Waterloo Data and Licensee agree as follows:

1. Beta Use.

• • Right of Use. Subject to the terms and conditions of this Agreement, Waterloo Data and its licensors a non-exclusive, non-transferable, limited license to use the Beta Software to access certain open source software (for clarification, any use of open source software is subject to the applicable open source license).  Any updates, new versions, or upgrades of the Beta Software provided by Waterloo Data in its sole discretion under this Agreement, shall be licensed and treated as Beta Software hereunder.  Licensee shall be solely responsible for use, configuration, and operation of the Beta Software, and Waterloo Data shall have no liability or obligation therefore.
  • Restrictions. Licensee shall not, directly or indirectly, (i) sell, lease, assign, sublicense or otherwise disclose the Beta Software; (ii) duplicate, reproduce or copy software or content within the Beta Software; (iii) disclose, divulge or otherwise make the Beta Software available to any third party; (iv) modify or create derivative works from the Beta Software; or (v) decompile, disassemble or reverse engineer the Beta Software in any manner or assist any other party in doing so.
  • Retention of Ownership. Waterloo Data and/or its Licensees retain all ownership, rights, title, and interest in or relating to the Beta Software.  Licensee agrees that it has no rights or licenses in or relating to the Beta Software other than the limited right to use expressly granted in this Agreement.

2. Term and Termination. This Agreement will be in full force and effect until terminated as described herein (“Term”).  Either party may terminate this Agreement upon fifteen (15) days written notice to the other party at any time during the Term.  Upon termination of this Agreement, Licensee shall immediately cease using the Beta Software for any purpose and shall, if applicable, delete the Beta Software.  Sections 1.2, 1.3, 2, 3, 4, 5, and 6 and 7 shall survive termination of this Agreement.

3. Warranty and Support Disclaimer. The Beta Software is provided without warranty in its current “AS IS” condition without warranties of any kind.  WATERLOO DATA MAKES NO WARRANTY OF ANY KIND WHATSOEVER, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

4. Limitations of Liability.  IN NO EVENT SHALL WATERLOO DATA BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LIABLE FOR LOST PROFITS, LOST REVENUES, LOSS OF DATA, DAMAGE TO BUSINESS OR INTERRUPTION IN SERVICE, ARISING UNDER THIS AGREEMENT OR FROM USE OF THE BETA SOFTWARE, EVEN IF WATERLOO DATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.  WATERLOO DATA’S ENTIRE AND AGGREGATE LIABILITY, whether based in contract, tort (including negligence), strict liability or otherwise, SHALL NOT EXCEED $100 AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.  BY USING THE BETA SOFTWARE, LICENSEE ACCEPTS THIS ALLOCATION OF RISK.  THIS DISCLAIMER OF LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

5. Confidentiality

• • Confidentiality. Licensee shall protect Confidential Information (as defined below) by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information that Licensee uses to protect its own confidential information of a like nature.  Licensee’s duty to protect Confidential Information pursuant to this Agreement shall survive termination or expiration of this Agreement.  “Confidential Information” shall be the Beta Software (whether or not marked) and any other material that is marked as confidential or identified as confidential at the time of disclosure.  Confidential Information shall also include the existence and contents of this Agreement and all information relating to the Licensee’s use of the Beta Software hereunder including, but not limited to, the performance results, capabilities, benchmarks, Feedback, functionality, including new functionality, and/or deficiencies of the Beta Software.  Licensee shall use such Confidential Information only as expressly provided under this Agreement.  Licensee shall not disclose the Confidential Information to anyone.  Licensee shall take every reasonable precaution, but no less than the precautions Licensee takes with regard to its own confidential information, to prevent the theft, disclosure, and the unauthorized use, copying, reproduction, or distribution of the Confidential Information.
  • Suggestions and Feedback to Waterloo Data. At Licensee’s discretion, Licensee may provide feedback to Waterloo Data concerning the functionality and performance of the Beta Software from time to time as reasonably requested by Waterloo Data, including, without limitation, identifying potential errors, improvements, modifications, bug fixes, or enhancements (“Feedback”).  If Licensee, through its use or otherwise, suggests any Feedback, Licensee hereby grants and agrees to grant to Waterloo Data at no charge a perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction as if Waterloo Data was the owner thereof.  Licensee agrees that Waterloo Data may disclose that Feedback to any third party in any manner and Licensee agrees that Waterloo Data has the ability to sublicense all Feedback in any form to any third party without restriction.
  • Data. In no event shall Licensee provide Waterloo Data with any personal information.

6. General Provisions.

• • Export and Adherence to Law. Licensee shall abide by all applicable law, including United States import/export law governing the Beta Software, the use thereof, and Licensee’s conduct under this Agreement.
  • Injunctive Relief. Licensee acknowledges and agrees that a breach of this Agreement by Licensee may cause irreparable damage to Waterloo Data for which recovery of money damages would not be adequate, and that Waterloo Data shall therefore be entitled to seek timely injunctive relief to protect its rights under this Agreement in addition to any and all remedies available at law.
  • Assignment. Neither this Agreement nor any licenses, rights or obligations hereunder shall be assignable or transferable (in insolvency proceedings, by merger, by operation of law, by purchase or otherwise) by Licensee without the prior written consent of Waterloo Data.  Any attempted assignment by Licensee shall be void.
  • Notices. Any notice required or permitted under this Agreement shall be in writing and shall be sent by certified United States mail (return receipt requested), by guaranteed overnight delivery, by hand delivery, or by confirmed email addressed to the appropriate party at the address and to the designated representative set forth above.  A notice shall be effective when acknowledged as received at the applicable address as shown on the delivery receipt or on the email confirmation.  A party may change its designated representative or address by giving notice to the other party as provided above.
  • Force Majeure. Waterloo Data shall not be liable to Licensee for any delay or failure of Waterloo Data to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Waterloo Data. Such causes shall include, but are not limited to, acts of God, war, terrorist act, invasion, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, bank closures/failures, natural catastrophes, floods, fires, loss of electricity or other utilities, generalized lack of availability of raw materials or energy, governmental acts or omissions, changes in laws or regulations, labor strikes, or delays by Licensee in providing required resources or support or performing any other requirements hereunder.
  • Publicity. Waterloo Data shall be permitted to publicly identify Licensee as having obtained access to the Beta Software and Licensee shall, upon reasonable request by Waterloo Data, act as a reference for Waterloo Data.
  • Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to the conflicts of law provisions of any state or jurisdiction.  All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the federal and state courts in Austin, Texas, and the parties agree and submit to the personal, exclusive jurisdiction and venue of these courts.
  • Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior oral and written understandings between the parties regarding the subject matter hereof.
  • Waiver and Modification. No provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing and is signed by the party against whom the waiver is asserted.  Any waiver or modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
  • If any part of this Agreement is found invalid or unenforceable, that part will be amended or constructed to achieve as nearly as possible the same effect as the original provision and the remainder of this Agreement will remain in full force.
  • Miscellaneous. Each party is an independent contractor and nothing in this Agreement is intended to create any agency, partnership or joint venture relationship between them.  Section headings are for reference only and shall not be used to interpret this Agreement.  This Agreement shall not be construed against the drafting party.