BETA SOFTWARE LICENSE AGREEMENT
Before using the 'Generate' software and any associated content, please review the terms of This Beta Software License Agreement (this “Agreement) attentively. Your download or use of 'Generate' signifies your acceptance of these terms and conditions. If you disagree with any part of this agreement, or are unable to comply with these terms, please refrain from downloading or using 'Generate' and its related content.
WHEREAS, Generate has developed and is the owner of web-based “Generate” software to be used in connection with the management of all aspects of the design and construction of commercial buildings using sustainable building materials and creating cost efficiencies in connection therewith, such software currently being in its beta testing phase (the “Beta Software”);
WHEREAS, Licensee operates in the design and construction of commercial buildings space and desires to obtain a license for the Beta Software for the purpose of testing the Beta Software for its commercial use by Licensee in such space (the "Permitted Use”); and
WHEREAS, Generate is willing to grant a license to the Beta Software to Licensee, and Licensee is willing to accept such grant of the Beta License from Generate, all subject to the terms, conditions and limitations set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which are hereby acknowledged, including but not limited to the mutual promises made by Generate and Licensee herein, it is agreed as follows:
Definitions.
Authorized User(s): means the following officer(s), employee(s) or principal(s) of Licensee.
Fee: means the fee set forth in Section 4 below.
Feedback: means the information and provide feedback regarding the features and functionality of the Beta Software to be collected and reported by License pursuant to Section 6 below.
Initial Term: means the period commencing on the Effective Date and continuing until the fiver year month anniversary of the Effective Date.
Generate Indemnified Parties: means Generate, any present or future subsidiary or affiliate of Generate, and each of their respective members, shareholders, managers, directors, officers, employees, agents, attorneys and other duly authorized representatives.
Site: means the website through which the Beta Software is accessed through User Accounts.
Subsequent Term: means, if applicable, any additional period beyond the Initial Term mutually agreed to pursuant to Section 7 below.
Term: means the Initial Term and, if applicable, any Subsequent Term.
Territory: means the United States of America.
Third Party Claims: means any and all liabilities, claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, deficiencies, penalties, taxes, levies, fines, judgments, settlements, costs, expenses, legal fees and disbursements, and accountants' fees and disbursements, and any other amounts of any kind or nature whatsoever that are asserted by any third party.
User Account: means access provided through a unique pair of login credentials associated with a single [Licensee] [Authorized User].
Grant of Rights. Subject to all of the terms and conditions set forth herein, Generate hereby grants to Licensee a nonexclusive, non-transferable, fee-bearing license to the Beta Software solely for the Permitted Purpose within the Territory and solely for the Term. [Access by persons other than Authorized User(s) will constitute a material breach of this Agreement.] The Beta Software is licensed, not sold, to Licensee by Generate. Generate hereby expressly reserves any rights not expressly granted to under this Agreement. The rights granted are limited to Generate’s intellectual property rights in the Beta Software and do not include any other patents or intellectual property rights. Licensee does not have a license to use, install, operate, maintain, adapt, enhance, modify or reproduce the Beta Software for any purpose other than the Permitted Purpose, and Licensee does not have the right to distribute, transfer, license or sublicense the Beta Software to any third party or parties.
No Right to Sublicense. Licensee shall not have any right to sublicense or otherwise transfer or share, in whole or in part, any rights to the Beta Software granted by Generate herein.
Fees. In consideration for the rights granted to it under this Agreement, Licensee shall pay to Generate the following non-refundable Fee: $[__________]. Payment of the Fee is due on the Effective Date and prior to turning on Licensee’s User Account. If any Subsequent Term is mutually agreed to by the parties pursuant to Section 7 below, the fee for such Subsequent Term shall also be mutually agreed to and paid at the time thereof.
Use of Data. Licensee hereby consents to Generate’s ability, including through its subsidiaries and agents, to collect, maintain, process and use diagnostic, technical and related information, including but not limited to information about Licensee’s computer, system and application software, and peripherals, that is gathered periodically to facilitate the creation of a fully-commercial version of the Beta Software, the provision of software updates, product support and other services to related to the Beta Software, and to verify compliance with the terms of this Agreement. Generate may also use aggregate information, including but not limited to information on Licensee’s usage of the Beta Software, as long as it is in a form that does not personally identify Licensee [or any Authorized User], to improve its products, services or technologies. At all times information will be treated in accordance with Generate’s Privacy Policy, which is incorporated by reference into this Agreement and can be viewed at: [site reference].
Beta Version. In furtherance of the development of the Beta Software, Licensee shall collect Feedback and report such Feedback to Generate on no less than a monthly basis in accordance with the Monthly Beta Testing Report, attached as Schedule A. The purpose of the Monthly Beta Testing Report is to provide the Feedback to Generate for the purpose of debugging, troubleshooting, and further developing the Beta Software into a fully commercial version. Ownership of all Feedback shall belong to Generate as more particularly set forth in Section 14 below.
Term. The term of the Agreement shall be for the Initial Term. The parties may each in their own discretion agreed in writing to a Subsequent Term, in which case all terms and conditions of this Agreement shall apply during such Subsequent Terms unless expressly stated to the contrary. All provisions of this Agreement which by their nature are reasonably intended to survive the expiration or earlier termination of this Agreement shall so survive.
Termination. This Agreement may be terminated as follows:
By either party for any reason or no reason, upon not less than fifteen (15) days prior written notice to the other party.
By Generate, immediately upon the occurrence of a breach of this Agreement by Licensee.
By either party, immediately should the other party become insolvent, enter bankruptcy, reorganization, composition, or other similar proceedings under applicable laws, whether voluntary or involuntary, or admitted in writing of its inability to pay its debts, or make or attempt to make an assignment for the benefit of creditors.
Notwithstanding the foregoing to the contrary, nothing herein shall prevent Generate from seeking an immediate injunctive remedy or other equitable relief in any court of competent jurisdiction to prevent any threatened or continuing breach without the requirement of giving advance notice of the breach.
No Support and Maintenance. Licensee acknowledges that Generate is not required to provide support or maintenance of the Beta Software, nor any upgrades or updates thereto, under this Agreement. To the extent that Generate elects to provide any upgrades or updates to the Beta Software to Licensee, such upgrade or updates shall be governed by the terms of this Agreement.
Representations and Warranties. Each party hereby represents and warrants that the person signing below on its behalf is duly authorized to do so and this Agreement constitutes the binding obligation of such party enforceable in accordance with its terms.
Indemnification and Limitation of Liability. Licensee shall indemnify, defend and hold harmless the Generate Indemnified Parties from any Third Party Claims against any of the Generate Indemnified Parties to the extent such Third Party Claims relate to, arise out of or result from: from any breach or claims of breach of any covenants, agreements, representations or warranties hereunder by Licensee. GENERATE SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT, DELAY, OR ECONOMIC DAMAGES WHATSOEVER (INCLUDING ANY DAMAGES FOR LOSS OF REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY).
Disclaimer. LICENSEE ACKNOWLEDGES AND AGREES THAT THE BETA SOFTWARE IS A BETA VERSION AND IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ALL WARRANTIES AS TO THE BETA SOFTWARE AND DOCUMENTATION, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ERROR-FREE OPERATION (EVEN IF CREATED BY THE U.N. CONVENTION ON THE INTERNATIONAL SALE OF GOODS) ARE HEREBY EXPRESSLY DISCLAIMED IN THEIR ENTIRETY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GENERATE DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT THE BETA SOFTWARE WILL OPERATE ON AN UNINTERRUPTED OR ERROR-FREE BASIS.
Confidentiality. Generate may wish to disclose Confidential Information to Licensee in connection with the rights granted under this Agreement. “Confidential Information” means (i) all information disclosed in tangible or intangible form by Generate and marked "confidential" or "proprietary," (ii) all information disclosed orally otherwise in tangible form by Generate and designated as confidential or proprietary at the time of disclosure, and (iii) all information that by virtue of the nature of the information would reasonably be considered confidential. Confidential Information will include, without limitation, computer programs, code, algorithms, names, screen designs, user interface, databases, database structure and architecture, file layouts, report formats, information or work flows, any other part of software disclosed hereunder (including the Beta Software) that perform or enable the program to perform the function for which it was designed, expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information. For the avoidance of doubt, the Beta Software and documentation provided in any medium by Generate in support thereof shall be considered Confidential Information of Generate. Licensee will use, at a minimum, the same degree of care it uses to protect its own Confidential Information, but in no event less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information. Licensee shall limit the use of and access to Generate’s Confidential Information solely to Licensee’s employees who are required to know such Confidential Information to fulfill the terms of this Agreement. Licensee’s obligations under this section shall not apply to information that: is required by applicable law or regulation, or due legal process, to be disclosed so long Licensee gives written notice to Generate, to the extent it is legally permissible to do so, prior to any such disclosure. Licensee’s obligations to protect Confidential Information as set forth in this Agreement shall expire three (3) years following the expiration or earlier termination of this Agreement, except when such Confidential Information disclosed by Generate constitutes a trade secret under applicable law or consists of source code, algorithms, names, screen designs, user interface, database, database structure and architecture, file layouts, report formats, information or work flows, in which case Licensee’s obligations to protect such Confidential Information shall be perpetual.
Ownership of Intellectual Property. Licensee acknowledges and agrees that all right, title and interest in and to, and ownership of the Beta Software and the Feedback, including all intellectual property rights therein or thereto, shall at all times remain solely and exclusively with and owned by Generate, and neither this Agreement nor Licensee’s exercise of the right granted to it herein shall be construed as giving Licensee any right of any kind with respect thereto, except as expressly authorized hereunder. All content included or available on the Beta Software and Site including site design, text, graphics, interfaces, and the selection and arrangement thereof is the property of Generate and/or third parties and is protected by intellectual property rights. Any use of materials on the Beta Software and Site, including reproduction for purposes other than those noted above, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Generate is strictly prohibited. Licensee agrees that it will not use any robot, spider, or other automatic device, or manual process to monitor or copy the Site or any portion thereof. Generate’s name and all product names of Generate are trademarks of Generate and may not be used by Licensee [or its Authorized User(s)] without the express prior written consent of Generate in each instance. Generate makes no claims of ownership with respect to any content that Licensee [or any Authorized User(s)] may upload or while using the Beta Software, but (i) Generate retains all right, title and ownership interest in and to the Beta Software itself, and (ii) shall have the rights to any data created therefrom as set forth in Section 5 above.
Miscellaneous.
a. Limitations of Agreement. The relationship of the parties hereunder is limited to the respective rights and obligations of the parties specifically provided herein. Notwithstanding any provision of this Agreement to the contrary, nothing herein shall be construed to create a partnership or joint venture between the parties, to authorize either party to act as agent for the other, to permit either party to undertake any agreement for the other, or to use the name or identifying mark of the other, all except as it is specifically provided herein.
b. Assignment. Neither party shall assign all or any portion of its rights and obligations under this Agreement without the consent of the other party in each instance. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties.
c. Governing Law and Jurisdiction. This agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to its principles or conflicts of laws to the extent such principles or rules would require or permit the application of the laws of another jurisdiction. Any dispute arising out of or in connection with this agreement shall be subject to the exclusive jurisdiction of the courts of Massachusetts or of the United States District Court of Massachusetts. The parties agree to use their commercially efforts to resolve a dispute arising out of this agreement amicably if possible. If a dispute under or with respect to this Agreement develops between Generate and Licensee and results in litigation or if Generate seeks an injunction or other equitable relief as provided for in Section 8 above, the prevailing party in the dispute is entitled to recover from the losing party all fees, costs and expenses incurred by the prevailing party in connection with the litigation including, without limitation, reasonable fees and expenses of attorneys and accountants.
Titles & Headings. Titles and headings to articles, sections, or paragraphs in this Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of this Agreement.
Incorporation of Attachments. Any attachments identified in this Agreement are incorporated herein by reference and made a part hereof
Severability. The provisions of this Agreement shall be severable, and if any provision of this Agreement is held to be invalid or unenforceable, it shall be construed to have the broadest interpretation, which would render it valid and enforceable.
Amendments. No amendments, modifications or waivers to this Agreement shall be valid unless in writing and signed by both parties. No course of dealing on the part of any party, nor any failure or delay by any party with respect to exercising any of its rights, powers or privileges under this Agreement or law shall operate as a waiver or novation thereof. No waiver by a party of any condition or the breach of any provision of this Agreement in any instance shall be deemed a further or continuing waiver of the same or any other condition or provision.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the services and rights provided hereunder. This Agreement supersedes all prior agreements, proposals, representations, statements or understandings, whether written or oral, concerning the services or the rights and obligations relating to those services. This Agreement shall not be contradicted, explained or supplemented by any prior written or oral statements, proposals, representations or descriptions not expressly set forth in this Agreement.
Notices. Any notice required or permitted to be given pursuant to this Agreement shall be given by electronic mail to the person and electronic mail address set forth below the party’s signature below.
Execution of Agreement; Electronic Signature. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. Signatures delivered by DocuSign, .pdf or other electronic means shall have the same full force and effect as original signatures.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
GENERATE, LLC
LICENSEE
This Beta Software License Agreement, along with any documents or information explicitly referenced herein, represents the full and exclusive understanding between you (the user) and Generate regarding the matters addressed in this Agreement. Any previous communications, suggestions, or declarations related to these matters, which are not contained within this Agreement, are hereby disregarded and hold no effect.