Beta Testing Agreement

Last Updated: April 22, 2019

PLEASE READ THE FOLLOWING BETA TESTING AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING COMPANY’S SOFTWARE OR ACCESSING GRAIN’S SERVICE.

This page contains the agreement (the “Agreement”) between you and Grain Intelligence, Inc., (“Company”) governing your use of Company’s proprietary software and any other hardware, service, website, application, plug-in, component, functionality, or program created by Company (collectively, the “Software”).

By clicking the “I accept” button, you (“you” or “User”, and together with Company, each a “Party”) agree to this Agreement either for yourself or on behalf of your employer or another entity.

1.           LICENSE.

1.1 Grant of License.  Subject to User’s compliance with the terms and conditions of this Agreement, Company hereby grants to User a limited, nonexclusive, nontransferable, revocable license, during the term of this Agreement, to use the Software, solely for the purposes of testing and evaluation.

1.2 License Restrictions.  User acknowledges that the Software contains trade secrets of Company and its licensors, and, in order to protect such trade secrets and other interests that Company and its licensors may have in the Software, User agrees not to reverse engineer, decompile or disassemble the Software or authorize a third party to do any of the foregoing.  User will not modify the Software.  User will not distribute sell, sublicense or otherwise transfer the Software.  User will not copy the Software, except as strictly necessary to use the Software in accordance with the terms of Section 1.1.  User will reproduce all of Company’s and its licensors’ copyright notices and any other proprietary rights notices on all copies of the Software that User makes hereunder.

1.3 Limited Rights.  User’s rights in the Software will be limited to those expressly granted in Section 1.1.  Company and its licensors reserve all rights and licenses in and to the Software not expressly granted to User under this Agreement.

1.4 Delivery and Installation.  Company will deliver the Software to User promptly following the execution of this Agreement by both parties. User will be responsible for installing the Software.  At User’s request, Company will provide reasonable assistance to User in connection with such installation.

1.5 Audit.  Company may, at any time during the term of this Agreement, upon reasonable written notice and during User’s normal business hours, audit User’s use of the Software at User’s premises, as reasonably necessary to confirm that User is using the Software in accordance with the terms and conditions of this Agreement. Company may use a third-party organization reasonably acceptable to User to assist Company in conducting such an audit.  User will cooperate with Company in such audit and will promptly make available to Company all information and materials reasonably required by Company to conduct such an audit.

2.    FEEDBACK.  Any recommendations, ideas, contributions, corrections, enhancements, improvements, or the like relating to the Software that are submitted to Company by User and are incorporated, implemented, or used by Company in the Software, or in any computer programs, products, technology, or processes of Company (the “Feedback”), shall be the sole property of Company and the same, together with all copyrights, trade secrets, patent rights, and other intellectual property thereto shall be and hereby are assigned to Company.

3. OWNERSHIP.  User acknowledges and agrees that all User Feedback will be the sole and exclusive property of Company.  User hereby irrevocably transfers and assigns to Company and agrees to irrevocably assign and transfer to Company all of User's right, title, and interest in and to all Feedback, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, “Intellectual Property Rights”) therein.  At Company’s request and expense, User will execute documents and take such further acts as Company may reasonably request to assist Company to acquire, perfect and maintain its Intellectual Property Rights and other legal protections for the User Feedback.  User further acknowledges and agrees that, as between the parties, Company owns all right, title, and interest in and to the Software, including all Intellectual Property Rights therein, even if Company incorporates any User Feedback into subsequent versions of the Software.  User will not earn or acquire any rights or licenses in the Software or in any Company Intellectual Property Rights on account of this Agreement or User's performance under this Agreement.

4. CONFIDENTIAL INFORMATION.

4.1 Definition.  “Confidential Information” means: (a) the Software, and any features, results or output produced by, and other information relating to, the Software (including, without limitation, all Feedback); and (b) any business or technical information of Company, including, but not limited to, any information relating to Company’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by Company as “confidential” or “proprietary” and, if orally disclosed, is reduced to writing by Company within thirty (30) days of such disclosure.

4.2 Exclusions.  The obligations in Section 4.3 will not apply to the extent any information: (a) is or becomes generally known to the public through no fault or breach of this Agreement by User; (b) is rightfully known by User at the time of disclosure without an obligation of confidentiality; (c) is independently developed by User without access to or use of any Confidential Information; or (d) is rightfully obtained by User from a third party without restriction on use or disclosure.

4.3 Restrictions.  User will not use or disclose any Confidential Information, except as necessary for the performance of this Agreement.  User will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that it ordinarily uses with respect to its own proprietary information of a similar nature and importance.  User may disclose Confidential Information only to those of its employees who have a bona fide need to know such Confidential Information for the performance of this Agreement; provided, that each such employee first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement.

5. DISCLAIMERS.

5.1 Warranty Disclaimers.  User acknowledges that the Software is being provided “AS IS.”  COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

5.2 Acknowledgment of Beta Software.  User acknowledges and agrees that: (a) the Software is not an official product and has not been commercially released for sale by Company; (b) the Software may not operate properly, be in final form or fully functional; (c) the Software may contain errors, design flaws or other problems; (d) it may not be possible to make the Software fully functional; (e) the information obtained using the Software may not be accurate; (f) use of the Software may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) Company is under no obligation to release a commercial version of the Software; and (h) Company has the right unilaterally to abandon development of the Software, at any time and without any obligation or liability to User.

5.3 User Data.  User acknowledges and agrees that it should not rely on the Software for any reason.  User further acknowledges and agrees that it is solely responsible for maintaining and protecting all data and information that is stored, retrieved or otherwise processed by the Software.  Without limiting the foregoing, User will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of User’s use of the Software.

6. LIMITATION ON LIABILITY.  IN NO EVENT WILL COMPANY BE LIABLE TO USER OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

7. TERM AND TERMINATION.

7.1 Termination.  Either party may terminate this Agreement at any time, with or without cause, effective immediately upon notice of such termination.

7.2 Effect of Termination.  Upon any termination or expiration of this Agreement: (a) the rights and licenses granted to User under this Agreement will automatically terminate; and (b) within five (5) days after any such termination or expiration, User will, at its expense, return to Company all copies of the Software and any other Confidential Information in User's possession or control, and an officer of User will certify in writing to Company that it has complied with the foregoing.

7.3 Survival.  The provisions of Sections 2, 3, 4, 5, 6, 7.3, 7.4 and 8 will survive any termination or expiration of this Agreement.

8. GENERAL PROVISIONS. Company and User are independent contractors, and neither Company nor User is an agent, representative, employer, employee, or partner of the other.  This Agreement sets forth the entire agreement between Company and User.  This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.  The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.  If any provision contained in this Agreement is determined to be unenforceable in any respect, then such provision will be severed and the remaining provisions of this Agreement will remain in full force and effect.