Terms of Service
By signing up for Kingfisher, you (“You” or “Test-User”) agree to the terms and conditions contained herein and agree to participate in the proposed Beta Test with Systems Thinking Institute LLC of the product (the “Product”) entitled “Kingfisher”.
The Product is under development and the purpose of the Beta Test is to gain qualified data about the Product’s utility, reliability, maintainability, functional performance, user acceptance, and any other factors, which might influence the design of the Product and its marketability.
In consideration of the promises set forth herein, You agree as follows:
- Developer shall provide the Product to the Test-User and maintain the Product during the Beta Test Period (expected to be 90 days, but subject to termination by Developer at any time).
- Developer shall instruct the Test-User on the operation of the Product and desired test data to be gained.
- During the period of the Beta Test, Developer may, if necessary, provide the Test-User, without additional charge, use of a domain name, domain name resolution, use of a secure server, use of an SQL server database and use of required web space for the purpose of evaluating and assisting in the Beta Test of the Product.
- There shall be no charge for the Product during the Beta Test period. Following such period, if Test-User wishes to use the Product, Test-User agrees to pay Developer based on its standard pricing terms and conditions.
- Test-User shall accept the Product for performance testing under normally expected operating conditions in the Test-User’s environment for the duration of the Beta Test, recognizing that as a Test Product, its accuracy, completeness, and reliability are not guaranteed.
- Test-User shall provide normal physical security for the Product consistent with the type of security Test-User provides to his own property of a similar type.
- Test-User shall gather and report test data as mutually agreed upon with Developer.
- Test-User shall allow and the Developer will retain complete access to the Product during normal working hours for inspection, modifications, and maintenance.
- Test-User shall cease to access the Product upon request by Developer in the event that modifications made by Developer are required, or in the event the Test is terminated prior to completion.
- Test-User shall release Developer from any liability for damages that might result from the Product’s performance or non-performance during the period of the Beta Test.
- Test-User acknowledges that the Beta Test may involve the disclosure by Developer to Test-User of certain confidential and proprietary information, including but not limited to inventions, ideas, processes, methods, copyrights, patents, techniques, formulas, computer programs and software, hardware, specifications, prototypes, designs, know-how, drawings, marketing plans, financial data, customer lists, referral and vendor sources, policies, and other procedures, and other information in written, oral and/or physical/sample form (collectively “Confidential Information”).
- Test-User shall maintain as Confidential any and all Confidential Information, including any and all information about the Product, its design and performance specifications, its code and the existence of the Beta Test and its results, unless advised in writing by Developer that such confidentiality is no longer required.
- Test-User agrees to protect the Confidential Information with the same degree of care that is uses to protect its own confidential information, but in all events will use at least a reasonable degree of care. In addition to such degree of care, Receiving Party shall not in any way (a) disclose or otherwise transfer the Confidential Information to any third party at any time, including consultants, except as approved by Developer in writing in advance; (b) use (except as specifically permitted for the Beta Test), copy, modify and/or transfer the Confidential Information and/or merge the Confidential Information with any other technology, formula or materials; (c) to the maximum extent permitted by applicable law reverse engineer any of the Confidential Information; (d) remove any trademark, copyright, patent or mask work notices and/or other proprietary legends contained within any of the Confidential Information; and/or (e) disclose the parties’ discussions about the Confidential Information and/or the existence of the Beta Test to any third party.
- To further protect Developer’s interest in the Confidential Information, Test-User agrees that it shall not in any way incorporate, use and/or exploit any part of the Confidential Information (disclosed separately or embodied in Developer’s Product, equipment or operations) in its and/or any other party’s products or businesses, including without limitation to develop, produce and/or distribute any products or services that derive from or use the Confidential Information. The obligations of Test-User in Sections 11-14 shall survive the termination of this Agreement.
- Test-User shall have only a limited, non-exclusive, nontransferable license to use the Product during the Beta Test. Test-User acknowledges and agrees that it will not use the Product for any purpose that is illegal. Because the Product is a “Beta Test” version only and is not error or bug free, Test-User agrees that it will use the Product carefully and will not use it in any way, which might result in any loss of its or any third party's property or information.
- Test-User may terminate this Agreement at any time prior to expiration of the Beta Test by ceasing to access the Product including all Confidential Information and copies thereof, and returning to Developer any evaluation report or notes they have produced during the test period. Developer may terminate this Agreement upon notice to Test-User, subject to Test-User’s obligations to cease access to the Product, all Confidential Information, and return all copies thereof, if any exist. If not earlier terminated, this Agreement shall terminate automatically upon the end of the period set forth in Section 1 and following Test-User’s return of any copies of the Product and any Confidential Information.
- Upon the early termination of the beta-test or the expiration of the beta test period, Test-User agrees to cease accessing the Product and return all Confidential Information to Developer, and to remove or destroy any files related to the Product, as instructed by Developer. All copies of the Product and any Confidential Information, whether in tangible or machine readable form, shall be promptly returned to Developer. Test-User shall thereafter retain no copies, transcriptions or summaries of any portion of the Product or the Confidential Information.
- Developer represents and warrants that it has the requisite right and legal authority to grant the license and provide the Product and the Confidential Information as contemplated by this Agreement. DEVELOPER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT OR ANY OTHER CONFIDENTIAL INFORMATION AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- This Agreement is to be governed by, construed and enforced according to the laws of the State of New York. Test-User and Developer consent to the jurisdiction of the courts of the State of New York and the United States District Court for the State of New York, as well as the jurisdiction of all courts from which an appeal may be taken from such courts, for the purposes of any suit, action or other proceeding related to this Agreement or with respect to any transaction contemplated hereby, and expressly waive any and all obligations the Test-User and Developer may have as to the venue of such courts to settle or adjudicate any claim or controversy arising hereunder, with respect to any transaction contemplated hereby.
- The parties agree that Developer will be irreparably harmed and money damages will be inadequate compensation in the event Test-User breaches any provision of this Agreement. The parties also agree that all the provisions of this Agreement shall be specifically enforceable against Test-User and its agents and/or representatives by injunctive and other relief. The provisions of this Section 20 shall survive the termination of this Agreement.
- Test-User may not assign this Agreement without the prior written consent of Developer. This Agreement shall be binding upon and inure to the benefit of the parties and their respective administrators, successors and assigns.
- This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.