Coria Beta Software Agreement

Note: BY CLICKING “I AGREE,” AND/OR BY ACCESSING, DOWNLOADING, INSTALLING, SHARING, ARCHIVING, BACKING UP OR USING THE SOFTWARE, YOU ARE EXECUTING AND AGREEING TO THIS BETA LICENSE AGREEMENT (“AGREEMENT”) IN A LEGALLY BINDING MANNER WITH CORIA INC., 795 CONGRESS STREET, PORTLAND ME 04102 (“Licensor”). IF YOU HAVE SPECIFIED IN CONNECTION WITH THE SIGNUP PROCESS FOR THIS SOFTWARE BETA TEST PROGRAM THAT YOU ARE ACTING ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, YOU REPRESENT THAT YOU ARE AUTHORIZED TO LEGALLY BIND SUCH ORGANIZATION AND THAT YOU ARE CONCLUDING THIS AGREEMENT ON BEHALF OF SUCH ORGANIZATION. IN THIS AGREEMENT, THE TERMS “YOU” AND “LICENSEE” SHALL REFER, JOINTLY AND SEVERALLY, TO YOU INDIVIDUALLY AND ANY ORGANIZATION ON WHOSE BEHALF YOU ARE ACTING.

If you do not agree to the terms of this beta license Agreement, then do *not* click “I AGREE,” access, download, install, upload, copy or use the Software. WHEREAS Licensor has developed Pulse Analytics, including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material (the "Software");

WHEREAS Licensor desires that the Software be tested prior to general release;

WHEREAS Licensee wishes to serve as a Beta tester and/or Beta testing site for the Software.

NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, the parties agree as follows:

1. License grant. Licensor grants to Licensee a non-exclusive, revocable, non-transferable, royalty-free, non-assignable, non-sublicensable license to use the Software on a test instance or in a test environment solely for Beta testing and Beta use to determine whether or not to subsequently license the commercial version thereof if and when such becomes available, and to copy the Software for archival or backup purposes (the “License”).

2. Beta use and feedback. In consideration for receiving a copy of the Software for testing, Licensee agrees to serve as a Beta tester or Beta-site for the Software and to notify Licensor of all problems, issues and ideas for enhancements which come to Licensee's attention during the period of this Agreement, and hereby assigns to Licensor all right, title and interest to such enhancements and all property rights therein including without limitation all patent, copyright, trade secret, trademark, moral right or other intellectual property rights. Licensee agrees to provide material, statistics, or information that is not deemed confidential to Licensee’s business for use in press releases, customer testimonials, and as a reference in marketing and sales initiatives by Licensor. Upon request, Licensee will provide a quote to Licensor that may be used in a press release.

3. License limitation. Licensee agrees that the Software is the sole property of Licensor and includes valuable trade secrets of Licensor. Licensee agrees to treat Software as confidential and will not, nor permit any third party, to:

3.1 Demonstrate, copy, sell or market Software to any third party; or
3.2 Publish, sublicense, rent or otherwise disclose information relating to performance or quality of the Software to any third party; or
3.3 Modify, reuse, disassemble, decompile, reverse engineer, translate, or otherwise reduce to human perceivable form the Software or any portion thereof. Without limiting the generality of the foregoing, Licensee shall not use or rely on the Software for Licensee’s product development or any for other commercial purpose, including, but not limited to sales or marketing activities.

4. Ownership. Licensor owns and retains all right, title and interest in and to the intellectual property rights in the Software and any derivative works thereof, subject only to the limited license expressly set forth in Section 1 hereof. Licensee does not acquire any other rights, express or implied, in the Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO LICENSOR.

5. Compliance with third party licenses. Other than as specifically set forth in this Agreement, Licensor grants Licensee no other right, title or interest to or in any other property, product or software whatsoever. Licensee agrees and warrants to Licensor that it has and maintains all necessary licenses and rights in third party software necessary to use the Software, and shall indemnify Licensor for and against any third party claim associated with or resulting from Licensee’s use of the Software.

6. Beta software. Software is prerelease code and is not at the level of performance or compatibility of a final, generally available product offering. Software may not operate correctly and may be substantially modified prior to first commercial shipment, or withdrawn. Software is provided "AS IS" without warranty of any kind. The entire risk arising out of the use or performance of Software remains with Licensee. In no event shall Licensor be liable for any damage whatsoever arising out of the use of or inability to use Software, even if Licensor has been advised of the possibility of such damages.

7. No support. Licensor is under no obligation to support the Software in any manner or to provide any updates, maintenance or patches to Licensee. In the event Licensor, in its sole discretion, supplies any update to Licensee, the update shall be deemed to be Software under this Agreement and shall be subject to the terms and conditions of this Agreement.

8. LIMITATION OF LIABILITY. IT IS UNDERSTOOD THAT THE SOFTWARE IS PROVIDED WITHOUT CHARGE FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS AGREEMENT. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF LICENSOR AND ITS LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $1.00. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR OR ITS PRINCIPALS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION, TORT, STATUTE, CONTRACT OR OTHER), EVEN IF LICENSOR AND ITS PRINCIPALS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE VARIOUS CONSIDERATIONS DUE TO LICENSOR IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT WERE TAKEN INTO ACCOUNT IN DETERMINING THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION. LICENSEE ACKNOWLEDGES AND AGREES THIS LIMITATION IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

9. WARRANTY DISCLAIMER. IT IS UNDERSTOOD THAT THE SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO THE PRECEDING SECTION, THE SOFTWARE, DOCUMENTATION, AND ANY UPDATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO SECTION 5, LICENSOR AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. Licensee acknowledges that Licensor has not publicly announced the availability of the Software, that such Beta Software may contain features currently under development, that Licensor has not promised or guaranteed to Licensee that such Software will be announced or made available to anyone in the future, that Licensor has no express or implied obligation to Licensee to announce or introduce the Software, that Licensor may not introduce a product similar to or compatible with the Software, and that any version number (if any) referenced is subject to change and does not in any way represent Licensor’s commitment to release any product in the future. Accordingly, Licensee acknowledges that any research or development that it performs regarding the Software or any product associated with the Software is done entirely at Licensee’s own risk. Specifically, the Software may contain features, functionality or modules that may not be included in the generally available commercial version of the Software, if released, or that will be marketed separately for additional fees.

10. Term and termination. Unless otherwise terminated as specified under this Agreement, Licensee’s rights with respect to the Software will terminate upon the earlier of (a) the initial commercial release by Licensor of a commercially available version of the Software or (b) six months following download of the Software from Licensor to Licensee. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Licensee agrees that this Agreement will automatically terminate without notice in the event Licensee discloses the Software or breaches any term of this Agreement. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will destroy or render practically inaccessible the Software, any backups thereof, and all other tangible items in Licensee’s possession or control obtained from Licensor.

11. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the United States of America and of the State of Maine. Any notice required by this Agreement shall be given by prepaid, first class, certified mail, return receipt requested to above address or such other address as may be given from time to time under the terms of this notice provision.

12. Export Regulations. The Software is of United States origin and is provided subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, Licensee agrees that (1) it is not, and is not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (2) it is not, and is not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) it will not use the Beta Software for, and will not permit the Software to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.

13. General terms. This Agreement constitutes the entire and only agreement between the parties for Software and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties. Licensee shall comply with all applicable federal, state and local laws, regulations, and ordinances in connection with its activities pursuant to this Agreement. Failure of Licensor to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved. If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.

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