EL8 Beta Terms
Micrometrics Beta Testing Agreement
This Beta Testing Agreement (“Agreement”) is entered into and effective as of the effective date of the applicable order form (the “Effective Date”) by and between Micro Metrics, Inc., a Canadian corporation, having its principal place of business at 135 Laurier Ave. W, Ottawa, Ontario K1P 5J2, Canada (“Micro Metrics”) and the counterparty on the applicable order form (“Customer”).
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Introduction
1. Definitions
“Software” means the software made available by Micro Metrics as further described in Schedule A.
“Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes if any that is made available with the Software.
“Beta Period” means the period of time, as set forth in Schedule A, that Customer is permitted by Micro Metrics to evaluate the Software.
2. License of Use
2.1 Grant of License
Subject to the terms and conditions of this Agreement, Micro Metrics agrees to provide Customer with a non-exclusive, non-transferable, non-sublicensable license to the Software and Documentation for the Beta Period for its own business purposes.
3. Proprietary Rights
3.1 Reservation of Rights
Micro Metrics and its licensors shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights), in and to the Software and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
3.2 Restrictions
Customer shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software or Documentation; (b) circumvent any user limits or other license timing or use restrictions that are built into the Software; (c) sell, rent, lend, transfer, distribute, license, or grant any rights in the Software or Documentation in any form to any person without the written consent of Micro Metrics ; (d) remove any proprietary notices, labels, or marks from the Software or Documentation; (e) unbundle any component of the Software; or (f) copy or use any ideas, features, functions or graphics of the Software or Documentation to build a product or service that is competitive with the Software.
3.3 Feedback
Customer agrees as part of the beta test program to provide feedback and suggestions to Micro Metrics on the performance and use of the Software (“Feedback”). Micro Metrics is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. All Feedback is and will be treated as non-confidential. Customer hereby assigns to Micro Metrics, on behalf of its employees, contractors, and/or agents, all right, title, and interest in the Feedback. Micro Metrics is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, Although Micro Metrics is not required to use any Feedback.
3.4 Outputs
As between Customer and Micro Metrics, all data that is generated by the Software, including any data that is uploaded into the Software by Customer (“Outputs”) will be owned by Micro Metrics, to the extent permitted by applicable law. Customer hereby assigns to Micro Metrics all right, title, and interest to the Output.
4. Confidentiality
4.1 Definition of Confidential Information
As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (the“Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the Software and Documentation, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
4.2 Confidentiality
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose other than for the activities contemplated by this Agreement, except with the Disclosing Party's prior written permission. For greater certainty, Customer shall not disclose any performance, functionality, benchmarking, or feature-related information about the Software
4.3 Protection
Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
4.4 Compelled Disclosure
If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
4.5 Remedies.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
5. FEES
5.1
Customer will not be responsible for paying any fees for the Software during the Beta Term.
6. TERM AND TERMINATION
6.1
Subject to earlier termination as provided below, this Agreement is for the Beta Period as specified in Schedule A.
In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. Warranties Disclaimer
7.1 Disclaimer
THE SOFTWARE PROVIDED BY MICRO METRICS UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. MICRO METRICS MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Indemnity
8.1
Customer agrees to indemnify, defend, and hold harmless Micro Metrics, its affiliates, and their respective officers, directors, employees, agents, and licensors from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable legal fees and costs, arising out of or in connection with: (i) Customer’s use or misuse of the Software; (ii) any breach of this Agreement by Customer, including any unauthorized disclosure of Confidential Information; (iii) Customer’s violation of applicable laws or regulations; (iv) any claim that Customer’s data, content, or other materials provided in connection with the Software infringe or otherwise violate the intellectual property, privacy, or other rights of a third party; and (v) any other act or omission by Customer in connection with this Agreement.
9. Limitation of Liability
9.1 Exclusion of Consequential and Related Damages.
IN NO EVENT SHALL MICRO METRICS HAVE ANY LIABILITY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MICRO METRICS LIABILITY, IN THE AGGREGATE, EXCEED $10,000 USD.
10. General Provisions
10.1
This Agreement will terminate 6 months after the Effective Date. The following provisions shall survive any termination or expiration of this Agreement: Section 3.2 and Sections 4 through 8.
10.2 Artificial Intelligence
Given the inherent characteristics of generative artificial intelligence and machine learning technologies, Customer’s use of the Software may, in some situations, result in Output that deviates from factual information, or may be incomplete, outdated, biased, or otherwise inaccurate. It is Customer’s responsibility to conduct extensive and responsible testing of the Software, including efforts to evaluate and challenge the effectiveness of any controls or guardrails, to ensure the Output meets Customer’s accuracy, safety, and appropriateness requirements. Customer is responsible for informing any end users interacting with the Software of the inherent risks associated with AI-generated responses
10.3 Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.4 No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
10.5 Notices
All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the fifth business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Micro Metrics shall be addressed to the attention of the Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
10.6 Waiver and Cumulative Remedies
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated in this Agreement, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.7 Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10.8 Assignment
Customer may not assign this Agreement or give or transfer the Software or Documentation or any interest in them to any other individual or entity.
10.9 Governing Law
This Agreement and any disputes arising under it shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
10.10 Entire Agreement
This Agreement, including all schedules, exhibits and addenda hereto, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any schedule, exhibit or addendum hereto, the terms of such schedule, exhibit, or addendum shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
10.11 Counterparts
This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
SCHEDULE A
Software:
As described in applicable order form
Beta Period:
As described in applicable order form