BETA USER AGREEMENT
This Beta User Agreement is between you and Cloudpic Global, Inc. (“Cloudpic”) and governs your use of the beta (test) version of Cloudpic’s Droplet software, related authentication services, and support forums and documentation (all of which are referred to herein as the "Beta Software").
BY CLICKING ON THE LINK TO DOWNLOAD, OR DOWNLOADING, INSTALLING OR USING THE BETA SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE BETA SOFTWARE.
Evaluation License. The Beta Software is licensed to you solely for evaluation purposes. You may install the Beta Software on your computer(s) to evaluate the Beta Software, and may create test project(s) and log in to your project(s) using your assigned Cloudpic User ID. This is Beta test software, and as such, is believed to CONTAIN BUGS AND MAY CAUSE DATA LOSS. You are advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of the Beta Software and/or accompanying materials. You may make copies of the Beta Software in machine readable form solely for test purposes, provided you reproduce the Beta Software in its original form and with all proprietary notices on the back-up copy.
Restrictions on Use. You may not:
Production use includes, without limitation, using the Beta Software on client engagements; providing, or offering to provide, any service using the Beta Software; using the Beta Software to transfer data to clients or within your project team during work on a client project; receiving compensation from others for copies or modified copies of the Beta Software; receiving compensation for any service that uses the Beta Software, including support services.
Cloudpic shall have the right to determine, in its sole discretion, whether a use is a commercial use or non-evaluation use. Cloudpic owns all rights, title and interest in and to the Beta Software. All rights not expressly granted to you are retained by Cloudpic. Your use shall be in accordance with applicable restrictions concerning privacy and intellectual property rights.
Confidentiality. You agree that, unless otherwise specifically provided herein or agreed by the Cloudpic in writing, the Beta Software provided to you by Cloudpic constitute confidential proprietary information of Cloudpic. You shall permit only authorized users, who possess rightfully, obtained license keys, to use the Beta Software or to view the related documentation. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party without the prior written consent of Cloudpic. You agree to implement reasonable security measures to protect such confidential information, but without limitation to the foregoing, shall use best efforts to maintain the security of the Beta Software provided to you by Cloudpic. You will use your best efforts to cooperate with and assist Cloudpic in identifying and preventing any unauthorized use, copying, or disclosure of the Beta Software, any related ocumentation, or any portion thereof.
Personal Information and Privacy. We may ask you to provide certain information about you during the Beta Software downloading process. All personal information that you provide to us will be governed by the Privacy Policy, which is available at: www.cloudpicglobal.com/privacy.
Feedback. We would like to get your feedback on the Beta Software so we can keep improving it. You agree to answer questions regarding the Beta Software posed by us from time to time and you shall, regardless of whether or not formally requested to do, provide to Cloudpic reasonable suggestions, comments and feedback regarding the Beta Software, including but not limited to usability, bug reports and test results, with respect to the Beta Software testing (collectively, "Feedback"). During the Beta Software evaluation period, the Beta Software may generate a log of its status in text form. If requested by Cloudpic you agree to send this log to Cloudpic for debugging or support purposes. If you provide such Feedback to Cloudpic, you shall grant Cloudpic the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any Cloudpic product, technology, service, specification or other documentation (individually and collectively, " Cloudpic Products"); (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Cloudpic Product; (iii) solely with respect to your copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and (iv) to sublicense to third parties any claims of any patents owned or licensable by you that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the Feedback or portion thereof incorporated into a Cloudpic Product, technology or service. Further, you warrant that your Feedback is not subject to any license terms that would purport to require Cloudpic to comply with any additional obligations with respect to any Cloudpic Products that incorporate any Feedback.
Technical Support during beta. Technical support is provided for the Beta Software via our user support forums which can be found at support1.cloudpicglobal.com
No Warranty. THE BETA SOFTWARE IS BEING DELIVERED TO YOU "AS IS" AND CLOUDPIC AND ITS SUPPLIERS MAKE NO WARRANTY AS TO ITS USE, RELIABILITY OR PERFORMANCE. CLOUDPIC AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE BETA SOFTWARE. CLOUDPIC AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT CLOUDPIC IS UNDER NO OBLIGATION TO RELEASE AND/OR OFFER FOR SALE THE COMMERCIAL VERSION OF THE BETA SOFTWARE AND CLOUDPIC HAS THE RIGHT TO UNILATERALLY ABANDON DEVELOPMENT OF THE SOFTWARE OR ANY SUBSIDIARY FEATURE AT ANY TIME AND WITHOUT OBLIGATION OR LIABILITY TO YOU. YOU ASSUME ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF THE BETA SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR BETA SOFTWARE PROGRAMS, OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USE THE BETA SOFTWARE AND ASSUME ALL RISKS ASSOCIATED WITH ITS USE.
Indemnification. You agree to indemnify and hold Cloudpic, parents,
subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Beta Software, or the infringement by you, of any intellectual property or other right of any person or entity.
Limitation of Liability. IN NO EVENT WILL CLOUDPIC OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES WHATSOEVER, OR ANY LOSS OF REVENUE, DATA, USE, OR PROFITS, EVEN IF A CLOUDPIC REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM IS BASED UPON ANY CONTRACT, TORT OR OTHER LEGAL OR EQUITABLE THEORY. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or the exclusion of implied warranties or limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you.
Term and Termination. This Agreement will automatically expire on the first day Cloudpic makes available the production version of the Beta Software (as announced on the Cloudpic web site www.cloudpicglobal.com), unless earlier terminated as set forth below in this paragraph. Either Cloudpic or you may terminate this Agreement at any time by providing the other party advance written notice thereof. This Agreement shall terminate automatically, without notice, if you fail to comply with the terms of this Agreement. Upon any termination of this Agreement, you must discontinue use of the Beta Software and uninstall and destroy all copies of the Beta Software you have obtained or made.
Modification. Cloudpic may modify the Beta Software and this Beta Agreement with notice to you either in email or by publishing content on the Cloudpic website, In the event Cloudpic modifies the Beta Software or the Beta Agreement, you may terminate this Beta Agreement and cease using of the Beta Software. Cloudpic may terminate the Beta Agreement or the Cloudpic Service at any time, with or without notice.
Governing Law. This Agreement will be governed by the laws of the United States and the State of California, excluding the application of its conflicts of law rules. You consent to the personal and exclusive
jurisdiction and venue of the state and federal courts located in San
Francisco, California.
Severability; Waiver. If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
U.S. Government Restricted Rights. The Software is a commercial product, developed at private expense, and provided with restricted rights. Use, reproduction, release, modification or disclosure of the Software, or any part thereof, including technical data, by the Government is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies.
General. The Beta Agreement constitutes the entire agreement between you and Cloudpic and governs your use of the Beta Software, superceding any prior agreements between you and Cloudpic. If any provision of this Beta Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Beta Agreement will remain in full force and effect. The parties acknowledge that the manufacture and sale of the Beta Software is subject to the export control laws of the United States of America, including the U.S. Bureau of Export Administration regulations, as amended, and hereby agree to obey any and all such laws. You may not assign this Beta Agreement, and any assignment of this Beta Agreement by you will be null and void.
Contact Information. If you have any questions about this Agreement, please contact us at legal@cloudpicglobal.com. If you have any questions about licensing that aren't answered on our website, please contact us at licensing@ cloudpicglobal.com.
