PLEASE READ THE TERMS AND CONDITIONS OF THE FOLLOWING AGREEMENT CAREFULLY BECAUSE THEY ARE A BINDING AGREEMENT BETWEEN YOU AND US. THIS AGREEMENT GOVERNS YOUR USE OF THE WEBSITES, PRODUCTS, OR SERVICES THAT LINK TO THESE TERMS AND THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU WHEN YOU ACCESS, DOWNLOAD, OR OTHERWISE USE THE OFFERINGS THAT WE HOSTED OR MAKE AVAILABLE TO YOU PURSUANT TO THESE TERMS. BY ACCESSING OR USING ANY OF OUR OFFERINGS WE MAKE AVAILABLE PURSUANT TO THESE TERMS, YOU REPRESENT THAT YOU HAVE THE RIGHT, AND ARE CONSENTING TO BE BOUND BY, AND ARE AGREEING TO BECOME A PARTY TO THIS AGREEMENT AS THE LICENSEE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PLEASE LEAVE THE WEBSITE AND DO NOT DOWNLOAD, ACCESS, OR USE ANY WEBSITE, SOFTWARE, SERVICES, OR OTHER OFFERINGS WE HOSTED, DISTRIBUTE, OR MAKE AVAILABLE PURSUANT TO THESE TERMS.
This Beta Offering License Agreement (the “Agreement” or these “Terms”) is effective as of the date of your access (the “Effective Date”) between Intersections, LLC d/b/a Point Wild (“Licensor”, “We”, or “Us”) and you as the Licensee. In this Agreement, “Licensee” or “You” means the person who accesses, installs, downloads, or otherwise uses any platform, software, products, services, documents, website, or any other offering We (or an affiliate of ours) make available pursuant to these Terms (“Beta Offerings”), and/or the entity such person is authorized to represent and represents.
LICENSE GRANT. The terms and conditions of this Agreement shall apply to any and all of our Beta Offerings that we host, distribute or otherwise made available, which may only be used for evaluation of its capabilities, demonstration of its functionality, or conducting authorized “proof of concept” (“Limited Uses”), unless otherwise permitted by Us in writing or if you have a separate commercial agreement with Us or one of our affiliates. Subject to the terms herein, We hereby grant you a limited, non-exclusive, revocable, and non-transferable license, without right to sublicense, to use the Beta Offerings solely for the Limited Uses stated above and purposes of testing and evaluating the usability of the Beta Offerings in a non-production environment (“Non-production Testing”), and not for any other purpose. For clarity, the rights granted herein do not include the right to use any integrated closed-source antivirus SDK or underlying code that may form any part of the Beta Offering, and any rights not expressly granted herein or otherwise granted pursuant to another mutually executed licensing agreement between you and Us are expressly reserved by Us. Any third-party software or component used or provided with the Beta Offerings (“Third-Party Software”) is included for use at Licensee’s option, and any such use shall be governed by the applicable third party’s license agreement, terms of service or equivalent that We are not responsible for, and not by this Agreement, except to the extent that this Agreement indicates otherwise with respect to specific Third-party Software. Any output you generate from use of the Beta Offerings or Third-Party Software may be used at your sole risk.
RESTRICTIONS. Except as otherwise expressly permitted in this Agreement, and in addition to any other restrictions set forth herein or in any documentation associated with the Beta Offerings, Licensee may not (a) modify or create any derivative works of the Beta Offerings, including translations or localizations; (b) decompile, unbundle, disassemble or reverse engineer the Beta Offerings, or attempt to derive the source code for the Beta Offerings (except to the extent applicable laws specifically prohibit such restriction); (c) redistribute, encumber, sell, rent, lease, sublicense, commercialize, or use the Beta Offerings in a timesharing or service bureau arrangement, or otherwise transfer any rights to the Beta Offerings; (d) copy the Beta Offerings (except for such copying as may be required in order to perform the Non-production Testing; (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Beta Offerings; (f) modify any header files or class libraries in the Beta Offerings; (g) be entitled to support or maintenance of any kind with respect to any Beta Offerings; (h) use the Beta Offerings to develop other hardware, software or other technology, or provide services to others; or (i) use the Beta Offerings to operate your business or for any purpose other than internal testing purposes and the Limited Uses. Unless you have entered into a mutually executed licensing agreement with Us granting additional rights to access or use the applicable Point Wild Offerings, you may not access or interface directly with any Beta Offering that is a software development kit or “SDK”.
FEEDBACK. In the event Licensee opts to provide to Licensor any suggestions, comments and feedback regarding the Beta Offerings, including but not limited to usability, bug reports and test results, with respect to the evaluation and testing of the Beta Offerings (“Feedback”), Licensee agrees to grant and hereby grants to Licensor, under all of Licensee’s current and future intellectual property and other proprietary rights, a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid license (a) to make, use, copy, modify, and create derivative works of the Feedback as part of any Point Wild Offering (as defined below), (b) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of or in connection with any Point Wild Offering, (c) to sublicense any or all of the foregoing rights to third parties, and (d) solely with respect to Licensee’s copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to grant further sublicenses. “Point Wild Offerings” or “Our Offerings” shall mean, individually and collectively, (i) any product, technology, service, or component of any of the foregoing, including pre-release and commercially released versions of such developed, commercialized, or otherwise distributed or made available by Us or any of our affiliates, which shall include but is not limited to the Beta Offerings, (ii) any specification, proposal, or other materials related to or for any such product, technology, service or component, and (iii) any documentation provided by Us or our affiliates. Any Feedback is provided at your sole discretion and there is no obligation to provide Feedback under this Agreement. Similarly, We may use the provided Feedback at our sole discretion, subject to the foregoing terms, but are under no obligation to use any such Feedback.
TERM AND TERMINATION. This Agreement is effective until the earlier of (a) the release or provision of a commercial version of the Beta Offerings that We make available pursuant to a commercial license agreement (which We do not guarantee that any such publicly available version shall be released) and your agreement to such license agreement with Us; (b) our provision of notice that the Beta Offerings is terminated or will no longer be available; (c) Licensor and Licensee’s mutual execution of other terms and conditions, or written agreement, that shall govern Licensor’s provision, and License’s use, of the Beta Offering or Our Offerings that include the Beta Offering or commercial version(s) thereof, or (d) Licensee ceases using and destroys all copies of Beta Offerings, including any documentation, and provides notice to Us. Licensee’s license rights under this Agreement will terminate immediately without notice from Licensor if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must destroy all copies of Beta Offerings in its possession or control, and return to Licensor the media on which Licensee obtained the Beta Offerings, if any, and provide certification of such destruction upon our request.
PROPRIETARY RIGHTS. Any and all legal title, rights, and interests, including any ownership rights or intellectual property rights (including, without limitation all patent, copyright, trade secret, trademark or other intellectual property rights), in or to the Beta Offerings and Our Offerings, including any software development kit, application, or code that may be used or disclosed by Licensor to support the permitted uses under this Agreement shall remain solely in Licensor (and/or its affiliates or suppliers, as applicable). Nothing in this Agreement constitutes a transfer or conveyance of any right, title, or interest in the Beta Offerings or any of Our Offerings. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Licensor’s or any of its suppliers’ ownership of or rights with respect to the Beta Offerings or any Point Wild Offerings.
CONFIDENTIALITY. The Beta Offerings, the fact of its existence, all accompanying documentation, all underlying code or materials encompassed therein, and all information disclosed by Licensor to You hereunder or otherwise in connection with the Beta Offerings, including without limitation performance data, features and other information relating to or obtained from the Beta Offerings, is “Confidential Information” of Licensor. Licensee will not use the Confidential Information except as necessary under this Agreement, and will not disclose any portion of the Confidential Information to any other person or entity. Licensee will use all reasonable steps to protect the Confidential Information from unauthorized use or disclosure. Confidential Information does not include information that: (a) was rightfully known by Licensee at the time of disclosure without an obligation of confidentiality, (b) is lawfully obtained by Licensee from a third party without restriction on use or disclosure, or (c) is or becomes generally known to the public through no fault or breach of this Agreement by Licensee.
DISCLAIMER OF WARRANTY. OUR OFFERINGS (INCLUDING ANY THIRD-PARTY SOFTWARE USED THEREIN OR THERWITH), AND ANY OTHER CONFIDENTIAL INFORMATION OF LICENSOR, IS PROVIDED ON AN “AS-IS” BASIS, FOR DEMONSTRATION AND THE LIMITED USES SPECIFIED IN THIS AGREEMENT ONLY, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES THAT IT IS FREE OF DEFECTS OR ERRORS, MERCHANTABILITY, FIT FOR A PARTICULAR PURPOSE, OR NON-INFRINGING. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES, OR LICENSORS (AS APPLICABLE), MAKE NO WARRANTIES OF ANY KIND (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), AND WE DO NOT WARRANT THAT ANY OF OUR OFFERINGS OR OUTPUT GENERATED THEREFROM WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR THAT ANY CONTENT OR OUTPUT WILL BE SECURE OR RELIABLE. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN SCOPE AND DURATION TO THE MAXIMUM EXTENT PERMITTED PURSUANT TO APPLICABLE LAW. YOU ACCEPT AND AGREE THAT ANY USE OF THE BETA OFFERINGS OR OUTPUTS THEREOF IS AT YOUR SOLE RISK, AND THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND SAFETY OF THE BETA OFFERINGS OR ANY RELATED PRODUCT OR SERVICE IS BORNE BY LICENSEE. SHOULD THE BETA OFFERING OR ANY POINT WILD OFFERINGS PROVE DEFECTIVE IN ANY RESPECT, LICENSOR MAY, BUT SHALL NOT BE OBLIGATED TO, SERVICE, REPAIR OR REPLACE THE PRODUCT AT ITS EXPENSE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES OR THEIR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE ANY POINT WILD OFFERINGS, OR FOR ANY DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. LICENSOR OR ITS AFFILIATES OR THEIR SUPPLIERS ARE NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE NON-PRODUCTION SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. THIS LIMITATION OF LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
EXPORT CONTROL. Licensee acknowledges that the Beta Offerings licensed hereunder is not intended for use by a government end-user, as defined in part 772 of the EAR (Export Administration Regulations) of the U.S. Commerce Department. Licensee further understands that, if indicated on the download page, that certain Beta Offerings is cryptographic “software” subject to export controls under the U.S. Export Administration Regulations and under the EU Dual-Use Regulations (Recast) (EU Reg. 2021/821), anyone receiving the transfer shall not export or re-export such Beta Offerings without an export license or other government authorization. Without limiting the foregoing, the Beta Offerings may not, as of the date of this Agreement, be shipped, downloaded or otherwise exported or re-exported (a) into, or to a national or resident of, Cuba, Iran, Myanmar, North Korea, Sudan, Syria, or any country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, Specially Designated Terrorists, or Specially Designated Narcotic Traffickers, or otherwise on the U.S. Commerce Department’s Table of Denial Orders.
PRIVACY NOTICE. Licensee agrees that Licensor may obtain information and data from You in connection with the installation and use of the Beta Offerings including, without limitation, personal information. Licensor may also collect and process technical and performance information about your use of the Beta Offerings and use this information to support and troubleshoot issues, provide updates, analyze trends or improve Licensor’s products or services. Licensor shall be allowed to use such data and share such data with Licensor’s affiliates and partners for the program purposes. You hereby consent to Licensor processing and transferring this information, including, if any, personal information, in conformity with our Privacy Policy, as updated from time to time.
MISCELLANEOUS. (a) This Agreement and any attached appendices constitute the entire agreement between the parties concerning the subject matter hereof. (b) This Agreement may be amended only by a writing signed by both parties. (c) This Agreement shall be governed by the laws of the State of California, U.S.A., excluding its conflict of law provisions. (d) Unless otherwise agreed in writing, all disputes relating to this Agreement will be brought and adjudicated exclusively in Santa Clara County, California, and each party hereby unconditionally waives any objections it may otherwise have to such jurisdiction and venue. (e) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (f) If any provision in this Agreement is held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (g) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (h) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein without the prior express written consent of Licensor. (i) Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (j) The relationship between Licensor and Licensee is that of independent contractors. (k) If any disputes arise under this Agreement, the prevailing party will be reimbursed by the other party for any and all legal fees and costs associated therewith.