THESE BETA TEST TERMS (THE “AGREEMENT”) GOVERN YOUR ACCESS AND USE OF ALL PRODUCTS AND SERVICES PROVIDED BY QUIXEY INC. (“COMPANY”) TO YOU (“USER”) ON THE COMPANY’S SITE AS “BETA” OR “PRE-RELEASE” PRODUCTS AND SERVICES THAT ARE NOT OTHERWISE AVAILABLE TO THE GENERAL PUBLIC (“BETA PRODUCTS”). YOU WILL BE REQUIRED TO INDICATE YOUR AGREEMENT TO THESE TERMS AND CONDITIONS IN ORDER TO ACCESS AND/OR USE THE BETA PRODUCTS. BY ACCESSING OR USING THE BETA PRODUCTS, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU AGREE TO THE TERMS AND CONDITIONS HEREIN ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT, AND YOUR AGREEMENT TO THE TERMS AND CONDITIONS HEREIN WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, “YOU” AND “YOUR” REFER HEREIN TO THAT BUSINESS. THIS AGREEMENT SUPPLEMENTS THE QUIXEY TERMS OF SERVICE (“TERMS”) AVAILABLE AT [INSERT LINK] WHICH IS HEREBY INCORPORATED BY REFERENCE. IF THERE IS A CONFLICT BETWEEN THIS AGREEMENT AND THE TERMS OR ANY OTHER TERMS AND CONDITIONS POSTED FOR A SPECIFIC AREA OF THE COMPANY’S SITE, THIS AGREEMENT WILL TAKE PRECEDENCE WITH RESPECT TO YOUR USE OF OR ACCESS TO THE BETA PRODUCTS.
1.1 Grant of License. Subject to User’s compliance with the terms and conditions of this Agreement, Company hereby grants to User a limited, nonexclusive, nontransferable, revocable, terminable license, during the term of this Agreement, to use the Beta Products solely for the purposes of testing and evaluation.
1.2 License Restrictions. User acknowledges that the Beta Products contain trade secrets of Company and its licensors, and, in order to protect such trade secrets and other interests that Company and its licensors may have in the Beta Products, User agrees not to reverse engineer, decompile or disassemble the Beta Products, or any information derived therefrom, or authorize a third party to do any of the foregoing. User will not modify the Beta Products. User will not distribute sell, sublicense or otherwise transfer the Beta Products. User will not copy the Beta Products, except as strictly necessary to use the Beta Products in accordance with the terms of Section 1.1.
1.3 Limited Rights. User’s rights in the Beta Products will be limited to those expressly granted in Section 1.1. Company and its licensors reserve all rights and licenses in and to the Beta Products not expressly granted to User under this Agreement.
1.4 Compliance with the Terms. User acknowledges and agrees that it will further comply with the Terms.
2. INTELLECTUAL PROPERTY
2.1 Ownership. User acknowledges and agrees that Licensor retains all right, title and interest, including all intellectual property rights, in and to the Beta Products.
2.2. Feedback. User does not have any obligation to provide to Company any feedback with respect to the Beta Products. Notwithstanding the above, if User does provide any such feedback to Company (“Feedback”), User acknowledges and agrees that all Feedback will be the sole and exclusive property of Company and User hereby irrevocably assigns to Company and agrees to irrevocably assign to Company all of its right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Company’s request and expense, User will execute documents and take such further acts as Company may reasonably request to assist Company to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
3. CONFIDENTIAL INFORMATION.
3.1 Definition. “Confidential Information” means: (a) the Beta Products, and any features, results or output produced by, and other information relating to, the Beta Products; and (b) any business or technical information of Company, including, but not limited to, any information relating to Company’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how.
3.2 Exclusions. The obligations in Section 3.3 will not apply to the extent any information: (a) is or becomes generally known to the public through no fault or breach of this Agreement by User; (b) is rightfully known by User at the time of disclosure without an obligation of confidentiality; (c) is independently developed by User without access to or use of any Confidential Information; or (d) is rightfully obtained by User from a third party without restriction on use or disclosure.
3.3 Restrictions. User will not use or disclose any Confidential Information, except as necessary for the performance of this Agreement. User will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that it ordinarily uses with respect to its own proprietary information of a similar nature and importance. User may disclose Confidential Information only to those of its employees who have a bona fide need to know such Confidential Information for the performance of this Agreement; provided, that each such employee first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement.
4.1 Warranty Disclaimers. User acknowledges that the Beta Products are being provided “AS IS.” COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
4.2 Acknowledgment of Beta Products. User acknowledges and agrees that: (a) the Beta Products are not official products and have not been commercially released by Company; (b) the Beta Products may not operate properly, be in final form or fully functional; (c) the Beta Products may contain errors, design flaws or other problems; (d) it may not be possible to make the Beta Products fully functional; (e) the information obtained using the Beta Products may not be accurate; (f) use of the Beta Products may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) Company is under no obligation to release a commercial version of the Beta Products; and (h) Company has the right unilaterally to abandon development of the Beta Products, at any time and without any obligation or liability to User.
4.3 User Data. User acknowledges and agrees that it should not rely on the Beta Products for any reason. User further acknowledges and agrees that it is solely responsible for maintaining and protecting all data and information that is stored, retrieved or otherwise processed by the Beta Products. Without limiting the foregoing, User will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of User’s use of the Beta Products.
5. LIMITATION ON LIABILITY. IN NO EVENT WILL COMPANY BE LIABLE TO USER OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE BETA PRODUCTS OR FOR ANY ERROR OR DEFECT IN THE BETA PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
6. TERM AND TERMINATION.
6.1 Term/Termination. This Agreement may be terminated by Company at any time with or without notice.
6.2 Effect of Termination. Upon any termination or expiration of this Agreement: (a) the rights and licenses granted to User under this Agreement will automatically terminate; and (b) User will, at its expense, return to Company all copies of the Confidential Information in User’s possession or control, and an officer of User will certify in writing to Company that it has complied with the foregoing.
6.3 Survival. The provisions of Sections 2, 3, 4, 5, 6.2, 6.3 and 7 will survive any termination or expiration of this Agreement.
7. MISCELLANEOUS. User may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Company. Any attempted assignment without such consent will be null and of no effect. This Agreement will be governed by and construed in accordance with the laws of the State of California, USA (excluding its body of law controlling conflicts of law). The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other in accordance with this Section. This Agreement and the attached exhibits constitute the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersede any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.