AppOrbit Beta Test End User License Agreement for AppSwitch

AppOrbit, INC. (“AppOrbit”) LICENSES THIS SOFTWARE AND SERVICE TO YOU SUBJECT TO THE TERMS CONTAINED IN THIS BETA TESTING END USER LICENSE AGREEMENT (THIS “AGREEMENT” OR “EULA”). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING, COPYING AND USING THIS COMPUTER SOFTWARE AND THE ACCOMPANYING OR ONLINE DOCUMENTATION (THE “BETA SOFTWARE”). THE BETA SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS EULA, NOT SOLD TO YOU. BY INSTALLING, OR OTHERWISE USING THE BETA SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE BETA SOFTWARE. BY EXPLICITLY ACCEPTING THIS BETA TEST AGREEMENT, HOWEVER, OR BY INSTALLING, ACCESSING, OR OTHERWISE USING THE BETA SOFTWARE, YOU ARE ACKNOWLEDGING AND AGREEING TO BE BOUND BY THE FOLLOWING TERMS.

THIS EULA IS A LEGAL AGREEMENT CONCERNING THE BETA SOFTWARE BETWEEN YOU, AS EITHER AN INDIVIDUAL OR A SINGLE BUSINESS ENTITY (“YOU”) AND APPORBIT. THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH APPORBIT RELATING TO THE BETA SOFTWARE.

Now Therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, You hereby agree as follows:
Agreement

1. Grant of License. Subject to the terms of this Agreement and solely during the term hereof, AppOrbit hereby grants to You a limited, revocable, royalty-free, nontransferable, nonexclusive license (without the right to grant sublicenses) to access the website located at www.AppOrbit.com and to use the executable object code version of the software located thereon, and also including such versions, updates, enhancements, modifications, and additions, and also associated documentation, as may be made available by AppOrbit in its discretion from time to time. You may use such Beta Software solely for Your internal, non-productive business purposes, and solely: (a) to evaluate the technical and commercial viability of the Beta Software; (b) to evaluate the reliability and functionality of the Beta Software in a working environment; (c) to determine whether the features of the Beta Software perform as designed and are useful; (d) to determine whether the Beta Software will work for its intended purpose; and (e) to create and provide to AppOrbit suggestions and technical feedback regarding the Beta Software, including suggestions regarding viability and functionality of the Beta Software. Such testing shall be deemed the “Beta Test” hereunder. Except as and only to the extent expressly permitted in this Agreement, You shall not use, sublicense, sell, assign, convey, transfer, disclose, publish, display, copy, duplicate, adapt, merge, embed, disassemble, reverse engineer, reverse compile, reverse assemble or otherwise attempt to obtain or disclose any information contained in the Beta Software or the Beta Test Materials (as defined below). Without limiting the generality of the foregoing, You shall not use the Beta Software to enable, support or otherwise aid the development of technology competitive with the Beta Software or any software embedded therein.

Proprietary Rights and Ownership.

A. Proprietary Rights. You acknowledge and agree that the Beta Software is being and will be developed by and on behalf of AppOrbit at great expense to AppOrbit, that the Beta Software and all reports, evaluations, surveys and other information and materials evidencing or relating thereto or to the Beta Test, including but not limited to the nature and results of the Beta Test (collectively, the “Beta Test Materials”) shall be considered Confidential Information for purposes of Section 3 (“Confidential Information”), and that AppOrbit has and will have exclusive proprietary and other rights in the Beta Software and Beta Test Materials, including without limitation any and all worldwide patent, copyright, trademark, trade secret and other intellectual property rights, however and wherever arising (collectively, the “Proprietary Rights”). You acknowledge and agree that: (a) no title or ownership of the Beta Software or Beta Test Materials is transferred to You by this Agreement; (b) the Beta Software, Beta Test Materials and all Proprietary Rights therein are and shall remain the exclusive property of AppOrbit; and (c) except for the license expressly granted by this Agreement, You shall not have any right or interest in the Beta Software or Beta Test Materials.

Ownership. You shall not make any claim or representation of ownership, or act as the owner, of any of the Beta Software or Beta Test Materials or permit or facilitate the performance of any act that is inconsistent with or in violation of this Agreement. You shall reproduce and include all proprietary, confidentiality, trade secret and other notices on any copies of the Beta Software and Beta Test Materials and on any portion thereof, and shall not remove, alter, cover or obscure any such notice, nor permit any of the same. AppOrbit shall be free to use and disclose, and to authorize others to use and disclose, without any obligation to You or any third party, any contributions, suggestions, modifications, derivative works, additions or the like that are made in whole or in part by You hereunder to, of, or with respect to, any of the Beta Software or Beta Test Materials.

Confidential Information. Both during and after the term of this Agreement, You shall keep strictly confidential, and not disclose or use other than as expressly permitted by this Agreement, any non-public information of AppOrbit or provided by AppOrbit, including without limitation the Beta Software or Beta Test Materials themselves (collectively, “Confidential Information”). You shall advise all persons who have access to the Confidential Information of the confidential nature thereof, and of the restrictions imposed by this Agreement. You shall limit access to the Confidential Information to such a limited number of Your employees as is necessary for the Beta Test. You shall cause such employees to protect the confidentiality of the Confidential Information consistent with Your obligations hereunder, and shall fully indemnify, defend and hold harmless AppOrbit against any failure by such employees to do so.

Use Restrictions. Licensee shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create Derivative Works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or the Documentation; or (v) knowingly introduce any virus or malicious code into the Software.

Benchmarking.You may use the Software to conduct internal performance testing and benchmarking studies. You may only publish or otherwise distribute the results of such studies to third parties, only if AppOrbit has reviewed and approved of the methodology, assumptions and other parameters of the study (please contact AppOrbit at support@apporbit.com to request such review and approval) prior to such publication and distribution.

Responsibilities of You. During the term of this Agreement, You shall, at no charge to AppOrbit: (a) provide a supportive environment that allows for the free exchange of comments and information between Your employees and AppOrbit; (b) provide a technical support employee who is conversant with the computer equipment to which the Beta Software is connected to assist in problem resolution; (c) assist AppOrbit in recreating and defining Beta Software and Beta Test Materials problems; (d) document problems, comments and suggestions on the forms prescribed by AppOrbit; and (e) install and use with the Beta Software and Beta Test Materials all versions, updates, enhancements, modifications and additions that AppOrbit provides to You as part of the Beta Software and Beta Test Materials.

Reporting Methods.During the term of this Agreement, You shall from time to time report to AppOrbit with respect to the conduct and outcome of the Beta Test, as may be agreed to by You and AppOrbit. The foregoing may include: (a) written Beta Test reports, based on a form and format agreed to by You and AppOrbit; (b) interviews, to be conducted by telephone, email, or in person, and designed to gather information regarding the Beta Test; (c) telephone conferences between personnel of AppOrbit and You, to be conducted on either a pre-scheduled or an ad hoc basis, as agreed to by You and AppOrbit; and (d) such other reasonable methods as AppOrbit may prescribe.

Term. Your rights with respect to the Beta Software will terminate upon the earlier of (a) the initial commercial release by AppOrbit of a generally available version of the Beta Software or (b) 120 days following the effective date of this Agreement. Either AppOrbit or You may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Upon any expiration or termination of this Agreement, the rights and licenses granted to You under this Agreement shall immediately terminate, and You shall immediately cease using the Beta Software, any documentation, and all other tangible items in Your possession or control that are proprietary to or contain Confidential Information. Such expiration or termination shall not relieve You of any of Your obligations to AppOrbit existing at the time of expiration or termination.

No Commercial Release. The parties acknowledge and agree that this Agreement does not constitute and is not intended to be a license of any commercial release of any AppOrbit software or any invention developed during the Beta Test.

Disclaimer. IT IS UNDERSTOOD THAT THE BETA SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED EVALUATION ONLY. THE BETA SOFTWARE, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. APPORBIT DOES NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL, WARRANTIES WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR ARISING BY USAGE OF TRADE OR COURSE OF DEALING, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE AND UNDERSTAND THAT: (a) THE BETA PRODUCT AND BETA TEST MATERIALS ARE STILL IN DEVELOPMENT, ARE EXPERIMENTAL IN NATURE, AND WILL BE UNDERGOING TESTING; (b) THE OPERATION THEREOF WILL NOT BE UNINTERRUPTED OR ERROR-FREE; AND (c) THAT ANY RESEARCH OR DEVELOPMENT THAT YOU PERFORM REGARDING THE BETA SOFTWARE OR ANY PRODUCT ASSOCIATED WITH THE BETA SOFTWARE IS DONE ENTIRELY AT YOUR OWN RISK. SPECIFICALLY, THE BETA SOFTWARE MAY CONTAIN FEATURES, FUNCTIONALITY OR MODULES THAT WILL NOT BE INCLUDED IN THE PRODUCTION VERSION OF THE BETA SOFTWARE, IF RELEASED, OR THAT WILL BE MARKETED SEPARATELY FOR ADDITIONAL FEES.

Damages. APPORBIT SHALL NOT BE LIABLE FOR ANY: (a) ECONOMIC, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER CLAIMED UNDER CONTRACT, INDEMNITY, TORT OR ANY OTHER LEGAL THEORY; (b) LOSS OF OR DAMAGE TO YOUR DATA OR PROGRAMMING; OR (c) COMPUTER SOFTWARE OR HARDWARE INTERRUPTION OR MALFUNCTIONS. IN NO EVENT SHALL THE LIABILITY OF APPORBIT UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE BETA PRODUCT OR THE BETA TEST MATERIALS EXCEED FIFTY DOLLARS ($50), REGARDLESS OF THE CAUSE OF ACTION.

Contacts.If you have any questions about this Agreement, or if you want to contact AppOrbit for any reason, please send all correspondence to info@AppOrbit.com.

Entire Agreement. This Agreement constitutes the entire agreement between You and AppOrbit with respect to the subject matter hereof and supersedes all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all other communications between You and AppOrbit. This Agreement may not be released, discharged, changed or modified other than in accordance with its terms except by an instrument in writing signed by a duly authorized representative of each of the parties hereto.

Remedies. All rights and remedies conferred under this Agreement or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently.

Choice of Law and Jurisdiction. This Agreement shall be governed by and construed under and pursuant to the laws of the State of California, exclusive of the laws relating to conflict of laws. The State and Federal courts located in Santa Clara County, California, shall have exclusive jurisdiction over any dispute arising hereunder, and the parties hereby consent to the personal jurisdiction of such courts. The United Nations Convention for Contracts for the International Sale of Goods shall not apply to this Agreement.

No Assignment. You may not assign, sell, convey, sublicense or otherwise transfer the Beta Software, Beta Test Materials, any component thereof or any right or interest therein, this Agreement, or any of Your rights or obligations under this Agreement, to any other party, either voluntarily or involuntarily, directly or indirectly, whether by operation of law or otherwise. For purposes of this Agreement, any merger, consolidation, or direct or indirect change in control of You shall be deemed an assignment. Any assignment in violation of the terms hereof shall be void and of no force or effect.

Severability. If any term, clause or provision of this Agreement shall be judged invalid for any reason whatsoever by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to have been modified, to the extent necessary to make it valid and enforceable or, if such term, clause or provision cannot be so modified, it shall be deemed deleted from this Agreement.

No Waiver. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

Survival. Notwithstanding the termination or expiration of this Agreement or otherwise, the provisions of Section 2 (“Proprietary Rights and Ownership”), Section 3 (“Confidential Information”), Section 6 (“Term”), Section 7 (“No Commercial Release”), Section 8 (“Disclaimer”), Section 9 (“Damages”), Section 10 (“Contacts”), Section 11 (“Entire Agreement”), Section 12 (“Remedies”), Section 13 (“Choice of Law and Jurisdiction”), Section 15 (“Severability”), Section 16 (“No Waiver”), Section 17 (“Survival”) and Section 18 (“Injunctive Relief”) shall survive.

Injunctive Relief. You acknowledge that because of the confidential and proprietary nature of the Beta Software and Beta Test Materials, neither termination of this Agreement, arbitration, nor an action at law would be an adequate remedy for a breach by You of this Agreement. Accordingly, You agree that, in the event of such breach, AppOrbit and its licensors will be irreparably harmed and, in addition to all other remedies which AppOrbit or its licensors may have, AppOrbit and its licensors shall be entitled to relief in equity, including a temporary restraining order, temporary or preliminary injunction, and permanent mandatory or prohibitory injunction to restrain the continuation of any such breach or to compel compliance with the provisions of this Agreement without the necessity of proof of actual damage.