HIVENET ALPHA TEST SOFTWARE END USER LICENSE AGREEMENT
THIS HIVENET ALPHA TEST SOFTWARE END USER LICENSE AGREEMENT (“AGREEMENT”) IS BY AND BETWEEN HIVENET GMBH, LOCATED AT KOPPSTRASSE 42, 81379 MUNICH, GERMANY (“HIVENET”) AND YOU OR THE ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (“YOU” OR „USER“) AND GOVERNS YOUR USE OF HIVENET ALPHA TEST SOFTWARE AND ANY RELATED UPDATES MADE AVAILABLE BY HIVENET TO YOU (“SOFTWARE”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “ACCEPT” BUTTON (OR SIMILAR), OR BY INSTALLING, DOWNLOADING OR OTHERWISE USING THE SOFTWARE YOU EXPRESSLY STATE THAT YOU HAVE READ THIS AGREEMENT, AND YOU ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND USER SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE.
THE HIVENET ALPHA TEST SOFTWARE IS AN ALPHA VERSION. THIS MEANS THAT THE SOFTWARE IS PREMATURE, INSUFFICIENTLY TESTED AND MAY INCLUDE ANY KIND OF ERRORS, HARMLESS OR HARMFUL, WHICH MAY INCLUDE POTENTIAL HARM TO YOUR COMPUTER OR DATA. HIVENET PROVIDES THIS HIVENET ALPHA TEST SOFTWARE TO USER WITH THE PURPOSE OF TESTING. USER IS ALLOWED TO USE THE SOFTWARE IN THE DESIGNATED USE OF TESTING. HIVENET IS FREE TO DISCONTINUE SOFTWARE, OR ANY SERVICE RELATED TO SOFTWARE AT ANY TIME, WITHOUT JUSTIFICATION AND WITHOUT ANY REQUIREMENT TO INFORM USER. User is encouraged to provide feedback to HiveNet (e.g.: bug reports, comments, feedback or ideas about the Software), in especially with the purpose of helping HiveNet to improve Software. Please refer to Section 5 for details.
The Software is provided to User at no charge and is licensed, not sold to User. No ownership of any part of the Software and its supplementary documentation is hereby transferred to User.
HiveNet hereby grants to User, solely for User’s personal use, a limited, non‑exclusive, non‑transferable, non-sublicensable right and license to use the Software for testing purposes to the extent that was intended by HiveNet.
All rights relating to the Software and its supplementary documentation that are not expressly licensed in this Agreement, whether now existing or which may hereafter come into existence are reserved for HiveNet. User shall not remove, obscure, or alter any proprietary rights notices (including without limitation copyright and trademark notices), which may be affixed to or contained within the Software or its supplementary documentation.
2. Ownership of Software
HiveNet owns and retains all right, title, and interest, including all intellectual property rights, in and to the Software, including any improvements, modifications, and enhancements to it. Except for the rights expressly granted in this Agreement, User shall acquire no other rights, express or implied, in or to the Software, and all rights not expressly provided to User hereunder are reserved by HiveNet. All the copies of the Software provided or made available hereunder are licensed, not sold.
Subject to User’s compliance with the terms and conditions of this Agreement, the Software shall be provided to User free of charge.
4. Restricted Activities
User will not, directly or indirectly, (a) copy the Software in any manner or for any purpose; (b) install, access or use any component of the Software for any purpose not expressly granted within this Agreement; (c) resell, distribute, publicly display or publicly perform the Software or any component thereof, by transfer, lease, loan or any other means, or make it available for use by others in any time‑sharing, service bureau or similar arrangement; (d) disassemble, decrypt, extract, reverse engineer or reverse compile the Software, or otherwise attempt to discover the source code, confidential algorithms or techniques incorporated in the Software; (e) export the Software or Documentation in violation of any applicable laws or regulations; (f) modify, translate, adapt, or create derivative works from the Software or supplemental documentation; (g) circumvent, disable or otherwise interfere with security-related features of the Software; (h) use the Software for any illegal purpose, in any manner that is inconsistent with the terms of this Agreement, or to engage in illegal activity; (i) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on, or embedded in, the Software or supplemental documentation; or (j) provide access to the Software to third parties.
5. Support and Feedback
6. No Warranties
USER EXPRESSLY UNDERSTANDS AND AGREES THAT ALL USE OF THE SOFTWARE IS AT USER’S SOLE RISK AND THAT THE SOFTWARE AND ANY SUPPLEMENTAL DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”. HIVENET AND ITS AFFILIATES MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HIVENET OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HIVENET AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT THAT: (A) USER’S USE OF THE SOFTWARE WILL MEET USER’S REQUIREMENTS, OR (B) USER’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. USER UNDERSTANDS AND ACKNOWLEDGES THAT THE SOFTWARE IS NOT DESIGNED, INTENDED OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
User agrees to hold harmless and indemnify HiveNet and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third party claim arising from or in any way related to User’s breach of this Agreement, use of the Software, or violation of applicable laws, rules or regulations in connection with the Software, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, HiveNet will provide User with written notice of such claim, suit or action.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH HIVENET OR ITS LICENSORS IS TO STOP USING SOFTWARE. YOU ACKNOWLEDGE AND AGREE THAT HIVENET, ITS LICENSORS AND AFFILIATES ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION, CONTENT OR USE OF SOFTWARE. IN NO CASE SHALL HIVENET OR ITS LICENSORS, AFFILIATES’, EMPLOYEES’, OFFICERS’, OR DIRECTORS’ (COLLECTIVELY, “HIVENET AFFILIATES”) LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO HIVENET IN ORDER TO USE SOFTWARE. IN NO CASE SHALL HIVENET OR HIVENET AFFILIATES BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF SOFTWARE, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF SOFTWARE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, HIVENET’S AND HIVENET AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. Notwithstanding the foregoing, nothing contained in this Agreement limits HiveNet’s liability to you for fraudulent misrepresentations, death or personal injury caused by HiveNet’s negligence, or any other liability to the extent such liability cannot be excluded or limited as a matter of applicable law.
HiveNet may immediately, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this Agreement and the rights afforded to User hereunder with or without prior notice. Furthermore, if User fails to comply with any terms and conditions of this Agreement, then the Agreement and any rights afforded to User hereunder shall terminate automatically, without any notice or other action by HiveNet. Upon the termination of this Agreement, User must discontinue all use of the Software and must uninstall the Software. User may terminate this agreement without cause upon 10 days’ prior written notice. Upon the termination of this Agreement the license granted herein will automatically terminate and User must discontinue all use of the Software and must uninstall the Software. Sections 2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 shall survive any termination or expiration of this Agreement.
10.1. Definition: “Confidential Information” means any information disclosed by one party (“Discloser”) to the other (“Recipient”), directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential”, “Proprietary” or some similar designation, or learned by Recipient under circumstances in which such information would reasonably be understood to be confidential. Confidential Information may include information disclosed in confidence to Discloser by third parties. For the purposes of this Agreement, the Software, and the results of any performance, functional or other evaluation of the Software, shall be deemed Confidential Information of HiveNet.
10.2. Exceptions: Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by you; (b) is rightfully known by you at the time of disclosure without an obligation of confidentiality; (c) is independently developed by you without use of the Confidential Information; or (d) you rightfully obtain from a third party without restriction on use or disclosure.
10.3. Use and Disclosure Restrictions: You will not use the Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of your employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. You will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in your possession or control, but in no event less than the efforts that you ordinarily use with respect to your own proprietary information of similar nature and importance. The foregoing obligations will not restrict you from disclosing Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that you give reasonable notice to HiveNet to contest such order or requirement; or (b) on a confidential basis to your legal or financial advisors.
12.1 Entire Agreement: This Agreement shall control over any additional or different terms of any correspondence, order, confirmation, invoice or similar document, even if accepted in writing by both parties, and waivers and amendments of any provision of this Agreement shall be effective only if made by non-preprinted agreements indicating specifically what sections of this Agreement are affected, signed by both parties and clearly understood by both parties to be an amendment or waiver.
12.2. Waiver: The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
12.3. Transfer of Rights: HiveNet shall be entitled to transfer any rights and obligations under this Agreement to third parties. The User shall not transfer any rights and obligations under this Agreement without HiveNet’s prior written approval.
12.4. Severability: If any provision of this Agreement is deemed to be invalid or unenforceable under any rule of law, all other provisions of this Agreement will continue in full force and effect and the invalid or unenforceable provision shall be reformed to the extent necessary to make it valid and enforceable.
12.5 Governing Law: The laws of Germany, excluding its conflicts-of-law rules, govern this Agreement; and you expressly agree that exclusive jurisdiction for any claim or dispute with HiveNet or relating in any way to this Agreement or your use of Software resides in the courts of Munich, Germany and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of Munich, Germany in connection with any such dispute including any claim involving HiveNet or its affiliates, employees, contractors, officers, directors, vendors and business partners. In any dispute arising under this Agreement, the prevailing party will be entitled to attorneys’ fees and expenses.