End User License & Test Agreement
Last Revision: September 5, 2020
END USER LICENSE AND PRODUCT TEST AGREEMENT
YOU MAY INDICATE YOUR ACCEPTANCE BY CLICKING ON THE "I ACCEPT" BUTTON. BY CLICKING ON THE "I ACCEPT" BUTTON YOU ARE REPRESENTING THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM AND AGREE TO BE BOUND BY THEM.
IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN METAREAL IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD CLICK THE "I DECLINE" BUTTON AND/OR EXIT THIS WEB PAGE.
PLEASE READ THIS END USER LICENSE AGREEMENT ("EULA") CAREFULLY.
1.1. "Product Test", "Product Test Program", "Alpha", "Alpha Test", "Alpha Test Program", "Beta", "Beta Test" or "Beta Test Program" means licensing of software that is in development for the purposes of testing and evaluation.
1.2. "Proprietary Information" means information that is proprietary and confidential to Metareal which may be the subject of one or more patent applications and which Metareal wishes to protect from public disclosure and includes all information disclosed at any time before, after or at the time of the execution of this Agreement by the parties relating to the Software including, but not limited to, any techniques or processes used in the creation of the Software as well as and all intellectual and intangible property rights of Metareal related to its business, customers, products, marketing and sales plans, financial statements, development plans, strategies and the like, as well as any information relating to released or unreleased Metareal software or hardware products, the marketing or promotion of any Metareal product, and information received from others that Metareal is obliged to treat as confidential.
1.3. "Test Software" or "Software" means the software made available to you from time to time at Metareal's discretion, including any Updates, any documentation in whatever form or on any medium regarding its use and any information relating to said software. When a particular software application is available for you, you will receive a notification and any additional necessary information. Your use of the software constitutes your ongoing agreement to this EULA.
1.4. "Updates" means one or more modifications, enhancements, bug fixes, translates, replacements or updates to the Software or any portion thereof.
1.5. "User Profile" means the information provided by you to Metareal as part of your Metareal Account, including user name, password and contact information.
2. ELIGIBILITY REQUIREMENTS; LICENSEE OBLIGATIONS.
2.1. In order to participate in the Product Test Program, you must be an existing Metareal customer with a valid Metareal account. This requirement may be waived by Metareal in its sole discretion. If you have any questions regarding this requirement, please contact the Product Test Program Administrator at Metareal via email at firstname.lastname@example.org.
2.2. It is your responsibility to maintain accurate and complete information in your Metareal Account. Your ongoing participation in the Product Test Program constitutes your acknowledgement and agreement to this requirement.
3.1. License Grant. Licensee is granted a personal, limited, temporary, terminable, non-exclusive, non-assignable and non-transferable license to use the Software solely in accordance with the terms and conditions of this Agreement and any further Terms and Conditions and Policies posted on the METAREAL.COM website. The license granted herein does not include the right to make copies of the Software, or, other than as necessary to effect the purposes of the Product Test Program, to make or retain any notes, memos, reports, records, reproductions, correspondence or other documents containing Proprietary Information (as defined below).
3.2. License Restrictions. Licensee shall not (i) cause the Software in any way to be disassembled, decompiled, or reverse engineered, nor undertake or permit any attempt to do so; (ii) copy, translate, port, modify, enhance or make derivative works of the Software; or (iii) act as a service bureau with respect to the Software.
4. SUPPORT; SOFTWARE UPDATES.
Licensee acknowledges and agrees that Metareal shall have no obligation to provide technical support for the Software. Metareal may, in its sole discretion, from time to time provide Updates to Licensee under this Agreement.
5. PRODUCT IN DEVELOPMENT.
5.1. Licensee acknowledges that, due to the on-going status of the Software, there may be defects or deficiencies that may make it unsuitable for use in any type of critical production application ("Production Situation") where failure of the Software to function properly could cause any form of loss to Licensee or any third party.
Please note that while we do not recommend that you use beta software in production, Metareal does ask that you apply the Software in situations similar to Production Situations to allow You to provide Metareal with useful feedback. LICENSEE ACKNOWLEDGES THAT USE OF THE SOFTWARE IN ANY PRODUCTION SITUATION IS AT ITS SOLE RISK AND ACKNOWLEDGES THAT IT IS LICENSEE'S RESPONSIBILITY TO BACK-UP LICENSEE'S DATA.
5.2. Metareal may, in its sole discretion, discontinue the Product Test Program for any particular Software for any reason or no reason at any time and said discontinuation shall terminate this license with regard to any and all affected Software upon notice to Licensee.
5.3. Metareal does not commit, promise or agree to finally release and/or offer for sale a commercial version of the Software. Metareal reserves the right to unilaterally cease and abandon any efforts to release a commercial version of the Software at any time and for any reason, without any obligation or liability whatsoever.
6.1. The term of this Agreement shall begin upon execution of this Agreement and end upon the earlier of termination by Metareal at its sole discretion or upon discontinuation of the Software by Metareal.
6.2. Notwithstanding the stipulated term of this Agreement, Metareal shall have the right to terminate this Agreement immediately in its sole discretion for any reason or no reason at any time by giving prior written notice to Licensee.
6.3. Obligations upon Termination. In the event of termination for any reason, all copies of the Software in Licensee's possession in whatever form or medium, including all its documentation, any notes, memos, reports, records, reproductions, correspondence or other documents containing Proprietary Information (as defined below) shall be destroyed and, upon request in writing by Metareal, such destruction shall be certified in writing by an authorized officer of Licensee supervising same to Metareal.
6.4. Survival. Sections 2, 3.2, 4, 6.3, 6.4, 7, 8.2, 8.3 and 12 through 16 and all definitions shall survive the termination of this Agreement.
This Agreement is not a sale of the Software or any copy thereof. Licensee acknowledges and agrees that Metareal and its licensors are the owners of all right, title and interest in and to the Software, including, without limitation, any and all patents, copyrights, trademarks and trade secrets applicable thereto, and Licensee shall neither obtain nor claim any ownership interest therein. Licensee agrees and acknowledges that the Software contains the valuable trade secrets of Metareal and its licensors, which have been developed over many years, and Licensee shall not obscure, alter or remove any patent, copyright, trademark or other proprietary marking or legend contained on or in the Software. Metareal reserves all rights not expressly granted herein.
8. EVALUATION DATA.
8.1. In partial consideration of Metareal granting to Licensee the rights set forth herein, Licensee agrees to communicate with Metareal, whether through Metareal's website(s) or otherwise, any suggestions, evaluation or testing results, problems, issues, comments, enhancement ideas or other feedback with respect to the Software (collectively, "Suggestions").
8.2. In partial consideration of Metareal granting to Licensee the rights set forth herein, Licensee agrees that all intellectual property rights and all other ownership rights in the Suggestions are hereby assigned to Metareal and any and all Suggestions shall be the sole and exclusive property of Metareal. Licensee agrees to execute such documents and perform such lawful acts as Metareal deems necessary to allow it to exercise all right, title and interest in and to such Suggestions. Suggestions shall be deemed the Proprietary Information of Metareal subject to the confidentiality obligations set forth herein.
8.3. Licensee covenants and agrees or otherwise affirms to allow Metareal to extract and collect usage data, which may occur at any time during normal usage or when the Software crashes, with or without Licensee's explicit knowledge or intervention. Such usage data is limited to information that (a) allows Metareal to aggregate usage statistics or derive algorithms, or (b) allows Metareal to pinpoint the cause of a product defect. Collected data may include creative content developed by Licensee.
9. NO WARRANTY.
SOFTWARE IS PROVIDED TO LICENSEE "AS IS" WITH ALL FLAWS. LICENSEE ACKNOWLEDGES BY ENTERING INTO THIS AGREEMENT THAT METAREAL AND ITS LICENSORS PROVIDE NO WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SOFTWARE. METAREAL SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE HELD LIABLE IN ANY WAY FOR THE QUALITY, PERFORMANCE, ACCURACY, BEHAVIOR, COMPATIBILITY, RELIABILITY OR USE OF THE SOFTWARE AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE IS HEREBY DISCLAIMED. METAREAL DOES NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. METAREAL DOES NOT WARRANT THAT FUTURE RELEASES OF THE SOFTWARE SHALL (I) IN ANY WAY RESEMBLE OR OTHERWISE BE COMPATIBLE WITH THE SOFTWARE OR ANY PORTION THEREOF PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO LACK OF MEDIA COMPATIBILITY, FORMAT COMPATIBILITY OR SOFTWARE INTEROPERABILITY; OR (II) NOT REQUIRE REESTABLISHMENT OF ALL SETTINGS, REACTIVATION OF ALL USERS, OR REINSTALLATION OF ALL SOFTWARE AND CREATIVE CONTENT.
10. LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES.
LICENSEE AGREES THAT NEITHER METAREAL NOR ITS LICENSORS SHALL BE LIABLE FOR ANY LOSS OR DAMAGE THAT MAY ARISE IN CONNECTION WITH THE FURNISHING, PERFORMANCE OR USE BY LICENSEE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUES, DATA AND/OR USE, OR ANY LOSS OR DAMAGE DUE TO OR DELAY IN PERFORMANCE OF OBLIGATIONS TO THIRD PARTIES) EVEN IF METAREAL IS ADVISED OF THE POSSIBILITY THEREOF. LICENSEE ASSUMES ALL RISKS OF USING THE SOFTWARE IN A PRODUCTION CONTEXT.
11. PROPRIETARY INFORMATION, CONFIDENTIALITY AND NON-DISCLOSURE.
11.1. Licensee hereby acknowledges that, in the course of performing its obligations hereunder, it will be receiving Proprietary information. Licensee understands and agrees that the Software is confidential Proprietary Information and a trade secret of Metareal and may be the subject of one or more patent applications, now or in the future. Licensee agrees to use efforts at least commensurate with those employed by Licensee for the protection of Licensee's own confidential information, and in no event less than reasonable efforts, to preserve the confidentiality and prevent the misuse of the Software including, without limitation, its design structure or performance specifications, its features and functionalities, its source code, the existence of the Product Test and its results, pricing and/or contract terms and conditions to any third party. Licensee shall take all reasonable steps to restrict access to the Software to those of Licensee's employees or independent contractors who are each directly engaged in the Software evaluation contemplated by this Agreement and who are each contractually bound to protect the Software in accordance with this Agreement. Licensee shall be fully responsible for the actions of Licensee's employees and independent contractors with respect to the Software. Licensee shall promptly notify Metareal in writing of any use or disclosure of confidential information in violation of this Agreement.
11.2. Licensee acknowledges that the use or disclosure of any confidential information in any manner inconsistent with this Agreement may cause Metareal irreparable damage and that Metareal will have the right to (i) seek equitable and injunctive relief to prevent such unauthorized, negligent or inadvertent use or disclosure without posting of bond or other security, and (ii) recover the amount of all such damage (including attorneys' fees and expenses) to Metareal in connection with such use or disclosure.
12. PRODUCT SECURITY AND PROTECTION.
Licensee acknowledges that the Software may contain one or more features, security routines or devices, including a license expiration, or time-out, feature, to ensure usage of the Software in accordance with the terms of this Agreement. Licensee agrees not to disable or otherwise interfere with any such features, security routines or devices. Metareal shall have, at any time, upon reasonable notice, the right to audit Licensee's location to ensure that use of the Software is in conformity with this Agreement. Licensee shall promptly give Metareal access to all information, materials and personnel as may be necessary for Metareal to carry out the audit.
This Agreement is not transferable or assignable by Licensee, whether in whole or in part, voluntarily or by merger, consolidation or sale, or otherwise by operation of law without the prior written consent of Metareal. Any change of 50% or more of ownership or control shall be deemed an "assignment."
Any assignment made in violation hereof shall be wholly void and invalid, the assignee shall acquire no rights whatsoever, and Metareal shall not recognize, nor shall it be required to recognize, the assignment. Subject to the foregoing, this Agreement and each and every provision hereof, shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.
14. NO AGENCY.
No representation shall be made by either party which would create any apparent agency, employment or partnerships in joint ventures and neither party shall have authority to act on behalf of the other party in any manner which would create obligations or liabilities binding upon the other party. Neither party shall be responsible for the other's debts, claims or expenses of any kind or nature whatsoever. The sole relationship between the parties shall be that of independent contractors.
This Agreement constitutes the entire Agreement between Metareal and Licensee, and supersedes any prior understandings agreements or representations by or between Metareal and Licensee, whether written or oral, with respect to the subject matter hereof. The terms and conditions of this Agreement shall not be modified unless both Licensee and an authorized Metareal representative execute a separate written instrument. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances and in other jurisdictions, or of the remaining provisions under all circumstances.
If the Software contains an electronic software license from Metareal, the terms and conditions of this Agreement supersede any such Metareal electronic software license. If the Software contains any third-party software, Licensee agrees to use such software in accordance with any electronic license provided with such third-party software or, where no such agreement is provided, in accordance with this Agreement. Any delay or failure by Metareal to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
16. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the laws of the Province of Quebec without regard to choice or conflict of laws provisions that would cause the laws of any other jurisdiction to apply. The U.N. Convention on Contracts for the International Sale of Goods shall not apply. If Licensee is located in Quebec, Canada, the following sentence applies: Les parties aux présentes confirment que chacune d'elles a exigé que cette convention et tous les documents s'y rattachant soient rédigés en anglais. (Translation: The parties hereto confirm that they have each requested that this Agreement and any related documents be drawn up in the English language.)