Last Updated: March 24, 2024

AnzenOT Beta Program Description

AnzenOT from AnzenSage Beta Program Services Agreement

This Prerelease Subscription Services Agreement ("Agreement") governs your use of the Prerelease Service (as defined below). This Agreement is between the entity or individual entering into this Agreement ("Customer") and AnzenSage LLC which owns and operates the AnzenOT application for the applicable region as described in Section 7(1) ("AnzenSage ")

BY ACCEPTING THIS AGREEMENT, BY LOGGING INTO THE APPLICATION, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRERELEASE SERVICE.

AnzenSage and/or its affiliates and licensors owns the beta, alpha or other preliminary version of all AnzenSage Subscription Services, related object code, documentation, software and any pre-generally available updates, new versions and upgrades, if any (collectively, the "Prerelease Service"), or has the rights to license use of the Prerelease Service, and is willing to grant to Customer a limited license to access and use such Prerelease Service, on the following terms. "Subscription Services" means the hosted service which packages web-based access and the right-to-use the supported applications and associated reference, user and technical guides. You may not access the Prerelease Service if you are AnzenSage’s direct competitor, except with AnzenSage's prior written consent.

The Agreement is effective between Customer and AnzenSage as of the date of your acceptance. This Agreement was last updated on March 24th, 2024.

1. PRERELEASE/BETA LICENSE

Subject to the terms of this Agreement and the Restrictions on Use set forth below, AnzenSage grants to Customer, from time to time and effective upon each time AnzenSage grants Customer access to use a Prerelease Service, a worldwide, non-exclusive, non-sub-licensable, and non-transferable limited license for End Users to access and use the Prerelease Service in accordance with the terms of this Agreement, solely for the purpose of performing internal testing of the Prerelease Service. "End Users" means individuals (i) who are authorized by Customer to use and access the Prerelease Service, and ii) who have been assigned unique user identifications and passwords by Customer. Customer is responsible for End Users' compliance with this Agreement. As part of AnzenSage's grant to Customer for access to the Prerelease Service, Customer hereby grants AnzenSage's technical staff access to all data, including but not limited to Customer Data, that is either (a) entered into the Prerelease Service by Customer, or (b) obtained by the Prerelease Service as part of the Prerelease Service's functionality. This data will be used to further the development of the Prerelease Service and to debug problems raised by Customer. The data will not be retained beyond the end of Customer's use of the Prerelease Service (plus 7 days as stated in item 2 of the Beta Program Description above).

2. Restrictions of use

a. Customer agrees NOT to:

b. Customer will be responsible for maintaining the confidentiality of the passwords assigned to Customer. Customer will immediately notify AnzenSage if it becomes aware that a password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised. Customer will be responsible for any and all activities under Customer's account and/or using Customer passwords. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Prerelease Service, and notify AnzenSage promptly of any such unauthorized access or use, and ii) comply with all applicable laws in using the Prerelease Service.

c. Customer is responsible for complying with all legal requirements, including applicable privacy laws and regulations, relating to the collection, use, processing and transfer of Customer Data. "Customer Data" means all electronic data or information submitted by Customer to the Prerelease Service. Customer acknowledges and consents that the Prerelease Service provided may require Customer Data to be transferred to a country outside of Customer's country or the country where the Customer Data originated.

3. Feedback

Customer shall promptly provide to AnzenSage any relevant feedback on the functionality and performance of the Prerelease Service and any test results (together, the "Feedback"). Customer agrees to provide the Feedback in writing if requested by AnzenSage. AnzenSage or its affiliates owns all Feedback relating to the Beta Service. Customer hereby assigns to AnzenSage all rights, title and interest in the Feedback and all intellectual property therein. If requested by AnzenSage, Customer agrees to execute such further instruments as AnzenSage may reasonably request confirming AnzenSage’s ownership interest in such Feedback.

4. PROPRIETARY RIGHTS AND CONFIDENTIALITY

1. AnzenSage, its affiliates or licensors retain all rights, title and interest to the Prerelease Service and all related intellectual property and proprietary rights. The Prerelease Service and all third party software provided with the Prerelease Service is protected by applicable copyright, trade secret, industrial and other intellectual property laws. AnzenSage owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Prerelease Service or made available to Customer as a result of the Prerelease Service ("Service Items") and access to and use of the relevant Service Items will be governed by the terms of this Agreement. AnzenSage reserves any rights not expressly granted to Customer in this Agreement.
2. "Confidential Information" means all proprietary or confidential information that is disclosed by AnzenSage to Customer, and includes, among other things (i) any and all information relating to the Prerelease Service or services provided by AnzenSage, its financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) the terms of this Agreement; and (iii) Feedback. Confidential Information does not include information that Customer can show: (A) was rightfully in Customer's possession without any obligation of confidentiality before receipt from AnzenSage; (B) is or becomes a matter of public knowledge through no fault of Customer; (C) is rightfully received by Customer from a third party without violation of a duty of confidentiality; or (D) is or was independently developed by or for Customer.
3. Customer may not disclose Confidential Information of AnzenSage to any third party or use the Confidential Information in violation of this Agreement. In the event Customer becomes legally compelled to disclose any Confidential Information, Customer shall provide AnzenSage with prompt prior written notice of such requirement so that AnzenSage may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, or if AnzenSage waives in writing compliance with the terms of this Agreement, Customer agrees to furnish only that portion of the information which Customer is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information. Customer (i) will exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information, and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information. Notwithstanding the foregoing, Customer may disclose Confidential Information to Customer's employees and agents who have a need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
4. If Customer becomes aware of any unauthorized use or disclosure of Confidential Information, then Customer will promptly and fully notify AnzenSage of all facts known to it concerning such unauthorized use or disclosure. In addition, if Customer or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of the Confidential Information, Customer will not disclose the Confidential Information without providing AnzenSage with commercially reasonable advance prior written notice to allow AnzenSage to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, Customer will exercise its commercially reasonable efforts to preserve the confidentiality of the the Confidential Information, including, without limitation, cooperating with AnzenSage to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.

5. Termination

The license of Section 1 granted under this Agreement terminates on the earlier of:

1. Twenty One (21) days after Customer's being granted access to a Prerelease/Beta Service; or
2. Immediately upon AnzenSage’s notice of termination for convenience.

Upon termination of any license or this Agreement, all rights and licenses granted herein will terminate and Customer shall cease accessing or using the Prerelease Service. Sections 3, 4, 5, 6, and 7 survive the termination of any Prerelease Service license or this Agreement.

If a GA Service is announced that replaces a Prerelease/Beta Service and Customer desires to acquire a license to access and use that GA Service, then Customer must acquire access to that GA Service under the then-current subscription service terms with AnzenSage or its appropriate subsidiary or affiliate.

6. DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY.

1. THE PRERELEASE SERVICE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT ANY PRERELEASE SERVICE WILL SATISFY CUSTOMER'S REQUIREMENTS, THAT ANY PRERELEASE SERVICE IS WITHOUT DEFECT, ERROR FREE OR WITHOUT DELAY, OR THAT THE OPERATION OF ANY PRERELEASE SERVICE WILL BE UNINTERUPTED. ANZENSAGE, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE PRERELEASE SERVICE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT; AND
2. ANZENSAGE LLC, IT'S OWNERS AND EMPLOYEES DISCLAIMS AND REJECTS ANY LIABILITY TO CUSTOMER, OR ANY OTHER INDIVIDUAL OR ENTITY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRERELEASE SERVICE (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF BMC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANZENSAGE 'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRERELEASE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER TO LICENSE THE APPLICABLE PRERELEASE SERVICE OR $100.
3. If a third party asserts a claim against AnzenSage asserting that the Customer Data or Customer's use of the Prerelease Service in violation of this Agreement violates that third-party's patent, trade secret or copyright rights, or otherwise harms the third party ("Claim"), Customer will, at its own expense: (i) defend or settle the Claim; and ii) indemnify AnzenSage for any damages finally awarded against AnzenSage based on the Claim.

7. MISCELLANEOUS.

1. No-Guarantee as to New Versions. Customer acknowledges and agrees that AnzenSage is under no obligation to provide any maintenance releases, updates or new versions of the Prerelease Service. AnzenSage does not guarantee that any Prerelease Service will become a GA Service. If a GA Service is announced replacing a Prerelease Service, AnzenSage does not guarantee that the GA
2. Entire Agreement and Modifications. This Agreement is the entire understanding between Customer and AnzenSage and replaces any prior or contemporaneous communication, agreement or understanding of any kind, oral or written, concerning this subject matter. This Agreement may only be changed if mutually agreed to in writing by the parties. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect.
3. Enforceability, Non-Waiver and Non-Assignment. If any part of this Agreement is found to be invalid or unenforceable, that part will be modified to the extent necessary to eliminate its invalidity or unenforceability, and the remaining terms will be in full force and effect. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations without the prior written consent of AnzenSage.
4. Governing Law and Dispute Resolution. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a "Controversy") will be resolved under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Leesburg, Virginia and the laws of the State of Virginia shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Leesburg, Virginia and waive all defenses based on forum non conveniens.
5. Independent Contractor. Nothing in this Agreement will be construed as creating a joint venture, partnership, franchise, fiduciary, employment or principal/agent relationship between the parties.
6. U.S. Federal Acquisitions. This Section applies only to acquisitions of the commercial Prerelease Service and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Prerelease Services are delivered to the United States Government, the United States Government hereby agrees that the Prerelease Services qualify as "commercial items" within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government's use and disclosure of the Prerelease Service, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): "Restricted Rights - Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).

For all arbitration conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator's award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall he entitled to recover its reasonable attorneys' fees and the necessary costs incurred in connection with the arbitration.

The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.