Lucidworks Beta Testing Agreement
This Beta Testing Agreement (this “Beta Agreement” ) is legally binding between the customer entity identified on the Order Form (“Customer”) and Lucidworks, Inc. and its subsidiaries (“Lucidworks”). This Beta Agreement is effective as of the Effective Date set forth on the applicable Order Form.
The purpose of Beta Products is to test and study the usability of certain pre-release products(s) being developed by Lucidworks (“Purpose”), which Lucidworks may (in its sole discretion) agree to make available to the Customer for such purposes (each a “Beta Product” and together the “Beta Products”). In consideration of Lucidworks letting Customer test one or more new Lucidworks products that have not yet been released to the public (“Beta Testing”), Customer agrees to be bound by the terms and conditions of this Beta Agreement.
The rights and obligations contained in this Beta Agreement are entirely separate from and without prejudice to any existing or future agreement between Customer and Lucidworks relating to any of Lucidworks features or services other than the Beta Products.
- PRODUCTS AND SERVICES
- 1. License Grant. Subject to the terms and conditions of this Beta Agreement, Lucidworks hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable license during Evaluation Period (defined in Section 6) to: (a) use the Beta Product described in the Order Form in object code format, in production environments for Customer’s internal evaluation purposes and to provide Feedback (as defined below) to Lucidworks; and (b) use the Lucidworks’s user manuals, handbooks, and installation guides relating to the Beta Product provided by Lucidworks to Customer either electronically or in hard copy form solely for Customer’s internal evaluation purposes in connection with Customer’s use of the Beta Product. Customer will not use the Beta Product for any purpose other than: (a) to provide Feedback to Lucidworks about the Beta Product; and (2) to evaluate and test such Beta Product internally in connection with assessing whether Customer desires to enter into a commercial license agreement with Lucidworks for the Beta Product. The parties acknowledge and agree that this Beta Agreement does not provide a commercial license and Customer’s use of the Beta Product after the Evaluation Period is subject to the parties’ entering into and executing a separate commercial license agreement, Customer is not legally required or obligated to continue with any Beta Product subscription after the Evaluation Period ends.
- 2. Use Restrictions. Customer shall not use the Beta Product or Documentation for any purposes beyond the scope of the license granted in this Beta Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Beta Agreement. Customer shall not at any time, directly or indirectly: (a) copy, modify, or create derivative works of the Beta Product or the Documentation, in whole or in part; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Beta Product or the Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Beta Product, in whole or in part; (d) remove any proprietary notices from the Beta Product or the Documentation; or (e) use the Beta Product in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- 3. Reservation of Rights. Lucidworks reserves all rights not expressly granted to Customer in this Beta Agreement. Except for the limited rights and licenses expressly granted under this Beta Agreement, nothing in this Beta Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Beta Product. Customer acknowledges that Customer shall not acquire any intellectual property rights or other rights under this Beta Agreement or through the Customer’s participation in the Beta Testing. Lucidworks grants Customer a non-exclusive, non-transferable, terminable (by notice at any time) license for the term of his Beta Agreement to use the Beta Product(s) for the sole purpose of taking part in the Beta Testing in accordance with Lucidworks instructions.
- 4. Customer Responsibilities. Customer is responsible and liable for all uses of the Beta Product and Documentation resulting from access provided by Lucidworks, directly or indirectly, whether such access or use is permitted by or in violation of this Beta Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Customer’s employees, and any act or omission by a Customer’s employee that would constitute a breach of this Beta Agreement if taken by Customer will be deemed a breach of this Beta Agreement by Customer. Customer shall take reasonable efforts to make all Customer’s employees aware of this Beta Agreement’s provisions as applicable to such Customer’s employees use of the Beta Product and shall cause Customer’s employees to comply with such provisions.
- 5. Support. Lucidworks has no obligation under this Beta Agreement to provide support, maintenance, upgrades, modifications, or new releases of the Beta Product or Documentation to Customer. However, Lucidworks agrees to use its reasonable efforts to correct errors in the Beta Product and Documentation within a reasonable time and shall provide Customer with any corrections it makes generally available to other evaluation participants.
- PROPRIETARY RIGHTS
- 1. Ownership Rights Customer agrees that Lucidworks retains all right, title, and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Products, platforms, technology, tools, Documentation (“Pre-Existing Materials”), Performance Data, Feedback, and any deliverables or work product resulting from any of the Professional Services (the “Deliverables”), and any derivative works, modifications, or improvements of any of the foregoing, including that may be incorporated (collectively, “Lucidworks Technology”).
- 2. Feedback. Whilst taking part in Beta Testing, Customer may provide certain comments, suggestions, data, or other information to Lucidworks (“Feedback”). Lucidworks shall have the right to retain and use any such Feedback in current or future products or services without compensation to Customer. If Customer or any of its employees or contractors submits, orally or in writing, suggestions or recommended changes to the Beta Product or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Lucidworks is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Lucidworks on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Lucidworks is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Lucidworks is not required to use any Feedback.
- 3. Customer Data. Customer agrees that Lucidworks may (a) analyze and monitor Customer’s participation in the Beta Testing, (b) record any data resulting from Customer’s participation in the Beta Testing and (c) use such records for Lucidworks’ own internal business purposes.
- 1. “Confidential Information” means any information of Lucidworks disclosed to Customer which is marked “confidential” or “proprietary,” or if disclosed orally, is designated as confidential or proprietary at the time of disclosure, or which should otherwise reasonably be understood by Customer to be confidential or proprietary to Lucidworks, including but not limited to, the Beta Product, the non-public terms of this Beta Agreement, and any information that relates to Lucidworks’ research, development, inventions, algorithms, trade secrets, processes, patents, patent applications, patent licenses, business, financials, marketing, market data, sales, distribution strategy, contracts, cost and pricing data, the Beta Product (source and object code), hardware, APIs, products, services, specifications, information technology infrastructure, document management strategy, suppliers, manufacturers, beta testers, personnel, and consultants.
- 2. Customer shall:
- 2.1. not use Lucidworks’ Confidential Information except for the Purpose;
- 2.2. hold Lucidworks’ Confidential Information in strictest confidence and shall not disclose Lucidworks’ Confidential Information to others, except for its employees or agents who require Lucidworks’ Confidential Information in order to carry out the Customer’s obligations under this Beta Agreement and who are subject to binding obligations of confidentiality and restricted use at least as protective as those of this Beta Agreement;
- 2.3. protect the confidentiality of Lucidworks’ Confidential Information using at least the same level of efforts and measures used to protect its own confidential information of like importance, and at least commercially reasonable efforts and measures, including without limitation limiting access to Lucidworks’ Confidential Information commensurate with the Purpose under this Beta Agreement;
- 2.4. not alter any proprietary notices contained in any Confidential Information and, to the extent Customer creates any documents or other embodiments that contain any Confidential Information, Customer shall identify the confidential and proprietary nature of such; and
- 2.5. notify Lucidworks as promptly as practicable of any unauthorized use or disclosure of Lucidworks’ Confidential Information by Customer, its employees, or agents of which Customer becomes aware.
- 3. The obligations of Section 3.2 shall not apply to any Lucidworks’ Confidential Information that:
- 3.1. Customer knew prior to learning it under this Beta Agreement, as demonstrated by written records predating the date it was learned under this Beta Agreement;
- 3.2. is now, or becomes in the future, publicly available information other than by an act or omission of Customer;
- 3.3. a third party discloses to Customer, without any confidentiality obligations and without any breach of any direct or indirect obligation of confidentiality to Lucidworks, as shown by Customer’s written records contemporaneous with such third party disclosure; or
- 3.4. Customer independently develops without use of or reference to Lucidworks’ Confidential Information, as demonstrated by Customer’s independent written records contemporaneous with such development.
- 4. Customer acknowledges that the Beta Products are the property of Lucidworks and are protected by intellectual property laws. In particular, Customer undertakes that the existence or development of the Beta Products as well as any information communicated to Lucidworks relating to the Beta Products and/or the contents and/or functionality of such Test Products shall be treated as Confidential Information belonging to Lucidworks.
- Disclaimer of Warranties. THE BETA PRODUCT AND DOCUMENTATION ARE PROVIDED “AS IS” AND LUCIDWORKS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, , AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LUCIDWORKS MAKES NO WARRANTY OF ANY KIND THAT THE BETA PRODUCT AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY BETA PRODUCT, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
CUSTOMER ACKNOWLEDGES THAT BETA PRODUCTS ARE EXPERIMENTAL IN NATURE AND MAY NOT HAVE BEEN TESTED IN ANY MANNER. LUCIDWORKS DOES NOT REPRESENT THAT ANY BETA PRODUCT IS ENTIRELY RELIABLE, ACCURATE, OR COMPLETE.
- Limitations of Liability. EXCEPT FOR LIABILITY RELATED TO CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS BETA AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT FOR LIABILITY RELATED TO CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS BETA AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED USD $10,000.00.
- Term and Termination. Lucidworks shall, at its sole discretion, determine when the Beta Testing will commence and reserves the right at any time and without liability to withdraw Customer’s participation.This Beta Agreement is effective as of the Effective Date and, unless terminated earlier pursuant to this Section 6, will continue in effect until 90 days after the Effective Date (the “Evaluation Period”).
Either party may terminate this Beta Agreement at any time, without cause, upon ten (10) days prior written notice. Lucidworks may terminate this Beta Agreement on written notice to Customer if Customer materially breaches or fails to comply with any terms or conditions of this Beta Agreement and does not cure such breach or failure within ten (10) days after receiving written notice thereof. Upon expiration or earlier termination of this Beta Agreement, the license granted hereunder will also terminate and Customer shall cease using the Beta Product and Documentation. Termination of this Beta Agreement shall not affect the accrued rights of the parties at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination (including those rights expressly or implicitly coming into effect after termination) or either party’s rights or responsibilities under the Beta Agreement.
- 1. Entire Agreement. This Beta Agreement, together with an applicable Order Form, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Beta Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
- 2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the Order Form (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email to firstname.lastname@example.org (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Beta Agreement, a Notice is effective only: (i) upon receipt by the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
- 3. Amendment and Modification; Waiver. No amendment to or modification of this Beta Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Beta Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Beta Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- 4. Severability. If any provision of this Beta Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Beta Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Beta Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- 5. Governing Law; Submission to Jurisdiction. The laws of the State of California in the United States of America will govern this Beta Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Beta Agreement. Any action or proceeding arising from or relating to this Beta Agreement must be brought in the courts in San Francisco County, California. The parties agree that this Beta Agreement is written and construed in the English language.
- 6. Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Lucidworks, which consent shall not be unreasonably withheld, conditioned, or delayed.
- 7. Export Regulation. The Beta Product may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Beta Product to, or make the Beta Product accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Beta Product available outside the US.
- 8. US Government Rights. Each of the Documentation and the Beta Product is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer Beta Product” and “commercial computer Beta Product documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Beta Product and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
- 9. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 2.1 or, in the case of Licensee, Section 1.2, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- 10. Counterparts. This Beta Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
- 11. Survival. Sections 2, 3, 7, 6, and 7 survive any termination or expiration of this Beta Agreement. No other provisions of this Beta Agreement survive the expiration or earlier termination of this Beta Agreement.