IMPORTANT – PLEASE READ BEFORE COPYING, INSTALLING OR USING. THIS BETA TEST AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL OR A SINGLE ENTITY (“LICENSEE”) AND FMI CORPORATION (“LICENSOR”) FOR LICENSOR’S COMPENSATION DATABASE SOFTWARE WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED MEDIA, MATERIALS, AND ON-LINE AND/OR ELECTRONIC DOCUMENTATION (COLLECTIVELY, “THE PRODUCT “). DO NOT COPY, INSTALL, OR USE THE PRODUCT PROVIDED UNDER THIS AGREEMENT, UNTIL YOU HAVE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY CLICKING ON “AGREE/ACCEPT,” COPYING, INSTALLING, OR OTHERWISE USING THE PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK “AGREE/ACCEPT,” COPY, INSTALL, OR OTHERWISE USE THE PRODUCT AND INSTEAD CLICK “DISAGREE/DECLINE.”
Subject to the terms and conditions of this Agreement, Licensor grants to Licensee a nonexclusive, non-transferable license to use the Product, including any modified or enhanced versions provided to Licensee by Licensor, solely for beta testing until the release of a final public version of the product becomes available (“the Trial Period”).
2. RESERVATION OF RIGHTS
Subject to the rights and license expressly granted under this Agreement, all right, title, and interest in and to the Product, including all associated intellectual property rights, are owned by, and shall remain with, Licensor. Licensee shall not, without the express prior written consent of Licensor, make any alterations or modifications to the Product; any such alterations or modifications made without Licensor’s express written approval shall automatically void any warranties or indemnification set forth in this Agreement. Licensee agrees not to cause or permit the reverse engineering, reverse assembly or reverse compilation of the Product, or otherwise attempt to derive source code from any software comprising part of the Product. Licensee grants to Licensor a nonexclusive irrevocable license to use any data submitted or entered by Licensee into the Product for any purposes associated with the use or operation of the product.
- Licensor shall provide access to the compensation database software via a web-based interface and any necessary instructions for using the Program.
- Licensor shall supply Licensee with any additional instructions or information regarding the Program for the duration of the license .
- Licensee shall use the Product in good faith and according to the instructions supplied in any accompanying materials or documentation or by Licensor.
- Licensee shall report to Licensor any perceived defect in the Product as soon as possible after becoming aware of such defect, along with as specific a description as possible of the circumstances accompanying the occurrence of such defect.
- Licensee shall inform Licensor of all problems and ideas for enhancements which come to Licensee’s attention during the period of this Agreement, and hereby assigns to Licensor all right, title and interest to such ideas and enhancements and all property rights therein including without limitation all patent, copyright, trade secret, trademark, moral right or other intellectual property rights.
- Licensee shall comply with all applicable federal, state and local laws, regulations, and ordinances in connection with its activities pursuant to this Agreement.
- Licensee shall permit Licensor reasonable access to all areas where the Product is used, permit Licensor to observe use of the Product, and with the consent of the Licensee, allow Licensor to interview or ask questions regarding use and enjoyment of the Product, solely for product development and market research purposes;
- Licensee shall, at such times and subject to such reasonable rules and regulations as Licensee may require, permit Licensor to obtain testimonials and endorsements from Licensee, as well as visual and/or audio footage of Licensee using the Product. Licensor shall be responsible for obtaining all necessary releases and consents.
- In promoting the product Licensee shall use only advertising and promotional materials (including but not limited to press releases, interviews and testimonial quotes) provided by Licensor or developed by Licensee and approved by Licensor in writing (which approval may be withheld in Licensor’s sole discretion).
4. CONFIDENTIAL INFORMATION
Confidential Information” shall include any and all software, web content and any associated materials or information contained therein, provided by Licensor to Licensee. Confidential Information shall also include all information, materials and data disclosed or supplied by such party (“Discloser”) to the other party receiving such information, materials or data (“Receiver”), that Discloser designates as confidential. If disclosed in written or other tangible form or electronically, Confidential Information shall be marked by Discloser as “Confidential.” If disclosed orally or visually, Confidential Information shall be identified as such by Discloser at the time of disclosure and designated as “Confidential” in a written memorandum of such disclosure, summarizing the Confidential Information sufficiently for identification, to be delivered by Discloser to Receiver within fifteen (15) days of such disclosure.
5. EXCLUSIONS FROM CONFIDENTIAL INFORMATION
Confidential Information shall not include: (1) information of Discloser that is or becomes generally known through no wrongful act or omission of Receiver; (2) information which Receiver can establish and document by contemporaneous written proof was in the possession of, or known by, Receiver prior to Receiver’s receipt of such information from Discloser, without any obligation of confidentiality to Discloser; (3) information that is rightfully disclosed to Receiver by a third party with no obligation of confidentiality to Discloser; and (4) information which is independently developed by Receiver without use of, or reference to, Confidential information of Discloser. To the extent Receiver is required to disclose Confidential Information of Discloser pursuant to any court or regulatory order, Receiver shall promptly notify Discloser in writing of the existence, terms and circumstances surrounding such disclosure so that
Discloser may seek a protective order or other appropriate remedy from the proper authority. Receiver agrees to cooperate with Discloser in seeking such order or remedy. Receiver further agrees that if Receiver is required to disclose Confidential Information of Discloser, Receiver shall furnish only that portion of Confidential Information that is legally required and shall exercise all reasonable efforts to obtain reliable, written assurances that confidential treatment shall be accorded Confidential Information.
6. USE OF CONFIDENTIAL INFORMATION
Receiver shall use confidential Information of Discloser solely for the performance of Receiver’s obligations on behalf of, and as directed by, Discloser. Receiver shall maintain the confidentiality of all of Discloser’s Confidential Information disclosed to Receiver hereunder and shall not disclose such Confidential Information to any person or entity, except as provided in this Agreement. Receiver shall (a) hold Discloser’s Confidential Information in confidence with the same degree of care with which Receiver protects Receiver’s own confidential or proprietary information, but no less than reasonable care; and (b) restrict disclosure of Discloser’s Confidential information solely to Receiver’s employees with a legitimate need to know such Confidential Information and advise such employees of their obligations hereunder with respect to such Confidential Information. Notwithstanding the provisions of this paragraph, nothing shall prohibit Licensor from using in aggregate anonymous form any data submitted or entered into the Product by Licensee.
7. RETURN OF CONFIDENTIAL INFORMATION
Receiver shall promptly destroy any and all tangible materials embodying Discloser’s Confidential Information, or from which such information may be derived, including all copies, extracts or other reproductions thereof, upon termination of the License or when Discloser requests its destruction, whichever occurs first. Alternatively, if Discloser requests the return of any such materials, Receiver shall return the materials and certify to Discloser that there are no additional materials in Receiver’s possession. Without limiting the generality of the foregoing, the obligation to promptly destroy Discloser’s Confidential Information shall include, but not be limited to, the obligation to promptly erase any and all of such Confidential Information in any form from computer storage, systems and related storage devices, tools and servers. Notwithstanding the provisions of this paragraph, nothing shall require Licensor to return or destroy any data submitted or entered into the Product by Licensee.
Licensor warrants that it has the right to grant temporary use by Licensee of the Product. Licensor agrees to defend Licensee from and against any claim or action based on any alleged infringement of any United States patent, copyright, trade secret or other proprietary right as a result of the use of the Product according to the terms and conditions of this Agreement, and Licensor agrees to indemnify Licensee from any costs and/or damages awarded against Licensee in any such infringement claim or action or settlement thereof; provided that (a) Licensor is promptly notified in writing of such claim, (b) Licensee grants Licensor sole control of the defense and any related settlement negotiations, and (c) Licensee cooperates with Licensor in defense of such claim. Notwithstanding the foregoing, Licensor shall have no liability to Licensee if the infringement results from (i) use of the Product in combination with software not provided by Licensor, (ii) modifications to the Product not made by Licensor, or (iii) use of other than a current release of the Product, if such infringement would have been avoided by use of a current Licensor release.
9. LIMITED WARRANTY; LIMITATION OF LIABILITY
THE PRODUCT AND ANY SERVICES PROVIDED IN CONNECTION THEREWITH ARE PROVIDED “AS IS” WITHOUT WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IF LICENSOR CANNOT LAWFULLY DISCLAIM IMPLIED WARRANTIES UNDER THIS LIMITED WARRANTY, ALL SUCH WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED IN DURATION TO THE DURATION OF THE TRIAL PERIOD. IF ANY DAMAGE SHOULD OCCUR DURING LICENSEE’S USE OF THE PRODUCT, LICENSOR HAS NO LIABILITY FOR THE COST TO REPAIR OR REPLACE ANY INOPERATIVE PRODUCT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCT REMAINS WITH LICENSEE. IN NO EVENT SHALL LICENSOR, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF PROFITS, DATA OR BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Any party may terminate this Agreement upon 7 days’ written notice to the other party at any time and for any reason. Upon termination by any party, Licensee shall destroy all software and related materials provided in connection with the Product within 7 days of termination.
The waiver or failure of Licensor to exercise any right provided for in this Agreement shall not be deemed a waiver of any further right. The rights and remedies of Licensor set forth in this Agreement are in addition to any rights or remedies Licensor may otherwise have at law or in equity. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
Neither party may assign its rights, duties or obligations under this Agreement without the prior written consent of the other party.
13. GOVERNING LAW AND JURISDICTION
This Agreement shall be construed in accordance with the laws of the State of North Carolina. Any dispute, action, cause of action, claim or proceeding with respect to the Product or this Agreement shall be commenced solely in the state or federal courts located in State of North Carolina.
All provisions of this License Agreement relating to proprietary rights, confidentiality and nondisclosure, indemnification and limitation of liability shall survive in perpetuity the expiration or termination of the Trial Period or any earlier termination of this Agreement.
15. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding of the parties with respect to the use of the Product during the Trial Period and supersedes and merges any and all prior proposals, understandings and agreements, oral and written, between the parties concerning the subject matter. This Agreement may not be modified or altered except by a written instrument duly executed by both parties.
Any written notice, request, approval or permission to which this Agreement refers may be made via the postal service, confirmed facsimile transmission or confirmed e-mail, except that all written notices contemplated in Sections 8 and 10 must be made in a manner that yields a written or electronic record of delivery (e.g., receipted by-hand delivery; nationally recognized overnight courier service; U.S. Express Mail; U.S. certified mail, return receipt requested, email with confirmed read receipt or personally addressed fax with a confirmed transmission receipt). A notice will be deemed given and effective upon the date of delivery in a manner defined in this paragraph above, which may be confirmed by any reasonable commercially acceptable means. Any written notice that Sections 8 or 10 contemplate shall be addressed to the other party at its address of record or to such other address as the other party has furnished to notifying party in the same manner.