Pre-Release Product Access

The following mandatory terms and conditions apply to all access and use of any product or service that is provided by Xirgo and that has not yet been made available for general release:

1. Definitions. Capitalized terms used in this document have the following definitions:
   1. “Affiliate” means a person, firm or entity controlling, controlled by or under common control or ownership with another person, firm or entity.
   2. “Confidential Information” means all information that is treated by Xirgo or Evaluator as confidential or proprietary, including, but not limited to, information about the Inventions, technical processes, methods and formulas, product designs, non-public financial and non-financial data and other trade secrets and like information. Confidential Information does not include information that the receiving party can demonstrate:
      1. is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party,
      2. was known to the receiving party as of the time of its disclosure,
      3. is independently developed by the receiving party, or
      4. is subsequently learned from a third party not under a confidentiality obligation to the providing party.
   3. “Documentation” means any and all operator’s and user’s manuals, training materials, guides, commentary, listings and other information necessary for proper use of the Pre-Release Product, including all corrections, updates, revisions, modifications, or enhancements.
   4. “Evaluator” means the party who is performing a Test.
   5. “Inventions” means the Pre-Release Product, Documentation, and any designs, processes, formulae, technologies developed or used, know-how, trade secrets, inventions (regardless of whether any of the inventions is patentable), discoveries, or improvements related to, associated with, conceived, reduced to practice, devised or developed in connection with the Pre-Release Product.
   6. "Pre-Release Product” means any hardware, software, firmware, or service that Xirgo does not make generally available for sale or use, including any individual components of such hardware, software, firmware, or service.
   7. “Proprietary Rights” means all patent, copyright, trademark (including associated goodwill), trade secret, and other intellectual property or proprietary rights, foreign or domestic, in or to the Inventions.
   8. “Terms” means the terms and conditions set out in this document.
   9. “Test” means any test, evaluation, review, and comment of or upon the Pre-Release Product provided by Xirgo.
2. Conditional Access to Pre-Release Product and License
   1. Subject to these Terms, Evaluator may conducting a Test to determine suitability of the Pre-Release Product for Evaluator’s needs. Evaluator will use the Pre-Release Product solely for the purposes of conducting its Test.
   2. Evaluator agrees to report to Xirgo with respect to the suitability of the Pre-Release Product for its needs. Such report may include, but is not limited to any advantages and positive aspects of the Pre-Release Product, as well as any flaws, errors, bugs, or other issues with the Pre-Release Product or Documentation.
   3. Evaluator acknowledges that any Pre-Release Product provided under these Terms is not a final released version of any product and is not warranted to be error-free or bug-free. Unless Xirgo has identified a Pre-Release Product as intrinsically safe or otherwise suitable for use in hazardous environments, Evaluator will not use the Pre-Release Product in any hazardous location or in any environment for which care or prudence would require or suggest that any safety or radio frequency certification be obtained prior to use.
   4. Evaluator will not duplicate, translate, modify, copy, printout, disassemble, decompile, reverse engineer or otherwise tamper with the Pre-Release Product or any firmware, circuit board, software, or any other components of the Pre-Release Product. Evaluator will not create any derivative work based on the Pre-Release Product or Proprietary Rights.
3. Confidentiality.
   1. Any existing confidentiality agreement between the parties applies to all activities under these Terms. In the event of a conflict between any existing confidentiality agreement between the parties and these Terms, the existing agreement controls.
   2. Each party agrees that during the course performing a Test, unless compelled by court order or other legal process and except as otherwise provided for in these Terms, neither Evaluator nor Xirgo will make any disclosure of the other’s Confidential Information to anyone other than its employees or agents who have a need to know such Confidential Information in connection with these Terms.
   3. Evaluator will notify its employees and agents of their obligations concerning Confidential Information and will require its employees and agents to comply with those obligations. The confidentiality obligations of each party and its employees and agents under these Terms will survive the expiration or termination of these Terms.
   4. Any disclosure or improper use of the Confidential Information will cause serious and irreparable injury. In the event of a breach of these Terms, the party harmed by such disclosure is entitled to seek injunctive relief without any requirement to post bond or any other form of security or surety. Injunctive relief is in addition to any other remedy or right to relief and in no limits any other remedy or right to relief at law or in equity.
4. Testing Limitations
   1. Neither party intends the transfer of the legal title to any intellectual property rights. Xirgo or its licensors remain the sole and exclusive owners of all intellectual property rights in any Pre-Release Product.
   2. Unless otherwise agreed between the parties or dictated by the nature of a Test approved in advance by Xirgo, Evaluator will promptly return to Xirgo all copies of the Pre-Release Product, including copies of software that have been licensed to Evaluator upon the termination of these Terms.
   3. Evaluator acknowledges and agrees that any software or firmware provided with the Pre-Release Product is licensed, not sold. Copies of applicable software licenses can be obtained upon request from Xirgo.
5. Reporting and Test Information
   1. Evaluator will report any perceived defects, flaws, errors, bugs, and any other problems or issues in the Pre-Release Product. Reports may also include suggestions Evaluator may have for improvement of the Pre-Release Product and any other constructive advices to Xirgo regarding the Pre-Release Product. All information in such reports is Confidential Information and are deemed to be the property of Xirgo.
   2. Following any discovery of any material defect that has the potential to cause bodily harm or property damage, Evaluator will immediately cease all use of the Pre-Release Product.
6. Final Released Product. Xirgo is not required to replace any Pre-Release Product when a version of a Pre-Release Product becomes generally available. Evaluator acknowledges and agrees that Xirgo may require that it enter into a separate agreement with Xirgo that would set forth terms and conditions under which Xirgo would provide generally-released products to Evaluator.
7. Termination. Evaluator may terminate these Terms at any time by returning to Xirgo all unpurchased materials received, including the Pre-Release Product and Documentation. Evaluator will bear the cost of the return. Xirgo may terminate these Terms upon notice to Evaluator. Upon Xirgo’s termination, Evaluator will return all unpurchased materials it received, including unpurchased units of the Pre-Release Product and Documentation and Xirgo will bear the cost of the return. Confidentiality and related obligations of Evaluator survive the termination of these Terms.
8. Intellectual Property Rights/Unauthorized Use/Misuse.
   1. The Inventions constitute trade secrets of Xirgo or third parties under applicable law. All Proprietary Rights in and to the Inventions are owned by Xirgo or its licensors. All rights not expressly granted to Evaluator under these Terms are retained by Xirgo or its licensors.
   2. Evaluator will not distribute, assign, sell, transfer, hypothecate, encumber or otherwise convey any of the Inventions or Proprietary Rights, or any other property or rights to which Evaluator has access in connection with these Terms, to any person, firm or entity.
   3. Evaluator will not misuse, modify or reverse engineer the Inventions or any components or elements of the Inventions. Evaluator will only use the Inventions in strict compliance with the terms of these Terms, and all applicable federal, state, local and foreign laws, rules and regulations including, without limitation, laws, rules and regulations pertaining to the manufacturing, marketing, import, export and sale of the Pre-Release Product.
   4. Evaluator will immediately notify Xirgo of any unauthorized use or infringement of any of the Inventions or Proprietary Rights.
   5. During the term of these Terms, Evaluator immediately will advise Xirgo of any technical improvements or inventions relating to the Inventions, specifically including the Pre-Release Product. All improvements or inventions will be the property of Xirgo and are hereby assigned to Xirgo. Evaluator agrees to execute any and all documents requested by Xirgo to perfect or enforce such right.
9. Independent Parties. Evaluator is not a partner or joint venturer of Xirgo for any purpose whatever, but is an independent party. Neither party will hold itself out as having, any right, power or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon the other.
10. Indemnification. Evaluator covenants and agrees to indemnify, defend and hold harmless Xirgo, and its members, managers, officers, employees, agents, representatives, successors and assigns, from and against any claim, demand, cause of action, debt, cost, expense or liability (including reasonable attorneys’ fees) arising out of or in connection with:
    1. any breach by Evaluator of these Terms;
    2. any damage to, or destruction of, modification of, or theft of, the Inventions (or any component or element of the Inventions) while in use by Evaluator; or
    3. the death of or injury to any person, or damage to any property in connection with the misuse of the Pre-Release Product.
11. Export Controls. Evaluator will comply with all export and re-export restrictions and regulations of the U.S. Commerce Department and other U.S. agencies and authorities.
12. Disclaimer of warranties.
    Xirgo is providing the pre-release product and documentation and other materials on an “as is” basis. Xirgo has not made, does not make and expressly disclaims any representation, warranty, promise or covenant of any kind, whether express or implied, including, without limitation, any implied warranty of merchantability, or fitness for any particular purpose or against interference or against infringement including, without limitation, any such representation, warranty, promise or covenant with respect to the pre-release product, documentation and inventions. Except as specifically set forth in these terms, Xirgo does not make any representations or warranties of any kind, express or implied, with respect to the pre-release product, inventions, proprietary rights, or any component or element thereof, or the functionality, performance, results or use thereof. Without limiting the foregoing and except as specifically set forth in these terms, Xirgo does not warrant that the pre-release product, inventions, or any component or element thereof, are or will be error-free or will meet Evaluator’s requirements.
13. Limitation of liability.
    Notwithstanding anything in these terms to the contrary, Xirgo will not, under any circumstances, be liable to Evaluator or any other person for any indirect, special, incidental, consequential, or other damages resulting from the provision, or Evaluator’s use, of the pre-release product or documentation, or any component or element thereof, including, without limitation, loss of profit, or liability to third parties, however caused, whether by the act or negligence of Xirgo or otherwise. Xirgo’s maximum liability for any and all losses, claims, damages or liabilities of any kind under these terms (whether for indemnity or otherwise) is limited to an amount equal to the total amount paid by Evaluator under these terms. No action, regardless of its form, arising under or in connection with these terms, may be brought by Evaluator more than one year after the action arose.
14. Inadequate Remedy at Law; Injunctive Relief. Evaluator acknowledges that if it breaches any of Evaluator’s obligations contained in these Terms, the injury that will be suffered by Xirgo will be irreparable and Xirgo will not have an adequate remedy at law. In the event of such a breach, Xirgo is entitled to seek injunctive relief from any court of proper jurisdiction, without notice or bond, to enforce these Terms, in addition to all other rights that Xirgo may have at law, in equity, under these Terms or otherwise. Xirgo is entitled to recover all expenses, including reasonable attorneys’ fees in connection with any action to enforce these Terms, whether or not litigation results from such enforcement.
15. Miscellaneous Provisions.
    1. Binding Effect/Assignment. These Terms are binding upon and inure to the benefit of Evaluator and Xirgo and its successors and permitted assigns. These Terms may not be assigned by Evaluator (whether by operation of law or otherwise) without the prior written consent of Xirgo. These Terms may be assigned by Xirgo without the consent or approval of Evaluator. Any assignment or attempted assignment in violation of this section is void.
    2. Entire Agreement/Modification. These Terms contain the entire agreement between the parties respecting its subject matter. There are no other representations, agreements, arrangements or understandings, oral or written, between the parties with respect to the subject matter of these Terms other than as set forth in this document. These Terms may be modified or amended only in a writing that specifically references these Terms and that is signed by both parties.
    3. Governing Law/Jurisdiction/Venue. These Terms are governed by and will be construed in accordance with the laws of the State of Illinois without regard for conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and does not apply to these Terms. Jurisdiction and venue for any action or claim arising under these Terms lies exclusively in the state and federal courts of and for Cook County in the State of Illinois. Each party irrevocably consents to the personal jurisdiction of said courts and to service of process.
    4. Force Majeure. If performance of any part of these Terms by either party is prevented, hindered, delayed or otherwise made impracticable by any flood, riot, fire, judicial, or governmental action, labor dispute, act of terrorism, act of war, epidemic or pandemic (regardless of whether such epidemic or pandemic results in any act of violence related to an inability of any significant number of animated or reanimated people to regulate or otherwise control their actions), incursion or invasion (regardless of whether any source of such incursion or invasion is terrestrial), act of God, or any other similar cause beyond the control of such party, such party is be excused from performance for so long as such cause persists.
    5. Notices. Notices, requests and other communications under these Terms must be in writing and sent by first-class mail, overnight courier, electronic mail, or facsimile transmission to the parties at their respective principal places of business.