Beta Service Terms and Agreement
IMPORTANT: THE PRODUCT (AS DEFINED BELOW) IS STILL UNDER DEVELOPMENT AND TESTING. DITECH HAS NOT MADE THE SERVICE GENERALLY AVAILABLE FOR PURCHASE BY ITS CUSTOMERS.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY (“CUSTOMER”) AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT ACCEPT THIS AGREEMENT AND CUSTOMER MAY NOT USE THE SERVICE.
THE BETA PRODUCT LICENSED HEREUNDER IS BELIEVED TO CONTAIN DEFECTS AND IS AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR THE SOLE PURPOSE OF PROVIDING DITECH WITH FEEDBACK ON QUALITY, USABILITY, PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. 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 PRODUCT AND/OR ACCOMPANYING MATERIALS. THE POSSIBILITY OF THE CORRUPTION OF DATA AND/OR THE LOSS OF DATA EXISTS. THE POSSIBILITY OF EXTENDED SERVICE INTERRUPTIONS EXISTS. DITECH STRONGLY ENCOURAGES YOU TO REGULARLY BACK UP ALL DATA AND INFORMATION. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH THE USE OF THE PRODUCT.
GOPHER SOFTWARE LICENSE KEY
To activate the Service, you must use your existing Gopher Software (Version 4) License Key or setup a new Gopher Software License Key if you do not already have one.
THIS BETA AGREEMENT (THIS “AGREEMENT”) IS BETWEEN CUSTOMER AND DITECH.
BY USING THE PRODUCT AFTER NOTICE OF THIS AGREEMENT OR BY CLICKING OR CHECKING A BOX INDICATING YOUR ACCEPTANCE OF OR ASSENT TO THE TERMS OF THIS AGREEMENT (THE FIRST DATE ON WHICH ANY SUCH ACTION OCCURS, THE “EFFECTIVE DATE”), CUSTOMER
AGREES TO ALL OF THE TERMS OF THIS AGREEMENT.
- Definitions. Capitalized terms in this Agreement have the meanings given to such terms in this Section 1 or in the Section of the Agreement in which the terms first appear.
- “Beta Plan” means Customer’s testing and evaluation of the Product in a non-production environment for its internal purposes only.
- “Beta Test Period” means the period of time beginning on the Effective Date and ending when Ditech concludes the Beta test. The online services works in conjunction with Gopher Software for Windows. Customer can use Gopher Software for Windows without a license for the duration of the Gopher Software for Windows 40 (forty) day trial period. Customer must purchase a Gopher Software for Windows license to continue using Product after
Partication in the Beta Plan after the Customer's Gopher Software for Windows trial expires requires the purchase of a license for Gopher Software for Windows to continue Gopher using the Product.
- “Feedback” means suggestions, comments, improvements, ideas or other feedback provided by Customer or its employees or agents to Ditech related to the Product.
- “Product” means the GopherConnect online service and/or the portions of the Gopher Software Windows application that communicate with the online service or any applicable documentation provided to Customer by Ditech, and all derivative works thereof and modifications thereto.
- Beta Plan. Customer desires to test and evaluate the Product in accordance with the Beta Plan on a free of charge basis for the Beta Test Period, and Ditech hereby grants Customer the right to do the same subject to the terms and conditions herein. Customer acknowledges that the Product is still under development and testing and that Ditech has not made the Product generally available as a formal Ditech product or service.
- License Grant; License Conditions. Subject to the terms and conditions of this Agreement, Ditech hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license during the Beta Test Period to use the Product solely
in accordance with the Beta Plan and this Agreement. As a condition to the foregoing license, Customer must not: (a) use the Product to process Customer’s production data or use the Product in Customer’s production environment; (b) use the Product
with data or information that has not been backed up; (c) sell, distribute, rent, lease, sublicense, display, modify, time share, outsource or otherwise provide the Product to any third party or use it in a service bureau, outsourcing environment,
or for the processing of third party data; (d) modify, copy or create derivative works based on the Product; (e) create Internet “links” to or reproduce any content forming part of the Product, other than for its own internal non-production business
purposes; (f) disassemble, reverse engineer, or decompile the Product or any part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Product; (g) interfere with or disrupt the integrity or performance
of the Product; (h) use the Product in violation of any applicable law or regulation or any right of any third party; (i) attempt to gain unauthorized access to the Product or its related software, systems, platforms or networks; (j) use any components
provided with the Product separately from Product; (k) access the Product for benchmarking or competitive purposes; (l) modify, delete or remove any ownership, title, trademark, patent or copyright notices from the Product; or (m) use the Product
for any purpose other than as specifically provided in this Agreement.
- Termination; Effect of Termination. Either party may terminate this Agreement at any time for any or no reason upon written notice to the other party. Upon expiration of the Beta Test Period or any earlier termination of this Agreement:
(a) Customer’s license hereunder will automatically expire; (b) Customer must cease all use of the Product, and return or destroy (at Ditech’s option) all copies of the Product to Ditech ; (c) Customer must return or destroy (at Ditech ’s option) all of Ditech ’s Confidential Information (defined below); and (d) the Product’s features or capabilities may become restricted or removed. Nothing herein obligates either party to enter into any further agreement with the other party. Sections 5, 6, and 8-15 survive any expiration or termination of this Agreement. If a generally available product (“GA Product”) is announced that replaces the Product and Customer desires to acquire a license to access and use that GA Product, then Customer must acquire access to that GA Product under the then-current subscription service terms with Ditech or its appropriate affiliate.
- Feedback. All Feedback is provided at the sole discretion of Customer. Customer hereby assigns to Ditech all right, title and interest in the Feedback, including all intellectual property rights therein. If requested by Ditech, Customer agrees to execute such further instruments as Ditech may reasonably request confirming Ditech’s ownership interest in such Feedback.
- Ownership. Ditech and its affiliates or licensors own and retain all right, title and interest to the Product, including all related intellectual property and proprietary rights therein. Ditech owns and retains all right, title
and interest in all software, documentation, questionnaires, methodologies, algorithms, logic, models, charts, reports and any other items used to deliver the Product or made available to Customer as a result of the Product (“Product Accessories”)
and access to and use of the relevant Product Accessories is governed by the terms of this Agreement, including the conditions in Section 3 above. Ditech reserves any rights not expressly granted to Customer in this Agreement.
- Support. Ditech may, in its sole discretion, provide Customer with certain support and consultation services with respect to the Product free of charge to assist in the evaluation and testing activities under this Agreement; provided,
however, that Ditech is not obligated to correct any bugs, defects, or errors in the Product or otherwise support or maintain the Product. Ditech may discontinue any support or consulting services at any time.
- Confidential Information. In the course of their relationship, the parties may disclose to each other information identified at the time of disclosure as confidential (“Confidential Information”), which may include
information concerning their respective businesses and technology. The Product (including the performance characteristics of the Product) and all Product Accessories are the Confidential Information of Ditech. All Confidential Information will
remain the property of the disclosing party, and the receiving party will have no interest in or rights to such Confidential Information except as necessary to accomplish the purposes of this Agreement. Except as authorized herein, each party
agrees to maintain all Confidential Information of the other party in confidence, to not use or disclose any Confidential Information of the other party except as expressly permitted by this Agreement, to restrict access to the other party’s Confidential
Information to its employees and contractors who have a need to have access to the Confidential Information and who are bound by confidentiality obligations at least as restrictive as those set forth in this Agreement, and to take all reasonable
precautions to prevent any unauthorized disclosure of such information. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (a) is in the possession of the receiving party at the time
of its disclosure and is not otherwise subject to obligations of confidentiality; (b) is or becomes publicly known through no wrongful act or omission of the receiving party; or (c) is received, without restriction, from a third party free to
disclose it without obligation to the disclosing party.
- No Warranty. CUSTOMER ACKNOWLEDGES THE PRODUCT IS EXPERIMENTAL IN NATURE AND IS PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE PRODUCT IS NOT INTENDED FOR ANY PRODUCTION USE OF ANY KIND. CUSTOMER AGREES THAT DITECH AND ITS AFFILIATES AND LICENSORS HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY USE OF THE PRODUCT
OUTSIDE OF A TESTING ENVIRONMENT.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL DITECH BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING
ANY OTHER PROVISION OF THIS AGREEMENT, DITECH’S ENTIRE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT WILL NOT EXCEED $1. CUSTOMER ACKNOWLEDGES THE ALLOCATION OF RISK SET FORTH IN THIS SECTION, AND ACKNOWLEDGES THAT DITECH WOULD NOT ENTER INTO
THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
- Acknowledgements. Ditech does not guarantee that it will make a commercial release of a version of the Product available. Customer acknowledges and agrees that the Product is a pre-release version, does not represent a final product
from Ditech, and may contain bugs, errors, or other problems that could cause Product failures and other damages, including, without limitation, damage to Customer’s computer. CUSTOMER’S USE OF THE PRODUCT IS ENTIRELY AT ITS OWN RISK.
- Government End-Users. The Product is commercial computer software. If the user or licensee of the Product is an agency, department, or other entity of the United States government, the use, duplication, reproduction, release, modification,
disclosure, or transfer of the Product, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212
for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Product is a “commercial item” consisting of “commercial computer software” and “commercial computer software documentation” and was
developed fully at private expense. All other use is prohibited.
- Exports. Customer will not export, directly or indirectly, any technical data acquired from Ditech pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. government or any agency thereof
at the time of export requires an export license or other governmental approval without first obtaining such license or approval. Customer indemnifies and holds Ditech and its licensors harmless from any actions, claims, losses, or damages arising
from breach of this Section.
- Remedies. The parties acknowledge that money damages are not an adequate remedy for any breach or threatened breach of one or more of a party’s obligations set forth in Sections 3 or 8. The parties therefore agree that in addition
to any other remedies available at law or under this Agreement, Ditech or Customer will be entitled, without further proof of irreparable harm other than this acknowledgement, to equitable relief, including injunctions, against the other party
for any breach of the foregoing obligations, all without proof of money damages and without the posting of bond.
- Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining
provisions will continue in full force and effect.