Raziel's Beta User Agreement
BETA USER AGREEMENT
This BETA USER Agreement (“Agreement”) is entered into between Raziel Holdings, Inc (“Raziel”) and the customer identified below (“Customer”) as of the last date signed below.
License Grant. Subject to the terms and conditions hereof, Raziel grants to Customer, for the BETA Test Period identified below, a limited non-exclusive, non-transferable, royalty-free, revocable license to use the Raziel software products identified on Exhibit A hereto (“Software”) in object code format solely for the purpose of Customer’s internal evaluation of the Software and not for general commercial use. Customer shall not use the Software for the processing of any live or production data. Raziel and its licensors reserve all rights and licenses in and to the Software not expressly granted to Customer hereunder.
No Services. Raziel shall be under no obligation to provide Customer with any services except as explicitly set forth in section 5 herein.
Termination. The licenses granted hereunder terminate upon expiration of the BETA Test Period. 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 Raziel the Software and all copies thereof in the form provided by Raziel or (ii) upon request by Raziel destroy the Software and all copies thereof and certify in writing that it has been destroyed. Sections 2 through 10 shall survive termination of this Agreement.
Proprietary Rights; Confidentiality; Restrictions.Customer acknowledges that the Software contains confidential Raziel information and trade secrets of Raziel and its licensors. Customer will not: copy (except as strictly necessary to use the Software in solely 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; 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 Raziel’s and its affiliate’s 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 Raziel, and not to disclose to any third party without the prior written approval of Raziel, the Software, its features, feedback (as defined in Section 8), related technical information or the results of any performance or functional evaluation or test of the Software (the “Confidential Information”). Customer will use no less than all reasonable efforts to protect the Confidential Information from unauthorized use or disclosure. 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 Raziel and shall employ all reasonable means to mitigate any damages or losses that Raziel 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.
Delivery and Installation. Raziel will provide the Software via electronic delivery. Customer will be responsible for installing the Software. Raziel may provide reasonable assistance in connection with such installation.
Warranty. THE SOFTWARE IS PROVIDED “AS-IS.” RAZIEL DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, ITS USE AND OPERATION, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE IN TRADE.
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 Raziel; (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) Raziel is under no obligation to release a commercial version of the Software; and (h) Raziel 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.
Limitation of Liability. EXCEPT AS OTHERWISE REQUIRED BY LAW, THE LIABILITY OF RAZIEL AND ITS AFFILIATES TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE LICENSE AND 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 ONE HUNDRED DOLLARS. IN NO EVENT WILL RAZIEL OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR 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.
Feedback. Customer will provide reasonable feedback to Raziel concerning the features and functionality of the Software. If Customer provides feedback to Raziel, all such feedback will be the sole and exclusive property of Raziel. Customer acknowledges and agrees that all right, title and interest in and to all feedback, all copyright and other intellectual property rights embodied therein, and all content, including design (collectively, the “Intellectual Property Rights ”), shall belong exclusively to Raziel. Customer further agrees to (a) assign, and does hereby assign, to Raziel all right, title and interest in and to any and all such Intellectual property rights, (b) at Raziel’s expense, execute all documents deemed necessary by Raziel in connection therewith, and (c) use commercially reasonable efforts to cooperate with Raziel, at Raziel’s expense, in all further actions deemed necessary to confirm, register, protect or enforce Raziel’s rights therein. If Raziel is unable to secure Customer’s signature on any document necessary to apply for, prosecute, obtain or enforce any patent, copyright or other right or protection relating to any Intellectual property rights, within ten (10) business days of Raziel’s request therefor, Customer hereby irrevocably designates and appoints Raziel and each of its duly authorized officers and agents as its agent and attorney-in-fact, to act for and in its behalf and stead to execute and file any such documents and to do all other lawfully permitted acts to further the prosecution, issuance and enforcement of patents, copyrights, or other rights or protections with the same force and effect as if executed and delivered by Customer. Customer will not earn or acquire any rights or licenses in the Software or in any Raziel Intellectual Property Rights on account of this Agreement or Customer's performance under this Agreement, even if Raziel incorporates any feedback into the Software.
Audit. Raziel may, at any time during the term of this Agreement, upon reasonable written notice and during Customer’s normal business hours, audit Customer’s use of the Software at Customer’s premises, as reasonably necessary to confirm that Customer is using the Software in accordance with the terms and conditions of this Agreement. Raziel may use a third-party organization reasonably acceptable to Customer to assist Raziel in conducting such an audit. Customer will cooperate with Raziel in such audit and will promptly make available to Raziel all information and materials reasonably required by Raziel to conduct such an audit.
Indemnification. Customer shall indemnify, protect, defend (with counsel selected by Raziel and under Raziel’s control) and hold harmless Raziel, its affiliates, and each of their respective shareholders, directors, members, managers, joint venturers, officers, employees, contractors, attorneys, agents, representatives, successors and assigns, from and against any and all claims, liabilities, demands, obligations, actions, lawsuits, costs, fees and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) Customer’s breach of warranty or obligation of Customer set forth in this Agreement; and (ii) the negligent acts or omissions or misconduct of Customer or its employees or agents.
Assignment. Customer may not assign or otherwise transfer, by operation of law or otherwise, any of its rights under this Agreement without Raziel’s prior written consent, and any attempted assignment without such consent will be null and of no effect.
Entire Agreement; Governing Law. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements, communications and understandings with respect to the evaluation of the Software and shall be construed in accordance with the laws of the State of California (excluding its body of law controlling conflicts of law). The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
Submission to Jurisdiction. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Los Angeles County and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect.
No Waiver. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default.
Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission or by overnight delivery service and in each instance will be deemed given upon receipt. All communications will be sent to the address set forth below or to such other address as may be specified by either party to the other in accordance with this Section 16.
Raziel Holdings, Inc.
8748 Holloway Drive,
West Hollywood, CA 90069