Beta Tester Agreement.

This BETA TEST Agreement (“Agreement”) is entered into between Sixish Inc. (“Sixish”) and the customer identified below (“Customer”) as of the last date signed below. 1. License Grant. Subject to the terms and conditions hereof, Sixish Inc. grants to Customer, for the BETA Test Period identified below, a limited non-exclusive, nontransferable, revocable license to use the Sixish Inc. software products identified below (“Software”) in object code format solely for the purpose of Customer’s internal evaluation of the Software and not for general commercial use. Additionally, either party may terminate this Agreement upon written notice to the other party at any time. Within five days after termination, Customer will (i) return to Sixish Inc. the Software and all copies thereof in the form provided by Sixish Inc. or (ii) upon request by Sixish Inc. destroy the Software and all copies thereof and certify in writing that it has been destroyed. Customer acknowledges that the Software contains confidential information and trade secrets of Sixish Inc. and its licensors. Customer will not: copy (except as strictly necessary to use the Software in accordance with the terms of section 1 hereof), distribute, sell, sublicense or otherwise transfer or make available the Software or any portion thereof to any third party; remove from view any copyright legend, trademark or confidentiality notice appearing on the Software or Software output; a modify, adapt, translate, reverse engineer, decompile or derive the source code for the Software, or authorize a third party to do any of the foregoing. Customer will reproduce all of Sixish Inc. and its licensors’ copyright notices and any other proprietary rights notices on all copies of the Software that Customer makes hereunder. Customer will not use the Software or any documentation provided therewith for any purpose other than Customer’s internal evaluation and the provision of feedback to Sixish Inc., and not to disclose to any third party without the prior written approval of Sixish Inc., the Software, its features, feedback (as defined in Section 8), related technical information identified as confidential or the results of any performance or functional evaluation or test of the Software (the “Confidential Information”). Customer may disclose Confidential Information only to those of its employees who have a bona fide need to know such information for Customer’s evaluation of the Software and who have first executed a written agreement that contains use and nondisclosure restrictions at least as protective as those set forth herein. Customer will immediately report any violation of this provision to Sixish Inc. and shall employ all reasonable means to mitigate any damages or losses that Sixish Inc. may incur as a result of any such violation. Customer’s rights in the Software will be limited to those expressly granted in Section 1. Sixish Inc. and its licensors reserve all rights and licenses in and to the Software not expressly granted to Customer hereunder. 5. Delivery and Installation. Sixish Inc. will provide the Software via electronic delivery. Customer will be responsible for installing the Software. Sixish Inc. may provide reasonable assistance in connection with such installation. 6. Acknowledgment of Beta Software. Customer acknowledges and agrees that: (a) the Software is not an official product and has not been commercially released for sale by Sixish Inc.; (b) the Software may not operate properly, be in final form or fully functional; (c) the Software may contain errors, design flaws or other problems; (d) it may not be possible to make the Software fully functional; (e) the information obtained using the Software may not be accurate and may not accurately correspond to information extracted from any database or other source; (f) use of the Software may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) Sixish Inc. is under no obligation to release a commercial version of the Software; and (h) Sixish Inc. has the right unilaterally to abandon development of the Software, at any time and without any obligation or liability to Customer. Customer acknowledges and agrees that it should not rely on the Software for any reason. Customer is solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the Software. Customer will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of Customer’s use of the Software. 8. Limitation of Liability. EXCEPT AS OTHERWISE REQUIRED BY LAW, THE LIABILITY OF Sixish Inc. AND ITS LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SOFTWARE, OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE, OR FOR THE PROVISION OF TECHNICAL SUPPORT INSTALLATION, TRAINING OR OTHER SERVICES IN CONNECTION THEREWITH, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED ANY FEES PAID TO Sixish Inc. HEREUNDER. IN NO EVENT WILL Sixish Inc. OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR 2 LOSS OF PROFITS, BUSINESS, REVENUE, DATA OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. The limitations of liability set forth in this Agreement reflect the allocation of risk negotiated and agreed to by the Parties. The Parties would not enter into this Agreement without these limitations on its liability. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy 9.


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