Beta Pre-Launch

Participant is an individual or business that desires to participate in “beta testing”, which provides access to confidential materials or services currently in development by Manufacturer. Manufacturer wishes to obtain the benefit of Participant’s services and reports as a beta tester of one or more of Manufacturer’s proprietary materials or services. In consideration of the promises, and of the mutual covenants and conditions, the parties agree to the following terms and conditions:

1. Beta Test Material. Each material or service and all components, accessories, and documentation related to each such Beta Test Material and/or technology provided by Manufacturer 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 and services.
2. License. Manufacturer 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 Manufacturer. Participant may not be publicly disclose, sublicense, sell, rent, assign, lease, loan, or otherwise transferred the Beta Test Material to any third party for any reason, including, but not limited to develop a competitive solution (or contracting with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Beta Test Material.
3. Manufacturer’s Obligations.
   1. Manufacturer will deliver the Beta Test Material to Participant at Manufacturer’s expense.
   2. Manufacturer will provide no support, warranty or services unless otherwise specifically agreed to in writing.
   3. Manufacturer has no obligation to develop or provide any updates or revisions to the Beta Test Material, and Manufacturer reserves the right to alter or adjust performance specifications for the Beta Test Material as it deems necessary or desirable.
   4. Unless specifically otherwise agreed to in writing, Manufacturer will provide no instructions, safety information, warnings, or cautions concerning the Beta Test Material.
4. Participant’s Obligations.
   1. Participant agrees to test and evaluate the Beta Test Material. Participant agrees to familiarize itself with the Beta Test Material information provided by Manufacturer and to only use or test the Beta Test Material as directed. Participant will notify Manufacturer 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 Manufacturer with such reports via the methods designated by Manufacturer and to promptly respond to any and all reasonable inquiries, questionnaires, surveys and other test documents submitted to Participant by Manufacturer.
   2. If Participant is a company or other entity, Participant shall designate to Manufacturer, in writing, an employee or representative who will serve as the single technical contact at the Beta site for the Beta Test Material, and who will be responsible for maintaining communication with the Manufacturer Beta site team on a regular basis. In addition, the Beta site address, where Participant will test the Beta Test Material, will be given to Manufacturer in writing. If Participant changes either its technical contact person or Beta site address, it will promptly notify Manufacturer in writing of such change.
   3. Upon Manufacturer’s request for the return of the Beta Test Material, Participant agrees to return the Beta Test Material in good condition (taking into account reasonable wear and tear) to Manufacturer within seven days of Participant’s receipt of Manufacturer’s request to do so. If Participant fails to return the Beta Test Material within this seven-day period, Participant agrees to purchase the Beta Test Material from Manufacturer at the retail price for such Beta Test Material, along with all shipping costs and any applicable processing fees, as set forth in an invoice from Manufacturer; provided that Participant shall still be subject to the terms of this Agreement, including, but not limited to the license set forth in Section 2 and the proprietary rights set forth in Section 5. If the Beta Test Material is lost, damaged, or destroyed during the term of this Agreement while in Participant’s possession, Participant shall be responsible for the costs of repair or replacement of such Beta Test Material at its sole expense.
   4. 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 Manufacturer. Participant agrees to assign, and hereby assigns, all right, title, and interest worldwide in the Supportive Information and the related intellectual property rights to Manufacturer and agrees to assist Manufacturer, at Manufacturer’s expense, in perfecting and enforcing such rights. Manufacturer may disclose or use Supportive Information for any purposes whatsoever without any obligation to Participant.
   5. Participant agrees to pay all incidental costs (such as, costs for Internet and phone services, accessories, cabling, etc.) associated with the testing of the Beta Test Material and incurred during Participant’s possession of the Beta Test Material, unless otherwise agreed to in writing by both parties.
5. Proprietary Rights; No Right to Copy, Modify, or Disassemble.
   1. The Beta Test Material provided by Manufacturer and all copies thereof, are proprietary to and the property of Manufacturer. 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 Manufacturer and Participant shall have no such intellectual property rights in the Beta Test Material.
   2. Participant may not copy or reproduce the Beta Test Material without Manufacturer’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 Manufacturer’s prior consent, except as is reasonably needed to perform Participant’s obligations under this Agreement. Each copy of software or documentation made by Participant must contain Manufacturer’s proprietary and copyright notices in the same form as on the original. Participant shall not remove or deface any portion of any legend provided on any part of the Beta Test Material.
   3. Participant agrees to secure and protect the Beta Test Material and all copies thereof in a manner consistent with the maintenance of Manufacturer’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.
   4. Participant shall not reverse engineer, alter, modify, disassemble, or decompile the Beta Test Material, or any part thereof, without Manufacturer’s prior written consent.
6. 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, Manufacturer 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.” MANUFACTURER MAKES NO WARRANTY OF ANY KIND REGARDING THE BETA TEST MATERIAL. MANUFACTURER 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. BETA TEST MATERIAL MAY NOT OPERATE ACCURATELY AND MAY BE SUBSTANTIALLY MODIFIED PRIOR TO PUBLIC AVAILABILITY OR WITHDRAWN AT ANY TIME. ACCORDINGLY, ACCESS TO USE OF THE BETA TEST MATERIAL IS ENTIRELY AT PARTICIPANT’S OWN RISK. IN NO EVENT SHALL MANUFACTURER OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DAMAGE ARISING WHATSOEVER OUT OF THE USE OF OR INABILITY TO USE BETA TEST MATERIAL, EVEN IF MANUFACTURER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PARTICIPANT IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF ANY BETA TEST MATERIAL.
7. Term and Termination.
   1. 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 by written signature) and shall continue until terminated as set forth below.
   2. 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 7. c. 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 Manufacturer, or sooner upon ten days prior written notice by either party. The parties acknowledge that Manufacturer is under no obligation to release any final product or Beta Test Material to the public.
   3. Upon termination of this Agreement or a particular Beta Test Material Agreement, Participant agrees to (a) return the Beta Test Material and all copies thereof to Manufacturer, if requested by Manufacturer in writing to do so, within seven days after such termination, or (b) if requested by Manufacturer to do so, certify to Manufacturer in writing that the Beta Test Material and all copies thereof have been destroyed, or (c) purchase the Beta Test Material as set forth in Section 4.3. The provisions of, and the obligations of the parties under, Sections 4.3, 4.4, 5, 6, 7, 8, 9,10, 11, 12 and any other provisions that would normally survive, shall survive the termination of this Agreement.
8. Limitation of Liability. IN NO EVENT SHALL MANUFACTURER 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.
9. Participant agrees to indemnify and hold harmless Manufacturer, its officers, directors, employees and agents harmless from any losses (including attorney’s fees) that result from any third-party claims related to Participant’s access, use or misuse of the Beta Test Material or any act or omission by Participant in violation of this Agreement.
10. Confidential Information. Participant acknowledges and agrees that participation in the Beta testing under this Agreement will result in Manufacturer disclosing certain confidential, proprietary and/or trade secret information related to the Beta Test Materials and Manufacturer (the “Confidential Information”). Such Confidential Information includes without limitation, the features, functionality, and existence of the Beta Test Products, and any know how, trade secrets, computer programs, source code, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information, business plans or reports made available to Participant. Participant agrees that it will not, without the express prior written consent of Manufacturer, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information (a) is or becomes generally available to the public through any means other than as a result of any act or omission by Participant; (b) is rightfully received by Participant from a third party that is not subject to any obligation of confidentiality with respect thereto and without limitation as to its use; or (c) is independently developed by Participant without any reliance on any Confidential Information.
11. Exporting Restrictions; United States Government Legends. Beta Test Materials, including Software, provided to Participant may be subject to United States Export Restrictions. Participant agrees not to export or re-export any Beta Test Material or accompanying documentation in violation of any applicable laws and regulations of the United States or the country in which Participant obtained them. The software, firmware or other parts of the Beta Test Material covered by this Agreement may contain strong data encryption code, which cannot be exported outside the United States or Canada. Participant agrees not to export or re-export, either physically or electronically, an encrypted Beta Test Material or accompanying documentation without obtaining written authorization from the U.S. Department of Commerce.
12. 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.
13. Assignment; Severability. This Agreement does not create a partnership, agency relationship, or joint ventures between the parties. 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.
14. Governing Law. This Agreement shall be governed by the laws of the State in which Manufacturer is organized, excluding any such laws that might direct the application of the laws of another jurisdiction. The federal or state courts located in the State where Manufacturer is organized shall have exclusive jurisdiction to hear any dispute under this Agreement.
15. Entire Agreement. This Agreement and the Exhibits hereto, if any, represent the entire agreement between the parties regarding the subject matter hereof and supersede any and all prior agreements between the parties, whether written or oral, regarding the subject matter hereof. This Agreement may not be modified or amended except by the written acceptance of both parties.

IN WITNESS WHEREOF, the Participant agrees to the terms of this Agreement effective as of the date of this acceptance.