2016 mApp BETA LICENSE AGREEMENT
This BETA License Agreement is between Cherwell Software, LLC, a Delaware limited liability company, (“Cherwell”) and the test user (“Tester”) upon download of any Pre-Release Software (defined below) from the Cherwell mApp Exchange website.
This Agreement governs the conditions whereby Tester can use certain software products prior to commercial release for purposes of testing and providing feedback to Cherwell. Any and all Cherwell mApp™ solutions software, identified as BETA (including related or subsequent versions) and related documentation and materials used by Tester are collectively and individually referred to as the "Pre-Release Software".
YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY SELECTING THE "ACCEPT" OPTION AND DOWNLOADING THE PRE-RELEASE SOFTWARE OR BY INSTALLING, USING, OR COPYING THE PRE-RELEASE SOFTWARE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT INSTALL, USE, OR COPY THE SOFTWARE PRODUCT.
- The Pre-Release Software may contain errors, bugs, or other problems not usually associated with commercially available software and should not be used in a production environment or on a critical system.
- CHERWELL has no obligation to provide technical support for the Pre-Release Software Product.
- CHERWELL has no obligation to provide adequate user or technical documentation, nor training for the pre-release Product.
- CHERWELL does not warrant that the pre-release Software Product will meet your requirements or operate under your specific conditions of use.
- CHERWELL makes no warranty that operation of the Pre-release Product will be secure, error free, or free from interruption.
- BETA software is released for testing and proof of concept purposes only and to solicit feedback from the user community and partners.
- Ownership: Cherwell retains all title, ownership, intellectual property and other proprietary rights in the Pre-Release Software, including any and all derivatives, modifications, enhancements and improvements to the Pre-Release Software. The Pre-Release Software is protected by copyright, patent, trademark other intellectual property laws and regulations and by international treaties. You agree that you will not take any action to interfere with Cherwell’s ownership of or rights in the Pre-Release Software. You hereby assign to Cherwell, any and all right, title and interest (including, without limitation, all patent rights, design rights, copyrights, trademarks, trade dress and trade secrets) in any modifications, enhancements or improvements to the Pre-Release Software which you may propose or make during the Test Period or which you and Cherwell may jointly make during the Test Period.
- You also agree that You will sign any documents requested and prepared by Cherwell establishing Cherwell’s rights to any modification, enhancements or improvements to the Pre-Release Software as stated above.
- Exclusion of Warranties: Cherwell reserves the right to alter the Pre-Release Software at any time and to not release a final version of the software; any reliance on or use of the Pre-Release Software is at your own risk. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CHERWELL MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED WITH RESPECT TO THE PRE-RELEASE SOFTWARE, ITS QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. AS A RESULT, THE PRE-RELEASE SOFTWARE IS LICENSED “AS IS” “WITH ALL FAULTS” AND YOU ASSUME THE ENTIRE RISK AS TO ITS QUALITY AND PERFORMANCE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
- Exclusion of Damages/Limitation of Liability. CHERWELL SHALL NOT BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE PRE-RELEASE SOFTWARE, EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. In particular, and without limitation, Cherwell shall have no liability for any data stored or processed with the Pre-Release Software, including the costs of recovering such data. IN NO EVENT SHALL CHERWELL'S LIABILITY ARISING OUT OF OR RELATED TO THE PRE-RELEASE SOFTWARE (WHETHER BASED ON AN ACTION OR CLAIM IN TORT, CONTRACT OR OTHER LEGAL THEORY) EXCEED ONE HUNDRED DOLLARS ($100.00).
- Governing Law: This Agreement is governed under the laws of the state of Delaware and the exclusive venue for all cases arising out of or related to this Agreement shall be the federal and state courts in Colorado. Notwithstanding the foregoing, if Tester is incorporated and has its registered office in the country of England, then this Agreement is governed under the laws of England, and both parties submit to the exclusive jurisdiction of the courts of England.