PRODUCT TEST PROGRAM
END USER LICENSE AGREEMENT
This Agreement is a legal agreement between you (“you,” “your,” or “Licensee”) and Hey Healthcare, Inc. d/b/a NextUX (“NextUX”) (each respectively a “Party,” collectively the “Parties”) for your admission to the Product Test Program. Please read this Product Test Program End User License Agreement (the “Agreement” or “EULA”) carefully.
If you do not understand or agree to be bound by all of the terms and conditions of this Agreement, NextUX is unwilling to license the Software to you, in which event, you should exit this webpage.
Please read this Agreement carefully.
1.1. “Product Test Program” means licensing of Software that is in development to a limited number of licensees for the purposes of testing and evaluation.
1.2. “Proprietary Information” means information that is proprietary and confidential to NextUX which may be the subject of one or more patent applications or which NextUX 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 NextUX 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 NextUX software or hardware products, the marketing or promotion of any NextUX product, and information received from others that NextUX is obliged to treat as confidential.
1.3. “Software” means the test software made available to you from time to time at NextUX'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 NextUX as part of your NextUX 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 NextUX customer with a valid NextUX account. This requirement may be waived by NextUX in its sole discretion. If you have any questions regarding this requirement, please contact the Product Test Program Administrator at NextUX via email at email@example.com.
2.2. It is your responsibility to maintain accurate and complete information in your NextUX account. Your ongoing participation in the Product Test Program constitutes your acknowledgement and agreement to this requirement.
3.1. You are hereby granted a personal, limited, temporary, terminable, non-exclusive, non-assignable and nontransferable license to use the Software solely in accordance with the terms and conditions of this Agreement. The license granted herein does not include the right to make copies of the Software, or, other than as necessary to affect the purposes of the Product Test Program, to make or retain any notes, memos, reports, records, reproductions, correspondence or other documents containing Proprietary Information.
3.2. You 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.
3.3. NextUX reserves the right to modify, suspend or discontinue, temporarily or permanently, the Software or any service to which it connects, with or without notice and without liability to you.
4. SUPPORT; SOFTWARE UPDATES.
You acknowledge and agree that NextUX shall have no obligation to provide technical support for the Software. NextUX may, in its sole discretion, from time to time provide Updates to Licensee under this Agreement.
5. PRE-RELEASE PRODUCT.
5.1. Licensee acknowledges that, due to the pre-release 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 NextUX does not recommend that you use the Software in production, NextUX does ask that you apply the Software in situations similar to Production Situations to allow you to provide NextUX 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. NextUX 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. While NextUX's current intent is to develop and generally release a commercial version of any Software involved in a Product Test Program, NextUX does not commit, promise or agree to finally release or offer for sale a commercial version of the Software. NextUX 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.
5.4. Licensee's participation under this Agreement does not constitute an obligation or commitment to purchase or license any commercial version of the Software if ever released or offered for sale by NextUX.
6.1. The term of this Agreement shall begin upon execution of this Agreement and end upon the earlier of (i) termination by NextUX as provided herein, (ii) upon discontinuation of the Product Test Program by NextUX, or (iii) the release date of the commercial version of the Software. You may also terminate this Agreement by deleting the Software and all copies thereof from your mobile device or from your desktop.
6.2. Notwithstanding the stipulated term of this Agreement, NextUX 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 notice to Licensee.
6.3. 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 shall be destroyed and, upon request in writing by NextUX, such destruction shall be certified in writing by Licensee supervising same to NextUX.
6.4. Sections 3.2, 5.1, 5.3, 6.3, 6.4, and 7 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 NextUX 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 NextUX and its licensors, and Licensee shall not obscure, alter or remove any patent, copyright, trademark or other proprietary marking or legend contained on or in the Software. NextUX reserves all rights not expressly granted herein.
8. EVALUATION DATA.
8.1. In partial consideration of NextUX granting to Licensee the rights set forth herein, Licensee agrees to communicate with NextUX, whether through NextUX's website(s) or otherwise, any suggestions, evaluation or testing results, problems, reports, issues, comments, ideas, inventions or other feedback with respect to the Software (collectively, "Suggestions").
8.2. In partial consideration of NextUX 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 NextUX and any and all Suggestions shall be the sole and exclusive property of NextUX. Licensee agrees to execute such documents and perform such lawful acts as NextUX 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 NextUX subject to the confidentiality obligations set forth herein. The Licensee agrees that any Suggestion that Licensee produces or that results from or is suggested by the Suggestions the Licensee makes to NextUX is “work for hire” and will be the sole property of the Company. The Licensee agrees to sign any documents that NextUX deems necessary to confirm its ownership of the Suggestion, and the Licensee agrees to cooperate with NextUX to allow NextUX to take advantage of its ownership of such Suggestion.
8.3. Licensee covenants and agrees to allow NextUX 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 NextUX to aggregate usage statistics or (b) allows NextUX to pinpoint the cause of the crash and mean time to failure. Such information shall not include creative content developed by Licensee.
9. NO WARRANTY.
BECAUSE OF THE PRE-COMMERCIALIZATION STAGE OF THE SOFTWARE, THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS" WITH ALL FLAWS. LICENSEE ACKNOWLEDGES BY ENTERING INTO THIS AGREEMENT THAT NEXTUX AND ITS LICENSORS PROVIDE NO WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SOFTWARE. NEXTUX 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. NEXTUX DOES NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. NEXTUX DOES NOT WARRANT THAT A COMMERCIAL VERSION OF THIS SOFTWARE WILL EVER BE DEVELOPED OR RELEASED OR THAT, IF DEVELOPED OR RELEASED, SUCH COMMERCIAL VERSION 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 NEXTUX 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 NEXTUX 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 NextUX 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 Proprietary 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 Program and its results, pricing and/or contract terms and conditions to any third party. Licensee shall be fully responsible for the actions of Licensee's employees and independent contractors with respect to the Software. Licensee shall promptly notify NextUX in writing of any use or disclosure of Proprietary Information in violation of this Agreement.
11.2. Licensee acknowledges that the use or disclosure of any Proprietary Information in any manner inconsistent with this Agreement may cause NextUX irreparable damage and that NextUX 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 NextUX 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. NextUX 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 NextUX access to all information, materials and personnel as may be necessary for NextUX to carry out the audit.
Licensee acknowledges that the use and shipment of the Software is governed by laws and regulations on exports in the United States and other jurisdictions and agree not to ship, transfer or re-export the Software in violation of any such laws and regulations.
This Agreement is not transferable or assignable by Licensee, whether in whole or in part, voluntarily or involuntarily, without the express written consent of NextUX. Any assignment made in violation hereof shall be wholly void and invalid, the assignee shall acquire no rights whatsoever, and NextUX 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.
15. NO AGENCY.
No representation shall be made by either party which would create any apparent agency, employment, partnership, or joint venture, 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 NextUX and Licensee, and supersedes any prior understandings agreements or representations by or between NextUX 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 NextUX 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 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 NextUX to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights. This Agreement shall be construed and enforced in accordance with the laws of the State of California, 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.