Disclaimer

  1. Beta Disclaimer

THE BETA SOFTWARE LICENSED HEREUNDER IS STILL IN TESTING PHASE AND IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND 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. 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 BETA LICENSED SOFTWARE AND/OR ACCOMPANYING MATERIALS.

  1. Confidentiality & Confidential content accessible only to invited Licensees

2.1 Licensee agrees that, unless otherwise specifically provided herein or agreed by Technische Universiteit Delft, hereinafter TU Delft, in writing, the Beta Licensed Software and, if any, the Documentation, provided to Licensee by TU Delft constitute confidential proprietary information of TU Delft. Licensee shall permit only authorized users, who possess rightfully obtained license keys, to use the Beta Licensed Software or to view, if any, the Documentation. Licensee agrees not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party without the prior written consent of TU Delft. Licensee agrees 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 Beta Licensed Software provided to Licensee by TU Delft. Licensee will use its best efforts to cooperate with and assist TU Delft in identifying and preventing any unauthorized use, copying, or disclosure of the Beta Licensed Software, if any, Documentation, or any portion thereof.

2.2 This Beta Licensed Software can be accessible only to Licensees who are invited to test for using pre-release Beta Licensed Software and providing feedback to TU Delft. All information available concerning the Beta Licensed Software is confidential information of TU Delft. For a period of five years from the time Licensee accessed this confidential information, Licensee may not disclose this confidential information to any third party. This restriction will not apply to any information that is or becomes publicly available without a breach of this restriction; was lawfully known to the receiver of the information without an obligation to keep it confidential; is received from another source that can disclose it is lawfully and without an obligation to keep it confidential; or is independently developed. Licensee may disclose this confidential information if required to comply with a court order or other government demand that has the force of law. Before doing so, you must seek the highest level of protection available and, when possible, give TU Delft enough prior notice to provide a reasonable chance to seek a protective order.

  1. Feedback

3.1. It is expressly understood, acknowledged and agreed that Licensee shall, regardless of whether or not formally requested to do, provide to TU Delft reasonable suggestions, comments and feedback regarding the Beta Licensed Software, including but not limited to usability, bug reports and test results (collectively, “Feedback”). If Licensee provides such Feedback to TU Delft, Licensee shall grant TU Delft the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights:

– to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any TU Delft product, technology, service, specification or other documentation (individually and collectively, ” TU Delft Products”);

– 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 TU Delft Product;

– 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; and

– to sublicense to third parties any claims of any patents owned or licensable by Licensee that are necessarily infringed by a third-party product, technology or service that uses, interfaces, interoperates or communicates with the feedback or portion thereof incorporated into an TU Delft Product, technology or service.

3.2. Further, Licensee warrants that its Feedback is not subject to any license terms that would purport to require TU Delft to comply with any additional obligations with respect to any TU Delft Products that incorporate any Feedback.

  1. Grant of License

4.1. Subject to the terms and conditions of this Agreement, TU Delft hereby grants to Licensee a non-exclusive, non-transferable license (without the right to sublicense) (i) to use the Beta Licensed Software in accordance with, if any, the Documentation solely for purposes of internal testing and evaluation, and (ii) to copy Beta Licensed Software for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies and provided that only one copy of the Beta Licensed Software may be used at a time.

  1. Restrictions on Grant

5.1. Except as otherwise specifically permitted in this Agreement, Licensee may not:

– modify or create any derivative works of any Beta Licensed Software or documentation, including (without limitation)- translation or localization; (code written to published APIs (Application programming interfaces) for the Beta Licensed Software shall not be deemed derivative works);

– copy the Beta Licensed Software except as provided in this Agreement or elsewhere by TU Delft;

– separate Beta Licensed Software, which is licensed as a single product, into its component parts;

– reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any Product of the Beta Licensed Software (except to the extent applicable laws specifically prohibit such restriction);

– redistribute, encumber, sell, rent, lease, sublicense, use the Beta Licensed Software in a timesharing or service bureau arrangement, or otherwise transfer rights to any Software. Licensee may NOT transfer the Beta Licensed Software under any circumstances;

– remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the TU Delft Product(s); or

– publish or make public any results of benchmark tests run on any Software to a third party without TU Delft prior written consent.

  1. Beta Licensed Software Product Support

6.1. TU Delft is under no obligation i) to provide any technical support under the terms of this license, ii) to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop Beta Licensed Software either to Licensee or to any other party, and iii) provides no assurance that any specific errors or discrepancies in the Beta Licensed Software will be corrected.

  1. Ownership and Copyright of Beta Licensed Software

7.1. Title to the Beta Licensed Software and all copies thereof remain with TU Delft. The Beta Licensed Software is copyrighted to TU Delft. Licensee will not remove copyright notices from the Beta Licensed Software. Licensee agrees to prevent any unauthorized copying of the Beta Licensed Software. TU Delft does not grant any express or implied right to Licensee under TU Delft patents, copyrights, trademarks, or trade secret information.

  1. Term of this Agreement

8.1. Licensee’s rights with respect to the Beta Licensed Software will terminate upon the earlier of

– the initial commercial release by TU Delft of a generally available version of the Licensed Software; or

– 3 months after the last date Licensee receives the Beta Licensed Software or any update thereto.

8.2. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will return to TU Delft (or, at TU Delft’ request, destroy), the Beta Licensed Software, if any, the Documentation, and all other tangible items in Licensee’s possession or control that are proprietary to or contain Confidential Information of TU Delft.

  1. Disclaimer of Warranties

9.1. THE BETA LICENSED SOFTWARE AND, IF ANY, DOCUMENTATION ARE LICENSED “AS IS”, AND TU DELFT DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY, USABILITY OR FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABLE QUALITY, TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, TO THE EXTENT AUTHORIZED BY LAW.

9.2. WITHOUT LIMITATION OF THE FOREGOING, TU DELFT EXPRESSLY DOES NOT WARRANT THAT THE BETA LICENSED SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT OPERATION OF THE BETA LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THE BETA LICENSED SOFTWARE IS BEING PROVIDED TO LICENSEE “AS IS” WITHOUT WARRANTY OF ANY KIND. LICENSEE ASSUMES ALL RESPONSIBILITY FOR SELECTING THE BETA LICENSED SOFTWARE TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM ITS USE OF THE BETA LICENSED SOFTWARE. LICENSEE SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE BETA LICENSED SOFTWARE.

9.3. ANY DOWNLOAD AND USE OF THIS BETA LICENSED SOFTWARE PROGRAM PRODUCT IS DONE AT THE LICENSEE’S OWN RISK AND THE LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO – WITHOUT LIMITATION – ANY COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. SHOULD IT PROVE DEFECTIVE, LICENSEE ASSUMES THE COST OF ALL NECESSARY SERVICING, REPAIR AND/OR CORRECTION. IT IS THEREFORE UP TO THE LICENSEE TO TAKE ADEQUATE PRECAUTION AGAINST POSSIBLE DAMAGES RESULTING FROM THIS BETA LICENSED SOFTWARE. SOFTWARE IN BETA TESTING SHOULD FOR EXAMPLE NOT BE USED ON SENSITIVE AND/OR VALUABLE DATA AND SHOULD NOT BE USED IN PRODUCTION SYSTEMS.

  1. Limit of Liability

10.1. IN NO EVENT WILL TU DELFT BE LIABLE TO LICENSEE OR ANY PARTY FOR – WITHOUT LIMITATION – ANY LOSS OF USE; INTERRUPTION OF BUSINESS; OR ANY DIRECT; INDIRECT; SPECIAL; INCIDENTAL; EXEMPLARY OR PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT; TORT (INCLUDING NEGLIGENCE); STRICT PRODUCT LIABILITY OR OTHERWISE; WHETHER ARISING OUT OF THE USE OR INABILITY TO USE THE BETA LICENSED SOFTWARE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY LICENSEE OR THIRD PARTIES OR A FAILURE OF THE BETA LICENSED SOFTWARE TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF TU DELFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  1. Governing Law and Choice of Forum

11.1. This Agreement shall be governed by and interpreted in accordance with the laws of the Netherlands. Any claim or dispute arising in connection with this Agreement shall be resolved in the competent courts of ‘s-Gravehage.

  1. Entire Agreement

12.1. This Agreement is a legal agreement and constitutes the complete and exclusive agreement between Licensee and TU Delft 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 Licensee and an authorized representative of TU Delft.