This Beta Agreement (“Agreement”) is entered into between OAKds, Inc., a Delaware corporation with offices at Flat 6b, 330 Wythe Avenue, (“OAK”), and you (“Customer” or “you”). This Agreement is effective as of the date you click a button or check a box marked “I Agree” or something similar (the “Effective Date”). By clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood and agree to be bound by this Agreement.
This Agreement is a contract between you and OAK. You must read and agree to these terms before using the Software. If you do not agree, you may not use the Software. You may use the Software only if you can form a binding contract with OAK, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules, and regulations. Any use or access to the Software by anyone under 18 is strictly prohibited and in violation of this Agreement.
The term “Software” will mean the locally hosted or cloud-based solution and any and all applications, computer programs and related documentation, including without limitation our websites Oaknode.com or oakds.org.
Customer and OAK acknowledge and agree that the Software is a pilot test version that may contain bugs, defects and errors and that the Software is not expected to function fully upon grant of access and use to Customer. Customer and OAK further acknowledge and agree that the Software is being provided to Customer without charge in exchange for Customer’s evaluation of the Software.
OAK hereby grants Customer a royalty-free, nonexclusive, nontransferable, limited, revocable license to use the Software during the Term (defined below) for Customer’s personal, noncommercial purposes only, subject to all terms and conditions set forth in this Agreement. Any continuation of the license after the end of such term will be on terms and conditions to be agreed by OAK and Customer, at their respective options and discretion.
Customer will not, and will not permit any third party to:
use the Software except to the extent permitted in Section 3(a)
modify or create any derivative work of any part of the Software
permit any third parties to use the Software
disassemble, decompile, or reverse engineer the Software or otherwise attempt to gain access to the source code to the Software (or the underlying ideas, algorithms, structure or organization of the object code in the Software), except to the extent expressly permitted by applicable law
market, sell, license, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign or otherwise transfer to a third party the Software or any copy thereof, in whole or in part; or
use the Software for third-party training, commercial time-sharing or service bureau use.
This Agreement starts on the Effective Date and will continue for a period of three (3) months (the “Term”), unless earlier terminated by either party as permitted herein
OAK may terminate this Agreement at any time for any reason or no reason by providing written notice to Customer stating the effective date of the termination
Upon termination or expiration of this Agreement, Customer agrees to (i) immediately cease using the Software, including any copies of computer programs and any written materials, and (ii) delete all copies of the Software from all computer systems under Customer’s control. Upon request by OAK, Customer will certify in writing to Customer’s compliance with this Section 3(e)
The provisions of Sections 3 (b), 3(e), 3(f), 5, 7, 8, 9, 10, 11 and 12 will survive any termination or expiration of this Agreement
If Customer provides OAK with any suggestions, ideas, feedback, error identifications or other information related to the Software or Customer’s use and evaluation of the Software (“Feedback”), Customer hereby assigns to OAK all right, title and interest in and to all Feedback, including all intellectual property rights therein, and agrees to assist OAK in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback
OAK will have no obligation to correct any bugs, defects or errors in the Software or to otherwise support or maintain the Software
Customer agrees that OAK owns all rights, title and interest, including but not limited to copyright, patent, trade secret, and all other intellectual property rights, in the Software, any changes, modifications or corrections to the Software made by OAK and any Feedback
Customer acknowledges that the Software contains valuable trade secrets and confidential information owned by OAK, including but not limited to the development status of the Software, the functionality of the Software, the appearance, content and flow of the Software’s user interface, and the content of the Software’s documentation. During the period this Agreement is in effect and at all times after its termination or expiration, Customer and its employees and agents will maintain the confidentiality of this information, including information related to Customer’s evaluation and characterization of the Software (including Feedback), and will not sell, license, sublicense, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such information except as authorized by this Agreement. Customer agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of OAK’s confidential information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures will include, but not be limited to, the highest degree of care that Customer utilizes to protect its own confidential information of a similar nature, which will be no less than reasonable care. Customer will not disclose any such information concerning the Software without OAK’s prior written consent. Customer agrees to immediately notify OAK of the unauthorized disclosure or use of the Software or any confidential information of OAK and to assist OAK in remedying such unauthorized use or disclosure. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of Customer’s obligations under this Section 7 by Customer, its employees or agents. In the event of any such breach or threat thereof, OAK will be entitled to seek equitable relief without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law
OAK respects the privacy of its users by not requesting any information that is unnecessary for the use of the Software or to comport with OAK’s obligations under applicable law. Due to the inherent transparency of blockchains, transactions using the Software are public and easily correlated. You accept that OAK will comply willingly with all legal requests for information from it. OAK reserves the right to provide information to law enforcement personnel and other third parties to answer inquiries, participate in investigations, respond to legal process, respond to the order of a court of competent jurisdiction and those exercising the court’s authority, and to protect OAK and its users. By accepting this Agreement, you expressly allow OAK to export data outside of the jurisdiction in which you reside or are located when you access the Software
OAK uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, OAK cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Each party represents and warrants to the other party that:
such party has full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder
the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound
when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and
such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter of this Agreement that are not expressly provided for in this Agreement.
OAK does not give professional advice and is not in the business of providing legal, risk and compliance, financial, accounting, tax, health care, real estate or other professional services or advice. Customer should consult the services of a competent professional if this type of assistance is needed
OAK reserves the right to refuse to process or to cancel any pending blockchain transaction as required by law or in response to a subpoena, court order, or other binding government order or to enforce any transaction limits. OAK further reserves the right to delay any transaction if it perceives a risk of fraud or illegal activity. OAK cannot reverse a transaction which has been broadcast to a blockchain network. The Software is available only in connection with those transactions that OAK, in its sole discretion, decides to support. OAK assumes no responsibility or liability in connection with any attempt to use the Software for transactions that OAK does not support
Customer and OAK agree that the Software is provided “AS IS” and on an “AS AVAILABLE” basis, and OAK makes no warranty as to the Software. Customer further acknowledges and agrees that:
use of the Software is entirely at Customer’s own risk
the Software does not guarantee compliance with any regulation or law
the Software is not an official product that has been commercially released for sale by OAK
the Software is not in final form and may contain errors, design flaws or other problems
the Software is not expected to function fully or adequately, and it is expected and anticipated that further testing, modification and development will be necessary to make the Software functional
it may not be possible to make the Software functional
use of the Software may result in unexpected results, loss of data, project delays or other unpredictable damage or loss to Customer; and
OAK is under no obligation to release and/or offer for sale the commercial versions of the Software, and OAK has the right to unilaterally abandon development of the Software at any time and without any obligation or liability to Customer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OAK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE RELATED TO THE SOFTWARE, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OAK OR THROUGH THE SOFTWARE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN
IN NO EVENT WILL OAK BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL AND INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE THE SOFTWARE, EVEN IF OAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OAK WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST CUSTOMER BY ANY OTHER PARTY. CUSTOMER AGREES THAT IT WILL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING ITS DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE SOFTWARE. IN NO EVENT WILL OAK’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED ONE HUNDRED U.S. DOLLARS ($100 USD)
Customer will not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without OAK’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. OAK will have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise
The Software may contain links to third-party materials that are not owned or controlled by OAK. OAK does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from our website or the Software, you do so at your own risk, and you understand that this Agreement do not apply to your use of such sites and materials. You expressly relieve OAK from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Site, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that OAK shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers
Any term of this Agreement may be amended or waived only with the written consent of the parties. Any amendment or waiver effected in accordance with this Section 14(a) will be binding upon the parties and their respective successors and assigns
Subject to the provisions of Section 12, the terms and conditions of this Agreement will inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement
This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto will be governed, construed and interpreted in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law. The parties hereby agree that all disputes arising out of this Agreement will be subject to the exclusive jurisdiction of and venue in the federal and state courts within New York County, New York. Customer hereby consents to the personal and exclusive jurisdiction and venue of these courts
All notices permitted or required under this Agreement will be in writing and will be delivered in person, emailed or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement or such other address as either party may specify in writing. Such notice will be deemed to have been given upon receipt
Customer understands that the Software is subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (i) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (ii) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST
If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision will be excluded from this Agreement, (ii) the balance of the Agreement will be interpreted as if such provision were so excluded and (iii) the balance of the Agreement will be enforceable in accordance with its terms
This Agreement is the product of both of the parties hereto, constitutes the entire agreement between such parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled
Neither party will, for any purpose, be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever
Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement. This Agreement will not be construed against any party by reason of the drafting or preparation thereof
If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled