Applause Accessibility Tool Terms & Conditions
SECTION 1. PRODUCT OR SERVICE
1.1 Beta Software Evaluation. Applause App Quality, Inc. (“Vendor”) has developed certain Beta Software “Applause Accessibility Tool” which you, as Licensee (“Licensee” or “You”) wishes to download solely for evaluation purposes (“Beta Software”). Licensee acknowledges and agrees that such Beta Software is pre-release and is not a generally available product. By downloading this Beta Software Agreement (“this Agreement”), installing or using the Beta Software, Licensee is agreeing to these terms.
1.2 Beta Software License and Restrictions. Vendor hereby grants to Licensee a non-exclusive, non-transferable, except as provided herein, license to use and evaluate the Beta Software for a period of 90 days from first download, subject to the terms herein. Licensee will not (i) create derivative products or other derivative works of any Software; or (ii) disassemble, decompile, manipulate or reverse engineer any portion of the Software. Vendor is providing You a unique code, which permits you, the Licensee to download the Applause Accessibility Tool. At all times, You agree that such code is non-transferable and non-assignable and subject to your use in compliance with this Agreement.
1.3 Licensee Feedback. Upon Vendor’s request, Licensee shall provide feedback to Vendor concerning the functionality and performance of the Beta, Software including, without limitation, identifying potential errors and improvements (collectively the “Feedback”). Vendor may use Feedback, without restriction, to improve or enhance its products and Licensee hereby grants to Vendor a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to sublicense (i) to use, reproduce, disclose, distribute, modify, prepare derivative works of and otherwise exploit Feedback and other information Licensee provides, and (ii) to make, use, sell, offer to sell, import and export any product or service that incorporates Feedback and other information Licensee provides to Vendor under this Agreement.
1.4 Vendor shall own and retain all right, title and interest in and to the intellectual property rights in the Beta Software and any derivative works thereof, subject to the limited license expressly set forth in Section 1. Licensee does not acquire any other rights, express or implied, in the Beta Software.
1.5 Open Source Software (“OSS”) is licensed to Licensee solely under the applicable OSS license terms located in the open_source_licenses.txt file included in or along with the Beta Software, OSS means software components licensed under a license approved by the Open Source Initiative or similar open source or freeware license and included in, embedded in, utilized by, provided or distributed with the Beta Software.
SECTION 2. FEE
2.1 No Fee. Neither Vendor nor Licensee shall be obligated to pay any fee for its required performance hereunder.
SECTION 3. DISCLAIMER OF WARRANTY & SUPPORT
3.1 BETA SOFTWARE, AND ANY UPDATES, MAY CONTAIN ERRORS AND ARE PROVIDED FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO SECTION 5, BETA SOFTWARE, AND ANY UPDATES ARE PROVIDED TO LICENSEE "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO SECTION 5 (LIABILITY LIMITATION), VENDOR SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
3.2. Licensee acknowledges the Beta Software is subject to change and does not in any way represent Vendor’s commitment, promise, or agreement to release and/or offer for sale a generally available version of such Beta Software in the future. Accordingly, Licensee acknowledges that any research or development that Licensee performs regarding the Beta Software or any product associated with Beta Software is done entirely at Licensee's own risk. The Beta Software may contain features, functionality or modules that may not be included in the generally available commercial version of Beta Software, if released, or that will be marketed separately for additional fees.
3.3 Vendor has no obligation to support the Beta Software in any manner nor to provide any updates to Licensee.
SECTION 4. LICENSEE INDEMNIFICATION
4.1 Licensee acknowledges and agrees that Licensee is solely responsible for complying with Licensee’s adherence of its digital properties with Web Content Accessibility Guidelines (“WCAG”) 2.1 A and AA standards and that nothing herein, including such Beta Software itself, is deemed to take the place of Licensee’s obligations with respect to WCAG. Vendor shall have no liability to Licensee in connection with any litigation relating to the Beta Software provided herein. Licensee shall indemnify and hold Vendor harmless from and against any claims, damages, litigation, liabilities of every nature, losses, costs and expenses (including reasonable attorney’s fees and expenses) relating to any third-party claims resulting from such Beta Software or reliance thereto.
SECTION 5. LIMITATION OF LIABILITY
IT IS UNDERSTOOD THAT BETA SOFTWARE IS PROVIDED WITHOUT CHARGE FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS AGREEMENT. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, BUT SUBJECT TO THIS SECTION 5, VENDOR’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $1.00. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL VENDOR HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION, TORT, STATUTE, CONTRACT OR OTHER), EVEN IF APPLAUSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE VARIOUS CONSIDERATIONS DUE TO VENDOR IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT WERE TAKEN INTO ACCOUNT IN DETERMINING THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 5. LICENSEE ACKNOWLEDGES AND AGREES THIS LIMITATION IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT VENDOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
SECTION 6. CONFIDENTIALITY/DATA OWNERSHIP
6.1 Confidentiality. “Confidential Information” means any non-public information disclosed pursuant to this Agreement (such information may be related to the business, customer, financials or affiliates of the disclosing party), including but not limited to the Beta Software, Updates processes, financial data, statistics, programs, customer lists, research or business development information. Each party agrees that with respect to any Confidential Information that is disclosed by one party to the other party, that the party receiving such Confidential Information shall not (i) disclose such Confidential Information other than to persons who have a need to know and are bound by a duty of confidentiality with regard to such information, or (ii) use Confidential Information for a purpose inconsistent with the terms of this Agreement. The receiving party shall use the same degree of care to safeguard the other party’s Confidential Information as it does to safeguard its own confidential information of equal importance, but no less than reasonable care. Vendor shall not represent, directly or indirectly, that any product or service of Vendor has been approved, used or endorsed by Licensee or its Affiliates.
SECTION 7. GENERAL
The waiver, amendment or modification of any provision of this Agreement or any right, power or remedy hereunder shall not be effective unless made in writing and signed by both parties which expressly states an intent to modify this Agreement. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof. This Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties. This Agreement may not be transferred in whole or in part (by assignment, operation of law, change in control or otherwise). The validity, construction and performance of this Agreement and the legal relations among the parties of this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to its conflicts of law principles. Exclusive venue and jurisdiction for any dispute relating to this Agreement shall rest in the Federal or State Courts in Wilmington, Delaware. If any provision of this Agreement or the application of any such provision shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall continue in full force and effect. Vendor, in performance of this Agreement, is acting as an independent contractor of Licensee. The Parties agree and acknowledge that Vendor’s employees, or any agents supplied by Vendor, are not Licensee’s employees or agents. This Agreement does not create a joint venture or partnership between the Parties.