Beta Period User Agreement
This Beta Period User Agreement (“Agreement”) is entered by and between the business entity subscribing to these terms (“Subscriber” ) and Espresso Logic, Inc., with its principal place of business at 4872 Reno Lane, Richmond, Ca (“Espresso”), and describes the terms and conditions regarding Subscriber’s temporary use of Espresso’s Service (as described below). This Agreement is effective as of the date Subscriber clicks the "Create Account" button on the "Registration" page (the "Effective Date").
(a) “Authorized Users” means Subscriber’s employees, consultants, contractors or agents who are authorized to use the Service for Subscriber’s internal business purposes and have been supplied user identifications and passwords by Subscriber (or by Espresso at Subscriber’s request).
(b) “Beta Period” means the lesser of (i) one hundred and eighty (180) days from the Effective Date or (ii) the period before a paid, commercial version of the Service is released to the general public.
(c) “Confidential Information” means any information disclosed by one party to the other that (1) relates to either party’s future product plans, prices, customers or proprietary data (2) is related to the design and function of the Service or other the Espresso services or products, (3) relates to the timing, availability, features or functions of the Service (including information obtained from use of the Service during the Beta Period), or (4) is marked “proprietary” or “confidential”.
(d) “Service” means Espresso’s proprietary system, including certain features, functionality or information, that is designed to provide a cloud-based REST/JSON server and related developer tools which will be made available temporarily to certain subscribers by Espresso (at its discretion) at a URL to be communicated by Espresso.
(a) Access. Espresso shall provide to Subscriber a user name and password that enables Subscriber and its to access the Service, which Subscriber may do subject to the terms and conditions of this Agreement. Subscriber shall maintain the confidentiality of any user name and password. Subscriber shall use the Service solely for Subscriber’s internal testing and evaluation purposes, and acknowledges and agrees that its access to and use of the Service under this Agreement is only authorized during the Beta Period. Subscriber may permit the Service to be accessed by its Authorized Users, provided that Subscriber shall be responsible for Authorized Users’ compliance with the terms of this Agreement.
(b) Information Available Through the Service. With respect to information available through the Service, such information may be confidential or proprietary (either to Espresso or its subscribers, suppliers or licensors). Subscriber shall use the information available through the Service only for use of the Service in accordance with this Agreement.
(c) Ownership. As between Subscriber and Espresso, Espresso retains all right, title and interest in the Service, including any intellectual property rights, and reserves all rights not expressly granted in this Agreement.
Each party, as a receiving party of the disclosing party’s Confidential Information, shall not disclose the disclosing party’s Confidential Information to any third party (except as specifically authorized), shall not use the disclosing party’s Confidential Information for any purpose except to carry out its rights or to perform its obligations under this Agreement, and shall protect the confidential and proprietary nature of the disclosing party’s Confidential Information using the same level of effort that it uses to protect its own information of like importance, but in no event less than reasonable care. However, the receiving party has no responsibility of nondisclosure or confidentiality with respect to information that is in or enters the public domain without breach of this Agreement or that it receives from a third party without restrictions on disclosure and without breach of a nondisclosure obligation.
During the Beta Period, Subscriber shall not pay any fees to access the Service. Notwithstanding the foregoing, Espresso reserves the right to charge fees for future use of the Service by the Subscriber after the conclusion of such Beta Period. Subscriber can check Espresso Web Site for Espresso’s intent to begin charging for the Service prior to being invoiced, during which time Subscriber may elect to discontinue its use of the Service without any further financial obligation to Espresso.
This Agreement commences on the Effective Date and continues until the expiration of the Beta Period. Subscriber acknowledges, however, that it will not have access to the Service until such time as Espresso, in its sole discretion provides Subscriber with access. Sections 3, 5, 6, 7, 8, 9, 10, 11 and 12 survive expiration.
Subscriber hereby agrees to, at its own expense, indemnify, defend and hold Espresso harmless from and against any loss, cost, damages, liability, expense (including reasonable attorneys’ fees), arising out of or related to a third-party claim, action or allegation (a) related in any way to a transaction or dispute between Subscriber and any third party, (b) based on or caused by unauthorized access to the Service through Subscriber’s account, or (c) is based on facts or alleged facts that would constitute a breach of Subscriber’s warranties under the foregoing Section. Subscriber shall not enter into a settlement of the foregoing without Espresso’s prior written consent, and shall not incur expenses and fees in defending the above claims, actions or allegations without prior approval from Espresso.
SUBSCRIBER ACKNOWLEDGES THAT IT IS RECEIVING ACCESS TO A PRE-PRODUCTION OR PRE-COMMERCIAL VERSION OF THE HOSTED SERVICES WITHOUT MONETARY CONSIDERATION. THE HOSTED SERVICES ARE PROVIDED AS IS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. ESPRESSO AND ALL OF ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE HOSTED SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ESPRESSO, ITS EMPLOYEES OR REPRESENTATIVES WILL CREATE A WARRANTY; SUBSCRIBER SHALL NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL ESPRESSO OR ANY OF ITS LICENSORS OR SUPPLIERS BE LIEspresso LogicE FOR ANY LOSS OF BUSINESS, LOSS OF USE, LOST PROFIT, LOSS OF DATA OR ANY OTHER INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGES OF ANY KIND HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION APPLIES WHETHER OR NOT ESPRESSO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION TO THE LIMITATIONS SET FORTH ABOVE, IN NO EVENT WILL ESPRESSO’S LIABILITY EXCEED FIVE HUNDRED U.S. DOLLARS. SUBSCRIBER ACKNOWLEDGES THAT THE PRICING REFLECTED IN THIS AGREEMENT IS BASED ON THE ABOVE LIMITATIONS, AND THAT THE LIMITATIONS IN THIS SECTION REPRESENT A REASONEspresso LogicE ALLOCATION OF RISK FOR THE PARTIES.
This Agreement constitutes the entire agreement between Subscriber and Espresso with respect to the Service. No amendment or modification hereof will be valid or binding upon either party unless made in writing and signed by the authorized representatives of both parties. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. Failure to strictly enforce any provision of this Agreement will not be construed as a waiver of any provision or right, and waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
Subscriber shall not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Espresso, and any such attempted assignment will be void and of no effect. Subject to the above, this Agreement will be binding upon the parties’ respective successors and permitted assigns.
Espresso will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of cause beyond the reasonable control of such party including without limitation Internet outages, communications outages, earthquake, fire, flood, war or act of God, or any acts of governmental bodies or authorities.
The laws of the State of California (excluding its choice of law rules) will govern interpretation and enforcement of this Agreement. Subscriber hereby consents to personal jurisdiction in the federal and state courts of California for any actions arising out of or relating to Subscriber’s use of the Service. The federal and state courts located in Santa Clara County, California have exclusive jurisdiction over all such actions.
These policies are inspired by the policies of Google App Engine, Heroku and Parse. The original works have been modified. Espresso Logic is not affiliated with or sponsored by Google or Heroku.