ZIMBIE - BETA LICENSE

THIS IS BETA TEST SOFTWARE, AND AS SUCH, WILL CONTAIN BUGS AND MAY CAUSE DATA LOSS. BY DOWNLOADING, INSTALLING OR USING THE BETA SOFTWARE, YOU AGREE TO BE BOUND BY THIS EVALUATION AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EVALUATION AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE BETA SOFTWARE.

ZIMBIE MESSENGER SOFTWARE BETA/EVALUATION LICENSE AGREEMENT

This Beta License Agreement is between ZIMBIE* (a trading name for Aceno Mobile Services Ltd.), with its principal place of business at ArcLabs, Carriganore, Waterford, Ireland, and you, and governs your use of the ZIMBIE beta (test) version of ZIMBIE MESSENGER software, related software components, and documentation (all of which are referred to herein as the “Beta Software”). The purpose of this Evaluation Agreement is to allow you to evaluate the Beta Software as both an Instant Messaging Client AND a Platform for Creating Instant Messaging Services. (the “Evaluation Purpose”).

1. Evaluation License.

1.1 The Beta Software is licensed to you solely for the Evaluation Purpose and is not sold.

1.2 ZIMBIE grants to you a non‑exclusive, restricted, non-transferable, limited, personal licence to use and operate the Beta Software solely for the purposes of testing and evaluating the Beta Software (excluding the commercialization of information technology products), subject always to the terms and conditions of this Evaluation Agreement (the “Licence”).

1.3 ZIMBIE shall have the right to determine, in its sole discretion, whether a use of the Beta Software is a commercial use or non-personal use.

1.4 This Licence may not be sub-licensed by you to any other person.

1.5 You may install the Beta Software on a single machine, for your use to evaluate the Beta Software.

1.6 You may make one (1) copy of the Beta Software in machine readable form solely for back-up purposes, provided you reproduce the Beta Software in its original form and with all proprietary notices on the back-up copy.

2. Restrictions and Use.

2.1 You may not:

(a) create derivative works based on the Beta Software;

(b) reproduce the Beta Software except as described in this Evaluation Agreement;

(c) sell, assign, license, disclose, or otherwise transfer or make available the Beta Software or any copies of the Beta Software in any form to any third parties;

(d) modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Beta Software or otherwise attempt to:

(i) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Beta Software including, without limitation, any such mechanism used to restrict or control the functionality of the Beta Software; or

(ii) derive the source code or the underlying ideas, algorithms, structure or organization form of the Beta Software; or

(e) remove or alter any proprietary notices or marks on the Beta Software.

3. Proprietary Rights

3.1 ZIMBIE owns, and at all times retains, all rights, title and interest in and to the Beta Software.

3.2 All rights not expressly granted to you are retained by ZIMBIE.

3.3 Your use shall be in accordance with applicable restrictions concerning privacy and intellectual property rights.

3.4 The Beta Software has been in part created pursuant to a research grant provided by Enterprise Ireland and further development work will be undertaken as part of a follow on the Enterprise Ireland project. It is acknowledged by both parties that nothing in this Evaluation Agreement is in any way to be construed as an agreement to grant you any further licence to use the Beta Software. Any future use of the Beta Software by you (other than as set out herein) must be set out in writing and signed by an authorised officer of ZIMBIE and be in compliance with the terms of the Enterprise Ireland research grant and related documentation.

4. Prices and Payment.

No fees shall be payable by you or ZIMBIE under this Evaluation Agreement.

5. Feedback:

5.1 You agree to provide timely feedback, which may include bug reports, conferences with ZIMBIE representatives and/or written evaluations, to ZIMBIE in relation to the Beta Software. You agree that ZIMBIE shall have no confidentiality obligations with respect to such feedback.

5.2 You agree that ZIMBIE and its designees will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense through multiple tiers of distribution and licensees, incorporate and otherwise use the feedback, including derivative works thereto, for any and all commercial and non-commercial purposes.

6. Technical Support.

6.1 Technical support is not provided for the Beta Software. You may find the user-to-user support forums at: http://www.ZIMBIE.com/community/ helpful in addressing any issues.

7. Confidentiality.

You will at all times, including during and after the term of this Evaluation Agreement, keep the Beta Software and all information relating to your use of the Beta Software, including any benchmarks, performance results and other information, confidential unless otherwise expressly agreed in writing by ZIMBIE.

8. Modification.

ZIMBIE may modify the Beta Software and this Evaluation Agreement with notice to you either in email or by publishing content on the ZIMBIE website.

9. No Warranty.

THE BETA SOFTWARE IS BEING DELIVERED TO YOU "AS IS" AND WITH NO WARRANTY AS TO ITS USE, RELIABILITY OR PERFORMANCE. ZIMBIE DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE BETA SOFTWARE. ZIMBIE DOES NOT WARRANT THAT THIS BETA SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. ZIMBIE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU ASSUME ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF THE BETA SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR BETA SOFTWARE PROGRAMS, OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USE OF THE BETA SOFTWARE AND ASSUME ALL RISKS ASSOCIATED WITH ITS USE. ZIMBIE EXCLUDE AND HEREBY EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES OR CONDITIONS NOT STATED HEREIN SO FAR AS SUCH EXCLUSION OR DISCLAIMER IS PERMITTED UNDER APPLICABLE LAW.

10. Limitation of Liability.

IN NO EVENT WILL ZIMBIE BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES WHATSOEVER, OR ANY LOSS OF REVENUE, DATA, USE, OR PROFITS, EVEN IF ZIMBIE OR A ZIMBIE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM IS BASED UPON ANY CONTRACT, TORT OR OTHER LEGAL OR EQUITABLE THEORY. IN PARTICULAR, ZIMBIE ACCEPT NOT LIABILITY FOR ANY PROGRAMS OR DATA MADE OR STORED WITH THE BETA SOFTWARE NOR FOR THE COSTS FOR RECOVERING OR REPLACING SUCH PROGRAMS OR DATA. NOTHING IN THIS CLAUSE LIMITS ZIMBIE’S LIABILITY TO YOU IN THE EVENT OF DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE.

11. Indemnification.

11.1 You agree to indemnify and hold ZIMBIE, parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Beta Software, or the infringement by you, of any intellectual property or other right of any person or entity.

11.2 For the avoidance of any doubt ZIMBIE does not provide any indemnity to you in respect of the use of the Beta Software.

12. Term and Termination.

12.1 This Evaluation Agreement will automatically expire after the cessation of the Evaluation Period or on the first day ZIMBIE makes available the production version of the Beta Software (as announced on the ZIMBIE web site www.zimbie.com), unless earlier terminated as set forth below in this clause 12.

12.2 ZIMBIE may terminate this Evaluation Agreement at any time without notice.

12.3 This Evaluation Agreement shall terminate automatically, without notice, if you fail to comply with the terms of this Evaluation Agreement.

12.4 Upon the expiration or termination of this Evaluation Agreement, you shall discontinue use of the Beta Software and uninstall and destroy all copies of the Beta Software you have obtained or made.

13. Governing Law.

This Evaluation Agreement will be governed by the laws of the Republic of Ireland, excluding the application of its conflicts of law rules. You consent to the exclusive jurisdiction and venue of the courts of the Republic of Ireland.

14. General.

14.1 The Evaluation Agreement constitutes the entire agreement between you and ZIMBIE and governs your use of the Beta Software, superseding any prior agreements between you and ZIMBIE in relation to the Beta Software.

14.2 If any provision of this Evaluation Agreement is held invalid or unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties. The validity of the remaining provisions of the Evaluation Agreement shall not be affected.

14.3 The parties acknowledge that the manufacture and sale of the Beta Software is subject to the export control laws of the Republic of Ireland. You shall comply with all applicable export controls, laws, and regulations of the countries whose controls, laws, and regulations may govern the transactions of this Evaluation Agreement. You shall indemnify, defend, and hold harmless ZIMBIE for any claim brought against ZIMBIE based upon your export or re-export activities in relation to the Beta Software.

14.4 You may not assign this Evaluation Agreement, and any assignment of this Evaluation Agreement by you will be null and void.

14.5 No waiver of or failure to act regarding any breach of this Evaluation Agreement shall constitute a waiver of any other breach.

14.6 You acknowledge that in entering into this Evaluation Agreement, you did not rely on any representations or warranties other than those expressly set forth in this Evaluation Agreement.

* Zimbie is a trading name for Aceno Mobile Services Limited, Ireland. (Company Registration Number: 373561)