You (“User”) have been invited by Chicago Mercantile Exchange Inc., (“CME”) to participate in the beta installation, use, support and testing prior to a final release of CME’s mobile platform (“Beta Software”), a way of accessing CME’s applications, including CME FirmSoft, CME Direct and CGI Chat (“Applications”). User understands that not all functions of the Applications may be available through the Beta Software.
This software beta testing agreement (“Agreement”) states the complete agreement between User and CME for the Beta Software. Use of the Applications is still subject to all user agreements, licenses, terms, conditions, rules, procedures and policies relating to the Applications, except to the extent inconsistent with this Agreement, in which case this Agreement will govern. User agrees to carefully read this Agreement, and any other terms and conditions, user guide or documentation provided in connection with the Beta Software, incorporated in this Agreement by reference (“Related Agreements”) before installing, accessing or using the Beta Software.
By checking the box, you are agreeing to the valid and binding terms of this Agreement. You may print a copy of this Agreement. For clarity, by installing, accessing or otherwise using the Beta Software, User acknowledges that it has read and agrees to be bound by this Agreement, including any Related Agreements. If User is not willing to be bound by this Agreement and the Related Agreements, then User must not install, access or use the Beta Software.
1. User’s Access
During the Term of this Agreement and only in accordance with its terms, CME permits User to access and use the Beta Software for its internal use to evaluate the Beta Software in connection with the Applications and to provide Feedback to CME. Access and use of the Beta Software to the Applications, by individuals associated with User, is contingent upon the administrator for User’s account granting rights of use and/or access to such individuals through the Applications.
2. User’s Feedback
User agrees to respond to CME’s requests for feedback on its experience with the Beta Software, including to provide CME with its suggestions, comments and ideas related to usability, bugs, glitches, lack of functionality and test results (“Feedback”) by responding to telephone calls and emails requesting Feedback and by completing questionnaires. User hereby grants CME an unrestricted, worldwide, non-exclusive, perpetual, irrevocable, royalty-free, and fully paid-up right and license to make, use, copy, modify, offer to sell, sell, lease, distribute, license, sublicense, translate and create derivative works of the Feedback as part of any of CME’s offering, including any product, technology, service, specification or other documentation. CME will not attribute the Feedback to User. User warrants that it has all rights necessary to make this conveyance without approval from another or subject to any terms or conditions. In order to assess the Beta Software, CME may confidentially monitor and collect information about the User’s experience, including its use of the Beta Software and Applications in ways that it does not normally monitor or collect information. User consents to such monitoring and collection.
3. Ownership & Confidentiality
Title to the Beta Software, all copies thereof and intellectual property related thereto shall remain with CME, who does not grant any express or implied right, title or interest to User under any intellectual or tangible property, except for the limited permission as stated in Section 1 above. Beta Software is provided in bailment to User, is not being sold or transferred, and User must not reverse engineer or otherwise modify it.
The Beta Software and any documentation provided to User by CME, as well as any Feedback User provides to CME in connection with the Beta Software and/or testing constitute confidential and proprietary information of CME (“Confidential Information”) unless put in the public domain by CME. User agrees not to transfer, copy, disclose, provide or otherwise make available the Confidential Information in any form to any third party without the prior written consent of CME. User agrees to implement reasonable security measures to protect the Confidential Information, including maintaining the security of the Beta Software. User agrees to use its best efforts to cooperate with and assist CME in identifying any breach or threatened breach of this Agreement and preventing any further unauthorized activities, including cooperating in any protective measure reasonably requested by CME. Provided that User has given written notice to CME and allowed it the opportunity to seek a protective order or other remedy of its election, User may disclose Confidential Information only if required to comply with law. User must seek the highest level of protection available in complying with such requirement.
4. Term of this Agreement
Due to the nature of the Beta Software, CME may terminate access to the Beta Software and the rights granted in this Agreement without notice. This Agreement may be terminated upon the earlier of: (a) the replacement of the Beta Software by CME with a commercially available version; or (b) one party providing the other party ten (10) days’ advance written notice thereof (“Term”). At the end of the Term, all rights and licenses granted shall immediately revert to CME and User shall immediately cease using the Confidential Information, including the Beta Software, and will return to CME or, at CME’s request, destroy, all Confidential Information.
Due to the nature of the Beta Software, User agrees that CME is under no obligation to provide any technical support or continue to develop, productize, support, repair, license, offer for sale, or in any other way provide Beta Software, including to resolve any errors or discrepancies. BETA SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND MAY CONTAIN DEFECTS. USER AGREES TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION, AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE BETA SOFTWARE.
CME DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES IN CONNECTION WITH THIS AGREEMENT, INCLUDING FOR THE BETA SOFTWARE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, THAT THE BETA SOFTWARE WILL MEET USER’S REQUIREMENTS, OR THAT OPERATION OF THE BETA SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
6. Liability & CME’s Limits on Liability
User has no obligation to enter into this Agreement, access the Beta Software or otherwise engage in this testing. USER ASSUMES ALL RESPONSIBILITY FOR USING THE BETA SOFTWARE AND FOR ITS USE OF THE RESULTS OBTAINED, INCLUDING FOR ANY DAMAGE RESULTING THEREFROM AND THE COST OF ANY NECESSARY SERVICING, REPAIR AND/OR CORRECTIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN CME RULE 578 (AVAILABLE AT WWW.CMEGROUP.COM/RULEBOOK) AND IN THE RELATED AGREEMENTS, AND TAKING INTO ACCOUNT THAT ACCESS TO THE APPLICATIONS IS MORE LIMITED WITH THE BETA SOFTWARE, USER AGREES TO BEAR THE ENTIRE RISK AS TO ITS USE OF THE BETA SOFTWARE, INCLUDING ITS QUALITY AND PERFORMANCE, AND LOSS OF DATA ATTRIBUTED THERETO. . TO THE EXTENT ALL OTHER LIABILITY OF CME UNDER OR IN CONNECTION WITH THIS AGREEMENT IS NOT PERMITTED TO BE EXCLUDED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF CME UNDER THIS AGREEMENT SHALL BE LIMITED TO TEN THOUSAND DOLLARS ($10,000).
This Agreement is governed by the laws of state of Illinois without regard to any conflicts of laws principles. Any claim or dispute arising in connection with this Agreement shall be finally resolved in the state or federal courts of Cook County, Illinois, and the parties consent to jurisdiction and venue in such courts. This Agreement is the complete and only agreement between User and CME with respect to the Beta Software and supersedes all other communications, proposals, representations, understandings and agreements not specifically incorporated herein. This Agreement may not be amended except in a writing signed by User and an authorized representative of CME. The delay or failure to exercise a right is not a waiver thereof. If a provision is unenforceable it will be reformed by CME to be enforceable and the remaining terms will be unaffected.