Beta Testing Agreement
This Beta Testing Participant Agreement (“Agreement”) is made and entered into between (“Participant”) and HELOstore (“Company”), and is effective as of the date of acceptance into the "beta testing" group of the Participant by the Company.
Participant is an individual or business that desires to participate in “beta testing”, which provides access to confidential materials currently in development by Company. Company wishes to obtain the benefit of Participant’s services and reports as a beta tester of Company’s software. In consideration of the premises, and of the mutual covenants and conditions, the parties, agree to the following terms and conditions:
- Beta Test Material. All software and documentation related to each such Beta Test provided by Company including, but not limited to, specifications and other technical information, and all updates or revisions thereto, shall be referred to in the following provisions as the “Beta Test Material.” The parties hereto agree that Participant shall be a beta tester for those Beta Test Materials as may be amended or updated from time to time by Company.
- License. Company hereby grants Participant a non-exclusive, non-transferable consent and license to use each Beta Test Material solely for the purpose of evaluating and testing the Beta Test Material for Company. The Beta Test Material may not be publicly disclosed, sublicensed, sold, assigned, leased, loaned, or otherwise transferred by Participant to any third party for any reason.
- Company’s Obligations.
- Company will deliver the Beta Test Material to Participant.
- Company will provide support for the Beta Test Material.
- Company has no obligation to develop or provide any updates or revisions to the Beta Test Material, and Company reserves the right to alter or adjust performance specifications for the Beta Test Material as it deems necessary or desirable.
- Company will provide the instructions concerning the Beta Test Material.
- Participant’s Obligations.
- Participant agrees to test and evaluate the Beta Test Material as requested. Participant agrees to familiarize itself with the Beta Test Material information provided by Company and to only use or test the Beta Test Material as directed. Participant will notify Company of any and all functional flaws, errors, anomalies, and problems directly or indirectly associated with the Beta Test Material known to or discovered by Participant. In addition, Participant agrees to provide Company with such reports via the methods designated by Company and to promptly respond to any and all reasonable inquiries, questionnaires, surveys, and other test documents submitted to Participant by Company.
- Upon Company’s request for the deletion of the Beta Test Material, Participant agrees to delete or otherwise destroy the Beta Test Material in good condition within seven days of Participant’s receipt of Company’s request to do so.
- Any feedback, ideas, modifications, suggestions, improvements, and the like made by Participant with respect to the Beta Test Material (“Supportive Information”) will be the property of Company. Participant agrees to assign, and hereby assigns, all right, title, and interest worldwide in the Supportive Information and the related intellectual property rights to Company and agrees to assist Company, at Company’s expense, in perfecting and enforcing such rights. Company may disclose or use Supportive Information for any purposes whatsoever without any obligation to Participant.
- Participant acknowledges that as a beta tester, Participant may have access to, and Company may disclose to Participant, certain valuable information belonging to and relating to Company which Company considers confidential, including, but not limited to, information concerning the Beta Test Material, the Beta Test Material’s trademark(s) and trade name(s), computer programs, user manuals, sales and marketing plans, business plans, processes, customer lists, and other trade secrets (“Confidential Information”). Participant shall use the Confidential Information solely for testing purposes and, for a period of three (3) years from Participant’s receipt of the Confidential Information, shall not disclose, without Company’s written consent, such Confidential Information to third parties or use such Confidential Information for its own benefit or for the benefit of third parties.
- If Participant is a company or other entity, Participant shall disclose Confidential Information only to those of its employees who need to know such information for the purpose of the agreed-upon beta testing, and shall ensure that its employees observe the confidentiality obligations in this Section 5. Participant acknowledges that the Beta Test Material contains Confidential Information developed or acquired by Company and that all rights therein and in other Company Confidential Information remain in Company. Participant agrees to treat any communications and reports prepared under this Agreement, including, but not limited to, those prepared in accordance with Section 4.1, as Confidential Information and will not divulge the existence or content of such communications or reports to any third party without Company’s prior written consent.
- This Agreement shall impose no obligation of confidentiality upon Participant with respect to any portion of the Confidential Information which: (i) now or hereafter, through no act or failure to act on Participant’s part, becomes generally known or available; (ii) is known to Participant at the time Participant receives same from Company as evidenced by written records; (iii) is hereafter furnished to Participant by a third party as a matter of right and without restriction on disclosure.
- Proprietary Rights; No Right to Copy, Modify, or Disassemble.
- The Beta Test Material provided by Company and all copies thereof, are proprietary to and the property of Company. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents and other intellectual property rights in or associated with the Beta Test Material are and will remain in Company and Participant shall have no such intellectual property rights in the Beta Test Material.
- Participant may not copy or reproduce the Beta Test Material without Company’s prior written consent, except as reasonably needed to perform its obligations hereunder and subject to the following restrictions. Participant may not copy or reproduce any software or documentation provided by Manufacturer, without Company’s prior written consent, except as is reasonably needed to perform Participant’s obligations under this Agreement.
- Participant agrees to secure and protect the Beta Test Material and all copies thereof in a manner consistent with the maintenance of Company’s rights therein and to take appropriate actions by instruction or agreement with any of its employees or agents permitted access thereto to satisfy its obligations hereunder.
Participant shall not reverse engineer, alter, modify, disassemble or decompile the Beta Test Material, or any part thereof.
- Disclaimer of Warranty. By its nature, the Beta Test Material may contain errors, bugs and other problems that could cause system failure and the testing and quality assurance of the Beta Test Material may not yet be completed. Because the Beta Test Material is subject to change, Company reserves the right to alter the Beta Test Material at any time, and any reliance on the Beta Test Material is at Participant’s own risk. PARTICIPANT ACCEPTS THE BETA TEST MATERIAL “AS IS.” COMPANY MAKES NO WARRANTY OF ANY KIND REGARDING THE BETA TEST MATERIAL. COMPANY HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTIES RIGHTS.
- Term and Termination.
The term of this Agreement shall begin on the date set forth above (or, if no date is given, then the date both parties accept this Agreement) and shall continue until terminated as set forth below. Upon termination of this Agreement for any reason, the three-year obligation to protect Confidential Information, as set forth in Section 5.1, shall survive such termination.
This Agreement may be terminated at any time for any reason by either party giving ten days prior written notice to the other party, subject to Section 8.3 below. A particular Beta Test Material Agreement shall automatically terminate upon the general release to the public of the final product derived from the Beta Test Material by Company, or sooner upon ten days prior written notice by either party. The parties acknowledge that Company is under no obligation to release any final product or Beta Test Material to the public.
Upon termination of this Agreement or a particular Beta Test Material Agreement, Participant agrees to delete or otherwise destroy the Beta Test Material and all copies thereof, if requested by Company in writing to do so, within seven days after such termination. The provisions of, and the obligations of the parties under, Sections 4.3, 5, 6, 7, 8 and 9, and any other provisions that would normally survive, shall survive the termination of this Agreement.
- Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE TO PARTICIPANT OR ANY THIRD PARTY FOR ANY GENERAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL, OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE BETA TEST MATERIAL OR THE TRANSACTIONS CONTEMPLATED HEREIN.
- Waiver. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
- Assignment; Severability. Participant agrees not to assign any rights under this Agreement; any attempted assignment shall be null and void and shall result in the termination of this Agreement. If any part of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement which shall remain in full force and effect.
- Governing Law. This Agreement shall be governed by the laws of the State in which Company is organized, excluding any such laws that might direct the application of the laws of another jurisdiction. The parties agree that the state courts located in the State where Company is organized shall have exclusive jurisdiction to hear any dispute under this Agreement.
BY DOWNLOADING THE BETA MATERIALS, the Participant agrees to the terms of this Agreement effective as of the date of this acceptance.