B-Yond End-User License Agreement

IMPORTANT:

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PLEASE CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT

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PLEASE NOTE THAT SEVERAL SECTIONS ARE LOCALIZED FOR EUROPE IN ORDER TO COMPLY WITH LOCAL LAWS AND THAT THESE SECTIONS SHALL ONLY APPLY TO CUSTOMERS WHO ACQUIRED THE SOFTWARE IN EUROPE

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This End User License Agreement (“EULA”) is a legal agreement between you, in your individual capacity or on behalf of any entity, (hereafter referred to as “Licensee”) and B.Yond, Inc. (“B-Yond”), in order to govern the licensed use of AGILITY, a B-Yond product (the “Software”). This EULA will apply to license purchases only when such purchase agreements explicitly refer to it.

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By accessing the Software (as defined below), the Licensee agrees with this EULA and is bound by the terms and conditions documented herein. When the Licensee represents an entity, such as a legal corporation, the Licensee certifies that they are authorized to agree with the terms herein.

Definitions

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1. “Licensee” means a person or an organizational entity who has gained lawful rights to use the Software.
2. “Software” means all executable components, configurations, extensions, scripts, third-party software, machine learning models, required to run the Software.
3. “User” means any authorized person or application belonging to a Licensee Account.
4. “On-Premise” means the dedicated installation of the Software in an environment that has been designated by the Licensee for the explicit use of Licensee and its users.
5. “Account” means the registered account that is necessary for authorizing and accessing the Software either online or on-premise by Users.
6. “Community Edition” refers to B-Yond deployed software, available online, for the purpose of evaluating and using the Software.

Ownership and Intellectual Property Rights

The Licensee, through downloading, installing, copying or, accessing and using the Software (online or on-premise), do not acquire any ownership rights to the Software. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties governed by US law. Consequently, the rights to use the Software as set out in this Agreement are licensed, not sold, to the Licensee, by B-Yond.

Trademarks contained in the Software are registered to B-Yond in the United States and other countries. Third-party trademarks, trade names, product names, copyright notices, proprietary notices, legends, symbols, labels and logos (collectively referred to as “marks”) may be the trademarks or registered trademarks of their respective owners. Any such marks shall not be removed or altered in the Software. The Licensee is not authorized to use any of these marks.

B-Yond retains ownership of all rights, title, and interest in and to the Software, regardless of its media or form, whether online, on disk, or otherwise, including all copyrights, trademarks, marks, and patents.

License Grant

The Licensee shall have legally acquired access to the Software and received permission to access the Software by B-Yond or an authorized agent, as evidenced by holding a valid Account.

B-Yond grants the Licensee a limited, non-exclusive license to use and copy the Software for use on his or her computer system or file server for local use within the Licensee’s network. This network must be owned, leased, and/or controlled by the Licensee or a member of the Licensee’s corporate group, which includes a corporate Licensee, a corporate Licensee's majority-owned subsidiaries, any parent company having a majority-owned interest in such corporate Licensee, and such parent's majority-owned subsidiaries. The Licensee may transfer the Software from one computer to another over their network but may not copy it to additional sites outside the network or make additional copies for use on other networks or sites. The Licensee may make one backup copy of the Software.

B-Yond may grant a time-limited Trial License to facilitate the decision-making process with regards to acquiring a commercial version. Terms and conditions for Trial Licenses are the same as for the License and shall survive the Trial License term.

Licensee may not:

• Resell, rent, lease, sublicense or, transfer the Software to a third party.
• Translate, reverse engineer, decompile, disassemble, or create derivative works from the Software or provide the Software as Software-as-a-service (SaaS).  
• Use, copy, modify or transfer the Software, or any copy in whole or in part, except as expressly provided for in this license.
• Reformat, mix, filter, re-synthesize, or otherwise alter the presets, sound samples, and files contained to the Software for use in any kind of commercial sampling product/package or software without the express written consent of B-Yond.  

Activation

The Licensee shall register with B-Yond and receive approved credentials that will unlock Account creation. The Software can be activated online or on-premise. Transfer or assignment of the Account is prohibited without the express consent of B-Yond.

Scope of Use

The output and results produced and made available to the Licensee as a result of using the Software, are exclusively for Licensee’s internal business use and consumption.

The Machine Learning (ML) Models provided with the Software shall not be modified by the Licensee. Such modifications will invalidate any warranties, maintenance, and support agreements.

The Company reserves the right to terminate this EULA if the Licensee violates any of the terms and conditions outlined herein.

Upgrades and Updates

The Licensee may be notified of Software upgrades and updates. When the Licensee is under warranty and/or has a Maintenance & Support (M&S) contract with B-Yond, the Licensee is required to accept all provided upgrades and updates. Failure to do so will result in the invalidation of the Warranty and M&S.

Data Collection

During the process of registration and unlocking, updating, or upgrading the Software, and when technical support is provided, B-Yond may collect, and use technical information for the improvement of the Software, for support purposes, and for the verification of the Software, upgrades, and updates.

When the Software is activated online, aliased authentication information will be collected for the purpose of connecting the Software to the Licensee Account, enabling the Software to obtain the information pertaining to Software license(s) that is/are stored in the Account. B-Yond may track and collect information from use of the Software (“Usage Data”) and aggregate such Usage Data in a “Usage Report.” Usage Data is anonymous. Further information about B-Yond’s data collection and privacy policies for the user account can be found in the Privacy Policy.

Warranty

DISCLAIMER OF WARRANTIES FOR FREE LICENSES: Any liability in connection with the Trial Licenses and any other free-of-charge License is excluded except in cases of intent or gross negligence. A claim for damages arising from a legal defect or a defect in the Software regarding Free Licenses is only permissible if B-Yond fraudulently concealed such defect. Subject to any statutory claims the Licensee may have under the law (which shall not be affected), B-Yond is not obliged to provide any additional technical support for Software subject to a Free License.

DISCLAIMER OF WARRANTIES: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND B-YOND HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE PRODUCT, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  B-YOND DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY B-YOND OR AN B-YOND AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY*. SHOULD THE SOFTWARE PROVE DEFECTIVE, B-YOND MAY CHOOSE TO REPLACE THE LICENSEE’S COPY OF THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

*) B-Yond may agree to enter into a separate Warranty and/or Maintenance and Support agreement with the Licensee, usually in the form of a Master Service Level Agreement (MSLA). In such a case, the MSLA shall govern and will supersede the Warranty disclaimer in this EULA.

Limitation of Liability

For Software licensed in Europe: B-Yond shall only be liable without restriction according to the statutory provisions for damages of the Licensee caused by proven intentional or gross negligent conduct of B-Yond or its agents. In Europe only, the same shall apply to personal injury and damages according to the German Product Liability Act or comparable laws in other jurisdictions that may apply.

Otherwise, the liability of B-Yond for damage claims – for whatever legal reason – is limited in accordance with the following conditions:

1. For damages caused by slight negligence, B-Yond is only liable insofar as they cause damage to contractual obligations (cardinal obligations). Cardinal obligations are those contractual obligations that must be fulfilled in order to ensure orderly implementation of the contract and in whose observance the User should be able to trust. Insofar as B-Yond is responsible for simple negligence hereafter, the liability of B-Yond is limited to the typically foreseeable losses.
2. The liability of the B-Yond for damages caused by loss of data and/or programs lost by slight negligence is limited to the typical cost of restoration, which would have been incurred in case of regular and appropriate data backup and data protection by the Licensee.
3. The provisions of the above paragraph apply correspondingly to the limitation of damages for unsuccessful expenses.

For Software licensed outside of Europe: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL B-YOND OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) RESULTING FROM THE USE OF THE SOFTWARE,   INABILITY TO USE THE SOFTWARE, OR DEFECTS IN OR CAUSED BY THE SOFTWARE, INCLUDING BUT NOT LIMITED TO COMPROMISING THE SECURITY OF COMPUTERS, OPERATING SYSTEMS, OR FILES, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF B-YOND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

IN ANY EVENT, B-YOND’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR THE REPLACEMENT OF THE SOFTWARE WITH A PRODUCT OF COMPARABLE RETAIL VALUE, AS ELECTED BY B-YOND IN ITS SOLE DISCRETION. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU IN PART OR WHOLE.

Indemnification

Licensee agrees to indemnify, defend, and hold harmless B-Yond and its affiliates and their respective officers, employees, directors, agents, licensees (excluding you), sublicensees (excluding you), successors, and assigns from and against any and all liability, costs, losses, damages, and expenses (including reasonable attorneys’ fees and expenses) arising out of any claim, suit, or cause of action relating to and/or arising from (a) your breach of any term of this EULA; (b) your violation of any rights of any third party; or (c) your use or misuse of the Software. Your indemnification obligations set forth in the immediately preceding sentence shall survive the termination of this EULA.

Note – Other indemnification obligations may apply in Europe.

Third Party Content and Applications

The Software may utilize or include third-party content, software, or other copyrighted material (“Third Party Content”). The Software may also allow users to connect with third-party applications or websites (“Third Party Applications”). Use of Third Party Content and Applications is governed by their respective terms and conditions. By accepting this EULA, the Licensee is also accepting the additional terms and conditions, if any, set forth therein.  

B-Yond expressly disclaims all warranties in connection with the Third-Party Content and Applications and shall have no liability in connection therewith.

B-Yond is not liable for costs arising out of services demanded by the Licensee that are not provided by B-Yond. This shall apply to costs of data transfer from or to the Licensee’s device to a third party or any cost of additional storage space or other services.

Term

License terms are typically documented in separate contracts, referring to this EULA. In absence of such contract, the Licensee can terminate the EULA by destroying the Software together with all copies in any form (when applicable) and deactivate Software Accounts. B-Yond can terminate the License and this EULA in accordance with separate contract when in existence. In absence of such contract, B-Yond can terminate by deactivation of the Software Account and written request to Licensee to uninstall and destroy the Software when applicable.

Export Law Assurances

The Licensee may not export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained.  In particular and, without limitation, the Software may not be exported or re-exported (a) into or to a nation or a resident of any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.  By installing or using any component of the Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

Governing Law

Software License acquired in Europe: Governing Law/Place of Performance and Jurisdiction/Dispute Resolution: The Irish courts will have exclusive jurisdiction over any claim arising from, or related to, the Software; however, B-Yond retains the right to bring proceedings against the Licensee for breach of these conditions in the country of the Licensee’s residence or any other relevant country. These terms of use and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland. By agreeing to these terms and conditions, in the event of any claim the Licensee may have arising from or related to the Software or this EULA, the Licensee agrees to hereby waive any right to participate in any type of lawsuit brought and/or maintained as a class action or similar in nature to a class action.

Software License acquired outside of Europe: Governing Law/Dispute Resolution: This EULA will be governed by and construed in accordance with the laws of the State of New York and of the United States of America.  This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. By agreeing to these terms and conditions, in the event of any claim you may have arising from or related to the Software or this EULA you agree to the exclusive personal and subject matter jurisdiction of the courts located within the New York, New York, U.S.A. for making and resolving any such claims, and hereby waive any right to participate in any type of lawsuit brought and/or maintained as a class action or similar in nature to a class action. B-Yond reserves the right to make any claim against you and seek and be granted any legal or equitable remedy against you in any court anywhere in the world.

General

This agreement constitutes the complete and exclusive agreement between B-Yond and the Licensee with respect to the subject matter hereof and supersedes all proposals, representations, understandings, and prior agreements, whether oral or written, and all other related communication between the parties unless explicitly so stated in a separate contract. All rights not explicitly granted in this agreement are reserved. Any clause in this agreement that is found to be invalid or unenforceable shall be deemed deleted and the rest of this agreement shall remain unaffected.  The failure or delay of B-Yond to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach. The transfer of the Licensee's claims against B-Yond is prohibited

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