This End User Beta Testing Agreement (“Agreement”) is between ILTR LLC ("Praemio"), and you, identified as the Participant below (“Participant” or “You”). Praemio and Participant may be referred to herein individually as a “Party” and collectively as the “Parties.” This Agreement incorporates herein by this reference the Terms and Conditions set forth below and Exhibit A, which is appended hereto. IN WITNESS WHEREOF, Praemio and Participant have caused this Agreement to be executed as of the effective date set forth below. BY CLICKING ACCEPT, You acknowledge that You have read and understood the terms of the Agreement and agree to be bound by the terms of the Agreement.
PLEASE NOTE: The Beta Test Material and Praemio IP covered by this Agreement is in beta test form and is not covered by warranty of any kind. By signing above, Participant agrees that use of such Beta Test Material and Praemio IP is at Participant’s own risk.
1.1. "Beta Products" shall mean the beta version of certain Praemio product (including any Updates thereto, in the case of software) and the media and Documentation provided by Praemio to You. Beta Products may include Software and/or Hardware, both as defined below.
1.2. "Documentation" shall mean the printed or online written reference material furnished to You in conjunction with the Beta Products, including, without limitation, instructions, beta testing guidelines, and end user guides.
1.3. "Hardware" shall mean any Praemio hardware appliance products loaned to You pursuant to this Agreement, if any.
1.4. "Intellectual Property Rights" shall mean all intellectual property rights, including, without limitation, patent, copyright, trademark, and trade secret.
1.5. "Open Source Software" means various open source software components of the Software that are licensed to You under the terms of the applicable license agreements included with such open source software components or other materials for the Software.
1.6. "Software" shall mean the applicable Praemio software products licensed to you for non-production, evaluation purposes pursuant to this Agreement.
1.7. "Updates" shall mean a modification, error correction, bug fix, new release, or other update to or for any Software.
2.1. Praemio is in various stages of prerelease development and testing of certain hardware and software as described in Exhibit A appended hereto. All components, accessories, documentation and/or technology provided by Praemio relating thereto, including but not limited to all specifications and other technical information, and all updates or revisions thereto, shall be referred to herein as the “Beta Test Material.” Participant desires to participate in Praemio’s Beta Testing Program, and Praemio desires to obtain the Participant’s services in such Beta Testing Program, on the terms and conditions set forth herein. The beta testing period will commence at such time and continue for such duration as determined by Praemio in its sole discretion.
3.0 Praemio’s Obligations.
3.1. Praemio will deliver the Beta Test Material to Participant at Praemio’s expense.
3.2. Praemio may provide only the support services for the Beta Test Material described in Exhibit A, if any, and no other support or services.
3.3. Praemio has no obligation to develop or provide any updates or revisions to the Beta Test Material, and Praemio reserves the right to alter or adjust performance specifications for the Beta Test Material as it deems necessary or desirable.
3.4. Praemio will be responsible to provide only the instructions, safety information, warnings or cautions concerning the Beta Test Material described or included in Exhibit A and no other.
4.0 Participant’s Obligations.
4.1. Participant agrees to test and evaluate the Beta Test Material in accordance with Praemio’s beta testing program as set forth in Exhibit A (“Beta Testing Program”), as it may be amended by Praemio from time to time upon written or electronic notice to Participant. Participant agrees to familiarize itself with the Beta Test Material information provided by Praemio and to only use or test the Beta Test Material as directed. Participant will notify Praemio 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 Praemio with the reports required by the Beta Testing Program, and to promptly respond to any and all reasonable inquiries, questionnaires, surveys and other test documents submitted to Participant by Praemio.
4.2. If Participant is a company or other entity, Participant shall designate to Praemio, in writing or online, an employee or representative who will serve as Participant’s single technical contact for the Beta Test Material, and who will be responsible for maintaining communication with Praemio’s beta team on a regular basis. In addition, Participant’s beta test location, where Participant will test the Beta Test Material, will be given to Praemio in writing or online. If Participant changes either its technical contact person or beta test location, it will promptly notify Praemio in writing or online of such change.
4.3. Upon Praemio’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 Praemio within seven (7) days of Participant’s receipt of Praemio’s request to do so. If Participant fails to return the Beta Test Material within this seven (7) day period, Participant agrees to purchase the Beta Test Material from Praemio 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 Praemio. 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.
4.4. Any feedback, ideas, modifications, suggestions, improvements and the like made by Participant with respect to the Beta Test Material (“Supportive Information”) will be the sole property of Praemio. Participant agrees to assign, and hereby assigns, all worldwide right, title and interest in the Supportive Information and the related intellectual property rights to Praemio and agrees to assist Praemio, at Praemio’s expense, in perfecting and enforcing such rights. Praemio may disclose or use Supportive Information for any purposes whatsoever without any obligation to Participant, and Praemio shall have no confidentiality obligations with respect thereto. Participant agrees that Praemio may copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense, incorporate and otherwise use the Supportive Information, for any and all commercial and non-commercial purposes.
4.5. 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 and described in Exhibit A.
5.1. “Confidential Information” shall mean all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, planned product features, functionality, methodology, performance and software source documents relating to the Beta Products, and other information provided by Praemio, whether disclosed orally, in writing, or by examination or inspection, other than information which You can demonstrate (i) was already known to You, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to You; (iii) became generally available in the public domain after disclosure other than through any act or omission by You; (iv) was subsequently lawfully disclosed to You by a third party without any obligation of confidentiality; or (v) was independently developed by You without use of or reference to any information or materials disclosed by Praemio or its suppliers. Confidential Information shall include without limitation the Beta Products, Documentation, Performance Data, any Updates, information relating to Praemio products, product roadmaps, and other technical, business, financial and product development plans, forecasts and strategies. You shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. In no event, shall You use the Beta Products or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service. In no event, shall You disclose any Confidential Information to any third party. Without limiting the foregoing, You shall use at least the same degree of care that You use to prevent the disclosure of your own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information.
5.2. Participant acknowledges that as a beta tester, Participant may have access to, and Praemio may disclose to Participant, certain valuable information belonging to and relating to Praemio which Praemio 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 Praemio’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.
5.3. 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 4. Participant acknowledges that the Beta Test Material contains Confidential Information developed or acquired by Praemio and that all rights therein and in other Praemio Confidential Information remain in Praemio. Participant will not disclose that it is evaluating or testing or has evaluated or tested the Beta Test Material to any third party without Praemio’s prior written consent. In addition, Participant agrees to treat any communications and reports prepared under this Agreement, including, but not limited to, those prepared in accordance with the Beta Testing Program, as Confidential Information and will not divulge the existence or content of such communications or reports to any third party without Praemio’s prior written consent.
5.4. 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 Praemio 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; or (iv) is furnished to others by Praemio without restriction on disclosure.
6.0 License Grant, Use and Ownership
6.1. Limited License. Subject to the terms and conditions of this Agreement, Praemio grants You a non-exclusive, nontransferable license (without the right to sublicense) (i) to use the Software in accordance with the Documentation solely for purposes of internal testing and evaluation; for purposes of clarification the use of the Software is for non-production use only; (ii) to use the Documentation provided with the Software in support of Your authorized use of the Software; and (iii) to copy the Software for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies. Nothing in this limited license permits You to modify the Software.
6.2. Loan of Hardware. If Praemio loans Hardware to you pursuant to this Agreement, Praemio is loaning such Hardware to You solely for purposes of internal testing and evaluation; for purposes of clarification the use of the Hardware is for non-production use only. You shall not disassemble the Hardware, in whole or in part, or use any mechanical, electrical or other method to decompile, disassemble or decrypt the Hardware or encourage others to do so. You shall do nothing inconsistent with Praemio’s title to the Hardware, including but not limited to transferring, loaning, selling, assigning, pledging or otherwise disposing, encumbering or suffering a lien or encumbrance upon or against any interest in the Hardware.
6.3. Open Source Software. The terms and conditions of this Agreement shall not apply to any Open Source Software accompanying the Beta Products. Any such Open Source Software is provided under the terms of the open source license agreement or copyright notice accompanying such Open Source Software.
6.4. Evaluation Feedback. The purpose of this limited license is the testing and evaluation of the Beta Products and Documentation. In furtherance of this purpose, You shall provide feedback to Praemio concerning the functionality and performance of the Beta Products from time to time as reasonably requested by Praemio, including, without limitation, identifying potential errors, improvements, modifications, bug fixes, or enhancements ("Feedback"). Such Feedback will be in a manner convenient to You and will be subject to reasonable availability of Your personnel. Notwithstanding the foregoing, prior to disclosing to Praemio any information in connection with this Agreement which You consider proprietary or confidential, You will obtain Praemio’s prior written approval to disclose such information to Praemio, and without such prior written approval from Praemio, You will not disclose any such information to Praemio. Feedback and other information which is provided by You to Praemio in connection with the Beta Products or this Agreement may be used by Praemio to improve or enhance its products and, accordingly, You grant Praemio a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback and information without restriction.
6.5. Restrictions. You shall not copy or use the Beta Products (including the Documentation) or disseminate Confidential Information, as defined below, to any third party except as expressly permitted in this Agreement. You will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any Software or accompanying Documentation. In no event shall You use the Beta Products for Your product development or any other commercial purpose. The Beta Products and all performance data and test results, including without limitation, benchmark test results (collectively "Performance Data"), relating to the Beta Products are the Confidential Information of Praemio, and will be treated in accordance with the terms of Section 4 of this Agreement. Accordingly, You will not publish or disclose to any third party any Performance Data relating to the Beta Products.
6.6. Ownership. Praemio shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Beta Products and any derivative works thereof, subject only to the limited license expressly set forth in Section 2(a) hereof. You do not acquire any other rights, express or implied, in the Beta Products. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO Praemio.
6.7. No Support Services. Praemio is under no obligation to support the Beta Products in any way or to provide any Updates to You. In the event Praemio, in its sole discretion, supplies any Update to You, such Update shall be deemed Software hereunder and shall be subject to the terms and conditions of this Agreement.
7.0 Proprietary Rights; No Right to Modify or Disassemble.
7.1. The Beta Test Material provided by Praemio and all copies thereof, are the sole property of Praemio. 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 Praemio and Participant shall have no such intellectual property rights in the Beta Test Material.
7.2. Participant may not copy or reproduce the Beta Test Material without Praemio’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 Praemio, without Praemio’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 Praemio’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.
7.3. Participant agrees to secure and protect the Beta Test Material and all copies thereof in a manner consistent with the maintenance of Praemio’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.
7.4. Participant shall not reverse engineer, alter, modify, disassemble or decompile the Beta Test Material, or any part thereof, without Praemio’s prior written consent.
8.0 Term and Termination.
8.1. The term of this Agreement shall begin on the Effective Date 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 hereinabove, shall survive such termination.
8.2. Unless otherwise terminated as specified under this Agreement, Your rights with respect to the Beta Products will terminate upon the earlier of (a) the date the Hardware products are returned to Praemio, or (b) the initial release by Praemio of the next generally available version of the Beta Product, or (c) two months after the effective date set forth below, or sooner upon ten (10) days written notice by either Party. The Parties acknowledge that Praemio is under no obligation to release any final product or Beta Test Material to the public. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Praemio will immediately terminate this Agreement and Your rights with respect to the Beta Products without notice in the event of improper disclosure of Praemio’s Beta Products as specified under Section 5 (Confidentiality). Upon any expiration or termination of this Agreement, the rights and licenses granted to You under this Agreement shall immediately terminate, and You will immediately cease using, and will return to Praemio (or, at Praemio’s request, destroy), the Beta Products, Documentation, and all other tangible items in Your possession or control that are proprietary to Praemio or contain Praemio Confidential Information, as explained in Section 8.3. The rights and obligations of the parties set forth in herein shall survive termination or expiration of this Agreement for any reason.
8.3. Upon termination of this Agreement, Participant agrees to (a) return the Beta Test Material and all copies thereof to Praemio within seven days after such termination, or (b) if requested by Praemio to do so, certify to Praemio 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 3.3. The provisions of, and the obligations of the parties set forth herein and any other provisions that would normally survive, shall survive the termination of this Agreement.
9.0 Acknowledgment of Embedded Third Party Components. The Beta Test Material may contain technology and data that is licensed by Praemio from third parties, and use of such third-party technology and data is sublicensed to Participant hereunder in connection with Participant’s use of the Beta Test Material for their intended purpose.
10.0 No Warranty. Praemio is endeavoring to ensure that Beta Test Material are compliant with all relevant safety and performance standards. However, the Beta Test Material may contain errors, bugs and other problems which could cause failure of the Beta Test Material or other hardware or software used in connection therewith, 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, Praemio 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. MOREOVER, BECAUSE THE BETA TEST MATERIAL IS IN PRERELEASE STAGE, Praemio CANNOT PROVIDE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE BETA TEST MATERIAL AND ANY OF THE COMPONENTS THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. The foregoing is all provided “AS IS” and Participant agrees to assume all liability associated therewith, and will hold harmless Praemio, its employees, officers, directors, agents, representatives, and any of Praemio’s dealers, vendors, contractors or installers involved in the implementation to Participant or use of the Beta Test Material, from and against any and all damages relating to the purchase, installation and use of (or inability to use) the Beta Test Material.
11.0 Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL Praemio BE LIABLE FOR ANY DAMAGES, INCLUDING PERSONAL INJURY, OR ANY INCIDENT SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR LOST SAVINGS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO PARTICIPANT’S USE OR PURCHASE OF THE BETA TEST MATERIAL, OR THE INSTALLATION, USE OR INABILITY TO USE THE BETA TEST MATERIAL, EVEN IF Praemio HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. Praemio SHALL HAVE NO RESPONSIBILITY TO PROVIDE OR MAINTAIN INSURANCE RESPECTING THE BETA TEST MATERIAL PURCHASED BY PARTICIPANT.
12.0 Export Law Assurances. You understand that Praemio is subject to regulation by U.S. and foreign governments and agencies, which prohibit export or diversion of certain technical products and information to certain countries and individuals. You warrant that it will comply in all respects with all export and re-export restrictions applicable to the technology and documentation provided hereunder. Participant shall not use or otherwise export or re-export the Beta Test Material or any part or component thereof except as authorized by United States law and the laws of the jurisdiction in which you obtained the Beta Test Material.
13.0 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.
14.0 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.
15.0 Governing Law. This Agreement shall be governed by the laws of the State of California, U.S.A., excluding its conflicts of law rules. The parties agree that any federal or state court located in Orange County, State of California shall have jurisdiction and venue over all controversies in connection herewith.
16.0 Entire Agreement. This Agreement and the Exhibits hereto, including any additional terms and conditions listed in the Beta Testing Program, represent the entire agreement between the parties regarding the subject matter hereof and supersede any and all prior or contemporaneous agreements or understandings between the parties, whether written or oral, regarding the subject matter hereof. No waiver or modification of this Agreement shall be valid unless in writing signed by each party. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect.
17.0 Counterparts. This Agreement may be executed in two (2) counterparts, both of which taken together shall constitute one (1) single agreement between the parties. The parties hereto agree that a version of this Agreement transmitted by means of electronic message or electronic record (electronic mail, electronic data interchange, or facsimile), once duly signed by the authorized representatives of each party, shall constitute a binding agreement and shall have the same force and effect as a document bearing original signatures.
18.0 No Application of Convention. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Praemio is in the process of finalizing the development system software, configuration software, end-user software. Beta software or hardware is released with the specific intention of allowing qualified Beta program participants to test upcoming releases in their own environment. While the Beta program provides a sneak peek at the direction the product is taking, pre-released software or hardware should not be treated as evaluation software or hardware. The very nature of the Beta designation implies that the software or hardware is incomplete and not quite ready for full release.
Purpose of Beta Test
Praemio’s purpose in implementing the Beta Testing Program is to help us identify bugs, enhance the quality and functionality of our products, and fine-tune our products and components to meet yours and your customer’s needs. The goal of Praemio Beta programs is to test software and/or hardware changes and innovations in a 'real world' environment which cannot be simulated anywhere else, and to help us make our products the best that they can be.
Beta Test feedback
We expect each participant in the Beta Testing Program to provide feedback to Praemio throughout the testing period. General beta feedback, error reports and enhancement requests must be submitted via electronic mail to email@example.com. Feedback is expected to include: defects encountered, suggestions on how to improve interface, suggestions on how to improve functionality, and other feedback.
We may, depending on the circumstances and at our discretion, update the software during the beta testing period. When this happens, we will request that all participating sites install the update and provide your continued regular feedback on the most current version.
Pre-release products are not fully supported by Praemio technical support. However, we may make arrangements for limited support to be provided to beta test participants. If you encounter an issue with the product that requires assistance from Praemio, please report that issue via e-mail to firstname.lastname@example.org. We will contact you to work through that issue at a time that is mutually agreeable.