PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THE HIBOU BETA SOFTWARE PROGRAM AGREEMENT (“AGREEMENT”) CAREFULLY. IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “ACCEPT” BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “DECLINE” BUTTON AND YOU WILL BE INELIGIBLE TO PARTICIPATE IN THE HIBOU BETA SOFTWARE PROGRAM.
HIBOU BETA SOFTWARE PROGRAM AGREEMENT HIBOU APPLICATION INC.
- Participation in the Hibou Beta Software Program. The purpose of the Hibou Beta Software Program (“Beta Program”) is to make alpha, beta, seed, and other pre-release software, pre-release services, and related documentation, materials, and information (collectively, the “Pre-Release Software”) available to Beta Program participants from time to time for the purpose of providing Hibou with feedback on the quality and usability of the Pre-Release Software. You understand and agree that participation in the Beta Program is voluntary and does not create a legal partnership, agency, or employment relationship between you and Hibou. You understand that your participation in the Beta Program does not obligate Hibou to provide you with any Pre-Release Software. Hibou reserves the right to modify the terms, conditions, and policies of this Beta Program from time to time, and to revoke your participation in this Beta Program at any time. If Hibou makes changes to the terms and conditions of this Agreement, then Hibou will present such revised terms and conditions to you by email communication.
By participating in the Beta Program, You certify that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries) and you represent that you are legally permitted to join the Beta Program. This Agreement is void where prohibited by law and the right to become a Beta Program participant is not granted in such jurisdictions. Unless otherwise agreed or permitted by Hibou in writing, you cannot share or transfer any software or other materials you receive from Hibou in connection with being a Beta Program participant. The Hibou ID and password you use to login as a Beta Program participant cannot be shared in any way or with any one. You are responsible for maintaining the confidentiality of your Hibou ID and password and for any activity in connection with your account. Notwithstanding the foregoing restrictions in this Section 1, if you are the parent or legal guardian of individuals between the ages of 13 and the legal age of majority in the jurisdiction in which you reside, you may allow such individuals to share your Hibou ID and password for their use in connection with the Beta Program solely under your supervision and only in accordance with this Agreement. You are responsible for such individuals’ compliance with and violations of this Agreement and any other Hibou agreements.
- Access to Pre-Release Software; Seeding Tools; and Additional Terms. You understand that Hibou may make Pre-Release Software available to Beta Program participants for downloading online through the App Store or through a direct download link. From time to time, Hibou, at its option, may also provide you with software or services as part of the Beta Program. All use of such Pre-Release Software and Seeding Tools shall be pursuant to the terms and conditions of this Agreement and/or another license agreement accompanying such Pre-Release Software or Seeding Tools (collectively, “Pre-Release Software” and “Seeding Tools” shall be referred to as “Hibou Software” for purposes of this Agreement).
If the Hibou Software is accompanied by a separate license agreement, you agree that the license agreement accompanying such Hibou Software, in addition to Sections 5 and 6 of this Agreement, shall govern your use of the Hibou Software. Any inconsistencies between the provisions of the license agreement accompanying the Hibou Software and Sections 5 and 6 of this Agreement shall be governed by this Agreement. If there is no license agreement accompanying the Hibou Software, your use of the Hibou Software will be subject to the provisions of this Agreement.
- License Grant and Restrictions. Subject to your compliance with this Agreement, Hibou hereby grants you a personal, limited license to use the Hibou Software solely for testing and evaluation purposes and only in connection with this Beta Program. Except as otherwise permitted under Section 15, this license does not grant you the right to use the Hibou Software for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works of the Hibou Software. You agree not to decompile, reverse engineer, disassemble, decrypt, or otherwise attempt to derive the source code of any Hibou Software (except as and only to the extent the foregoing restrictions are prohibited by applicable law, or to the extent as may be permitted by licensing terms governing use of opensourced components included with any such Hibou Software). Unless otherwise permitted under Section 15 below, you certify that the Hibou Software will only be used for testing and evaluation purposes in connection with the Beta Program, and will not be rented, sold, leased, sublicensed, assigned, distributed or otherwise transferred. Hibou retains ownership of all Hibou Software, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Hibou intellectual property.
- Feedback; Contact from Hibou . As part of the Beta Program, Hibou will provide you with the opportunity to submit bug reports, questionnaires, enhancement requests, issue reports and/or support information (collectively, “Feedback”) to Hibou. Hibou may request this information from you through email, web questionnaires, bug forms, and other mechanisms. By agreeing to this Agreement, you agree that Hibou may contact you from time to time about the Beta Program, and you hereby consent to receive such communications. Except as otherwise set forth in Section 8, you agree that in the absence of a separate written agreement to the contrary, Hibou will be free to use any Feedback you provide for any purpose.
- Definition of Confidential Information. You agree that the Pre-Release Software and any information concerning the Pre-Release Software (including its nature and existence, features, functionality, and screen shots), and any other information disclosed by Hibou to you in connection with the Beta Program will be considered and referred to in this Agreement as “Confidential Information.” Information that otherwise would be deemed Confidential Information but (a) is generally and legitimately available to the public through no fault or breach of yours, (b) is generally made available to the public by Hibou , (c) is independently developed by you without the use of any Confidential Information, (d) was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation, or (e) any third party software and/or documentation provided to you by Hibou and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such software and/or documentation will not be considered Confidential Information under this Agreement. All Confidential Information remains the sole property of Hibou and you have no implied licenses or other rights in the Confidential Information not specified in this Agreement.
- Nonuse and Nondisclosure of Confidential Information. Except as expressly permitted in this Section 6, you agree that you will not disclose, publish, or otherwise disseminate any Confidential Information to anyone other than individuals who are enrolled in the same individual seed as you, or as otherwise expressly permitted or agreed to in writing by Hibou. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information, including preventing access to or display of the Hibou Software to third parties. You agree to use the Confidential Information solely for the permitted uses as set forth in this Agreement. You agree not to use Confidential Information otherwise for your own or any third party’s benefit without the prior written approval of an authorized representative of Hibou in each instance. You hereby acknowledge that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Hibou that may be difficult to ascertain. Accordingly, you agree that Hibou will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.
- Pre-Release Versions of HIBOU. In order to test and help Hibou , its partners, and third party developers improve their products and services, and unless you opt out as set forth below, you acknowledge that Hibou and its subsidiaries and agents will be collecting, using, storing, processing and analyzing (collectively, “Collecting”) diagnostic, technical, and usage logs and information from your history as part of this Beta Program. This information will be Collected in a form that does not personally identify you. By installing or using pre-release versions of Hibou, you acknowledge and agree that Hibou and its subsidiaries and agents have your permission to Collect information and use it as set forth above. If you do not agree to the foregoing, you may opt out by sending an email to email@example.com.
- No Support and Maintenance requirements. During your participation in the Beta Program or in a particular seed, Hibou is not obligated to provide you with any maintenance, technical or other support for the Pre-Release Software. If, at Hibou’s option, such support is provided, it will be provided. You agree to abide by any support rules and policies that Hibou provides to you in order to receive such support. You acknowledge that Hibou has no express or implied obligation to announce or make available a commercial version of the Pre-Release Software to anyone in the future. Should a commercial version be made available, it may have features or functionality that are different from those found in the Pre-Release Software licensed hereunder.
- Discussion Forums. As part of the Beta Program, you may have the ability to participate in discussion forums provided by Hibou about the PreRelease Software and other Confidential Information that Hibou may make available to you. For purposes of such discussion forums, Hibou is providing a limited exception to Section 6 by allowing you to discuss certain Hibou Confidential Information received by you in connection with a particular seed with other seed participants who are in the same seed as you in the Hibou designated discussion forum for such seed, and only within this discussion forum. Except for the limited purpose of discussions with other seed participants within such forums, you acknowledge and agree that this Agreement does not grant you the right to copy, reproduce, publish, blog, disclose, transmit, or otherwise disseminate any Hibou Confidential Information.
- No Warranty. The Hibou Software provided hereunder may be designated as alpha, beta, development, pre-release, untested, or not fully tested versions. The Hibou Software may be incomplete and may contain errors or inaccuracies that could cause failures, corruption and/or loss of data or information. You expressly acknowledge and agree that, to the extent permitted by applicable law, all use of the Hibou Software is at your sole risk and that the entire risk as to satisfactory quality, performance accuracy and effort is with you. HIBOU IS PROVIDING ALL CONFIDENTIAL INFORMATION, INCLUDING THE PRERELEASE SOFTWARE AND SEEDING TOOLS, TO YOU SOLELY ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE.
- Disclaimer of Liability.
DISCLAIMER. THE SERVICE IS PROVIDED TO YOU “AS IS” AND HIBOU DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS, TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, HIBOU MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL PREVENT PERSONAL INJURY OR DEATH, SUMMON EMERGENCY PERSONNEL, MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, CONTINUOUSLY AVAILABLE, ERROR FREE, WILL NOT HARM COMPUTERS OR MOBILE DEVICES OR RESULT IN LOST DATA OR BE SECURE AGAINST UNAUTHORIZED ACCESS. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY HIBOU, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR ASSIGNS, WILL CREATE ANY WARRANTY AND YOU SHALL NOT RELY UPON SUCH ADVICE OR INFORMATION. YOU BEAR THE ENTIRE RISK AS TO THE PERFORMANCE, OPERATION AND QUALITY OF THE SERVICE.
LIMITATION OF LIABILITY. HIBOU, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND ASSIGNS SHALL NOT BE LIABLE TO YOU FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE SERVICE OR THIRD-PARTY APPLICATIONS INCLUDING WITHOUT LIMITATION CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, LOSS OF CUSTOMER DATA, LOSS OF PROFITS, LOSS OF GOODWILL, PERSONAL INJURY OR DEATH AND ANY AND ALL OTHER TANGIBLE AND INTANGIBLE DAMAGES OR LOSSES, EVEN IF HIBOU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. MAXIMUM AGGREGATE LIABILITY. NOTE THAT SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TERMS OR WARRANTIES OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES AND, IF ANY DISCLAIMER OR LIMITATION OF LIABILITY IS FOUND UNENFORCEABLE, VOID OR DOES NOT FULLY SHIELD HIBOU FROM LIABILITY, YOU AGREE THAT HIBOU’S MAXIMUM AGGREGATE LIABILITY IN ANY CASE WHATSOEVER WILL BE THE TOTAL AMOUNT YOU PAID TO HIBOU IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE HARM IN QUESTION.
- Term and Termination. This Agreement will continue in effect until terminated in accordance with this agreement. You may terminate this Agreement or an individual seeding project at any time, for any reason, but only by returning or destroying any Confidential Information that is in your possession or control (including, without limitation, any Pre-Release Software); then you agree that you will continue to hold the PreRelease Software as Confidential Information. Hibou may terminate this Agreement or an individual seeding project at any time, with or without cause, immediately upon written notice to you, and may terminate this Agreement immediately for any breach of the confidentiality provisions set forth herein. Within seven (7) days of your receipt of Hibou ’s termination notice, or earlier if requested by Hibou, you will return, cease all use of, and/or destroy the PreRelease Software and all other Confidential Information as provided in this Section.
- Third Party Software & Information. Portions of the Hibou Software may include third party software and other copyrighted material. Acknowledgements, licensing terms, and disclaimers for such material are contained in the Hibou Software, and your use of such material is governed by such respective terms. Mention of third parties and third party products in any materials, advertising, promotions or coupons provided to Beta Program participants is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third party product specifications and descriptions are supplied by the respective vendor or supplier, and Hibou shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.
- No Waiver or Assignment. No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of Hibou, and no single waiver will constitute a continuing or subsequent waiver. This Agreement may not be assigned by you in whole or in part. Any contrary assignment shall be null and void.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia, as applied to agreements entered into and to be performed entirely within British Columbian residents. The parties further submit to and waive any objections to personal jurisdiction of and venue in any forums.
- Severability; Complete Understanding. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement, including any appendices made effective pursuant to this Agreement and any additional licenses accompanying the Hibou Software, constitutes the entire agreement with respect to the Confidential Information disclosed herein and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. Except to the extent provided under Section 2 above, any inconsistencies between this Agreement and any license agreement accompanying the Hibou Software will be governed by the license agreement accompanying the Hibou Software. Except as expressly set forth herein, any waiver or amendment of any provision of this Agreement shall be effective only if in writing and signed by authorized representatives of both parties. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern, to the extent not prohibited by local law in your jurisdiction.