ICONICS Beta Software License Agreement

Please read carefully the following terms and conditions.

This Beta Software License Agreement ("Agreement") is by and between ICONICS, Inc., a Massachusetts corporation with a principal place of business at 100 Foxborough Boulevard, Foxborough, Massachusetts 02035 ("Licensor") and the person or entity, through an authorized representative thereof, who will be using, testing, and providing feedback on the beta software product subject to this Agreement ("User"). User’s acceptance of this Agreement is required as a condition to proceeding with the download, installation and use of the beta software product subject to this Agreement. This Agreement is effective immediately upon User’s clicking "I Accept" below, or any similar button or link as Licensor may designate, which will signify User’s acceptance of the terms provided below.

1. Description of Beta Software and Use Limitations.

This Agreement governs User’s use of Licensor’s beta test release of the ICONICS beta software product contained in the downloadable files or software media package with the respective related documentation that is subject to this Agreement (the "Beta Software"). 

The Beta Software is a software application that, among other things, facilitates the monitoring and controlling of operational and industrial processes. User acknowledges that the Beta Software is still under development, may contain defects, deficiencies, errors and omissions and is not at a level of functionality, performance or compatibility of a commercial product offering. As such, User acknowledges that its use of the Beta Software is at its own risk. User shall not use the Beta Software in a production environment or otherwise rely upon the Beta Software for business applications. User shall be solely responsible for any data and/or software loss or corruption arising from any use of the Beta Software and for the protection and back-up of any User data and software used in conjunction with the Beta Software. Licensor reserves the right at any time unilaterally to abandon the Beta Software or, if it does include the Beta Software in a commercially released product, to alter features, licensing terms, or other characteristics of the commercial release. Licensor retains the right to modify or revise the Beta Software furnished to User under this Agreement. Licensor and User further agree that the Beta Software is being provided to User without charge in exchange for User’s evaluation of the Beta Software and acceptance of the terms and conditions set forth in this Agreement.

2. Testing Support and Results.

User may only install and use the Beta Software in accordance with the specifications provided by Licensor. User shall reasonably cooperate and consult with Licensor in User’s testing of the Beta Software, including User’s evaluation of its features, performance, functionality and usability. User will provide oral or written evaluations of the Beta Software to Licensor upon Licensor’s request. Since the Beta Software is provided "As Is", Licensor will not provide support, maintenance or other similar services for it. User is responsible for providing any commercially available software, equipment or services that are required to operate the Beta Software.

3. License Grant.

Subject to the terms and conditions of this Agreement, Licensor hereby grants and User accepts a nonexclusive, non-transferable license, without the right to sublicense, to install and use the Beta Software in object code only on a non-production system. User shall not, directly or indirectly, modify, reverse engineer, decompile, or disassemble the Beta Software or otherwise attempt to derive the source code of the Beta Software. User may not sub-license, transfer, lease, distribute, assign or make available for timesharing, in whole or in part, the Beta Software or related documentation. User shall not reproduce any portion of the Beta Software. User shall not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels that are on or embedded in the Beta Software. Unless specifically authorized by Licensor in writing, User may not copy the Beta Software for any purpose (including for backup or archival purposes).

4. Term and Termination.

This Agreement is effective until terminated by either party, not to exceed a period of one (1) year. Either party may terminate this Agreement at any time upon delivery of written notice to the other party. This Agreement will terminate immediately, without prior notice from Licensor, if User fails to comply with any provision of this Agreement. Upon any termination, User must return all copies of the Beta Software and all materials provided for or with the Beta Software. The provisions of sections 3, 4, 5, 6, 7 and survive any termination or expiration of this Agreement.

5. Disclaimer of Warranties.

The Beta Software is provided "As Is" without any warranty of any kind. Licensor, on behalf of itself and its Licensors and suppliers, disclaims any and all warranties, representations, and conditions relating to the Beta Software, whether express, implied, or arising by custom or trade usage, including but not limited to any representation, warranty, or condition of merchantability, fitness for a particular purpose, title or non-infringement. Licensor takes no responsibility for the effects on Licensee’s software, hardware, network or related equipment of the installation or operation of the Beta Software.

6. Limitation of Liability.

In no event will Licensor be liable for any damages under this Agreement or arising out of User’s use of the Beta Software, including without limitation any direct damages; any lost revenue, profit, data, or other software; or any special, indirect, consequential, incidental, or punitive damages however caused and regardless of liability theory (including without limitation actions in negligence, contract or tort or otherwise), even if Licensor knows or has been advised of the possibility of those damages. In states which do not allow exclusion of implied warranties or limitation of liability for incidental, special, punitive, or other indirect or consequential damages, the limitations or exclusions of Section 5 of this Section 6 may not apply. In such states, the Licensor’s liability is limited to the greatest extent permitted by law.

7. Confidentiality.

The Beta Software, related documentation and the results (collectively, "Confidential Information") constitute Licensor’s proprietary and confidential information, whether or not so identified in writing as "Confidential." User agrees will not: (i) otherwise use such Confidential Information in any way, for its own account or the account of any third party, except in the exercise of its rights and performance of its obligations under this Agreement, or (ii) disclose any such Confidential Information to any party, other than furnishing such Confidential Information to its employees or consultants who are required to have access to such Confidential Information in connection with the exercise of User’s rights and obligations under this Agreement, provided that such employees or consultants are bound by written confidentiality obligations consistent with this Agreement. User shall not allow any unauthorized person access to the Confidential Information. User shall take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information. In the event that User is required by law to disclose Licensor’s Confidential Information, by subpoena, judicial or administrative order or otherwise, User must first give written notice of such requirement to Licensor; permit Licensor to intervene in any relevant proceedings to protect its interests in the Confidential Information; and provide full cooperation and assistance to Licensor in seeking to obtain such protection. Information exchanged under this Agreement will not be deemed Confidential Information if User can demonstrate that such information: (a) is known to User prior to receipt from Licensor directly or indirectly from a source other than one having an obligation of confidentiality to Licensor; (b) becomes known (independent of Licensor’s disclosure) to User directly or indirectly from a source other than one having an obligation of confidentiality to Licensor; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through User’s breach of this Agreement. Because the unauthorized use, transfer or dissemination of any confidential information provided by Licensor to User may substantially diminish the value of such materials and may irreparably harm Licensor, if User breaches the provisions of this section 7, Licensor shall, without limiting its other rights or remedies, be entitled to equitable relief, including but not limited to injunctive relief, without the necessity of posting any bond.

8. Miscellaneous.

  1. (a) Relationship of the Parties. Nothing contained in this Agreement shall be deemed to imply or constitute either party as the agent or representative of the other party, or both parties as joint ventures or partners for any purpose.
  2. (b) Notice. Notice provided or required under this Agreement must be provided to at the attention of legal counsel to each party at its respective address provided above. 
  3. (c) Merger; Entire Agreement. This Agreement represents the entire understanding between the parties with respect to its subject matter and supersedes all prior written and oral communications, including any proposal or prior agreement, oral or written, and any other communications between Licensor and User relating to the subject matter of this Agreement
  4. (d) No Assignment. This Agreement, the license granted hereunder, the Beta Software and/or related documentation and any modifications thereto may not be assigned or in any way transferred without the prior written consent of Licensor. 
  5. (e) Waiver.  A waiver by either party of its rights hereunder shall not be binding unless contained in a written Agreement signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on one occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing. (e)  No Modification.  This Agreement may not be modified except by a written Agreement signed by authorized representatives of both parties. 
  6. (f) Governing Law and Exclusions. The terms of this Agreement shall be construed in accordance with the laws of the Commonwealth of Massachusetts, United States of America, without giving effect to the principles of conflict or choice of law. The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English.  Licensor and Licensee exclude the United Nations Convention on Contracts for the International Sale of Goods ("CISG") and the Uniform Computer Information Transactions Act ("UCITA") from this Agreement. 
  7. (g) Severability. If any provision of this Agreement is held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law, such provision shall be constructed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. 
  8. (h) Headings. Section headings in this Agreement are for convenience of reference only and do not limit or otherwise affect in any way the meaning or interpretation of this Agreement.  
  9. (i) Counterparts. This Agreement may be executed in one or more counterparts or forms, each of which is deemed to be an original but all of which together constitute one and the same instrument.