SENDIFY LICENSES THIS SOFTWARE PRODUCT TO YOU SUBJECT TO THE TERMS CONTAINED IN THIS BETA AGREEMENT (THIS "AGREEMENT" ). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING, COPYING AND USING THIS COMPUTER SOFTWARE AND ITS ACCOMPANYING SERVICES (THE "SOFTWARE"). THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, IT IS NOT SOLD TO YOU. BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.
THIS AGREEMENT IS A LEGAL AGREEMENT, CONCERNING THE SOFTWARE BETWEEN YOU, AS EITHER AN INDIVIDUAL OR A SINGLE BUSINESS ENTITY, AND SENDIFY. THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING, VERBAL OR WRITTEN, YOU MAY HAVE HAD WITH SENDIFY RELATING TO THE SOFTWARE.
By accepting this Agreement, or by downloading, installing, copying or otherwise using the Software, you agree to be bound by the terms of this Agreement. If you do not agree with any term or condition, do not order, download, install or use the Software. Contact Sendify to arrange the deactivation of the Software at no charge to you.
THE BETA SOFTWARE LICENSED HEREUNDER IS BELIEVED TO CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. YOU ARE 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 ITS ACCOMPANYING SERVICES.
You agree that, unless otherwise specifically provided herein or agreed by Sendify in writing, the Software, including the specific design and structure of individual programs, features, and services, provided to you by Sendify constitute confidential proprietary information of Sendify. You also agree that any information about defects or bugs in the Software and also the performance of the Software are confidential information. You shall permit only authorized users access to the Software. You agree not to transfer, copy, make available for others to copy ot download, disclose, provide or otherwise make available such confidential information in any form to any third party without the prior written consent of Sendify. You agree to implement reasonable security measures to protect such confidential information, but without limitation to the foregoing, shall use best efforts to maintain the security of the Software provided to you by Sendify. You will use your best efforts to cooperate with and assist Sendify in identifying and preventing any unauthorized use, copying, or disclosure of the Software, documentation, or any portion thereof.
It is expressly understood, acknowledged, and agreed that you shall, regardless of whether or not formally requested to do, provide to Sendify reasonable suggestions, comments and feedback regarding the Software, including but not limited to performance feedback, usability, bug reports and test results, with respect to Software testing (collectively, "Feedback"). If you provide such Feedback to Sendify, you shall grant Sendify the 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 Sendify product, technology, service, specification or other documentation (individually and collectively, "Sendify 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 Sendify product or marketing or sales efforts of Sendify. Further, you warrant that your Feedback is not subject to any license terms that would purport to require Sendify to comply with any additional obligations with respect to any Sendify products that incorporate any Feedback.
You shall set-up and maintain a testing environment at your sole expense. You shall work with Sendify to schedule and attend weekly conference calls to share your experiences, problems, and scheduling/planning with the Sendify team. You may also be asked to provide log files, call data records, queries, sample data, and the like to facilitate the process. You should understand that this is an early beta process. Your application may run well on Software, but there is a very good chance that your specific requirements may demand feature enhancements and or performance tuning in order to accommodate your specific needs. This additional development may take days, weeks or even months to complete. You should schedule accordingly.
Upon successful completion of the beta process to your satisfaction, you agree to support Sendify’s funding and marketing support in the following ways: (a) work with Sendify to create and approve a success story about the deployment, Sendify shall write the initial draft for your approval; (b) grant Sendify the right to use your logo on Sendify’s website and other marketing materials; (c) provide reference calls to analysts, press, potential strategic partners and potential funders (VCs, private equity, angel investors, banks, etc.).
Subject to the terms and conditions of this Agreement, Sendify hereby grants to you a non-exclusive, non-transferable license (without the right to sublicense) to use the Software solely for purposes of internal testing, evaluation, and limited public deployment.
Except as otherwise specifically permitted in this Agreement, you may NOT: (a) modify or create any derivative works of the Software, including translation or localization (code written to published APIs (application programming interfaces) for the Software shall not be deemed derivative works); (b) copy the Software except as provided in this Agreement or elsewhere, in writing, by Sendify; (c) separate Software, which is licensed as a single product, into its component parts. (d) permit use of the Software by unauthorized users; (e) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for the Software; (f) redistribute, encumber, sell, rent, lease, sublicense, use the Software in a timesharing or service bureau arrangement, or otherwise transfer the Software under any circumstances; (g) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (h) publish any results of benchmark tests run on the Software to a third party without Sendify prior written consent; or (i) use the Software by more users than have been licensed, on more computers or computing devices than the number licensed, or by more developers than the number licensed, as applicable.
Sendify is under no obligation to provide technical support under the terms of this Agreement, and provides no assurance that any specific errors or discrepancies in the Software will be corrected.
This product is based on a technology that is the subject matter of a number of pending patent applications. Sendify explicitly states, and you explicitly agree, that Software is not open source, it is commercial software. Title to the Software and all copies thereof remain with Sendify. The Software is copyrighted and is protected by United States copyright laws and international treaty provisions. You will not remove copyright notices from the Software. You agree to prevent any unauthorized copying, distribution or use of the Software. Except as expressly provided herein, Sendify does not grant any express or implied right to you under Sendify patents, copyrights, trademarks, or trade secret information.
Your rights with respect to the Software will terminate upon the earlier of (a) the initial commercial release by Sendify of a generally available version of the Software; or (b) six months after the last date you receive the Software or any update thereto. Either party may terminate this Agreement at any time for any reason, or no reason, by providing the other party with advance written notice thereof. Upon any expiration or termination of this Agreement, the rights and licenses granted to you under this Agreement shall immediately terminate, and you shall immediately cease using, and will return to Sendify (or, at Sendify’s request, destroy) all tangible items in your possession or control that are proprietary to Sendify or contain Confidential Information.
THE SOFTWARE IS LICENSED “AS IS” AND SENDIFY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, SENDIFY EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE.
Use of any Software under this Agreement is experimental and shall not create any obligation for Sendify to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop Software either to you or to any other party. SENDIFY’S CUMULATIVE LIABILITY TO YOU, OR ANY PARTY RELATED TO YOU, FOR ANY LOSS OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR INSTALLATION OR USE OF THE SOFTWARE SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO SENDIFY BY YOU UNDER THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. IN NO EVENT SHALL SENDIFY BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY GENERAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, ARISING FROM OR RELATED TO THE SOFTWARE, EVEN IF SENDIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or state courts situated in Los Angeles, California. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts.
You acknowledge that Software is of U.S. origin. Recipient agrees to comply with all applicable international and national laws that apply to the Software, including the U. S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the United States of America and other governments.
This Agreement constitutes the complete and exclusive agreement between you and Sendify with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. This Agreement may not be amended except in a writing duly signed by you and an authorized representative of Sendify.
© 2013 Sendify Inc.