BitJazz Inc. License Agreements
Carefully read the following license agreement. By using all or any portion of the SheerVideo software, you accept and agree to be bound by this license agreement, just as you would for any other written document signed by you. If you do not agree to this license, do not Use the Software.
BY USING THIS SOFTWARE YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH SUCH TERMS AND CONDITIONS, DO NOT USE THE SOFTWARE.
This is an agreement, effective 1 February 2007, by and between BitJazz Inc., (the "Company") and you (the "Tester"), in which Tester agrees to test a software program known as SheerVideo Pro (the "Software") and keep the Company aware of the test results.
1. Company's Obligations: The Company shall provide the Tester with a copy of the Software and any necessary documentation and instruct the Tester on how to use it and the desired test data to be gained. The Tester agrees to spend at least 1 hour testing the Software and to email a report to the Company of his or her findings. Upon satisfactory completion of the testing, the Company shall offer the Tester a substantial discount on the production version of the Software, contingent upon the Company's decision to proceed with production of the Software. The Tester shall be entitled to the same benefits to which regular purchasers of the Software will be entitled.
2. Tester's Obligations: The Tester shall test the Software under the normally expected operating conditions in the Tester's environment during the test period. The Tester shall gather and report test data as mutually agreed upon with the Company.
3. Software a Trade Secret: The Tester acknowledges that the Software is proprietary to, and a valuable trade secret of, the Company, and is entrusted to the Tester only for the purpose set forth in this Agreement. The Tester shall treat the Software in the strictest confidence. The Tester agrees that he or she will not, without the Company's prior written consent:
4. Security Precautions: The Tester shall take reasonable security precautions to prevent the Software from being seen by unauthorized individuals.
5. Term of Agreement: The test period shall last from 1 February 2007, until 31 May 2007 or until the first production version of the Software is released, whichever is sooner. This Agreement shall terminate at the end of the test period or when the Company asks the Tester to destroy the Software, whichever occurs first. The restrictions and obligations contained in Clauses 3, 6, 7, 8 and 9 shall survive the expiration, termination or cancellation of this Agreement, and shall continue to bind the Tester, its successors, heirs and assigns.
6. Return of Software and Materials: Upon the conclusion of the testing period or at the Company's request, the Tester shall promptly (within 5 days) destroy the original and all copies of the Software and all related materials.
7. Disclaimer of Warranty: Tester understands and acknowledges that the Software is a test product and its accuracy and reliability are not guaranteed. Owing to its experimental nature, the Tester is advised not to rely exclusively on the Software for any reason. The Tester waives any and all claims it may have against the Company arising out of the performance or nonperformance of the Software.
THE SOFTWARE IS PROVIDED AS IS, AND THE COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability: The Company shall not be responsible for any loss or damage to the Tester or any third parties caused by the Software or by the Company's performance of this Agreement.
THE COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF THE SOFTWARE OR ANY PERFORMANCE OF THIS AGREEMENT.
9. No Rights Granted: The Tester understands and acknowledges that the Software is provided for his or her own use for testing purposes only. This Agreement does not constitute a grant or an intention or commitment to grant any right, title or interest in the Software or the Company's trade secrets to the Tester. The Tester may not sell or transfer any portion of the Software to any third party or use the Software in any manner to produce, market or support its own products. The Tester shall clearly identify the Software as the Company's property.
10. No Assignments: This Agreement is personal to the Tester. The Tester shall not assign or otherwise transfer any rights or obligations under this Agreement.
11. Entire Agreement: This Agreement contains the entire understanding and agreement of the parties relating to the subject matter hereof. Any representation, promise or condition not explicitly set forth in this Agreement shall not be binding on either party. All additions or modifications to this Agreement must be made in writing and must be signed by both parties to be effective.
12. This Agreement shall be governed by and construed in accordance with California law. Except as set forth below in Paragraph 13, all disputes and controversies arising hereunder shall be settled by arbitration in San Rafael, California in accordance with the rules then obtaining of the American Arbitration Association, and judgment upon any award granted through arbitration shall be final, conclusive and binding. The exclusive jurisdiction and venue of any action to confirm or enforce any award granted through arbitration shall be the Superior Court of California for the County of Marin, (if under state law), or the United States District Court for the Northern District of California (if under federal law). The prevailing party in the arbitration or any other action to enforce the terms of this Agreement shall be entitled to reasonable attorney fees, costs and expenses.
13. Notwithstanding anything to the contrary, including the Paragraph 12 above, each party recognizes and acknowledges that any breach or threatened breach of this Agreement by Tester may cause the Company irreparable harm for which monetary damages may be inadequate. Tester agrees, therefore, that the Company shall be entitled to an injunction to restrain the Tester from such breach or threatened breach, without having to go to arbitration. Nothing in this Agreement shall be construed as preventing the Company from pursuing any remedy at law or in equity for any breach or threatened breach of this Agreement.
Downloading and installing this Software indicates your acceptance of the foregoing agreement. If you choose to decline the foregoing agreement, you should not download or install the software.