Terms of Service

BETA

 

 

1. DEFINITIONS

  • Affiliates means (a) any entity controlling or controlled by either Party; and (b) any entity under common control with either Party, for so long as such common control continues to exist, where “control” means ownership either directly or indirectly of not less than 50% of the voting shares.
  • Agreement means this Alpha/Beta Testing License Agreement.
  • Client Data means data which the Client uploads, transmits or creates via the Pre-Release Software.
  • Confidential Information means any non-public information disclosed by either Party to the other Party in writing which is designated as “confidential” or “proprietary” (or with a similar legend), or which the receiving Party reasonably ought to know is confidential in light of the nature of the information or the circumstances of its disclosure. Even if not so marked, the Parties agree that (i) Client Data, (ii) any pricing information, (iii) any Service Order and (iv) the terms of this Agreement are Confidential Information.
  • Fees means the charge(s) payable by the Client to Biarri pursuant to this Agreement, as specified in a given Service Order.
  • Intellectual Property Rights means patents, copyrights, trade secrets, and other proprietary rights recognized in any jurisdiction worldwide, and all applications and registrations therefore.
  • Materials means all manuals, data, documents, and information which are prepared, written, made accessible, provided or developed by Biarri Networks or its licensors in connection with the Pre-Release Software, including help and support documentation.
  • Pre-Release Software means an initial pre-release of machine readable code owned by or licensed to Biarri Networks, and Upgrades thereto released during the term of the Agreement, and which is accessed and used by the Client, and regardless of whether the Pre-Release Software is hosted by Biarri Networks, the Client or a third party.
  • Service Order means the applicable order form for the provision of Pre-Release Software by Biarri Networks, whether in physical or electronic format, and any similar ordering document, delivered to or made available to Biarri Networks through a medium or channel approved by Biarri Networks, by which the Parties agree the particulars of the Client’s use of the Pre-Release Software.
  • Support Services means Biarri Networks’ technical support service available via email and phone communication.
  • Upgrades means any bug fixes, error corrections, modifications, updates, and new versions of the Pre-Release Software provided by Biarri Networks to its Clients at no additional charge.
  • User means all manuals, data, documents, and information which are prepared, written, made accessible, provided or developed by.

2. PRE-RELEASE SOFTWARE LICENSE, SUPPORT AND MAINTENANCE

  1. License. During the term of the applicable Service Order, Client may access and use Biarri Networks’ Pre-Release Software pursuant to the terms of this Agreement and any relevant Service Order. The Client acknowledges and agrees that Biarri Networks and its licensors own and retain all right, title and interest in and to the Pre-Release Software, including all Intellectual Property Rights therein. No transfer of any ownership rights in the (i) Pre-Release Software or (ii) Intellectual Property Rights occurs pursuant to this Agreement.
  2. Restrictions. Unless expressly authorized under this Agreement, Service Order, or by Biarri Networks in writing, the Client is not permitted to:
  1. reverse engineer, adapt, modify, create derivative works of, make additional copies of, separate, or develop the Pre-Release Software or facilitate or assist any such activity;
  2. integrate or link the Pre-Release Software with other software;
  3. sell or otherwise earn consideration by providing access to the Pre-Release Software;
  4. permit third party access to the Pre-Release Software (except as provided herein); or
  5. use the Pre-Release Software to assist a competitor of Biarri Networks in developing competing Pre-Release Software.
  1. Term of License. Biarri Networks will provide each Pre-Release Software license as described in an applicable Service Order for any period specified in a Service Order (the “Term”).
  2. Client Responsibilities.
  1. Confidentiality of Username and Password. The User is responsible for the confidentiality of the username and password used by its personnel to access the Pre-Release Software and agrees not to give its username or password to any third party.
  2. Accuracy of Data. The Client is entirely responsible for the content and delivery of Client Data, including without limitation, the accuracy, usefulness, timeliness, and completeness of Client Data.
  3. Feedback. Client agrees to communicate with Biarri Networks any suggestions, evaluation or testing results, problems, issues, comments, enhancement ideas or other feedback with respect to the Pre-Release Software (collectively, "Feedback").  Client also agrees to have its Users attend meetings (as reasonably requested by Biarri) with Biarri personnel with the intent for Biarri to gather Feedback about the Pre-Release Software.
  1. Biarri Networks, in its sole discretion, may or may not respond to your Feedback or promise to address all your Feedback in the development of future features or functionalities of the Pre-Release Software or any related or subsequent versions of such Pre-Release Software.
  2. In the event Biarri Networks uses your Feedback, you grant Biarri Networks an unrestricted, perpetual, worldwide, exclusive, transferable, irrevocable, sublicensable, royalty-free, fully paid-up license to use, copy, modify, create derivative works of, make, have made, distribute (through multiple tiers of distribution), publicly perform or display, import, export, sell, offer to sell, rent, or license copies of the Feedback as part of or in connection with any Biarri Networks product, service, technology, content, material, specification or documentation.
  1. Other Obligations. Client is responsible for compliance with this Agreement and any Service Order by its employees, contractors and agents and is liable for all their acts and omissions. The Client understands and acknowledges that Biarri Networks’ ability to provide the Pre-Release Software is dependent on the Client undertaking these obligations (or such reasonable obligations as may be advised to the Client by Biarri Networks). The Client acknowledges that failure to perform any such obligations may result in a failure to receive Pre-Release Software and/or additional costs being payable for the Pre-Release Software.
  1. Customer Support Services.  Client acknowledges that, due to the pre-release status of the Pre-Release Software, there may be defects or deficiencies that may make it unsuitable for use.  Biarri Networks will attempt to respond to email support questions as soon as reasonably practical. However, Client acknowledges and agrees that Biarri Networks shall have no obligation to provide technical support for the Pre-Release Software.
  1. Biarri Networks may limit or deny Client access to support if Biarri Networks determines, in their reasonable discretion, that the Client is acting, or have acted, in a way that results or has resulted in misuse of support or abuse of Biarri Networks representatives.
  1. Pre-Release Software Maintenance.  Client may request modifications to the Pre-Release Software, however, Biarri Networks will maintain the Pre-Release Software and its functionality at its absolute discretion.  Biarri Networks may provide Upgrades to the Pre-Release Software from time to time. If Biarri provides an Upgrade to the Pre-Release Software, Client must ensure all of its Users install and use the upgraded version as soon as is reasonably practical.
  2. This Section shall survive the termination of this Agreement.

3. FEES

  1. Client shall pay Biarri Networks the Fees for the Term as provided in the applicable Service Order.
  2. Taxes. All Fees specified in a Service Order exclude any foreign or domestic governmental taxes or charges of any kind that may be applicable to this Agreement. Client will (i) pay Biarri Networks applicable taxes (excluding Biarri Networks’ income taxes) listed on a relevant invoice and (ii) withhold all applicable local taxes, which may be in addition to the total Fees due on a Service Order.
  3. This Section shall survive the termination of this Agreement.

4. ACCEPTABLE USE OF THE SERVICES

  1. All Users must use the Pre-Release Software in accordance with this Agreement and in accordance with all applicable laws. Users must not use the Pre-Release Software in any fashion that would (or would assist others to):
  1. mislead, deceive, stalk, threaten, or harass another person or Party;
  2. make available any data that is unlawful, harassing, threatening, harmful, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful or racially or ethnically offensive;
  3. post or transmit (i) information that infringes or violates the rights of a third party, including the rights of privacy and publicity or (ii) unsolicited messages, junk mail, spam or chain letters or material that might be considered offensive;
  4. interfere with or disrupt the Pre-Release Software or cause or knowingly facilitate the spread of a virus, worm, Trojan horse, or other harmful object;
  5. collect or store personal data without permission;
  6. attempt to breach or circumvent Pre-Release Software security;
  7. violate any law; or
  8. undertake promotions or undertake commercial activity not connected with the business purposes the Pre-Release Software are intended to support.
  1. In order to provide the Pre-Release Software effectively and in accordance with applicable law and the Agreement, Biarri Networks may monitor and record a User’s use of the Pre-Release Software and the User authorizes Biarri Networks to collect, store and use all such information in line with the Privacy and Confidentiality provisions specified in this Agreement.

5. CONFIDENTIALITY

  1. Obligation. Both Parties acknowledge that the Confidential Information obtained by either Party pursuant to this Agreement may constitute valuable trade secrets of the disclosing Party. Each Party agrees to use Confidential Information solely in accordance with the provisions of this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party, without the other Party’s prior written consent. Each Party shall exercise the same degree of care as it takes to preserve and safeguard its own Confidential Information, but in any event, no less than a reasonable degree of care.
  2. Exceptions. Notwithstanding the foregoing, neither Party will be in breach of this provision in circumstances where (i) the Party is legally compelled to disclose the other Party’s Confidential Information; (ii) the Confidential Information is already information in the disclosing Party’s possession without a duty of confidentiality at the date of disclosure; (iv) the disclosing Party discloses the terms of this Agreement to its professional advisors, financiers, prospective financiers or partners or agents, (the “Related Parties”) (so long as the Related Parties (a) need to know the terms of this Agreement to comply with its obligations under this Agreement, or to receive the benefit of this Agreement and (b) are under contractual or professional obligations equivalent to those contained in this Section); (v) Biarri Networks discloses the fact that the Client is a client to potential clients; or (vi) the Confidential Information is independently developed by or for the receiving Party without any breach of the Agreement.
  3. Injunctive Relief. Notwithstanding the foregoing, if either Party breaches, or threatens to breach the provisions of this Agreement concerning their confidentiality or Intellectual Property Rights obligations, each Party agrees that the non-breaching Party will have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
  4. This Section shall survive the termination of this Agreement.

6. PERSONAL INFORMATION AND CLIENT DATA.

  1. Use of Personal Information. Client may disclose to Biarri Networks personal information in connection with the Client’s employees, directors, officers, customers or suppliers, and/or other users of the Pre-Release Software (“Personal Information”). Where the Client provides Personal Information to Biarri Networks, the Client is responsible for confirming that (i) its disclosure and/or provision of Personal Information to Biarri Networks, and (ii) Biarri Networks’ storage and/or use of such Personal Information is permissible under relevant Privacy Legislation.
  2. Protection of Personal Information. Biarri Networks will use commercially reasonable efforts to protect Personal Information from loss, destruction or unauthorized use or access, utilizing technical, physical and administrative security measures consistent with industry practice. Personal Information is not (i) data that is in any way created or extracted from Client Data with respect to a project or (ii) Client Data that the Client uploads or transmits via the Pre-Release Software.
  3. Privacy. Biarri Networks may collect Personal Information of the Client’s employees, agents and contractors with whom Biarri Networks has contact in business dealings and the Client acknowledges that Biarri Networks may use that information to perform Pre-Release Software under this Agreement, in accordance with Biarri Networks’ Privacy Statement, which is applicable to data received by Biarri Networks, and is available at www.biarrinetworks.com/privacy/.

7. SUSPENSION FOR BREACH.

  1. Biarri Networks may immediately suspend access to the Pre-Release Software if the Client commits a breach of this Agreement or Service Order.  In the case of a breach of payment obligations, Biarri Networks may further require all Fees to be payable in advance.

8. LIMITED WARRANTY AND DISCLAIMERS.

  1. Disclaimers. Client assumes all responsibilities for (i) selection of the Pre-Release Software to achieve Client’s intended results, (ii) the use of and results obtained from the Pre-Release Software, and (iii) taking appropriate measures to prevent loss of data.
  2. WARRANTY DISCLAIMER. THE PRE-RELEASE SOFTWARE IS PROVIDED “AS IS”. BIARRI NETWORKS DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE OR BY STATUTE OR IN LAW. BIARRI NETWORKS SPECIFICALLY DOES NOT WARRANT THAT THE PRE-RELEASE SOFTWARE WILL MEET YOUR REQUIREMENTS, THE OPERATION OR OUTPUT OF THE PRE-RELEASE SOFTWARE WILL BE ERROR-FREE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. Biarri Networks is not obligated to support, update or upgrade the Pre-Release Software.
  3. No Reliance. Biarri Networks has no obligations about any forward-looking statements made in connection with or in the course of providing the Pre-Release Software. Forward-looking statements are statements regarding future Biarri Networks events, product offerings, product performance, customer uses or the expected financial performance of Biarri Networks. Any such statements reflect current expectations and estimates based on factors currently known and that actual events or results could differ materially.  Biarri Networks does not assume any obligation to update any forward-looking statements made during the term of the License.  In addition, any information about the product  roadmap outlines the general product direction and is subject to change at any time without notice.  It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment.  Biarri Networks undertakes no obligation either to develop the features or functionality described in any forward-looking statement, or product roadmap, or to include any such feature or functionality in a future release. Client expressly acknowledges that the Pre-Release Software has not been fully tested and may contain defects or deficiencies which may not be corrected by Biarri Networks, and that the Pre-Release Software may undergo significant changes prior to release of the corresponding generally available final version.

9. LIMITATION OF LIABILITY

  1. Neither Party will be liable for any special, punitive, exemplary, indirect, consequential loss, losses that do not naturally arise from an event or breach, third party pure economic loss, or damages, loss of profit, interest, revenue, business, goodwill, savings, production, sales, opportunity, or anticipated profit or any loss of, or damage to any Client data, or loss of or interruption to business, in each case arising out of or in any way connected to the provision of the Pre-Release Software including, without limitation, loss or damage caused by a computer virus or other malware, and in each case regardless of whether either Party was advised of the possibility of such damages.
  2. To the maximum extent permitted by law, regardless of whether a claim arises in contract, tort (including negligence) or otherwise, under no circumstances will either Party’s (including its officers, employees, contractors, Affiliates and agents) aggregate liability be greater than the Fees paid or payable in an applicable Service Order.
  3. The limitation of liability under Section 9.2 shall not apply to a breach of the Parties' obligations with respect to Intellectual Property Rights, or indemnity requirements under this Agreement.
  4. This Section shall survive the termination of this Agreement.

10. INDEMNITIES

  1. Biarri Networks Indemnity. Biarri Networks shall defend or at its option settle any third party claim, action or proceeding brought against Client alleging that the Pre-Release Software as delivered to Client and used as authorized in this Agreement, infringes any Intellectual Property Right of a third party.
  1. Limit on Indemnity. Notwithstanding the foregoing, Biarri Networks will have no liability for infringement claims arising from:
  1. combination of the Pre-Release Software with other software or products not provided by Biarri Networks;
  2. the modification of the Pre-Release Software, in whole or in part, by anyone other than Biarri Networks; or
  3. use by Client of any specified release of the Pre-Release Software after Biarri Networks notifies Client that continued use may subject Client to such claim of infringement, provided Biarri Networks provides Client with a replacement release.
  1. Replacement Pre-Release Software. If any portion of the Pre-Release Software is held, or in Biarri Networks opinion is likely to be held, to infringe or misappropriate a third party’s Intellectual Property Rights, or use of the Pre-Release Software is otherwise enjoined, then as Client’s sole and exclusive remedy, Biarri Networks may at its sole option and expense, within a commercially reasonable period of time:
  1. procure for Client the right to continue using the Pre-Release Software;
  2. replace the Pre-Release Software with non-infringing software; or
  3. in the event that neither of the foregoing is reasonably practicable, terminate this Agreement and refund a reasonable portion of the Fees paid by Client with respect to the Pre-Release Software.
  1. Client Indemnity. The Client shall defend or, at its option, settle any third party claim, action or proceeding brought against Biarri Networks, any Biarri Networks Affiliate or any Biarri Networks related entity alleging that:
  1. the Client has breached any law or regulation in the use of the Pre-Release Software or the Client Data, or
  2. the Client has misused any Client Data or infringed any third party Intellectual Property Rights in the use of the Client Data.
  1. Indemnity Requirements.
  1. The indemnifying Party shall pay any final judgments awarded or settlements entered into for the indemnities described above (Biarri Networks Indemnity and Client Indemnity), provided that the indemnitee provides the indemnifying Party with:
  1. prompt written notice of a valid claim;
  2. sole control over the defense and settlement of such claim; and
  3. all reasonably necessary information and assistance (at the indemnifying Party’s expense) to defend and/or settle such claim.
  1. The indemnitee may participate in the defense of a claim asserted hereunder after the indemnifying Party has assumed the defense or settlement, provided that the indemnitee shall bear any legal fees and expenses or other costs it incurs in so participating. The indemnifying Party shall not be liable for any costs or expenses incurred by the indemnitee by acting without the indemnifying Party’s prior written authorization. The indemnifying Party may not settle or compromise any claim under this Section that requires the indemnitee to admit liability or pay any money without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld or delayed.
  1. This Section shall survive the termination of this Agreement.

11. TERMINATION

  1. Termination. Either Party may terminate this Agreement or any affected Service Order in the event that (i) either Party commits a material breach of this Agreement or applicable Service Order and where such breach is capable of remedy, fails to remedy the breach within 30 days of receiving written notice from the other Party; (ii) the Client’s access has been suspended under this Agreement and the Client has not taken the necessary action to restore access within a total of 30 days; (iii) the Client files for bankruptcy, goes into receivership, becomes insolvent, or makes an assignment for the benefit of creditors; (iv) the Client, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; or (v) there is a change of Control of Client. This Agreement will terminate automatically upon the commercial release (if any) of the Pre-Release Software. This is time-sensitive software, so it will stop functioning on the termination date.
  2. Payment in the Event of Termination. In the event that this Agreement or any Service Order is terminated pursuant to this Section, the termination does not (i) relieve Client of its obligation to pay all Fees that have accrued or are otherwise owed by Client under this Agreement or any Service Order, or (ii) limit either Party from pursuing other remedies available to it, including injunctive relief.
  3. Effect of Termination. Upon termination of this Agreement or any Service Order, the Client (i) immediately loses all rights to use or access the Pre-Release Software; (ii) must stop using the Pre-Release Software; and (iii) must return any Materials to Biarri Networks or comply with all directions of Biarri Networks for the destruction or return of the Materials. The Client must pay any and all outstanding Fees promptly following termination.

12. MISCELLANEOUS

  1. Force Majeure. Neither Party will be liable for any delay or default in performance of any obligation of this Agreement (except payment obligations) by either Party, to the extent that such delay or default is caused by force majeure or any other cause which is beyond a Party’s reasonable control including, natural disasters, strikes, accidents, government action or regulator changes, or acts of God. Performance under this Agreement will be postponed automatically if a Party is prevented from performing by any act of or failure to act by the other Party. If a delay or failure by a Party to perform its obligations under this Agreement exceeds 3 calendar months, either Party may immediately terminate the Agreement by providing notice in writing to the other Party.
  2. Entire Agreement. The documents comprising this Agreement, including any applicable Service Order(s), contain the entire agreement between the Parties concerning its subject matter. Amendments to a Service Order or this Agreement not expressly accepted in writing by an authorized Biarri Networks officer and/or Client’s standard terms and conditions (if any) attached to, enclosed with, or referred to in any purchase order shall not form part of the Agreement.
  3. Amendments to this Agreement. This Agreement may not be modified except in written agreement signed by authorized representatives of both Parties.
  4. No Reliance on Representations. The Client warrants that it has not relied on any representation, undertaking, statement, or understanding which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by Biarri Networks.
  5. Independent Contractor. Biarri Networks is not a party to any transactions Clients enter into with one another using the Pre-Release Software. Under this Agreement, Biarri Networks and its personnel will never be the employee, agent or partner of a Client, and is not engaged in a joint venture with a Client. Clients agree to waive, to the maximum extent possible, any and all rights they may have against Biarri Networks arising out of any transaction or dealings they conduct with another Client or third party through the Pre-Release Software.
  6. Assignment. Neither Party may assign this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; except that Biarri Networks may assign all or part of this Agreement to any Biarri Networks Affiliate on notice to the Client. However, if the assignee is a direct competitor of the Client and as jointly agreed in writing by the parties, the Client has rights to terminate this agreement with 30 days notice and no penalties for termination. Any attempted assignment in violation of this provision will be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
  7. Waiver. A right may only be waived in writing, signed by the Party giving the waiver, and no other conduct of a Party (including a (i) failure to exercise the right or (ii) delay in exercising the right) operates as a waiver of the right or otherwise prevents the exercise of the right.  A waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again and the exercise of a right does not prevent any further exercise of that right or of any other right.
  8. Severability. If any provision or part provision of this Agreement is held invalid, unenforceable or illegal by any court or tribunal for any reason, the Agreement will remain otherwise in full force apart from such provisions or part provisions which will be deemed deleted or modified to the minimum extent necessary to remove the invalidity, unenforceability or illegality.
  9. Client Reference. Biarri Networks may not issue any press release regarding the Client’s use of the Pre-Release Software without the prior written consent of the Client (not to be unreasonably withheld, delayed or conditioned). However, Biarri Networks may use the Client’s name and logo and refer to the fact that the Client is a client of Biarri Networks in its annual report, list of references or presentations to actual or potential clients without the Client’s consent.
  10. No Third Party Beneficiaries. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity any rights, remedies or other benefits as a third party beneficiary.
  11. Governing Law And Jurisdiction. This Agreement is governed by the laws of the state of Colorado and the Client submits to the non-exclusive jurisdiction of that state and waives any right it might have to claim that those courts are an inconvenient forum.
  12. Notice. A notice, consent or other communication under this Agreement is only effective if it is: (i) in writing, sent by or on behalf of and at the express instruction of the person giving it; (ii) sent via email or (iii) addressed to the person to whom it is to be given. Biarri Networks’ representative for notice will be “Biarri Networks Legal Team” and the email address is bn.legal@biarri.com.
  13. This Section shall survive the termination of this Agreement.