ABCI Software Field Trials
Terms & Conditions of Use
This is an agreement made between Access Business Communications, Inc., a California corporation, having offices 16835 Algonquin Street, Unit 236, Huntington Beach, California 92649 (“ABCI”) and "You" (Licensee) who clicks on the Accept Link at the bottom of this page completes the OPTION IN form on the page that will appear after accepting the terms of the agreement contained herein.
- Licensee has or intends to deploy ABCI software, computer software application published by ABCI.
- ABCI wants to complete testing of the software program (known as a "Beta" or “Controlled Release” version of software) and any supporting documentation, provided by ABCI to Licensee .
- Licensee agrees to accept the Controlled Release Product at its site(s) before ABCI releases the market version and Licensee is willing to provide ABCI with on-site test data and feedback if rquested.
- Licensee agrees to field trial the software without any expectation of compensation.
RECITALS
NOW, THEREFORE, in consideration of the mutual promises and agreements hereinafter contained, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.0 General
1.1 Effective Date. This Agreement will become effective, as of
the date first set forth below, upon its execution by ABCI and
Licensee (the “Effective Date”).
1.2 Delivery of Controlled Release, or Controlled Release Product.
Tentative delivery dates for the Controlled Release Product are set
forth on October 1, 2010 via electronic download from an ABCI
website (TBA).
2.0 Use of Software
2.1 Location. Licensee will use the Controlled Release Product
only at Licensee’s site(s).
2.2 Problems. Licensee will report to ABCI via Email
(sherlock@abci-software.com) or telephone (800-675-2415) problems
that may arise in installing and using the Controlled Release
Product. At ABCI’s request, Licensee or their employees using ABCI’s
Controlled Release Product may be asked to complete a report in an
evaluation as part of a test plan or a report on any problems and
the resolution of the problems for ABCI’s and Licensee’s records.
ABCI will work with the Licensee to try to resolve problems related
to the operation of the Controlled Release Product without any
charges or fees for the resolution.
3.0 Publicity
Subject to the prior approval of Licensee, Licensee may agree to act as a reference account for ABCI and to allow ABCI, and subject to Licensee’s security requirements, to use Licensee’s name for such reference, to interview Licensee’s personnel and publish their comments regarding the Controlled Release Product.
4.0 License Restrictions
Licensee shall have no right to copy (except for one (1) back up copy), modify or create derivative works of the Controlled Release Products nor to reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from the Controlled Release Product. In addition, Licensee shall not without the prior written consent of ABCI: (i) sublicense, distribute, sell, lend, rent, lease, transfer, or grant any rights in or all or any portion of the Controlled Release Product; or (ii) transfer or reexport, directly or indirectly, the Controlled Release Product to any person or entity outside of the United States.
5.0 Ownership
All patents, patent applications, inventions, copyrights, mask works, trade secrets, and other proprietary rights in or related to the Controlled Release Product and any modifications, improvements, reports, designs, inventions, specifications or other materials developed in connection with Licensee’s use of the Controlled Release Product and all intellectual property rights therein, whether prepared by ABCI or Licensee (collectively, “Developments”) are and will remain the exclusive property of ABCI. Licensee will not contest ABCI’s rights in the Developments or in any other proprietary rights or acquire any right in the Controlled Release Product and any Developments except the evaluation rights and limited license described in Sections 3 and 4. ABCI will also own all rights in any copy, translation, modifications, adaptations, or derivation of the Controlled Release Product. Licensee shall not remove, alter or obscure any proprietary notices contained on or within the Controlled Release Product and shall reproduce such notices on any back-up copy of the Controlled Release Product.
6.0 Confidentiality
Licensee agrees that neither it nor any of its employees will use for their own account (except as expressly permitted under the license granted in Section 1 or as agreed to by ABCI in accordance with the provisions of Section 3) or for the account of any third party or disclose to any third party (i) the Controlled Release Product, (ii) any information regarding the content, purpose, design or function of the Controlled Release Product, (iii) any know-how, technical data or other information relating to the Controlled Release Product or the business of ABCI, including, but not limited to, that which is related to research, product plans, products, services, customers, markets, developments, inventions, processes, marketing or finances, or (iv) the Developments, that are disclosed to Licensee by ABCI, all of which such information constitutes “Confidential Information” as defined herein.
7.0 Disclaimer of Warranty
7.1 No Warranty. Licensee acknowledges that the Controlled Release Product (1) may include errors or omissions, and (2) will be made available under this Agreement “AS IS”. ANY WARRANTY, CONDITION, REPRESENTATION, INDEMNITY, OR GUARANTEE, WHETHER EXPRESSED OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENT, BY ABCI OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OF FITNESS FOR PARTICULAR PURPOSE OR OF ERROR-FREE OR UNINTERRUPTED USE OR NONINFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED, AND DISCLAIMED.
8.0 Limitations of Liability
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY, IN CONTRACT, TORT, OR OTHERWISE, FOR ANY ACTUAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGE, INJURY, COST, OR EXPENSE, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DEATH, PROPERTY DAMAGE, AND LOSS OF DATA, LOSS OF SYSTEM AVAILABILITY, LOSS OF COMPUTER RUN TIME, USE, OR PROFITS) WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
9.0 Term and Termination
9.1 Term. This Agreement shall commence on the effective date
and, unless terminated earlier in accordance with either Section 9.2
or 9.3, shall continue until such time that ABCI makes a general
release of the Controlled Release Product.
9.2 Termination for Convenience. Either ABCI or Licensee may
terminate this agreement upon written notice to the other party at
any time after the Effective Date.
9.3 Termination for Breach. ABCI may terminate this Agreement
immediately upon written notice to Licensee in the event Licensee
breaches Section 5 (Ownership), or Section 6 (Confidentiality).
9.4 Termination Procedures. Within ten (10) days of termination of
this Agreement, Licensee shall return to ABCI all copies of the
Controlled Release Product and any related materials.
9.5 Survival. Notwithstanding termination of all or part of this
Agreement, the following provisions shall survive: Section 5
(Ownership); Section 6 (Confidentiality); Section 7 (Disclaimer of
Warranty); and Section 8 (Limitation of Liability). The obligations
of Licensee under Section 6 (Confidentiality) will survive the
expiration or termination of this Agreement for a period of five (5)
years.
10.0 Miscellaneous
10.1 Assignment. Except as otherwise contemplated above, Licensee
may not assign, delegate or otherwise transfer this Agreement or any
of its rights or obligations without the prior written approval of
ABCI.
10.2 Severability. If any provision of this Agreement is held to be
unenforceable, in whole or in part, such holding will not affect the
validity of any other provisions of the Agreement, unless ABCI
determines the unenforceable provisions to be essential to this
Agreement, in which case ABCI may terminate this Agreement,
effective immediately upon written notice to Licensee.
10.3 Governing Law. This Agreement will be governed by and
interpreted in accordance with the laws of the state of California,
excluding its conflict of law principles. Any controversy or claim
arising out of or relating to this Agreement (other than any
controversy or claim relating to the ownership of any intellectual
property), or the breach thereof, shall be settled by arbitration in
Orange County, California in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and
judgement upon the award rendered by the Arbitrator(s) may be
entered in any Court having jurisdiction thereof. Notwithstanding
the foregoing, either party may apply to any court of competent
jurisdiction for injunctive relief without breach of this
arbitration provision.
10.4 Entire Agreement. This Agreement and its Exhibits constitute
the complete and entire statement of all terms, conditions, and
representations of the Agreement between ABCI and Licensee with
respect to its subject matter.
- No I Don't Agree or Accept the Terms of Use
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- Yes I Agree and Accept All of the Above Terms of Use