Stax

Software Testing License Agreement

OCTOBER 24, 2019

Parties

Stax is owned and operated by APTUS ENGINEERING, INC., an Arizona Corporation, with its principal place of business at 17767 N. Perimeter Dr. Suite B-105, Scottsdale, AZ 85255, and is hereafter referred to as the "Licensor".

Any company or individual that creates a team on Stax.ai, hereafter referred to as the "Licensee" is effectively in agreement with the Licensor starting the date of team creation. This Software Testing License Agreement is presented to the user creating the team and must agree to the terms of this agreement in order to complete team creation.

Terms

1.
Definitions

In this Agreement, except to the extent expressly provided otherwise:

"Agreement" means this agreement including any amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or public holiday in the United States;
"Business Hours" means the hours of 9:00AM to 5:00PM Mountain Standard Time on a Business Day;
"Documentation" means [the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the Licensee;
"Effective Date" means the date of execution of this Agreement;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or not registrable, registered or unregistered, including any application or right of application for such rights and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, patents, utility models, and rights in designs;
"Term" means, in respect of this Agreement, from the date of execution of this agreement through the end of testing which shall end no later than February 1st 2020, and certain provisions of this agreement (Clauses 1, 8, 10, 11, 13, and 15) will remain in force for a period of Twelve (12) months following the end of the testing period;
"Software" or "Software Services" means the software services identified Currently as Stax.ai;
"Software Defect" means a defect, error or bug in the Software having an adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:
(a)
any act or omission of the Licensee or any person authorised by the Licensee to use the Software;
(b)
any use of the Software contrary to the Documentation by the Licensee or any person authorised by the Licensee to use the Software;
(c)
a failure of the Licensee to perform or observe any of its obligations in this Agreement; and/or
(d)
an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;
2.
Term
2.1.
This Agreement shall come into force upon the Effective Date.
2.2.
This Agreement shall continue in force until such time as the software test concludes, with certain provisions subject to termination in accordance with Clause 12 or any other specifically identified provision of this Agreement.
2.3.
The provisions under Clause 8 of the agreement shall remain in effect for a period of two years, or until such time as the Software being tested becomes available to the public.
3.
Supply of Software
3.1.
The Licensor shall make the Software available for use by the Licensee during the whole of the period of a minimum of Two (2) Months following the Effective Date, and shall provide to the Licensee such assistance in relation to the use of the Software as the Licensee may reasonably request.
4.
License
4.1.
The Licensor hereby grants to Licensee from the date of use of Software to the Licensee until the end of the testing Term, a non-exclusive United States license to:
(a)
Utilize the Software , in accordance with this agreement and any other Documentation; subject to the limitations and prohibitions set out and referred to in this Clause 5.
4.2.
The Licensee may not sub-license and must not purport to sub-license any rights granted under Clause 5.1 under any circumstances.
5.
No assignment of Intellectual Property Rights
5.1.
Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the Licensee, or from the Licensee to the Licensor.
6.
Charges
6.1.
In lieu of payment for the initial phase of the testing period, Licensee shall provide feedback to the Licensor to make product improvements. Once the initial phase of testing ends, The Licensee shall pay the discounted Charges identified to the Licensor in accordance with an End-User License Agreement to be executed at that time.
6.2.
All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable taxes, which will be added to those amounts and payable by the Licensee to the Licensor.
7.
Payments
7.1.
The Licensor shall automatically charge the Licensee on a monthly basis for after the initial testing period is over. These charges will be at a discounted rate to foster the continued use of the software. Itemized statements will be available in your account page so that you may review the individual charges and page counts usage.
7.2.
If the Licensee does not pay any amount properly due to the Licensor under this Agreement, the Licensor may:
(a)
charge the Licensee interest on the overdue amount at the rate of 8% per annum which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month;
8.
Non-Disclosure
8.1.
Licensee represents that it treats and maintains as confidential, proprietary, and/or trade secret, among other things, Licensor’s respective inventions, ideas, research, developments, discoveries, technology, designs product designs, improvements, know-how, prototypes, mechanisms, specifications, patent applications, computer programs and documentation, manufacturing processes, processes, manufacturing methods, methods, customer lists, financial information, costs, margins, tests, test data, marketing plans, business plans, business strategies, new product launches, manufacturing and assembly methods, and the like, (hereinafter collectively, and individually, “Confidential Information”).
8.2.
Licensor agrees that it will only disclose to the other Confidential Information which relates directly to the Purpose, and nothing else.
8.3.
Licensee agrees that it will: (i) maintain and keep as secret any and all Confidential Information of Licensor which may be disclosed under this Agreement; (ii) not disclose any of Licensor’s Confidential Information disclosed under this Agreement to any third-parties; (iii) not use any Licensor’s Confidential Information except for the Purpose; (iv) only use any of the Licensor’s Confidential Information for the Purpose, and for no other reason or purpose whatsoever; and (v) only disclose Licensor’s Confidential Information to its directors, officers, shareholders and employees which have a need to know such information solely for the Purpose, and who are legally bound to comply with the terms, provisions, and conditions of this Agreement, provided that each shall be deemed compliant with (i), (ii), and (v) above if it shall treat the Confidential Information it receives hereunder by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use and disclosure of Confidential Information, as it uses to protect its own confidential information of a like nature.
8.4.
The obligations herein shall not apply to any information which: (i) was known by the Licensee prior to the disclosure hereunder; or (ii) was generally in the public domain at the time of disclosure or thereafter generally enters the public domain through no wrongful act or breach of this Agreement by Licensee; or (iii) becomes known by the Licensee from a third-party under no duty (to the knowledge of the Licensee) to retain such information in confidence; or (iv) was independently developed by Licensee without the use of, or prior access to, any of the Licensor’s Confidential information.
8.5.
The Software Service being provided under this License agreement is not yet available to the public or public knowledge, the entire service being provided is Confidential and should not be discussed or disclosed to any third party. As such, Licensor under provision of these services will NOT mark any Confidential Information that they disclose under this Agreement as “CONFIDENTIAL”.
8.6.
Except as provided herein below Licensee shall not reproduce or make any copies of any of the Confidential Information, in any form or manner (including hard copies and/or electronic).
8.7.
Licensee understands, acknowledges, and agrees that it will return to Licensor upon Licensor’s demand any and all of the Confidential Information. After returning such Confidential Information to the Licensor, to the extent any Confidential Information is stored or saved on a computer, hard drive, tape drive, diskette, or any other storage medium, Licensee shall promptly delete and wipe clean any of the Confidential Information, except that Licensee may retain an archival copy of any and all documents containing Confidential Information received hereunder in accordance with the Licensee’s record keeping and retention policies .
8.8.
In the event Licensee is required by law to disclose any of the Confidential Information, it will first notify (to the extent lawful and reasonable practicable) Licensor of any such impending disclosure and provide Licensor with reasonable opportunity to prevent such disclosure. Licensee shall, solely at Licensor’s expense, reasonably cooperate with Licensor in any such efforts (to the extent lawful).
9.
Warranties
9.1.
The Licensor warrants to the Licensee that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
9.2.
As this is software currently being tested pursuant to this agreement, Licensor does NOT warrant to the Licensee that:
(a)
The Software as provided will conform in all material respects with any specific Software Specification;
(b)
The Software will be supplied free from Software Defects or will remain free from Software Defects for a period of at least 12 months following the beginning of use of the Software Service;
(c)
the Software shall incorporate security features reflecting the requirements of good industry practice.
9.3.
The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not breach any known laws, statutes or regulations applicable.
9.4.
The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person.
9.5.
If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the Licensee in accordance with this Agreement infringes any person's Intellectual Property Rights], the Licensor may acting reasonably at its own cost and expense:
(a)
modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights
(b)
procure for Licensee the right to use the Software in accordance with this Agreement.
9.6.
The Licensee warrants to Licensor that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
9.7.
All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
9.8.
The Licensee acknowledges that the software being tested may be incomplete and may have defects, and as such should not rely on the software for the complete operation or complete storage of business data during the testing phase of the Software. Licensee agrees to hold Licensor harmless for any data, or business losses which in the unlikely event may occur through the use of the Software being tested.
10.
Acknowledgements and warranty limitations
10.1.
The Licensee acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
10.2.
The Licensee acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be entirely secure.
10.3.
The Licensee acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.
10.4.
The Licensee acknowledges that the Licensor does not and will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Software Service; and, except to the extent expressly provided otherwise in this Agreement, the Licensor does not warrant or represent that the Software or the use of the Software by the Licensee will not give rise to any legal liability on the part of the Licensee or any other person.
11.
Limitations and exclusions of liability
11.1.
Nothing in this Agreement will:
(a)
limit or exclude any liability for death or personal injury resulting from negligence;
(b)
limit or exclude any liability for fraud or fraudulent misrepresentation;
(c)
limit any liabilities in any way that is not permitted under applicable law; or
(d)
exclude any liabilities that may not be excluded under applicable law.
11.2.
The limitations and exclusions of liability set out in this Clause 11 and elsewhere in this Agreement:
(a)
are subject to Clause 11.1; and
(b)
govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
11.3.
The Licensor shall not be liable to the Licensee in respect of any loss of profits or anticipated savings.
11.4.
The Licensor shall not be liable to the Licensee in respect of any loss of revenue or income.
11.5.
The Licensor shall not be liable to the Licensee in respect of any loss of use or production.
11.6.
The Licensor shall not be liable to the Licensee in respect of any loss of business, contracts or opportunities.
11.7.
The Licensor shall not be liable to the Licensee in respect of any loss or corruption of any data, database or software.
11.8.
The Licensor shall not be liable to the Licensee in respect of any special, indirect or consequential loss or damage.
12.
Termination
12.1.
The Licensor may terminate this Agreement by giving to the Licensee not less than 30 days' written notice of termination.
12.2.
The Licensee may terminate this Agreement by giving to the Licensor not less than 30 days' written notice of termination
12.3.
Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a)
(i)
is dissolved;
(ii)
ceases to conduct all (or substantially all) of its business;
(iii)
is or becomes unable to pay its debts as they fall due;
(iv)
is or becomes insolvent or is declared insolvent; or
(v)
convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(vi)
commits any material breach of this Agreement, and the breach is not remediable;
(b)
an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c)
an order is made for the winding up of the other party, or the other party passes a resolution for its winding up; or
12.4.
The Licensor may terminate this Agreement immediately by giving written notice to the Licensee if:
(a)
any amount due to be paid by the Licensee to Licensor under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b)
the Licensor has given to the Licensee at least 30 days’ written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 12.5.
13.
Effects of termination
13.1.
Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 8, 10, 11, 13, 15].
13.2.
Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
13.3.
For the avoidance of doubt, the licences of the Software in this Agreement shall terminate upon the termination of this Agreement; and, accordingly, the Licensee must immediately cease to use the Software upon the termination of this Agreement.
13.4.
Within 10 Business Days following the termination of this Agreement, the Licensee shall:
(a)
return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software; and
(b)
irrevocably delete from all computer systems in its possession or control all copies of the Software,
and if the Licensor so requests the Licensee shall procure that [a director of the Licensee] certifies to the Licensor, in a written document signed by that person and provided to the Licensor within 5 Business Days following the receipt of the Licensor's request, that the Licensee has fully complied with the requirements of this Clause 13.4.
14.
Notices
14.1.
All notices must be in writing and addressed to the relevant party at its address set forth below. All notices must be personally delivered or sent prepaid by nationally recognized courier or certified or registered mail, return receipt requested, and are effective upon actual receipt. Notice can be provided with Email if the receiving party so accepts.
15.
General
15.1.
This Agreement constitutes the entire agreement of the parties with respect to its subject matter, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to such subject matter. This Agreement may only be amended, modified, waived, or supplemented by an agreement in writing signed by both parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Neither party may assign this Agreement without the written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void, except that a Party may assign this Agreement without such consent to its successor in interest by way of merger, acquisition or sale of all or substantially all of its assets. The terms of this Agreement shall be binding upon such permitted assignees. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement may be executed in digital counterparts.

Execution

This document is executed and effective between the Licensor and Licensee, from the day of team creation.

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