Beta Evaluation License Agreement



A.    LICENSOR has developed or acquired rights to certain software and mobile applications, and LICENSOR has the right to license such rights;
B.    LICENSEE desires to evaluate certain beta versions of BETA Software;
C.    LICENSOR is willing to provide the BETA Software for testing and evaluation on the conditions stated in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the receipt and sufficiency of which are acknowledged, the parties hereby agree as follows:

Agreement Terms And Conditions

1. Definitions

Wherever used in this Agreement the following capitalized terms have the meanings set forth below:
1.1  “BETA Software” means the proprietary LICENSOR computer programs, mobile applications and software downloaded or used by LICENSEE, plus any related materials provided by LICENSOR to LICENSEE in connection with this Agreement.
1.2  “Beta Equipment” means the equipment, materials, and documentation listed on Appendix A provided by LICENSEE at its sole expense to evaluate and test the BETA Software.
1.3  “Feedback” means error reports, suggestions, and other input provided by LICENSEE to LICENSOR regarding the BETA Software.
1.4  “LICENSOR Project Manager” means the following LICENSOR project manager: Vi Chau (who may be replaced in LICENSOR’s sole discretion upon written notice to LICENSEE.
1.5  “Intellectual Property Rights” means all LICENSOR patents, copyrights, trademarks, trade secrets, and other intellectual property rights now existing or that may arise under the laws of the United States or any other country or international treaty, and any associated applications and registrations.

2. License

2.1 License Grant By LICENSOR To LICENSEE. Subject to the terms and conditions of this Agreement, LICENSOR grants to LICENSEE a limited, non-exclusive, non-transferable, royalty-free, revocable license to use the BETA Software solely to test and evaluate the BETA Software using LICENSOR’s Beta Equipment.  Any updates, copies, extracts, test programs and other software, and explanatory and other materials provided by LICENSOR in connection with this Agreement or derived from LICENSEE’s use of same are subject to the terms of this Agreement.  The parties intend that the BETA Software be made available to LICENSEE in the beta testing form only.
2.2 Certain Conditions.  LICENSEE’s testing work may only be performed in coordination and cooperation with the LICENSOR Project or Customer Success Manager.  LICENSEE must keep the LICENSOR Project or Customer Success Manager informed regarding the integration and evaluation work, and accept the reasonable assistance of the LICENSOR Project Manager or their delegate.
2.3 Backup. LICENSEE shall not make any copies of the BETA Software, including a backup copy.  If the BETA Software is lost or defective, LICENSEE shall contact the LICENSOR Project Manager to obtain a new copy of the BETA Software.
2.4 Feedback. LICENSEE shall provide Feedback to the LICENSOR Project Manager regarding the results of its testing and use of the BETA Software.  LICENSOR may freely use and in its sole discretion publish all suggestions, comments, feedback, and input, including all ideas, concepts, know-how, and other information contained therein.
2.5 Tracking and Log Files.  The BETA Software will automatically track usage statistics and store this information in a log file that will be sent to LICENSOR when LICENSEE submits a feedback form. LICENSOR may use these usage statistics to improve and enhance the BETA Software or for development, diagnostic and corrective purposes in connection with the BETA Software.
2.6 No Commercial Product. Nothing in this Agreement obligates LICENSOR to provide any commercial version or other test versions of any BETA Software, and LICENSOR may unilaterally abandon development of the BETA Software at any time without any obligation or liability to LICENSEE.
2.7 Limitations. LICENSEE acknowledges and agrees that the BETA Software may be used only for evaluation and testing purposes and may not be used by LICENSEE or any third party for any commercial, development, or any other purposes whatsoever except as expressly set forth in Articles 2.1 and 2.4 of this Agreement.  Nothing in this Agreement grants to LICENSEE any right or license to (a) copy, modify, or create any derivative work of the BETA Software; (b) use the BETA Software with any systems or equipment other than described in this agreement; (c) reverse assemble, de-compile, reverse engineer, or otherwise attempt to derive source code, the underlying ideas, algorithms, structure, or organization of the BETA Software, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation; (d) display or disclose the BETA Software to any person who has not agreed to be bound in writing by an agreement at least as restrictive as the terms of this Agreement; or (e) permit or authorize any third party to do any of the foregoing.  LICENSEE is not granted any license, right, or interest in any LICENSOR trademarks, patents, patent applications, copyrights, trade secrets, or other proprietary rights.
2.8 Rights Notices. The BETA Software includes, or is deemed to include, the following legends: Copyright © 2014 RingCentral, Inc. All rights reserved.  RingCentral and associated design marks and logos are trademarks of RingCentral, Inc., and may be registered in certain jurisdictions. Patents and Patents Pending, RingCentral, Inc.

3. Ownership

3.1 In General.  LICENSEE acknowledges and agrees that LICENSOR and its licensors have and retain all interests (including without limitation all patent rights, copyrights, confidential information, trade secrets, trademarks and related goodwill, and all other Intellectual Property Rights) in the BETA Software and related documentation and information, together with all modifications, corrections, enhancements and otherwise thereto, whether made by LICENSOR, LICENSEE, or jointly by the parties.  LICENSEE hereby assigns, transfers and conveys all modifications, corrections, enhancements and otherwise to the Company.
3.2 No Transfer.  Except as expressly stated herein, nothing in this Agreement is intended to transfer, assign or convey any ownership rights from either party to the other.
3.3 Equipment.  Any software or hardware supplied by LICENSOR remains the property of LICENSOR and may not be sold by LICENSEE or be subject to claims of creditors of LICENSEE.

4. Quality Assurance

LICENSEE acknowledges and agrees that the BETA Software (a) may require LICENSOR’s assistance to ensure its proper installation; (b) is a “beta” version still in development and may contain errors, design flaws, bugs or other problems; (c) is not expected to function fully or adequately upon installation without further testing, modification, and development, if ever; and (d) may result in loss of data, project delays, or other damage or loss to LICENSEE.

5. Technical Assistance

LICENSOR may at its sole option provide reasonable technical support to LICENSEE with respect to LICENSEE’s use and evaluation of the BETA Software in connection with this Agreement. LICENSOR has no obligation to correct any bugs, defects, or errors in the BETA Software or to otherwise support the BETA Software.

6. Fees

LICENSOR waives the evaluation license fee in consideration of LICENSEE’s full compliance with the terms and conditions of this Agreement.  Neither party shall have any obligation to pay for or provide additional engineering or support services unless the parties mutually agree or LICENSEE consents to such cost in advance.

7. Confidentiality

7.1 Disclosures. In connection with this Agreement, LICENSOR may disclose to LICENSEE, orally or in writing, certain nonpublic or proprietary information or materials relating to BETA Software, products, technology, business, or marketing, which LICENSOR marks as “confidential” or “proprietary” at the time of disclosure or by the nature of the circumstances surrounding the disclosure can reasonably be inferred by LICENSEE as confidential (“Confidential Information”).  LICENSEE acknowledges and agrees that the BETA Software and related documentation and disclosures (including oral disclosures), any information gained from LICENSEE’s use or evaluation of the BETA Software including any benchmarking, and the terms and conditions of this Agreement are deemed Confidential Information of LICENSOR.  LICENSEE further acknowledges that the BETA Software contains valuable trade secrets and confidential information of LICENSOR, including but not limited to its specifications, functionality, and performance, and that LICENSEE must take all reasonable precautions to prevent any disclosure of such information except as expressly permitted in this Agreement.
7.2 Obligations.  Except as expressly provided in this Agreement, the LICENSEE may not use or disclose any Confidential Information without LICENSOR’s prior written consent, except to (a) LICENSEE’s employees, on a strictly need-to-know basis; and (b) the LICENSEE’s current or bona fide prospective investors, investment bankers, lenders, accountants, and attorneys; in each case only to the extent reasonably necessary and provided that such persons have executed written agreements restricting use or disclosure of such Confidential Information consistent with the LICENSEE’s obligations under this Agreement.  LICENSEE agrees to use at least the same care in protecting LICENSOR’s Confidential Information as LICENSEE uses to protect its own information of a similar nature, but in no event less than reasonable care.  LICENSEE may disclose Confidential Information pursuant to a subpoena, order or regulation of any court, government agency, or regulatory body; provided, however, that upon receiving such subpoena or order LICENSEE must promptly inform LICENSOR in writing and provide a copy thereof, must take reasonable steps to protect against disclosure, and may only disclose that Confidential Information necessary to comply with such subpoena, order, or regulation.
7.3 Exclusions.  Notwithstanding the foregoing, “Confidential Information” does not include information (including but not limited to ideas, concepts, know-how, techniques, and methodologies) that:
         (A) Was public knowledge at the time of disclosure or thereafter becomes public knowledge through no breach or act of negligence of LICENSEE;
         (B) Was known to LICENSEE prior to the date of disclosure, as evidenced by contemporaneous written records; or
         (C) Was acquired from a third party by LICENSEE with a right to disclose it and without breach of any obligation of confidentiality.
7.4 Injunctive Relief.  LICENSEE acknowledges that, due to the unique nature of LICENSOR’s Confidential Information, LICENSOR will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information.  Accordingly, in addition to any other remedies that may be available in law, in equity, or otherwise, LICNSOR is entitled to injunctive relief to prevent such unauthorized use or disclosure.

8. Term And Termination

8.1 Term.  This Agreement commences once the BETA software is made generally available, unless earlier terminated pursuant to Section 8.2.
8.2 Termination.  Either party may terminate this Agreement at any time, with or without cause, by providing the other party with at least one (1) day prior written notice of termination.
8.3 Effect Of Termination.  Neither party incurs any liability or compensation obligation whatsoever for any damage (including without limitation damage to or loss or goodwill or investment), loss, or expenses of any kind suffered or incurred by the other party arising from or relating to the fact that this Agreement has been terminated pursuant to the terms of this Section 8 (Term And Termination), whether or not such party is aware of any such loss or expenses.
8.4 Obligations Upon Termination.  As soon as practicable following any termination or expiration of this Agreement (and in no event more than 5 business days thereafter),  LICENSEE agrees to return to LICENSOR, at LICENSEE’s sole risk and expense and in the same condition as received from LICENSOR (a) the BETA Software and all Confidential Information of LICENSOR including any copies of drawings, specifications, manuals, and other printed or reproduced material (including information stored on machine-readable media) relating to the BETA Software and other Confidential Information of LICENSOR; provided, however, that LICENSEE’s internal notes and analyses may be destroyed by LICENSEE and so certified in writing to LICENSOR; and (b) all hardware provided by LICENSOR to LICENSEE, in the same condition (reasonable wear and tear excepted) as received from LICENSOR.
8.5 Survival.  The following provisions survive any expiration or termination of this Agreement: Sections 3, 4, 7, 9, 10, the applicable provisions of Article 12 and any provision of this Agreement that by its nature should survive the expiration or termination of this Agreement.

9. No Warranty

The BETA Software is for limited evaluation and beta testing purposes only. LICENSEE acknowledges and agrees that the BETA Software is a “beta” version provided “AS IS”.  To the maximum extent permitted by applicable law, LICENSOR makes no warranty, express or implied, related to the BETA Software, including but not limited to warranties of merchantability, non-infringement, and fitness for a particular purpose.  LICENSOR makes no representations concerning the quality of the BETA Software and does not promise that the BETA Software will be error-free or will operate without interruption.

10. Limitation Of Liability

LICENSOR is not liable for any malfunctions, viruses, destruction or otherwise to LICENSEE’s Beta Equipment from the direct or indirect use of the BETA Software. Except for a breach of confidentiality or unauthorized commercial use of Confidential Information or misappropriation of LICENSOR Intellectual Property Rights, in no event is either party liable for any direct, indirect, incidental, consequential, or exemplary damages of any kind, including but not limited to lost data or profits under this agreement, even if the party has been advised of the possibility of such damages.  The limitations apply notwithstanding the failure of the essential purpose of any limited remedy, to the maximum extent permitted by applicable law.

11. Export Restrictions

LICENSEE agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce or other agency or authority of the United States or other applicable countries, and not to transfer, or authorize the transfer, of the BETA Software to a prohibited country or otherwise in violation of any such restrictions or regulations.

12. Miscellaneous

12.1 Force Majeure.  A delay or failure by either party to perform its obligations (other than payment obligations) under this Agreement is excused to the extent caused by unforeseeable circumstances beyond the party’s control such as a strike, act of deity, riot, war, fire, explosion, natural disaster, or embargo.  The party requesting relief must notify the other party in writing without delay at the commencement and conclusion of such circumstances.
12.2 Governing Law.  This Agreement is governed by the laws of California.  Any action relating to this Agreement must be venued in San Francisco County, California, and the parties consent to jurisdiction and venue in the state and federal courts, as applicable, in that county.  Choice of law rules do not apply, regardless of jurisdiction.
12.3 Severability.  If any provision of this Agreement conflicts with applicable law or regulation, or is found invalid or unenforceable, it will be enforced to the maximum extent and the parties will endeavor to amend such provision so that the intent of this Agreement may be carried out to the extent legally possible; the other parts of this Agreement remain in force.
12.4 Assignment.  LICENSEE may not assign any rights or delegate any duties under this Agreement without LICENSOR’s prior written consent.  This Agreement binds and inures to the benefit of the parties and their respective successors and permitted assigns. Any purported assignment in violation of this Article 12.4 is invalid.
12.5 No Waiver.  No waiver may be implied from conduct or failure to enforce rights.  No waiver is effective unless signed in writing on behalf of the party claimed to have waived.
12.6 Relationship Of Parties.  The parties are independent contractors; there is no relationship of principal to agent, employer to employee, or franchisor to franchisee between the parties.  Neither party has authority to bind the other or incur any obligation on its behalf.  The parties have negotiated this Agreement with the advice of counsel and approval of their authorized representatives, and this Agreement accordingly may not be construed against either party on the basis that any provision was drafted by a particular party.
12.7 Entire Agreement.  This Agreement, together with its Appendices, is the entire agreement between the parties regarding its subject matter and supersedes all statements, representations, undertakings, and agreements previously made between the parties with respect to its subject matter as well as the conflicting provisions of any purchase orders, invoices, or other instruments unless otherwise expressly agreed by the parties in writing. This Agreement may be modified only by a written document duly signed by officers of both parties and referencing this Agreement.