BOTTANGO BETA/TRIAL SOFTWARE END USER LICENSE AGREEMENT

LAST UPDATED: September 22, 2020

  1. DEFINITIONS

    1. “Agreement” means this Beta/Trial Software End User License Agreement, as may be renewed, modified and/or amended from time to time, and is available online at URL.

    2. “Beta/Trial Software” means the software distributed by Bottango for motion control, which has been designated by Bottango as a beta, pilot, limited release, non-production, early access, evaluation or by a similar description, as well as any future programming fixes, updates and revisions thereof.

    3. “Bottango” means Bottango, LLC, a Washington limited liability company.

    4. “Bottango Parties” means the officers, members, employees, agents, and representatives of Bottango. 

    5. “Documentation” means any manuals, documentation, instructions and supporting materials related to the Beta/Trial Software as may be provided or otherwise made available to You by Bottango.

    6. “Effective Date” means the date on which this Agreement becomes effective, which occurs when You agree to the terms of this Agreement as described below.

    7. “IP Rights” means any and all intellectual property rights, including but not limited to copyrights, trademarks, trade secrets and patents, as well as know-how contained in or relating to the Beta/Trial Software and the Documentation.

    8. “Open Source Software” means code or software that is provided with the Beta/Trial Software and distributed under an open source license such as (by way of example only) the GNU General Public License, GNU Lesser General Public License, BSD License, MIT License, Common Public License, any derivative of any of the foregoing licenses, or any other license approved as an open source license by the Open Source Initiative (also known as the OSI).

    9. “Update” means any update, enhancement, error correction, bug fix, modification or new release to the Beta/Trial Software.

    10. 1.10.“You” or “Your” means the end user of the Beta/Trial Software.

  2. WAIVER OF JURY TRIAL

    1. EACH PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.

  3. ACCEPTANCE

    1. This Agreement constitutes a valid and binding agreement between Bottango and You, as a user, for the use of the Beta/Trial Software. By clicking an “Accept” button, checking a box indicating your acceptance of this Agreement, by using any other means provided by Bottango to indicate your acceptance of this Agreement, or by installing and using the Beta/Trial Software, You agree to be bound by all of the terms and conditions of this Agreement.

    2. If You reside in a jurisdiction which restricts the ability to enter into agreements such as this agreement according to age and You are under the age limit, You may not enter into this Agreement and download, install or use the Beta/Trial Software. By entering into this Agreement and using the Beta/Trial Software, You explicitly represent and warrant that You have verified that Your use of the Beta/Trial Software is allowed in Your own jurisdiction and You shall stop using the Beta/Trial Software in such jurisdiction if such use becomes illegal in such jurisdiction during the term.

  4. BETA TESTING

    1. You acknowledge that Bottango is permitting beta testing for and/or trial use of the Beta/Trial Software and You hereby agree to participate in such testing and/or trial use and to provide feedback, as may be appropriate, to Bottango. You acknowledge that You will not receive any consideration or compensation as a result of Your evaluation of the Beta/Trial Software or for Your provision of any feedback. 

    2. YOU ACKNOWLEDGE THAT THE BETA/TRIAL SOFTWARE IS NOT FULLY DEVELOPED, HAS NOT BEEN TESTED IN THE PUBLIC MARKET AND MAY CONTAIN, ERRORS, DESIGN FLAWS, BUGS OR DEFECTS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE BETA/TRIAL SOFTWARE REMAINS WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU SHALL HAVE THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACK-UP OF ANY DATA USED, CREATED, RECEIVED, OR TRANSMITTED IN CONNECTION WITH YOUR USE OF THE BETA/TRIAL SOFTWARE. USE OF THE BETA/TRIAL SOFTWARE MAY CAUSE UNEXPECTED RESULTS. 

    3. Bottango has the unconditional right, in its sole discretion, to abandon development of the Beta/Trial Software, at any time, with or without notice, and without any obligation or liability to you.

  5. LICENSE AND RESTRICTIONS

    1. License. Subject to the terms of this Agreement, Bottango hereby grants You a limited, non-exclusive, non-sublicensable, non-assignable license to download, install and use the Beta/Trial Software on Your computer, solely for your own non-commercial use in connection with your evaluation of the Beta/Trial Software. Bottango reserves all rights and licenses in and to the Beta/Trial Software not expressly granted to you under this Agreement. Without limiting the foregoing, you acknowledge that this Agreement does not grant you any rights to use the Beta/Trial Software in a production environment or for direct revenue-generating purposes.

    2. Compliance with Applicable Laws. You agree to comply with all local, state, national, and international laws, rules and regulations applicable to your use of the Beta/Trial Software.

    3. Restrictions. You will not, and You will not permit any third party under Your control or acting on Your behalf to:

      1. reproduce any portion of the Beta/Trial Software for any purpose except as expressly authorized in this Agreement;
      2. sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Beta Software or any part thereof;

      3. undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Beta/Trial Software or any part thereof;

      4. incorporate the Beta/Trial Software in any product sold, licensed or otherwise made available by You to any third party, whether or not for any consideration;

      5. breach or circumvent any disclosed or undisclosed security device or intended protection used for or contained in the Beta/Trial Software or Documentation;

      6. alter or remove any trademark, copyright or other proprietary rights notices or symbols on or relating to any copy of the Beta/Trial Software;

      7. use the Beta/Trial Software for the purposes of (i) comparative or competitive analysis, or (ii) developing, using, or providing a competing software product or service;

      8. use the Beta/Trial Software, alone or in part, in connection with any hazardous environments, systems, or applications; any safety response systems; any safety-critical applications; or any applications where the failure or malfunction of the Beta/Trial Software may reasonably and foreseeably lead to personal injury, physical damage, or property damage; or

      9. use the Beta/Trial Software for any purpose not expressly permitted by this Agreement.

    4. Notwithstanding section 5.3.2, above, if you are an educational service provider and Bottango has granted you the right to use the Beta/Trial Software in connection with the provision of educational services to students, such use shall not constitute a violation of Section 5.3.2; provided that you acknowledge that you shall remain solely liable for all use of the Beta/Trial Software by your students and you agree to indemnify, defend and hold harmless Bottango and the Bottango Parties from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, arising from or relating to any such use.

  6. UPDATES; SUPPORT

    1. Bottango may, but has no obligation to, provide any Updates to the Beta/Trial Software. You acknowledge and agree that Bottango has no obligation to make available to You any Update or subsequent versions of the Beta/Trial Software. You also agree that You may have to enter into a renewed version of this Agreement, in the event You want to download, install or use a new version of the Beta/Trial Software. 

    2. Bottango may, but except as otherwise expressly agreed by Bottango in writing has no obligation to, provide any Support to You in connection with the Beta/Trial Software.

  7. IP RIGHTS

    1. Exclusive Ownership. You acknowledge and agree that, as between You and Bottango, all IP Rights to or arising from the Beta/Trial Software are and shall remain the exclusive property of Bottango and/or its licensors. Nothing in this Agreement is intended to or does transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the Beta/Trial Software as authorized in this Agreement. You will not take any action to jeopardize, limit or interfere with the Bottango’s ownership of the IP Rights. You acknowledge and agree that any infringement or misappropriation of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, which may include without limitation copyright laws and trademark laws.

    2. Feedback. Feedback consists of any comments, suggestions, ideas, opinions, answers to questions or other feedback, relating to the Beta/Trial Software (”Feedback”). If You provide Feedback to Bottango, You agree that any Feedback You provide will become the property of Bottango and You agree that Bottango may use or otherwise exploit all or part of Your Feedback or any derivative thereof in any manner or media now known without any remuneration, compensation or credit to You. You hereby irrevocably assign to Bottango all right, title, and interest in any Feedback you provide.

    3. Open Source Software. All Open Source Software is provided under the terms of the applicable third-party open source license agreement accompanying such Open Source Software or included in the open source license file accompanying the Beta/Trial Software.

  8. TERM AND TERMINATION

    1. Term. This Agreement will be effective as of the Effective Date and will remain effective until terminated by either Bottango or You as set forth below.

    2. Termination by Bottango. Bottango may terminate this Agreement with immediate effect at any time, with or without cause, by providing notice to You and/or by preventing Your access to the Beta/Trial Software.

    3. Termination by You. You may terminate this Agreement with immediate effect at any time, with or without cause, by providing notice to Bottango.

    4. Consequences of Termination. Upon termination of this Agreement: You (a) acknowledge and agree that all licenses and rights to use the Beta/Trial Software shall terminate; (b) will cease, and will cause any authorized third-party whom you have provided access to the Beta/Trial Software to cease, any and all use of the Beta/Trial Software; (c) will remove the Beta/Trial Software from all hard drives, networks, and other storage media and destroy all copies of the Beta/Trial Software in Your possession or under Your control.

    5. No Liability. BOTTANGO WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY IN RELATION TO, AND BOTTANGO HEREBY DISCLAIMS ALL LIABILITY FOR, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM TERMINATION OF THIS AGREEMENT.

    6. Survival. Sections 1, 2, 4, 7, 8.4, 8.5, 8.6 and 9-12 shall survive termination or expiration of this Agreement.

  9. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

    1. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE BETA/TRIAL SOFTWARE, OPEN SOURCE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE PRIOR SENTENCE, BOTTANGO DOES NOT REPRESENT OR WARRANT THAT THE BETA/TRIAL SOFTWARE OR OPEN SOURCE SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR/BUG-FREE.

    2. Limitation of Liability. IN NO EVENT SHALL BOTTANGO BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE BETA/TRIAL SOFTWARE, OPEN SOURCE SOFTWARE OR THE DOCUMENTATION, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES, LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY, OR LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), VIOLATION OF STATUTE, OR OTHERWISE, AND WHETHER OR NOT BOTTANGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

    3. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE BETA/TRIAL SOFTWARE IS TO UNINSTALL AND CEASE USE OF THE BETA/TRIAL SOFTWARE.

    4. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

  10. INDEMNIFICATION

    1. You agree to indemnify, defend and hold harmless Bottango and the Bottango Parties from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement by You or any third party whom you have provided access to the Beta/Trial Software. Bottango reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by You, in which event You will fully cooperate with Bottango in asserting any available defenses.

  11. EXPORT COMPLIANCE

    1. The Beta/Trial Software may be controlled under the United States Export Administration Regulations (“EAR”) and may be subject to the approval of the United States Department of Commerce prior to export or re-export. Any export or re-export, directly or indirectly, in contravention of the EAR, or any other applicable national law, regulation, or order, is prohibited. The Beta/Trial Software is prohibited for export or re-export to Cuba, Iran, North Korea, Sudan, and Syria and to any country or its nationals subject to embargo or sanction, or to any entity or person for which an export license is required per U.S. and other national restricted party lists.

  12. GENERAL PROVISIONS

    1. Notices. All notices required or permitted under this Agreement must be delivered in writing by electronic mail and will be effective upon receipt. Notices to You shall be sent to any email address you provide to Bottango. Notices to Bottango shall be sent to: legal@bottango.com. Either Party may, by notice to the other Party given in compliance with this section, change the email address to which such notices are to be given.

    2. Revisions to Agreement. Bottango reserves the right to modify this Agreement at any time by providing notice of the revised Agreement to You. Your continued use of the Beta/Trial Software following receipt of such notice shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.

    3. Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and Bottango with respect to Your use of the Beta/Trial Software and Documentation, and supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter. Notwithstanding the foregoing, Your access to and use of the Bottango website located at bottango.com (“Bottango Site”) is subject to the terms and conditions of the Bottango Site Terms of Use (www.bottango.com/Terms) and the Bottango Privacy Policy (www.bottango.com/Privacy).

    4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be 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 of this Agreement will continue in full force and effect.

    5. No Waiver. The failure of Bottango at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by Bottango.

    6. Assignment. You may not assign this Agreement or any of Your rights hereunder. Bottango may assign this Agreement or any of its rights hereunder to any third party, with or without notice to You.

    7. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, U.S.A. without giving effect to the conflict of laws provisions thereof. Any legal proceedings arising out of or relating to this Agreement will be subject to the exclusive jurisdiction of the courts located in King County, Washington, U.S.A.