Last updated June 01, 2023
This Beta Testing EULA is a legal agreement (hereinafter "Agreement") between Cuemby Cloud Platform, Inc., ("Cuemby ") and you, either an individual or a single entity, (hereinafter "End User"). This Agreement covers all Beta Software, the associated media, any printed materials, data, files and information and any "online" or electronic documentation ("Beta Software") which it accompanies. This Agreement takes precedence over any other agreement or terms that may be embedded within the Beta Software.
By clicking the "I accept the terms..." checkbox, by executing a written copy of this Agreement, or by installing, copying or otherwise using this Beta Software, End User agrees to be bound by the terms of this Agreement. If End User does not agree with any term or condition, do not download, order, open, install or use the Beta Software or product package. Contact Cuemby to arrange the return of the Beta Software and accompanying materials to Cuemby. In addition, certain third party code may be provided with the Beta Software and/or Service. The third-party license terms accompanying such code, and not the terms of this Agreement, will govern your use of such code.
The beta sotfware licensed here under may contain defects and a primary purpose of this beta testing license is to obtain feedback on beta software performance and the identification of defects. End user is advised to safeguard important data, including end user data stored with a third party, to use caution and not to rely in any way on the correct functioning or performance fo the beta software and/or accompanying materials.
It is expressly understood, acknowledged and agreed that End User shall, regardless of whether or not formally requested to do, provide to Cuemby reasonable suggestions, comments and feedback regarding the Beta Software, including but not limited to usability, bug reports and test results, with respect to Beta Software testing (collectively, "Feedback"). Contingent upon all of the terms and conditions herein and especially upon End User's obligations to provide Feedback, End User grants Cuemby, under all of End User's intellectual property and proprietary rights, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any Cuemby product, technology, service, specification or other documentation (individually and collectively, "Cuemby Products"); (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Cuemby Product; (iii) solely with respect to End User's copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and (iv) to sublicense to third parties any claims of any patents owned or licensable by End User that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the feedback or portion thereof incorporated into a Cuemby Product, technology or service. Further, End User warrants that End User's Feedback is not subject to any license terms that would purport to require Cuemby to comply with any additional obligations with respect to any Cuemby Products that incorporate any Feedback.
Subject to the terms and conditions of this Agreement, Cuemby grants to End User a non-exclusive, non-transferable license (without the right to sublicense) (i) to use the Beta Software in accordance with the Documentation, if any, solely for purposes of internal testing and evaluation, and (ii) to copy Beta Software for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies.
Except as otherwise specifically permitted in this Agreement, End User may not: (a) Modify or create any derivative works of any Beta Software or documentation, including translation or localization (code written to published APIs (application programming interfaces) for the Beta Software shall not be deemed derivative works); (b) Copy the Beta Software except as provided in this Agreement or elsewhere by Cuemby; (c) Separate Beta Software, which is licensed as a single product, into its component parts. (d) Sublicense or permit simultaneous use of the Beta Software by more than one user; (e) Reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for the Beta Software (except to the extent applicable laws specifically prohibit such restriction); (f) Redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to any Beta Software. You may NOT transfer the Beta Software under any circumstances; (g) Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product(s); (h) Publish any results of benchmark tests run on any Beta Software to a third party without Cuemby prior written consent; or (i) by more users than have been licensed, on more computers or computing devices than the number licensed, or by more developers than the number licensed, as applicable.
Cuemby is under no obligation to provide technical support under the terms of this license, and provides no assurance that any specific errors or discrepancies in the Beta Software will be corrected.
Title to the Beta Software and all copies thereof remain with Cuemby and/or or its suppliers. The Beta Software is copyrighted and is protected by United States copyright laws and international treaty provisions. End User will not remove copyright notices from the Beta Software. End User agrees to prevent any unauthorized copying of the Beta Software. Except as expressly provided herein, Cuemby does not grant any express or implied right to End User under Cuemby patents, copyrights, trademarks, or trade secret information.
The Beta Software is Confidential Information. End User will not disclose Beta Software or any comments regarding Beta Software to any third party without the prior written approval of Cuemby. End User will maintain the confidentiality of Beta Software with at least the same degree of care that you use to protect your own confidential and proprietary information, but not less than a reasonable degree of care under the circumstances. End User will not be liable for the disclosure of any Confidential Information which is: (a) in the public domain other than by a breach of this Agreement on End User's part; or (b) rightfully received from a third party without any obligation of confidentiality; or (c) rightfully known to End User without any limitation on use or disclosure prior to its receipt from Cuemby ; or (d) independently developed by End User's employees; or (e) generally made available to third parties by Cuemby without restriction on disclosure.
End User's rights with respect to the Beta Software will terminate upon the earlier of (a) the initial commercial release by Cuemby of a generally available version of the Beta Software. (b) the evaluation period specified in the product evaluation agreement between End User and Cuemby, if such an agreement exists, or any other such date as mutually agreed between the Parties. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Upon any expiration or termination of this Agreement, the rights and licenses granted to End User under this Agreement shall immediately terminate, and End User 1shall immediately cease using, and will return to Cuemby (or, at Cuemby ' request, destroy), the Beta Software, Documentation, and all other tangible items in End User's possession or control that are proprietary to or contain Confidential Information.
Provision of any Beta Software under this Agreement is experimental and shall not create any obligation for Cuemby to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop Software either to End User or to any other party.
THE BETA SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL CUEMBY OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, INCLUDING END USER DATA STORED WITH A THIRD PARTY, PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE BETA SOFTWARE, EVEN IF CUEMBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
END USER UNDERSTANDS AND AGREES THAT CUEMBY MAKES NO REPRESENTATION OR WARRANTIES REGARDING USE OF THE BETA SOFTWARE AND END USER SHALL HAVE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF ITS DATA, INCLUDING END USER DATA STORED WITH A THRID PARTY, OR EQUIPMENT USED IN CONNECTION WITH THE BETA SOFTWARE, AND END USER SHALL NOT CLAIM AGAINST CUEMBY FOR LOST DATA, INCLUDING END USER DATA STORED WITH A THRID PARTY , RE-RUN TIME, INACCURATE INPUT, WORK DELAYS OR LOST PROFITS RESULTING FROM THE USE OF THE BETA SOFTWARE PRODUCT.
As required by U.S. law, End User represents and warrants that it: (a) understands that the Beta Software is subject to export controls under the U.S. Commerce Department's Export Administration Regulations ("EAR"); (b) is not located in a prohibited destination country under the EAR or U.S. sanctions regulations (currently Cuba, Iran, North Korea, Sudan or Syria); (c) will not export, re-export, or transfer the Software to any prohibited destination, entity, or individual without the necessary export license(s) or authorizations(s) from the U.S. Government; (d) will not use or transfer the Beta Software for use in any sensitive nuclear, chemical or biological weapons, or missile technology end-uses unless authorized by the U.S. Government by regulation or specific license; and that it (e) understands and agrees that if it is in the United States and exports or transfers the Beta Software to eligible end users, it will, comply with all U.S. and foreign applicable export laws.
This Agreement will be construed under the laws of the state of California, except for that body of law dealing with conflicts of law and the U.N. Convention of Contracts for the Sale of International Goods, which shall not apply. In the event there is a dispute concerning the subject matter of this Agreement, the proper venue shall be the courts located in the County of Palm Beach, Florida. Each party hereby waives opposition to jurisdiction in such court. Service of process can be done in accordance with the governing law of the contract. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
This Agreement constitutes the complete and exclusive agreement between Cuemby and End User with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. This Agreement may not be amended except in a writing duly signed by an authorized representative of Cuemby and End User.
End User should send written notices regarding this Agreement to:
Attn: Beta EULA
3701 NW 9th Street
Delray Beach, FL 33445