Terms and Conditions of Application Testing Program and Confidentiality Agreement

PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS SERVICE EVALUATION PROGRAM and CONFIDENTIALITY AGREEMENT ("AGREEMENT") CAREFULLY. IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “ACCEPT” BUTTON. 

IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "DECLINE" BUTTON AND YOU WILL BE INELIGIBLE TO PARTICIPATE IN THE SERVICE EVALUATION PROGRAM AND CONFIDENTIALITY AGREEMENT BY GOLEM IMS GMBH.

The Terms and Conditions of Service Evaluation Program and Confidentiality Agreement are supplementary to Terms of Services for PharosN portal.

1. Participation in the Application Testing Program. The purpose of the Service Evaluation Program (ATP) is to make alpha, beta, and other pre-release software, services, and related documentation, materials, and information (collectively, the “ATP content”) available to Service Evaluation Program participants from time to time for the purpose of providing the development team at company GOLEM IMS GMBH, Austria (further called “Provider”) with your feedback on the quality and usability of the Pre-Release Software Services. You understand and agree that participation in the ATP is voluntary and does not create a legal partnership, agency, or employment relationship between you and Provider, and neither you nor Provider has any authority to bind the other. You understand that your participation in the ATP does not obligate Provider to provide you with any Pre-Release Software. Should Provider decide to provide you with Pre-Release Software, you agree to use and evaluate the Pre-Release Software diligently. Provider reserves the right to modify the terms, conditions, and policies of this Service Evaluation Program at any time without notice, and to revoke your participation in this Service Evaluation Program at any time.  

2. Access to Pre-Release Software and Additional Terms. You understand that Provider may make Pre-Release Software available to ATP participants as PharosN portal Members for downloading online and/or on physical media, provide you with software as part of the ATP, including but not limited to scripts, code snippets, sample code, troubleshooting applications and bug submission tools (“BugReportTools”) as part of your participation in the ATP. All use of such Pre-Release Software and BugReportTools shall be pursuant to the terms and conditions of this Agreement and/or another license agreement accompanying such Pre-Release Software or BugReportTools (collectively, “Pre-Release Software” and “” shall be referred to as “Software Services” for purposes of this Agreement).

If the Software Services are accompanied by a separate license agreement, you agree that the license agreement accompanying such Software Services, in addition to Sections 5 Definition of Confidential Information and Section 6 Nonuse and Nondisclosure of Confidential Information of this Agreement, shall govern your use of the Software Services. Any inconsistencies between the provisions of the license agreement accompanying the Software Services and Sections 5 and 6 of this Agreement shall be governed by this Agreement. If there is no license agreement accompanying the Software Services, your use of the Software Services will be subject to the provisions of this Agreement.

3. License Grant and Restrictions.  Subject to your compliance with this Agreement, Provider hereby grants your organization registered by you at PharosN portal win2biz.com mentioned in the a limited license to use the Software Services solely for testing and evaluation purposes and only in connection with this Service Evaluation Program. Except as otherwise permitted under Section 15 Third Party Software & Information, this license does not grant you the right to use the Software Services for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works of the Software Services.  You agree not to decompile, reverse engineer, disassemble, decrypt, or otherwise attempt to derive the source code of any Software Services (except as and only to the extent the foregoing restrictions are prohibited by applicable law, or to the extent as may be permitted by licensing terms governing use of open-sourced components included with any such Software Services). Unless otherwise permitted under Section 15 Third Party  Software & Information below, you certify that the Software Services will only be used for testing and evaluation purposes in connection with the Service Evaluation Program, and will not be rented, sold, leased, sublicensed, assigned, distributed or otherwise transferred.  Provider retains ownership of all Software Services, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Provider intellectual property.

4. Feedback. As part of the Service Evaluation Program, Provider will provide you with the opportunity to submit bug reports, questionnaires, enhancement requests, issue reports and/or support information (collectively, “Feedback”) to Provider.  Provider may request this information from you through the BugReportTools as well as by email, web questionnaires, bug forms, and other mechanisms.  By agreeing to this Agreement, you agree that Provider may contact you from time to time about the ATP and you hereby consent to receive such communications and respond by providing relevant ATP content. You agree that Provider will be free to use any Feedback you provide for any purpose.

5. Definition of Confidential Information.  You agree that the Pre-Release Software and any information concerning the Pre-Release Software (including its nature and existence, features, functionality, and screen shots), the BugReportTools, and any other information disclosed by Provider to you in connection with this Agreement, including but not limited to information learned by you from Provider employees or through inspection of Provider’s property, that relates to Provider’s products, designs, business plans, business opportunities, finances, research, development, know-how, personnel, or third party confidential information disclosed to you by Provider, will be considered and referred to collectively in this Agreement as “Confidential Information.”

Information that otherwise would be deemed Confidential Information but (a) is generally and legitimately available to the public through no fault or breach of yours, (b) is generally made available to the public by Provider, (c) is independently developed by you without the use of any Confidential Information, (d) was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation, or (e) any third party software and/or documentation provided to you by Provider and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such software and/or documentation will not be considered Confidential Information under this Agreement. All Confidential Information remains the sole property of Provider and you have no implied licenses or other rights in the Confidential Information not specified in Section 3 License Grant and Restrictions. 

6. Nonuse and Nondisclosure of Confidential Information.  Except as expressly permitted in this Section, you agree that you will not disclose, publish, or otherwise disseminate any Confidential Information to anyone other than those employees and contractors working for the same entity as you who are accepted into the ATP and enrolled as you, or as otherwise expressly permitted or agreed to in writing by Provider. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information, including preventing access to or display of the Provider Software to third parties. You agree to accept Confidential Information for the sole purpose of effecting the permitted uses of the Software Services as set forth in Section 3 License Grant and Restrictions above. You agree not to use Confidential Information otherwise for your own or any third party’s benefit without the prior written approval of an authorized representative of Provider in each instance. You hereby acknowledge that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Provider that may be difficult to ascertain. Accordingly, you agree that Provider will have the right to obtain immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.

7.  Consent to Collection and Use of Data.

In order to test and improve software services, and unless you opt-out as set forth below, you acknowledge that Provider will be collecting, using, storing, processing and analyzing (collectively, “Collecting”) diagnostic and usage logs from your devices that are running pre-release versions of PharosN engine and clients as part of this ATP. This information will be collected in a form that does not personally identify you and may be collected from such devices running pre-release versions of Pharos Navigator server any time. The information that would be collected includes, but is not limited to, general diagnostic and usage data, various unique device identifiers. By installing or using pre-release versions of Pharos Navigator server and clients on your devices as part of Provider’s Service Evaluation Program, you acknowledge and agree that Provider have your permission to Collect all such information and use it as set forth above. 

In addition, as part of your participation in the Service Evaluation Program, you will have the option of installing and/or using Provider’s BugReportTools to your device and/or transferring its system logs (“System Logs”) to Provider.  Such System Logs may include personally identifiable information. These System Logs may used for Provider's diagnostic purposes and to improve the ATP results and quality of services released finally.

8. Privacy Policy.  At all times your information will be treated in accordance with Privacy Policy, which is incorporated by reference into this License and can be viewed at: http://www.win2biz.com.

9. Support and Maintenance; Future Products. During your participation in the Service Evaluation Program, Provider would do its best to provide you with technical and other support for the Software Services however provider may or may not do so. If such support is provided, it will be provided in addition to your normal subscriptions, as applicable, and will be available exclusively through the ATP while you are its participant.  You agree to abide by any support rules and policies that Provider provides to you in order to receive such support. You acknowledge that Provider has no express or implied obligation to announce or make available a commercial version of the Pre-Release Software to anyone in the future. Should a commercial software service be made available, it may have features or functionality that are different from those found in the Pre-Release Software licensed hereunder.  

10. Discussion Forums. As part of the Service Evaluation Program, you may have the ability to participate in discussion forums about the Pre-Release Software and other Confidential Information that Provider may make available to you. Except for the limited purpose of discussions with other participants within such forums, you acknowledge and agree that this Agreement does not grant you the right to copy, reproduce, publish, blog, disclose, transmit, or otherwise disseminate any Provider Confidential Information.

11. No Warranty.  The Software Services provided hereunder may be designated as alpha, beta, development, pre-release, untested, or not fully tested versions. The Software Services may be incomplete or contain errors or inaccuracies and could cause failures, corruption or loss of data and/or information. You expressly acknowledge and agree that all use of the Software Services is at your sole risk. Provider IS PROVIDING ALL CONFIDENTIAL INFORMATION, INCLUDING THE PRE-RELEASE SOFTWARE OR BUGREPORTTOOLS, TO YOU SOLELY ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTIBILITY, NONINFRINGEMENT, ACCURACY, COMPLETENESS, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE.

You acknowledge that Provider may have not publicly announced the availability of the Pre-Release Software, that Provider has not promised or guaranteed to you that such Pre-Release Software will be announced or made available to anyone in the future, and that Provider has no express or implied obligation to you to announce or introduce the Pre-Release Software or any similar or compatible product, or to continue to offer or support the Pre-Release Software in the future.

12. Disclaimer of Liability. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH TESTING, INSTALLATION, OR USE OF THE PRE-RELEASE SOFTWARE AND BUG REPORT TOOLS PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CARRIER BILLS, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF THE PRE-RELEASE SOFTWARE ON YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. PROVIDER WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWIS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ANY LIABILITY THAT STEMS FROM ANY USE OF THE PRE-RELEASE SOFTWARE ON YOUR DEVICE AND/OR ANY PERIPHERALS CONNECTED THERETO, AND/OR FROM ANY OTHER CONFIDENTIAL INFORMATION, AND/OR PROVIDERS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF PROVIDER HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PROVIDER'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF TEN EURO (1.00 Euro).  THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13. Term and Termination.  This Agreement will continue in effect until terminated in accordance with this Section. You may terminate this Agreement for any reason, but only by returning or destroying any and all Confidential Information that is in your possession or control (including, without limitation, any Pre-Release Software).  Provider may terminate this Agreement at any time, with or without cause, immediately upon written notice to you, and may terminate this Agreement immediately for any breach of the confidentiality provisions set forth herein.  Within seven (7) days of your receipt of Provider’s termination notice, or earlier if requested by Provider, you will return, cease all use of, and/or destroy the Pre-Release Software and all other Confidential Information as provided in this Section. Following termination of this Agreement for any reason, the restrictions of Section 3 License Grant and Restrictions and Sections, 5 Definition of Confidential Information, 6 Nonuse and Nondisclosure of Confidential Information, 7 Consent to Collection and Use of Data and 8 Privacy Policy and 11-19, inclusive, will continue to bind the parties.

14. No Export. You agree that you will not export or re-export any of the Pre Release Software or Confidential Information received from Provider. In particular, but without limitation, the Software Services may not be exported or re-exported into any European Union embargoed countries. You also agree that you will not use the Software Services for any purposes prohibited by European Union law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons.

15. Third Party Software & Information. Portions of the Software Services may include third party software and other copyrighted material. Acknowledgements, licensing terms, and disclaimers for such material are contained in the “online” electronic documentation for the Software Services, and your use of such material is governed by such respective terms. Mentioning of third parties and third party products in any materials, advertising, promotions or bounces is provided to ATP participants is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third party product specifications and descriptions are supplied by the respective vendor or supplier, and Provider shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.

16. No Waiver or Assignment.  No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of Provider, and no single waiver will constitute a continuing or subsequent waiver. This Agreement may not be assigned by you in part.

17.  Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the Austria and European Union. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

18. Agreement in English.  The parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English.

19. Severability; Complete Understanding. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement, including any appendices made effective pursuant to this Agreement and any additional licenses accompanying the Provider Software, constitutes the entire agreement with respect to the Confidential Information

disclosed herein and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. Except to the extent provided under Section 2 above, any inconsistencies between this Agreement and any license agreement accompanying the Software Services will be governed by the license agreement accompanying the Software Services. Except as expressly set forth herein, any waiver or amendment of any provision of this Agreement shall be effective only if in writing and signed by authorized representatives of both parties.