SOFTWARE TESTER LICENSE AGREEMENT 

SOFTWARE TESTER LICENSE AGREEMENT

last update - 2017-06

This is an agreement between AiCaption Ltd. ("Company") and each person which has been provided access to Company's software program and / or services for the sole purpose of testing Company's software program and / or services prior to the formal release of Company's software program and / or services to the public (hereinafter: "Tester").

BY CLICKING ON THE “I AGREE” TO THIS AGREEMENT, AND/OR BY DOWNLOADING OR USING THE COMPANY'S SOFTWARE (as defined hereinafter), YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD THE SOFTWARE, AND DO NOT USE IT.

The Software

Subject to Tester's acceptance of the terms and conditions of this Agreement, Company hereby grants to Tester a personal, revocable, non-sublicensable, non-transferable and non-exclusive license to use the Software (the “Software Tester License”), solely for the Purpose set forth below. This Software Tester License may be terminated by Company at any time. You may use the Software only on a single device.

Purpose

As the Software is currently a beta version only, Tester shall use the Software solely for the purpose of evaluating and reviewing the features and advantages of the Software, and for finding and reporting any bugs or errors in the Software (the "Purpose").

Prohibited Uses

You may not, without Company's prior written consent, redistribute the Software.

Pre-Release Code/ Beta Release

The Software is currently being released at a beta phase, and is not at the level of performance and compatibility of the expected final product offering. The Software may not operate correctly and may be substantially modified prior to first commercial production release. THEREFORE, ANY USE OF THE SOFTWARE IS DONE AT YOUR OWN RISK, AS THE SOFTWARE MAY STILL CONTAIN MATERIAL ERRORS, BUGS, ETC. WE STRONGLY URGE YOU TO BACKUP ALL OF YOUR ARTICLES / PHOTOS / DATA ELSEWHERE, AS COMPANY WILL NOT PROVIDE ANY BACKUP FOR YOUR DATA.

Company's Obligations

Company shall provide Tester with access to the Software, and instruct Tester on how to use it and what test data is desired by Company. Company may provide Tester with limited access only to the Software, as shall be determined by Company, at its sole discretion.

Tester's Obligations

Tester hereby agrees to test the Software, and to inform Company of the test results. Tester shall test the Software under normally expected operating conditions in Tester's environment, solely during the "Test Period" (as defined below). Tester shall gather, report or provide Company with access to test data, as agreed upon with Company. Tester shall allow Company access to Software during normal working hours for inspection, modifications and maintenance.

Evaluations and Bug Reports

If Tester discovers any errors or bugs in the Software, Tester is hereby requested to promptly contact Company to report such problems and feed-backs. To the extent that Tester provides any such information, all such information shall belong solely to Company, and Company shall be free to use all such information for any purpose whatsoever, without any accounting to Tester (and without having to pay Tester any payments for such right). In addition to the foregoing, Tester shall hold in strict confidence, and not provide any third party with access to, all information derived from Tester’s evaluation of the Software.

Title and Restrictions

Company shall retain all right, title and interest in and to the Software, including without limitation, the servers, software, and all underlying intellectual property rights therein and thereto. Tester shall have no interest in the Software and/or the intellectual property rights underlying it. Tester shall not, nor shall it permit any third party to, reproduce, copy, modify, reverse engineer, reverse assemble, decompile or otherwise obtain or derive the intellectual property contained in the Software. All rights not expressly granted herein are reserved to Company.

Software a Trade Secret

The Software is proprietary to, and a valuable trade secret of, Company. It is entrusted to Tester only for the purpose set forth in this Agreement. Tester shall maintain Software in the strictest confidence. Tester will not, without Company's prior written consent:

  • (a) disclose any information about Software, its design and performance specifications, its code, and the existence of the test and its results to anyone other than Tester's employees who are performing the testing and who shall be subject to nondisclosure restrictions at least as protective as those set forth in this Agreement;
  • (b) copy any portion of Software or documentation, except to the extent necessary to perform testing; or
  • (c) reverse engineer, decompile or disassemble Software or any portion of it.
Security Precautions

Tester shall take reasonable security precautions to prevent Software from being seen by unauthorized individuals whether stored on Tester's hard drive, on physical copies, or on the cloud. Tester shall lock all copies of Software and associated documentation in a desk or file cabinet when not in use.

Use of Information Derived During Test Period

Company shall treat all your information with confidentiality, as required by the nature of the data (including privacy of each user).

Notwithstanding the above:

Company hereby notifies Tester that it shall have access to certain information on Tester's computer, which will enable it to:

  • Monitor Tester's activities using the Software.
  • Receive notice regarding any “crash” of the Software on Tester's computer, and the circumstances that led thereto. Such information will be sent to Company automatically, in order to allow it to improve its services to its customers.
  • Offer Tester new features, once such are available.

Company maintains the right to use, for its own benefit, all personal and general statistic information, and analytics, derived from the data transmitted over the Software; provided that private information relating to Tester shall not be revealed to third parties.

Term of Agreement

The test period shall last from the date upon which Tester confirms the terms hereof, until the earlier of: (i) Company's official launch of the software; or (ii) such time as Company instructs Tester, in writing, to cease use of the Software (with or without reason). This Agreement shall terminate at the end of the Test Period.

The restrictions and obligations contained in Clauses 9, 10, 12, 15, 16, 17 and 19 shall survive the expiration, termination or cancellation of this Agreement, and shall continue to bind Tester, its successors, heirs and assigns.

Return of Software and Materials

Upon the conclusion of the Test Period, Tester shall - within 10 days - return the original and all copies of the Software and all related materials, to Company, and delete all portions of the Software from Tester's computer memory, and/or from any other hardware or cloud services under Tester's control.

Disclaimer of Warranty

Software is a test product, in its beta-phase, and thus its accuracy and reliability are not guaranteed, and it is not error-free. Tester shall not rely exclusively on Software for any purpose or reason. Furthermore, Tester shall store all of its information and data on additional backup storage, and not rely exclusively on Company's storage, servers, or other hardware.

Tester waives any and all claims Tester may have against Company arising out of the performance or nonperformance of Software.

SOFTWARE IS PROVIDED AS IS, AND COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE BARGAIN OF THIS AGREEMENT AND NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT PURSUANT TO THIS DISCLAIMER.

Limitation of Liability

Company shall not be responsible for any loss or damage to Tester or any third parties caused by Software. COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF SOFTWARE OR ANY PERFORMANCE OF THIS AGREEMENT.

No Rights Granted

This Agreement does not constitute a grant or an intention or commitment to grant any right, title or interest in Software or Company's trade secrets to Tester. Tester may not sell or transfer any portion of Software to any third party or use Software in any manner to produce, market or support its own products. Tester shall not identify Software as coming from any source other than Company.

Nothing herein shall in any way oblige Company to provide Tester with a license to use the Software following its official commercial launch, whether for free or for payment.

No Assignments

This Agreement is personal to Tester. Tester shall not assign or otherwise transfer any rights or obligations under this Agreement.

General Provisions
  • (a) Relationships: Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose.
  • (b) Severability: If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.
  • (c) Integration: This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This Agreement may not be amended except in a writing signed by both parties.
  • (d) Waiver: The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
  • (e) Governing Law: This Agreement shall be governed in accordance with the laws of the State of Israel.
  • (f) Jurisdiction: The parties consent to the exclusive jurisdiction and venue of the courts located in Israel, in the Tel Aviv district, in any action arising out of or relating to this Agreement. The parties waive any other venue to which either party might be entitled by domicile or otherwise.