Dimply LIMITED ("Dimply") IS WILLING TO ADMIT YOU TO THE PRODUCT TEST PROGRAM THROUGH WHICH YOU CAN TEST SOFTWARE (THE "SOFTWARE") ONLY UPON THE CONDITION THAT YOU ACCEPT THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AND ANY FURTHER TERMS OF USE POSTED ON THE Dimply.COM WEB SITE. YOU MAY INDICATE YOUR ACCEPTANCE BY:
CLICKING ON THE "I ACCEPT" BUTTON. BY CLICKING ON THE "I ACCEPT" BUTTON YOU ARE REPRESENTING THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM AND AGREE TO BE BOUND BY THEM.
IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN Dimply IS UNWILLING TO RELEASE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD CLICK THE "I DECLINE" BUTTON AND/OR EXIT THIS WEB PAGE.
PLEASE READ THIS PRODUCT TEST PROGRAM END USER LICENSE AGREEMENT ("EULA") CAREFULLY.
1. Definitions.
1.1. "Product Test", "Product Test Program", "Alpha Test", "Alpha Test Program", "Beta Test" or "Product Test Program" means licensing of software that is in development to a limited number of users for the purposes of testing and evaluation.
1.2. "Proprietary Information" means information that is proprietary and confidential to Dimply which may be the subject of one or more patent applications and which Dimply 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 Dimply 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 Dimply software or hardware products, the marketing or promotion of any Dimply product, and information received from others that Dimply is obliged to treat as confidential.
1.3. "Test Software" or "Software" means the test software made available to You from time to time at Dimply'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 Test 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 Dimply as part of Your Dimply 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 Dimply customer with a valid Dimply account. This requirement may be waived by Dimply in its sole discretion. If You have any questions regarding this requirement, please contact the Product Test Program Administrator at Dimply via email social@dimply.ai.
2.2. It is Your responsibility to maintain accurate and complete information in Your Dimply Account. Your ongoing participation in the Product Test Program constitutes Your acknowledgement and agreement to this requirement.
3. License.
3.1. License Grant. Licensee is 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 effect the purposes of the Product Test Program, to make or retain any notes, memos, reports, records, reproductions, correspondence or other documents containing Proprietary Information (as defined below).
3.2. License Restrictions. Licensee 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.
4. Support; software updates.
Licensee acknowledges and agrees that Dimply shall have no obligation to provide technical support for the Software. Dimply may, in its sole discretion, from time to time provide Updates to Licensee under this Agreement.
5. Pre-release alpha 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 we do not recommend that you use beta software in production, Dimply does ask that You apply the Software in situations similar to Production Situations to allow You to provide Dimply 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. Dimply may, in its sole discretion, discontinue the Product Test Program for any particular Test 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 Dimply's current intent is to develop and generally release a commercial version of any Software involved in a Product Test, Dimply does not commit, promise or agree to finally release and/or offer for sale a commercial version of the Software. Dimply 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/license any commercial version of the Software if ever released or offered for sale by Dimply.
6. Term.
6.1. The term of this Agreement, with respect to the Product Test Program shall begin upon execution of this Agreement and end upon the earlier of termination by Dimply as provided herein or upon discontinuation of the Product Test Program by Dimply. The term of this Agreement, with respect to each software program, shall commence on the date that the Software is made available to Licensee or otherwise provided to Licensee and shall terminate on the earlier of the release date of the commercial version of the Software, termination by Dimply as provided herein or upon discontinuation of the Product Test for the Software by Dimply.
6.2. Notwithstanding the stipulated term of this Agreement, Dimply 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 written notice to Licensee.
6.3. Obligations upon Termination. 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 (as defined below) shall be destroyed and, upon request in writing by Dimply, such destruction shall be certified in writing by an authorized officer of Licensee supervising same to Dimply.
6.4. Survival. Sections 2, 3.2, 4, 6.3, 6.4, 7, 8.2, 8.3 and 12 through 16 and all definitions shall survive the termination of this Agreement.
7. Title.
This Agreement is not a sale of the Software or any copy thereof. Licensee acknowledges and agrees that Dimply 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 Dimply and its licensors, which have been developed over many years, and Licensee shall not obscure, alter or remove any patent, copyright, trademark or other proprietary marking or legend contained on or in the Software. Dimply reserves all rights not expressly granted herein.
8. Evaluation data.
8.1. In partial consideration of Dimply granting to Licensee the rights set forth herein, Licensee agrees to communicate with Dimply, whether through Dimply's website(s) or otherwise, any suggestions, evaluation or testing results, problems, issues, comments, enhancement ideas or other feedback with respect to the Software (collectively, "Suggestions").
8.2. In partial consideration of Dimply 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 Dimply and any and all Suggestions shall be the sole and exclusive property of Dimply. Licensee agrees to execute such documents and perform such lawful acts as Dimply 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 Dimply subject to the confidentiality obligations set forth herein.
8.3. Licensee covenants and agrees to allow Dimply 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 Dimply to aggregate usage statistics or (b) allows Dimply 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, SOFTWARE IS PROVIDED TO LICENSEE "AS IS" WITH ALL FLAWS. LICENSEE ACKNOWLEDGES BY ENTERING INTO THIS AGREEMENT THAT Dimply AND ITS LICENSORS PROVIDE NO WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SOFTWARE. Dimply 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. Dimply DOES NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. Dimply 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 Dimply 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 Dimply 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 Dimply 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 confidential 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 and its results, pricing and/or contract terms and conditions to any third party. Licensee shall take all reasonable steps to restrict access to the Software to those of Licensee's employees or independent contractors who are each directly engaged in the Software evaluation contemplated by this Agreement and who are each contractually bound to protect the Software in accordance with this Agreement. Licensee shall be fully responsible for the actions of Licensee's employees and independent contractors with respect to the Software. Licensee shall promptly notify Dimply in writing of any use or disclosure of confidential information in violation of this Agreement.
11.2. Licensee acknowledges that the use or disclosure of any confidential information in any manner inconsistent with this Agreement may cause Dimply irreparable damage and that Dimply 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 Dimply 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. Dimply 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 Dimply access to all information, materials and personnel as may be necessary for Dimply to carry out the audit.
13. Eligibility
The Service is designed for users who satisfy the following criteria:
(A) Are over 18 years of age.
(B) Live in the Republic of Ireland
(C) Intend to use the Service for their own personal non-commercial use.
(D) Whose use or access of the Service does not violate any applicable law.
14. Assignment.
This Agreement is not transferable or assignable by Licensee, whether in whole or in part, voluntarily or by merger, consolidation or sale, or otherwise by operation of law without the prior written consent of Dimply. Any change of 50% or more of ownership or control shall be deemed an "assignment." Any assignment made in violation hereof shall be wholly void and invalid, the assignee shall acquire no rights whatsoever, and Dimply 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 insure 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 or partnerships in joint ventures 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.
16. Collection and use of information.
You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the services or certain features or functionality. All information we collect through or in connection with the services is subject to the Dimply Data Privacy NOTICE (“Privacy Notice”). The data collected by and shared with Dimply will be handled in accordance with the aforementioned Privacy Notice.
17. Accounts
When you create an account with us, you guarantee that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service and immediate discontinuation of your license to use our Service. You are entirely responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer, device and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
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