Beta Test License Agreement

GENERAL TERMS & CONDITIONS

1. Haivision is the owner of certain applications, software, and hardware products, including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material.
2. “Application” means the beta test software application made available to Licensee at Haivision’s discretion, including modifications, enhancements, improvements, updates, additions, or bug fixes; and any documentation in whatever form or on any medium regarding its use and any information relating to said Application.
3. Haivision desires that the Application be tested prior to general release.
4. Licensee wishes to serve as a Beta test site for such Application.

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

1. Haivision grants to Licensee a non-exclusive, non-transferable, non-assignable license to use the Application solely for Beta testing and Beta use from effective date of agreement to 15 days after official release date of the products(s), subject to the term and conditions below. Licensee shall not (i) cause the Application in any way to be disassembled, decompiled, or reverse engineered, nor undertake or permit any attempt to do so; (ii) copy, translate, port, modify, enhance or make derivative work of the Application; or (iii) act as a service bureau with respect to the Application.
2. This Agreement is not a sale of the Application or any copy thereof. Licensee acknowledges and agrees that Haivision and its licensors are the owners of all right, title and interest in and to the Application, including, without limitation, any and all patents, copyrights, trademarks and trade secrets applicable thereto, and Licensee shall neither obtain nor claim any ownership interest therein. Licensee agrees and acknowledges that the Application contains the valuable trade secrets of Haivision and its licensors, which have been developed over many years, and Licensee shall not obscure, alter or remove any patent, copyright, trademark or other proprietary marking or legend contained on or in the Application. Haivision reserves all rights not expressly granted herein.
3. In consideration for receiving a copy of the Application for testing, Licensee agrees to serve as a Beta site for the Application and will notify Haivision of all problems and ideas for enhancements which come to Licensee’s attention during the period of this Agreement, and hereby assigns to Haivision all right, title and interest to such enhancements and all property rights therein including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights. Haivision may, in its sole discretion, discontinue the Beta test program or the Beta test for any particular Beta test software for any reason or no reason at any time and said discontinuation shall terminate this license with regard to any and all affected Application upon written notice to Licensee.
4. Licensee acknowledges and agrees that Haivision shall have no obligation to provide technical support for the Application. Haivision may, in its sole discretion, provide updates for the Application to Licensee under this Agreement.
5. While Haivision’s current intent is to develop and generally release a commercial version of any Application involved in a Beta test, Haivision does not commit, promise or agree to finally release and/or offer for sale a commercial version of the Application. Further, if a commercial version of this Application is developed or released, there is no guarantee that such commercial version shall (i) in any way resemble or otherwise be compatible with the Application or any portion thereof provided hereunder, including but not limited to lack of media compatibility or software interoperability; or (ii) not require reestablishment of all settings, reactivation of all users, or reinstallation of all software. Haivision reserves the right to unilaterally cease and abandon any efforts to release a commercial version of the Application at any time and for any reason, without any obligation or liability whatsoever.
6. NO WARRANTY. BECAUSE OF THE PRE-COMMERCIALIZATION STAGE OF THE APPLICATION, APPLICATION IS PROVIDED TO LICENSEE “AS IS” WITH ALL FLAWS. LICENSEE ACKNOWLEDGES BY ENTERING INTO THIS AGREEMENT THAT HAIVISION PROVIDES NO WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE APPLICATION. HAIVISION SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON INFRINGEMENT AND WILL NOT BE HELD LIABLE IN ANY WAY FOR THE QUALITY, PERFORMANCE, ACCURACY, BEHAVIOR, COMPATIBILITY, RELIABILITY OR USE OF THE SOFTWARE AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE IS HEREBY DISCLAIMED. HAIVISION DOES NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
7. LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES. LICENSEE AGREES THAT NEITHER HAIVISION SHALL BE LIABLE FOR ANY LOSS OR DAMAGE THAT MAY ARISE IN CONNECTION WITH THE FURNISHING, PERFORMANCE OR USE BY LICENSEE OF THE APPLICATION, INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUES, DATA AND/OR USE, OR ANY LOSS OR DAMAGE DUE TO OR DELAY IN PERFORMANCE OF OBLIGATIONS TO THIRD PARTIES) EVEN IF HAIVISION IS ADVISED OF THE POSSIBILITY THEREOF. LICENSEE ASSUMES ALL RISKS OF USING THE SOFTWARE IN A PRODUCTION CONTEXT.
8. Customer Data. “Customer Data” means (a) the Content; (b) Customer’s Confidential Information and (c) Customer’s Personal Data. Licensee hereby grants to Haivision, during the Beta testing period, a non-exclusive, non-sublicensable, non-transferable, revocable and royalty-free right and license to access, use, modify, translate, copy, exhibit, publish, transmit and distribute the Customer Data consistent with the Haivision Privacy Policy available at https://www.haivision.com/legal/technology-privacy-policy/ as required to provide Licensee with the Application and to exercise its legal rights.
9. Licensee hereby acknowledges that, in the course of performing its obligations hereunder, it will be receiving Proprietary information. Licensee understands and agrees that the Application is confidential Proprietary Information and a trade secret of Haivision and may be the subject of one or more patent applications, now or in the future. Licensee agrees to use efforts at least commensurate with those employed by Licensee for the protection of Licensee’s own confidential information, and in no event less than reasonable efforts, to preserve the confidentiality and prevent the misuse of the Application including, without limitation, its design structure or performance specifications, its features and functionalities, its source code, the existence of the beta test and its results, pricing and/or contract terms and conditions to any third party. Licensee shall take all reasonable steps to restrict access to the Application to those of Licensee’s employees or independent contractors who are each directly engaged in the Application evaluation contemplated by this Agreement and who are each contractually bound to protect the Application in accordance with this Agreement. Licensee shall be fully responsible for the actions of Licensee’s employees and independent contractors with respect to the Application. Licensee shall promptly notify Haivision in writing of any use or disclosure of confidential information in violation of this Agreement.
10. Licensee’s participation under this Agreement does not constitute an obligation or commitment to purchase/license any commercial version of the Application if ever released or offered for sale by Haivision.
11. This Agreement shall be governed, construed and enforced in accordance with the laws of State of Delaware.
12. This Agreement constitutes the entire and only agreement between the parties for the Application 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.
13. Licensee shall comply with all applicable federal, state and local laws, regulations, and ordinances in connection with its activities pursuant to this Agreement.
14. Failure of Haivision 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.
15. 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.