may disclose or use Feedback and Performance Data for any purposes whatsoever without any obligation to Licensee, and Licensor shall have no confidentiality obligations with respect thereto.

6. WARRANTY AND LIMITATION OF LIABILITY

The Beta Software is prerelease code and is not at the level of performance or compatibility of a final, generally available COMMERICIAL product offering.  The Beta Software may not operate correctly and may be substantially modified prior to first commercial shipment, never released commercially, or withdrawn after commercial release.  The Beta Software is provided “AS IS” without warranty of any kind, including without limitation, any warranty as to performance, non-infringement of third party rights, merchantability, or fitness for a particular purpose.  The entire risk arising out of the use or performance of the Beta Software remains with Licensee.  In no event shall Licensor be liable for any damage whatsoever arising out of the use of or inability to use the Beta Software, including without limitation, any direct, indirect, consequential, exemplary, special, incidental or punitive damages, or damages for lost data or lost profits, even if Licensor has been advised of the possibility of such damages.  if, under applicable law, the foregoing limitation of liability is not enforceable, LICENSOR’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS (US $100). 

7. CONFIDENTIALITY

7.1        The Beta Software and the Documentation incorporate valuable proprietary and confidential information and trade secrets of Licensor.  Licensee shall be fully responsible to protect such proprietary and confidential information from disclosure during the Evaluation Period and thereafter.  Unless otherwise authorized by Licensor in writing, Licensee further agrees to maintain in confidence the existence of this Agreement and the results of its evaluation of the Beta Software.

7.2        All Licensee employees having access to the Beta Software or Documentation furnished hereunder shall be informed of Licensee’s obligation hereunder and shall have agreed in writing to be bound by the terms hereof.

8. TERM AND TERMINATION

8.1        This Agreement remains in effect through the Evaluation Period, except that it may be terminated by Licensor in case of any breach of the terms of this Agreement by Licensee. 

8.2        Upon expiration or termination, Licensee shall immediately (a) cease all use of the Beta Software, (b) uninstall and permanently delete all copies, and (c) certify that no copies of the Beta Software or Documentation remain in Licensee’s possession or under its control.

9. EXPORT COMPLIANCE

Licensee shall not use or otherwise export or re-export the Beta Software or any part or component thereof except as authorized by United States law.

10. GOVERNING LAW; VENUE

This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  This Agreement is governed by the laws of the Commonwealth of Massachusetts, U.S.A., without regard to its conflict-of-laws principles.  The parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts located in Boston, Massachusetts, for any dispute arising out of this Agreement.

11. GENERAL

This Agreement constitutes the entire agreement between the parties regarding the Beta Software and supersedes all prior or contemporaneous oral or written communications.  Any amendment must be in writing and signed by both parties.  Licensee may not assign this Agreement without Licensor’s prior written consent; and any attempted assignment in violation shall be null and void and shall result in the termination of this Agreement.  If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.  A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.