Beta Participation Agreement (BPA)
Thank you for your interest in participating in XTAL Strategies Srl (“XTAL”) Sestante Application (hereinafter “Application”) beta testing. Please note that XTAL’s Sestante application is in beta version and it is still undergoing a final testing before its official release. The Application, its software and all content found on it are provided on an “as is” and “as available” basis. XTAL does not give any warranties, whether express or implied, as to the suitability or usability of the Application, its software or any of its content. The Application BPA is a legal agreement (hereinafter “Agreement”) between XTAL and you, either an individual or a single entity, (hereinafter “Licensee”), that outlines the obligations that you agree to meet by participating in the beta testing. This Agreement covers all software, the Application itself, the associated media, any printed materials, data, files and information and any “online” or “mobile in-app” or electronic documentation (hereinafter “Software”) which it accompanies, and which has been provided to the Licensee without payment of any fees or costs. This Agreement takes precedence over any other agreement or terms embedded within the Application.
Assent to Be Bound
This agreement is a binding agreement made and entered into as of the date the Licensee clicks the “ACCEPT” button during registration, by executing a written copy of this Agreement, or by downloading, installing, copying or otherwise using the Application, The Licensee agrees to be bound by the terms of this Agreement. If the Licensee does not understand or agree with any term or condition of this agreement, do not submit an application for an invitation to this Application, download, open, install or use the Application, the Licensee should contact XTAL to arrange to be removed from the Beta testing at no charge to the Licensee. In addition, certain third-party code and data may be provided with the Application. The third-party license terms accompanying such code and data will govern the use of such code and data.
BY JOINING THE BETA PARTICIPATION AGREEMENT, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT; (B) REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT AND BE BOUND BY IT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT JOIN THE BETA TESTING AND EXIT THE SESTANTE WEBSITE.
THE BETA VERSION OF THE APPLICATION LICENSED HEREUNDER MAY CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE, FOR WHICH NO FEES HAVE BEEN CHARGED OR ARE DUE FROM THE LICENSEE, IS TO OBTAIN FEEDBACK ON THE PERFORMANCE OF THE APPLICATION AND THE IDENTIFICATION OF DEFECTS. THE LICENSEE IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE APPLICATION AND/OR ACCOMPANYING MATERIALS.
Feedback from the Licensee
It is expressly understood, acknowledged, and agreed that the Licensee shall, regardless of whether or not formally requested to do, provide to XTAL reasonable suggestions, comments and feedback regarding the Application, including but not limited to usability, bug reports and test results, with respect to Application testing (collectively, “Feedback”). Contingent upon all of the terms and conditions herein and especially upon the Licensee’s obligations to provide Feedback, the Licensee grants XTAL, under all of the Licensee’s intellectual property and proprietary rights, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid-up rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of the Feedback as part of any XTAL product, technology, service, specification or other documentation (individually and collectively, “XTAL Product”); (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any XTAL Product; (iii) solely with respect to the Licensee’s copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and (iv) to sublicense to third parties any claims of any patents owned or licensable by the Licensee that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the Feedback or portion thereof incorporated into a XTAL Product, technology or service. Further, the Licensee warrants that the Licensee’s Feedback is not subject to any license terms that would purport to require XTAL to comply with any additional obligations with respect to any XTAL Products that incorporate any Feedback.
Grant of License
Subject to the terms and conditions of this Agreement, XTAL grants to the Licensee a non-exclusive, non-transferable license (without the right to sublicense) to use the Application solely for purposes of internal testing and evaluation.
Restrictions on Grant
Except as otherwise specifically permitted in this Agreement, Licensee may not: (a) Modify or create any derivative works of the Application or documentation, including translation or localization (code written to published APIs (application programming interfaces) for the Application shall not be deemed derivative works); (b) Copy the Application except as provided in this Agreement or elsewhere by XTAL; (c) Separate the Application, which is licensed as a single product, into its component parts. (d) Sublicense or permit simultaneous use of the Application by more than one user; (e) Reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for either any XTAL Product or the Application (except to the extent applicable laws specifically prohibit such restriction); (f) Redistribute, encumber, sell, rent, lease, sublicense, use the Application in a timesharing or service bureau arrangement, or otherwise transfer rights to any other application. You may NOT transfer the Application under any circumstances; (g) Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the XTAL Product(s); (h) Capture and publish any screen shots of the Application’s user interface, user workflow or any other graphical user interface assets online, to the public or a third party without XTAL prior written consent; (i) Publish any results of benchmark tests run on any Software to a third party without XTAL prior written consent.
Beta-Software Product Support
XTAL is under no obligation to provide technical support under the terms of this license and provides no assurance that any specific errors or discrepancies in the Application will be corrected.
Ownership and Copyright of Software
The Software material provided by XTAL and all copies thereof, are proprietary to and the property of XTAL and/or or its suppliers. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents and other intellectual property rights in or associated with the Software and its relevant material are and will remain vested in XTAL and Licensee shall have no such intellectual property rights in the Software and its material. The Software is and is protected by Italian copyright laws and international treaty provisions. The Licensee will not remove copyright notices from the Software. The Licensee may not, and shall prevent any third parties from attempting to, copy or reproduce any software or documentation provided by XTAL, without XTAL prior written consent. Except as expressly provided herein, XTAL does not grant any express or implied right to the Licensee related to or arising from patents, copyrights, trademarks, or trade secret information owned by XTAL. Any Feedback will be fully owned by XTAL. The Licensee agrees to assign, and hereby assigns, all right, title, and interest worldwide in the Feedback and the related intellectual property rights to XTAL.
This Software is Confidential Information. The Licensee will not disclose Software or any comments regarding Software to any third party without the prior written approval of XTAL. The Licensee will maintain the confidentiality of Software with at least the same degree of care that you use to protect your own confidential and proprietary information, but not less than a reasonable degree of care under the circumstances. The Licensee will not be liable for the disclosure of any Confidential Information which is: (a) in the public domain other than by a breach of this Agreement on the Licensee’s part; or (b) rightfully received from a third party without any obligation of confidentiality; or (c) rightfully known to the Licensee without any limitation on use or disclosure prior to its receipt from XTAL; or (d) independently developed by the Licensee’s employees; or(e) generally made available to third parties by XTAL without restriction on disclosure.
The obligation of confidentiality set forth in the present section shall survive the termination of the Agreement by either party for any reason.
This Agreement may not be assigned by the Licensee or by operation of law to any other person, persons, firms, or corporations without the express written approval of XTAL.
Termination of This Agreement
The Licensee’s rights with respect to the Application will terminate upon the earlier of (a) the initial commercial release by XTAL of a generally available version of the Application or (b) six months after the last date Recipient receives the Application or any update thereto. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will return to XTAL (or, at XTAL’s request, destroy), the Software, Documentation, and all other tangible items in Licensee’s possession or control that are proprietary to or contain Confidential Information.
Limitation on Liability
Provision of any Software under this Agreement is experimental and shall not create any obligation for XTAL to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop Software either to the Licensee or to any other party. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL XTAL OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF XTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Software may be accessed via handheld devices whose use in the full responsibility of Licensee. XTAL will not be held liable for the Licensee accidents of any nature relating to its use via handheld devices. For example, XTAL recommends its use while not driving as to limit the Licensee distraction and risk of accident. This Agreement stipulates that the Licensee may not hold XTAL liable for any distraction related accidents or any degree of damage from said accidents.
Licensee acknowledges that Software is of EU origin. Recipient agrees to comply with all applicable international and national laws that apply to the Software, including the EU Export Regulations, as well as end-user, end-use and destination restrictions issued by the EU and other governments.
This Agreement constitutes the complete and exclusive agreement between XTAL and the Licensee with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. This Agreement may not be amended except in a writing duly signed by an authorized representative of XTAL and Licensee.
Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Italy.
Unless the Licensee is acting as a consumer, each of the parties to this Agreement irrevocably agrees that the courts Milan shall have exclusive jurisdiction to hear and decide any suit, action, or proceedings, and/or to settle any disputes, which may arise out of or in connection with this Agreement or its formation or validity and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of Milan.