Pilot Agreement

 

LICENSEE’S INSTALLATION AND USE OF THE SOFTWARE/HARDWARE CONSTITUTES LICENSEE’S CONSENT TO BE BOUND BY THE PILOT AGREEMENT (“AGREEMENT”) SET FORTH BELOW.  IF YOU ARE ACCESSING THIS SITE ON BEHALF OF A COMPANY OR CORPORATION, YOU REPRESENT AND AFFIRM THAT YOU HAVE THE AUTHORITY TO DO SO AND TO AGREE TO THE AGREEMENT ON BEHALF OF SUCH COMPANY; IN SUCH INSTANCE, THE TERM “LICENSEE” INCLUDES YOUR COMPANY, ITS AFFILIATES AND THE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS OF ANY OF THEM.

  1. Definitions.  “Software” means any of the Balance Innovations, LLC (“Balance Innovations”) software products or web-based SaaS products developed by Balance Innovations (“Balance Innovations Materials”) and other third party software programs that may be incorporated therein.  Where the Software contains third party software programs, such third party software is provided for Licensee to use as a convenience and Licensee’s use is subject to the terms and conditions of any license agreements contained in such third party software or in the Documentation.  “Documentation” means any Software user manual, software-enabled help files, embedded copyright and license notices, and any Read Me or About files describing the Software.  “Licensee” means the individual, organization or entity that is the grantee of the license described herein, and any subsidiaries, parent corporations, or affiliates controlled by or under common control with such grantee and any officers, directors, managers, employees or agents of any of them.  “Hardware” means any and all hardware, peripherals or other equipment that may be provided to Licensee by Balance Innovations.
  2. Grant of License. Subject to the terms and conditions contained herein, Balance Innovations hereby grants to Licensee, for the Term of this Agreement, a non-exclusive, nontransferable, limited license to utilize the Software provided under this Agreement in any machine-readable form (i.e., not including source code) for the sole purpose of conducting a test on the Licensee’s computer and/or Hardware provided by Balance Innovations (the “Pilot”) for a test period of at least sixty (60) days (“Test Period”).  Test Period shall begin on the day of Licensee’s first use of the Software. The license terminates automatically and without notice if this Pilot Agreement is breached.
  1. Ownership.  As between Licensee and Balance Innovations, all right, title, interest, and ownership in the Software/Hardware shall at all times remain solely with Balance Innovations. All Licensee-specific data created throughout the Term of this Agreement by Balance Innovations and by the Software/Hardware shall be the property of Licensee.  Data that is not Licensee-specific shall be considered Balance Innovations’ Confidential Information.
  2. Restrictions on Use. With regard to the Software/Hardware, no intellectual property license, and no other license of any kind, is granted except for the limited right to use the Software/Hardware as provided in this Agreement during the Term of the Pilot. Licensee shall not reverse engineer, disassemble, or decompile the Software or the software portion of the Hardware. No Balance Innovations Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or means without Balance Innovations' prior express written permission.  Licensee shall not alter the Software/Hardware except with the prior written consent of Balance Innovations. Any alterations made or suggested for the Software/Hardware by Licensee shall be the exclusive property of Balance Innovations, together with all intellectual property and other rights therein.  Licensee shall execute any documents, and otherwise cooperate with Balance Innovations at Balance Innovations’ expense, as necessary to enable Balance Innovations to protect such rights.
  3. Term. Unless earlier terminated as provided herein, the term of this Agreement and the limited license granted hereunder shall commence on the first day of the Test Period and continue for a period that ends on the sixtieth (60th) day thereafter.  The Term of this Agreement may be extended upon mutual, written agreement by the parties.
  4. Pilot Demonstration of the Software/Hardware. The Software shall be provided by Balance Innovations in object code form on appropriate media.  Prior to shipment of the Software/Hardware by Balance Innovations or granting of access thereto by Licensee, the parties will establish a mutually acceptable plan for installation, implementation and reporting.  Licensee and Balance Innovations shall conduct a Pilot demonstration of the Software/Hardware in accordance with mutually-agreed-upon objectives and procedures (“Test Plan“).  In consideration for its right to use the Software/Hardware, Licensee shall report to Balance Innovations the interim results of its tests and evaluation periodically throughout the Pilot and final results no later than 30 days after the expiration of the Term or any earlier termination of this Agreement.  
  5. Fees and Expenses. Unless otherwise agreed by Balance Innovations and Licensee, Balance Innovations shall provide Licensee the Software license and the Hardware at no charge for the Term.  If, at the conclusion of the Term, Licensee executes a Master Agreement with Balance Innovations, then Balance Innovations will invoice Licensee for the Software/Hardware as per the terms of the Master Agreement.
  6. Termination.  Either party has the right to terminate this Agreement upon seven (7) calendar days’ written notice if the terminating party determines, in its sole opinion, that the objectives of the Test Plan are not achievable and either party may terminate this Agreement immediately if the other party materially breaches this Agreement.  Upon termination of this Agreement, Licensee shall cease using the Software and Hardware and shall return all Software, Hardware and related Documentation to Balance Innovations, fully insured with postage prepaid, to 11011 Eicher Drive, Lenexa, Kansas 66219.  The rights and responsibilities of the parties pursuant to Sections 1, 3, 4, 6-11, 13 and 14, shall survive the expiration or earlier termination of this Agreement.
  7. DISCLAIMER OF WARRANTY.  LICENSEE ACCEPTS THE SOFTWARE/HARDWARE AND BALANCE INNOVATIONS MATERIALS “AS IS,” WITH ANY ERRORS OR DEFECTS.  BALANCE INNOVATIONS MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WITH RESPECT TO THE SOFTWARE OR HARDWARE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTY OF NON-INFRINGEMENT.
  8. LIMITATION OF LIABILITY.  IN NO EVENT SHALL BALANCE INNOVATIONS BE LIABLE TO LICENSEE FOR PAYMENT OF ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF PROFITS, GOODWILL, BUSINESS OPPORTUNITIES, USE OR REVENUE, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), IN WARRANTY OR OTHERWISE, RESULTING FROM THE PERFORMANCE OF THE BALANCE INNOVATIONS’ OBLIGATIONS UNDER THIS AGREEMENT OR LICENSEE’S USE OF THE SOFTWARE/HARDWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, AND DAMAGES TO EQUIPMENT, EVEN IF BALANCE INNOVATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING THE FOREGOING, BALANCE INNOVATION’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY REASON, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL BE LIMITED TO ACTUAL DAMAGES NOT TO EXCEED FIVE THOUSAND DOLLARS ($5,000).
  9. Assignment. Licensee shall not assign this Agreement, nor any interest therein, or otherwise transfer any rights or obligations under this Agreement.  Any attempted assignment or transfer may result in the immediate termination of this Agreement at Balance Innovation’s option.
  10. Additional Provisions.  All notices required to be sent to either party shall be in writing and sent by registered or certified mail, postage prepaid, return receipt requested, to the party at its principal place of business or to its registered agent.  The parties may change their addresses by notices in writing to the other parties.  This Agreement shall be governed by the laws of the State of Kansas.  The captions used in connection with the paragraphs of this Agreement are inserted only for the purpose of reference and shall not be deemed to have any legal effect.  No waiver by any party of a breach or default hereunder shall be deemed a waiver by such party of a subsequent breach or default of a like or similar nature.  All rights and obligations created by this Agreement which, by necessary implication, continue after its expiration or termination, shall survive such expiration or termination.  In the event that any term or provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provision, and this Agreement shall be interpreted and construed as if such term or provision, to the extent the same shall be held to be invalid, illegal or unenforceable, had never been contained herein.  This Agreement represents the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all previous representations, understandings or agreements, oral or written, between the parties with respect to the subject matter hereof, except that any Mutual Confidentiality and Non-Disclosure Agreement entered into between Balance Innovations and Licensee shall remain in full force and effect according to its terms.  This Agreement cannot be modified except by written instrument signed by the parties hereto.  In any legal action between the parties hereto concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs.