Blobber tm (beta) Web Site Interaction Platform from The Digitalspace Commons
Terms of Use
Prior to completing the Blobber registration form you will be required to agree the following license agreement with The Digitalspace Commons (provided here for reference only). Blobber™ Collaborative Web Environment Private Beta User Evaluation License and Nondisclosure Agreement THE DIGITALSPACE COMMONS IS WILLING TO GRANT ACCESS TO THE PRE-RELEASE BLOBBER™ COLLABORATIVE WEB ENVIRONMENT “PRIVATE BETA USER EVALUATION” ONLY UPON THE CONDITION THAT YOU, THE LICENSEE, ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AND NONDISCLOSURE AGREEMENT (“AGREEMENT”), BELOW. PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE CAREFULLY. YOU MAY PRINT OR CLIP THIS LICENSE TEXT FOR YOUR OWN RECORDS AND/OR VIEW IT ANYTIME WITHIN THE BLOBBER™ WEB ENVIRONMENT.   IMPORTANT: BY ENTERING THIS WEB ENVIRONMENT, LOGGING IN WITH NAME AND PASSWORD, AND/OR RUNNING THE BLOBBER™ JAVASCRIPT CLIENT IN YOUR WEB BROWSER, YOU, THE LICENSEE, ACCEPT ALL OF THE TERMS OF THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF THESE TERMS.   INDICATE ACCEPTANCE OF THE TERMS BY SELECTING THE “ACCEPT” BUTTON AT THE END OF THE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY ALL OF THE TERMS, YOU MUST SELECT THE “DECLINE” BUTTON AT THE END OF THIS AGREEMENT AND THE PRIVATE BETA USER EVALUATION PROCESS WILL NOT CONTINUE. 1.0 DEFINITIONS “Licensee” means you, the User, who accepts invitation to privately evaluate this Beta version of the Licensed Web Environment in a confidential manner, and agrees to all of the terms set forth in this Private Beta User Evaluation License and Nondisclosure Agreement, by digitally signing this Agreement through clicking the “Accept” button. “Licensed Web Environment” shall mean the Blobber™ collaborative Web Environment, including the entire JavaScript client browser script and whole Web interface, all textual and graphical elements displayed in hypertext mark-up language (html), the content and structure of data communications over the Digitalspace Heartbeat™ Protocol implemented in hypertext transfer protocol (http), and any related materials in binary form or other machine- or human-readable materials including, but not limited to: server software implementation, data files, any user guides, and any other information or documentation provided to the Licensee by Digitalspace under this Agreement. “Private Beta User Evaluation” refers to the confidential distribution of pre-release Licensed Web Environment to individual users for purposes of testing and evaluation, the results of which shall not be disclosed to any third party. Therefore, "Evaluation" shall mean all suggestions, comments, feedback, ideas, or know-how (whether in oral or written form) provided by Licensee to Digitalspace in connection with the Licensed Web Environment in accordance with Licensee Duties (under section 5), all of which is Digitalspace’s Confidential Information (under section 7 below). 2.0 RESTRICTED LICENSE TO EVALUATE WEB ENVIRONMENT 2.1 Digitalspace grants Licensee a non-exclusive, non-transferable, non-assignable, non-sub licensable, royalty-free and restricted license to use Licensed Web Environment solely for the purposes of evaluation only as outlined in this Agreement. 2.2 No license is granted to Licensee for any other purpose and Licensee may not sell, rent, loan or otherwise encumber or transfer Licensed Web Environment, in whole or in part, to any third party. 2.3 Licensee acknowledges that nothing in this Agreement gives Licensee the right to use any trademark, trade name, or service mark of Digitalspace or any third party from whom Digitalspace has acquired license rights. 2.4 The License and other terms and conditions set forth in this Agreement shall apply to any and all versions and components of the Licensed Web Environment furnished by Digitalspace to Licensee during the term of this Agreement and all versions and components of the Licensed Web Environment used by Licensee in accordance with this Agreement. 2.5 The Licensee shall use the Licensed Web Environment only for evaluation of the Licensed Web Environment’s applicability, usability, performance & design, and to enable Licensee to fulfil Licensee’s evaluation and reporting obligations under Section 5 below. The Licensed Web Environment shall be used only by Licensee and only subject to the terms and conditions in this Agreement. 3.0 LICENSE RESTRICTIONS 3.1 No right, title, or interest in or to Licensed Web Environment, any trademarks, service marks, or trade names of Digitalspace or Digitalspace’s licensors is granted under this Agreement. 3.2 The Licensee shall have no right to use the Licensed Web Environment for productive or commercial use. You acknowledge that Web Environment is being provided for evaluation and testing purposes only and agree to refrain from using Web Environment for any other purpose. 3.3 Licensee agrees that the results of any benchmark or other performance or usability tests run on the Licensed Web Environment (or any portion thereof) may not be disclosed to any third party. 3.4 Licensee may not duplicate Licensed Web Environment other than for a single copy of Licensed Web Environment script components or screen shots for archival purposes of the Private Beta User Evaluation only. Licensee agrees to reproduce any copyright and other proprietary right notices on any such archival copy. 3.5 Except as otherwise provided by law, Licensee may not modify or create derivative works of the Licensed Web Environment, or disassemble or reverse-engineer script or protocols of the Licensed Web Environment, or otherwise attempt to derive the server implementation. 4.0 TITLE, PROPRIETARY RIGHTS, AND DEVELOPMENT 4.1 The Licensee agrees that Digitalspace and/or its licensors own all right, title and interest in the Licensed Web Environment and in all patents, trademarks, trade names, inventions, copyrights, know-how and trade secrets relating to the design, manufacture, operation or service of the Licensed Web Environment. All rights not expressly granted are hereby reserved by Digitalspace. Unauthorized copying or use of the Licensed Web Environment, or failure to comply with the restrictions provided in this Agreement, will result in automatic termination of this Agreement. Nothing in this Agreement shall change Digitalspace’s or any of its licensors’ ownership rights to their respective intellectual property, including but not limited to the Licensed Web Environment. 4.2 The Licensee acknowledges and understands that Digitalspace evaluates, designs, develops, and acquires technology, software applications, Web environments, and other products, and for this reason any such technology, software applications, Web environments or products that are independently developed, evaluated, designed or acquired by Digitalspace may contain ideas or concepts similar to those that might be developed by the Licensee. Nothing in this Agreement shall prevent Digitalspace from licensing, acquiring or independently developing and marketing, directly or indirectly through third parties, products similar to and competitive with Web environments developed by the Licensee. Nothing herein shall be construed to grant you any rights in any such products so developed or acquired, or any rights to the revenues or any portion thereof derived by Digitalspace from the use, sale, lease, license or other disposal of any such independently developed products. 4.3 Digitalspace is under no obligation to support the Licensed Web Environment in any way, or to provide Licensee with updates, bug fixes, builds, or error corrections (collectively "Web Environment Updates"). If Digitalspace at its sole option, supplies Web Environment Updates to Licensee, the Updates will be considered part of Licensed Web Environment, and subject to the terms and conditions of this Agreement. 4.4 Digitalspace shall not be obligated to make any version or component of Licensed Web Environment available to Licensee as a final Digitalspace product. The Licensed Web Environment is in an early stage of development and subsequent versions of the Licensed Web Environment may change without notice. Licensee acknowledges that it may be required to update Licensed Web Environment in order to continue Private Beta User Evaluation. 4.5 The Licensee acknowledges that Digitalspace shall have the right, in its sole discretion and without incurring any liability, to modify the Licensed Web Environment or discontinue its use or distribution at any time and for any reason. 5.0 LICENSEE DUTIES 5.1 The Licensee agrees to evaluate and test the Licensed Web Environment for Licensee’s personal use and to report such evaluation to Digitalspace. Reports and other such feedback shall be provided to a designated representative of Digitalspace, by telephone or voice chat, or in writing, via email, instant message, “Extras Tab” or any other mechanism established by Digitalspace for Private Beta User Evaluation of Licensed Web Environment. 5.2 The Licensee shall supply Digitalspace with reports as requested by Digitalspace through the Private Beta User Evaluation process and/or Licensed Web Environment. Such reports shall set forth in reasonable detail the tests performed, the results of those tests, any benchmarking achieved, problems or deficiencies encountered in the testing process, suggested solutions to the problems, and recommended action for modification of the Web Environment based on Licensee's test results. The parties agree that any oral or written feedback or results of Licensee's testing of the Licensed Web Environment that Licensee provides to Digitalspace is Digitalspace's Confidential Information (defined in Section 7 below). 5.3 Notwithstanding any other provision in this Agreement, Digitalspace shall have the right to use ideas, information, understandings, and concepts derived from Licensee’s Evaluation of the Licensed Web Environment without restriction and without compensating Licensee therefore, including all suggestions, comments, feedback, ideas, or know-how (whether in oral or written form) provided by Licensee to Digitalspace in connection with the Licensed Web Environment. 5.4 The Licensee warrants that the information provided in Licensee’s Evaluation does not infringe any copyright, trade secret, or any other right of any third party, and that Licensee has no knowledge of, and has not been put on notice of, any patent of any third party that may be infringed by information provided in the Evaluation, including any implementation thereof recommended by Licensee. 6.0 TERM AND TERMINATION OF AGREEMENT 6.1 This Agreement will commence on the date on which Licensee enters Licensed Web Environment (the "Effective Date") and will expire twelve (12) months from the Effective Date, unless sooner terminated as provided herein. 6.2 Either Licensee or Digitalspace may terminate this Agreement upon ten (10) days written notice to the other party. However, Digitalspace may terminate this Agreement immediately should any aspect of Licensed Web Environment or any related materials become, or in Digitalspace's opinion be likely to become, the subject of a patent, trade secret or copyright infringement claim. 6.3 Digitalspace may terminate this Agreement immediately should Licensee materially breach any of its provisions or take any action in derogation of Digitalspace's rights to Confidential Information licensed to or provided by Licensee. 6.4 Upon termination or expiration of this Agreement, Licensee must cease use of and destroy Licensed Web Environment, any records or copies thereof and any related materials, and provide to Digitalspace a written statement certifying that Licensee has complied with the foregoing obligations within thirty (30) days. 6.5 Rights and obligations under this Agreement which by their nature should survive, shall remain in effect after termination or expiration hereof. 7.0 CONFIDENTIAL INFORMATION 7.1 For purposes of this Agreement, "Confidential Information" means: (i) business and technical information and any script or code which Digitalspace discloses to Licensee related to Licensed Web Environment; (ii) Licensee's Evaluation and feedback based on Licensed Web Environment; and (iii) the terms, conditions and existence of this Agreement. Licensee may not disclose or use Confidential Information except for the purposes specified in this Agreement. 7.2 The Licensee shall protect against the disclosure of Confidential Information in violation of this Agreement with the same degree of care, but not less than a reasonable degree of care, as the Licensee uses to protect Licensee’s own Confidential Information. The Licensee's obligations regarding Confidential Information will expire no less than five (5) years from the date of receipt of the Confidential Information, except for any Digitalspace intellectual property which will be protected in perpetuity. The Licensee agrees that Licensed Web Environment contains Digitalspace trade secrets. Confidential Information disclosed by Digitalspace under this Agreement shall only be used by the Licensee in furtherance of this Agreement or performance of Licensee’s obligations hereunder. 7.3 Notwithstanding any provisions contained in this Agreement concerning nondisclosure and non-use of the Confidential Information, the nondisclosure obligations of Section 7.1 will not apply to any portion of Confidential Information that a Licensee can demonstrate in writing is: (i) now, or hereafter through no act or failure to act on the part of Licensee becomes, generally known to the public; (ii) known to Licensee at the time of receiving the Confidential Information without any obligation of confidentiality; (iii) hereafter rightfully furnished to Licensee by a third party without restriction on disclosure; or (iv) independently developed by Licensee without any use of the Confidential Information. 7.4 Confidential Information shall not be disclosed to any third parties without the written consent of Digitalspace. You agree to promptly notify Digitalspace in writing of any known misuse, misappropriation, or unauthorized disclosure of Confidential Information. 7.5 The Licensee acknowledges that disclosure of Confidential Information in breach of this Agreement would cause Digitalspace immediate, substantial, and irreparable harm, the monetary value of which would be extremely difficult to determine. Accordingly, the parties agree that, in addition to any other remedies that may be available in law, equity or otherwise, Digitalspace shall be entitled to seek injunctive relief against any breach or threatened breach of the restrictions set forth in this Section. 8.0 DISCLAIMER OF WARRANTY 8.1 LICENSED WEB ENVIRONMENT IS PROVIDED “AS IS.” ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. 8.2 Digitalspace does not warrant that the operation of the Licensed Web Environment will be uninterrupted or error-free. The Licensee acknowledges that the Licensed Web Environment is a preliminary release only and it is possible that the Licensed Web Environment will undergo significant changes prior to release of a generally available final version. 9.0 LIMITATION OF LIABILITY 9.1 IN NO EVENT SHALL DIGITALSPACE BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING ANY OR ALL GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR USE OF THE LICENSED WEB ENVIRONMENT OR CONFIDENTIAL INFORMATION, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT DIGITALSPACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 9.2 Notwithstanding the foregoing, any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Digitalspace and any of its suppliers under any provision of this Agreement and your exclusive remedy for all of the foregoing shall be limited to the greater of the amount, if any, actually paid by you for the Licensed Web Environment or U.S.$5.00. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose. 9.3 Licensee acknowledges that the Licensed Web Environment and all related materials are experimental and that Licensed Web Environment and these materials may have defects or deficiencies, which cannot or will not be corrected by Digitalspace. Licensee will hold Digitalspace harmless from any claims based on Licensee's use of the Licensed Web Environment for any purposes, and from any claims that later versions or releases of any Licensed Web Environment furnished to Licensee are incompatible with the Licensed Web Environment provided to Licensee under this Agreement. 9.4 Licensee shall have the sole responsibility to adequately protect and backup Licensee's data or equipment used in connection with the Licensed Web Environment. Licensee shall not claim against Digitalspace for lost data, inaccurate output, work delays or lost profits resulting from Licensee's use of the Licensed Web Environment. 9.3 Neither party will be liable for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement, including loss of business, revenue, profits, use, data or other economic advantage, however it arises, whether for breach or in tort, even if that party has been previously advised of the possibility of such damage. 10.0 U.S. GOVERNMENT RESTRICTED RIGHTS If this Licensed Web Environment is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in the Web Environment and accompanying documentation shall be only as set forth in this license; this is in accordance with 48 C.F.R.227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions). 11.0 GENERAL TERMS AND INDEMNITY 11.1 Any action relating to or arising out of this Agreement shall be governed by California law and controlling U.S. Federal law. The U.N. Convention for the International Sale of Goods and the choice of law rules of any jurisdiction shall not apply. 11.2 It is understood and agreed that, notwithstanding any other provision of this Agreement, Licensee's breach of the provisions of Section 7 of this Agreement will cause Digitalspace irreparable damage for which recovery of money damages would be inadequate, and that Digitalspace will therefore be entitled to seek timely injunctive relief to protect Digitalspace's rights under this Agreement in addition to any and all remedies available at law. 11.3 Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Digitalspace may assign this Agreement to any other company. 11.4 Licensed Web Environment and technical data delivered under this Agreement are subject to U.S. export control jurisdiction and may be subject to export or import regulations in other countries. The Licensee agrees to comply strictly with all such applicable international and national laws and regulations, including the U.S. Export Administration Regulations, as well as end-user, end use, and destinations restrictions issued by the U.S. and other governments, and acknowledge that you have the responsibility to obtain such licenses to export, re-export or import as may be required. 11.5 If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. In the event that it is determined by a court of competent jurisdiction as a part of a final non-appeal able judgment that any provision of this Agreement (or part thereof) is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of the Agreement will remain in full force and effect and the parties will be bound by obligations which approximate, as closely as possible, the effect of the provision found invalid or unenforceable, without being themselves invalid or unenforceable. The waiver of any breach or default shall not constitute a waiver of any other right in this Agreement or any subsequent breach or default. No waiver shall be effective unless in writing and signed by an authorized representative of the party to be bound. Failure to pursue, or delay in pursuing, any remedy for a breach shall not constitute a waiver of such breach. 11.6 The Licensee agrees that you shall indemnify, defend, and hold harmless Digitalspace, and its respective officers, directors, employees, agents, successors, and assigns, from any damage, allegation, cost, loss, liability, or expense (including court costs and reasonable fees for attorneys or other professionals) arising out of or resulting from or in connection with any breach or claimed breach of the terms of this Agreement or warranties provided herein. 11.7 This Agreement is the parties' entire agreement relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification to this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
© 2004 - 2006 Digitalspace Commons. Patent Pending. All Rights Reserved