Beta Test Agreement
The testing company (“Tester” or “you”) and Paladin Max, Inc. (“Vendor”) agree that Tester will participate in the KaleidoGlobe beta test (the “Beta Test”) under the terms of this Beta Test Agreement (“Agreement”). As used in this Agreement, the term “Beta Software” refers to the KaleidoGlobe software program and its user manual and other documentation. Participation in the Beta Test is exclusive and by invitation only. By registering for the Beta Test and clicking on the “Accept” button, you agree to be bound by the terms and conditions of this Beta Test Agreement. If you do not agree with all the terms and conditions of this Beta Test Agreement, do not register for the Beta Test, or click the “Do Not Accept” button.
2. Testing License
Tester is granted a non-exclusive and non-transferable license to use the Beta Software solely for the purpose of this Beta Test.
3. Confidential Information
Tester agrees that the characteristics, performance, and all other information about the Beta Software (including errors), the Beta Software itself (including all software and any documentation) and this Agreement are all confidential information and constitute trade secrets of Vendor. (Such information is referred to, collectively, as “Confidential Information.”) Tester acknowledges that under the Agreement, Vendor will make Confidential Information available to Tester. Limited disclosure about Tester’s participation in the Beta Test and the Beta Software’s general functionality is allowed for the purpose of encouraging potential users to contact Vendor in order to participate in the Beta Test.
Tester agrees to take all reasonable steps to prevent disclosure of Confidential Information and to ensure that its employees, officers, and agents prevent disclosure of Confidential Information. Tester further agrees that information will be available to its employees, officers and agents strictly on a need-to-know basis.
Tester agrees not to:
Disclose the results of any study, review or benchmark tests of the Beta Software to any third party without Vendor’s prior written approval;
Work around or circumvent any technical limitations or any copying or usage restriction mechanisms in the Beta Software;
Reverse engineer, decompile or disassemble the Beta Software, except and only to the extent that applicable law expressly permits despite this limitation;
Publish the Beta Software for others to copy;
Rent, lease or lend the Beta Software; or
Transfer the Beta Software or this Agreement to any third party.
5. Ownership of the Beta Software
Tester acknowledges that the Beta Software, its copyright, its trademark, and any other intellectual property rights in the Beta Software are owned by Vendor and its suppliers.
Tester acquires no ownership of the Beta Software from this Agreement and no license to use the Beta Software beyond the term of this Agreement. Tester acquires no license to copy or use the Beta Software (except as expressly permitted by this Agreement), prepare derivative works, or participate in development, manufacturing, marketing, and maintenance of the Beta Software.
Tester acknowledges that the Beta Software has not been completely tested and may contain material defects or deficiencies. Tester agrees to determine for itself the suitability of the use of the Beta Software for Tester’s purposes. The Beta Software is provided without maintenance or support.
While Vendor intends to introduce a commercial version of the Beta Software, Tester acknowledges that Vendor has no express or implied contractual obligation to announce or introduce the Beta Software or any similar product.
Tester acknowledges that all testing that Tester performs pursuant to this Agreement is done entirely at Tester’s own risk. THE BETA SOFTWARE IS PROVIDED "AS IS," AND VENDOR EXCLUDES ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
VENDOR SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Vendor shall not be liable for cumulative money damages under this Agreement in excess of US$500.00.
Tester agrees not to allow any third party to use or access the Beta Software and agrees to defend, indemnify, and hold Vendor harmless from any damages or claims arising from use by any third party. Tester agrees to back up data and take other appropriate measures to secure and protect its programs and data.
Tester agrees that the contents of all oral and written reports to Vendor and any other materials, information, ideas, concepts, and know-how provided by Tester (including corrections to problems in the Beta Software and documentation) (collectively “Feedback”) become the property of Vendor. Vendor may use or exploit Feedback without any accounting or payment to Tester. Under no circumstances will Vendor become liable for any payment to Tester for any information that Tester provides, whether concerning the Beta Software or otherwise.
Tester agrees not to disclose to Vendor, as Feedback or otherwise, any information that is confidential or proprietary to Tester or any third party.
8. Automated Reporting
The Beta Software may be configured to periodically check Tester computers or system for, and report back to Vendor without additional notice, non-personal technical information relating to Tester’s use of the Beta Software, such as the frequency of the use of the Beta Software and/or certain of its features, Beta Software configuration settings and information on computer errors occurring during use of the Beta Software. Such configuration may include functionality that allows for the transmission of data about the computers or systems to Vendor (for instance the version of operating system in use or details of other programs that Tester may be running) to enable Vendor to better understand why bugs may occur and to enable Vendor to improve the Beta Software. Some Beta Software may contain a specific identification number for the purpose of tracking the number of unique instances of such Beta Software being used by Tester. This functionality may continue to function post-termination; Tester consents to any such continuing operation.
The Beta Software may contain an “Automatic Update” feature that may gather information from your computer in connection with its updating functionality, and, if so, you consent to its use. This functionality may continue to function post-termination; Tester consents to any such continuing operation.
Vendor may terminate this Agreement for Tester’s material breach by written notice. This Agreement may be terminated by either party upon ten days' notice. This Agreement will terminate 30 days after the general release of the commercial version (Version 1.0 or later) of the Beta Software.
The following provisions of Sections shall continue in full force and effect even after termination of this Agreement as applicable: 3 (Confidential Information), 4 (Restrictions), 5 (Ownership of the Beta Software), 6 (Disclaimers), 7 (Feedback), 10 (Termination) and 14 (General Provisions), together with any provisions of this Agreement that recite that they survive termination.
12. Changes to Agreement
This Agreement may be amended or updated from time to time without notice and may have changed since Tester’s last use of the Beta Software. It is Tester’s responsibility to review this Agreement for any changes. By continuing to access or use the Beta Software after revisions become effective, Tester agrees to be bound by the revised Agreement.
13. Use of Tester’s Account Information
In the course of registering for the Beta Software, Tester agrees that it will provide Vendor with certain information, including but not limited to its organization name, employee email addresses, and password(s) (“Account Information”). Tester agrees that it is responsible for maintaining and protecting its Account Information in connection with the Beta Software. Tester agrees that upon changing its Account Information or contact information, it will notify Vendor promptly and keep such information current. Tester agrees that it is solely responsible for any activity using its Account Information. Tester agrees to immediately notify Vendor of any unauthorized use of its Account Information or if any of Tester’s emails or passwords have been hacked or stolen.
14. General Provisions
Notice may be given at the addresses stated in this Agreement or to such other addresses as to which a party has given written notice.
Neither Tester nor Vendor has any obligation to purchase anything under this Agreement. No agency, partnership, joint venture, or other joint relationship is created by this Agreement. Vendor may enter into the same, similar or different agreements with others.
This Agreement will be governed by the laws of the State of Massachusetts, USA, without regard to conflicts of law rules. Tester agrees to the exclusive jurisdiction and venue of the state and federal courts located in Massachusetts with regarding to any dispute relating to this Agreement or its subject matter.
U.S. Government Users. The Beta Software is a "Commercial Item," as that term is defined at 48 CFR §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 CFR §12.212 or 48 CFR §227.7202, as applicable. Consistent with 48 CFR §,12.212 and 48 CFR §§227.7202-1 through 227.7202-4, as applicable, the Beta Software is being provided to U.S. Government end users (1) only as a Commercial Item, and (2) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
Tester is responsible for compliance with US export control laws as applicable.
This document is a complete statement of the contract between the parties, and any change or addition to this Agreement must be in writing and signed by Tester and Vendor.