Beta Test Agreement
This Beta Tester Agreement (this “Beta Agreement”) is entered into between BINOX a New York Corporation (“BINOX”), and you (“You”). This Beta Tester Agreement governs your access to and use of certain software and related services (the “Beta Services”) offered by BINOX solely for testing and evaluation purposes. Further description and related details of the Beta Services may be provided to you at the time you access or engage with the Beta Services. By accessing or using the Beta Services, you agree to be bound by this Beta Agreement and accept all of its terms. If you do not accept all the terms of this Beta Agreement, then you may not use the Beta Services.
2. Acknowledgment of Beta Services Limitations. You acknowledge that: (a) the Beta Services have not been made commercially available by BINOX; (b) the Beta Services may not operate properly, be in final form or fully functional; (c) the Beta Services may contain errors, design flaws or other problems; (d) it may not be possible to make the Beta Services fully functional; (e) use of the Beta Services may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; and (f) BINOX has no obligation to release a commercial version of the Beta Services or otherwise introduce the Beta Services. You assume all risk arising from use of the Beta Services as further stated in this Beta Agreement.
3. Obligations under Third Party Agreements. If you have obligations to any third party, such as under the terms, conditions or policies of a telecommunication services provider that you use or through which you purchase data services (as a non-limiting example), you, and not BINOX, are solely responsible for your compliance with those requirements. By providing you with access to the Beta Services, BINOX does not warrant or guarantee that how you may choose to use the Beta Services is allowed by any particular service provider, nor that your use complies with any laws or regulations that may apply to your use or purchase of any other services. BINOX is not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations or any contracts, rules, policies or procedures applicable to your activities.
4.1. License Grant. Subject to your compliance with the terms and conditions of this Beta Agreement, BINOX hereby grants to you a limited, nonexclusive, nontransferable, revocable license, during the Term of this Beta Agreement, to access and use the Beta Services solely for the purposes of testing and evaluation, and not for general production or commercial use.
4.2. Restrictions. You acknowledge that the Beta Services contain trade secrets of BINOX and its licensors, and, in order to protect such trade secrets and other interests that BINOX and its licensors may have in the Beta Services, you agree not to: (i) reverse engineer, decompile or disassemble the Beta Services or authorize a third party to do any of the foregoing, (ii) modify the Beta Services, (iii) distribute sell, sublicense or otherwise transfer the Beta Services, or (iv) copy the Beta Services, except as strictly necessary to use the Beta Services in accordance with the terms of Section 4.1.
5. Feedback. You agree to (a) test the Beta Services and cooperate with BINOX in evaluating the Beta Services, and (b) provide BINOX with feedback as reasonably requested from time to time. All feedback, comments, and suggestions for improvements that you provide to BINOX hereunder are referred to collectively as “Feedback”. You hereby grant BINOX a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
6. Ownership. As between the parties, BINOX is the sole owner of all rights, title and interest in and to the Beta Services, including all intellectual property rights therein. You will not acquire any rights or licenses in the Beta Services or BINOX’s Confidential Information, except as expressly provided in Section 4.1 this Beta Agreement.
7.1. For purposes of this Beta Agreement, “Confidential Information” means the Beta Services and any information or materials disclosed by or on behalf of BINOX to you that (a) is marked “confidential” or “proprietary” or with a similar designation at the time of such disclosure, or (b) due to its nature or the circumstances of its disclosure, a person exercising reasonable business judgment would understand to be confidential or proprietary. You agree: (i) to maintain all Confidential Information in strict confidence; (ii) not to disclose Confidential Information to any third parties; and (iii) not to use any Confidential Information for any purpose except for the purpose of testing and evaluating the Beta Services in accordance with this Beta Agreement and the ToU.
7.2. The obligations and restrictions in Section 7.1 will not apply to any information or materials that: (a) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by you; (b) were rightfully known by you prior to the disclosure of such information or materials from BINOX; (c) are rightfully acquired by you from a third party who has the right to disclose such information or materials without breach of any obligation of confidentiality or restricted use to BINOX; or (d) are independently developed by you without access to any Confidential Information.
7.3. Upon termination of this Beta Agreement, or earlier upon BINOX’s request, you will promptly return to BINOX, or, at BINOX’s option, destroy, all tangible items and embodiments containing or consisting of Confidential Information and all copies thereof. All Confidential Information remains the sole and exclusive property of BINOX.
7.4. You agree that any breach of this Beta Agreement by you may result in irreparable harm to BINOX, for which damages would be an inadequate remedy and therefore, in addition to its rights and remedies otherwise available at law, BINOX shall be entitled to seek equitable relief, including injunction, in the event of such breach.
8. Termination. BINOX reserves the right to modify or terminate the Beta Services, this Beta Agreement, or your use of the Beta Services, or to limit or deny access to the Beta Services, at any time, in its sole discretion, for any reason, with or without notice and without liability to you. You may discontinue your use of the Beta Services at any time. Upon any termination, discontinuation or cancellation of the Beta Services, this Beta Agreement or your access, the following sections of this Beta Agreement will survive: 2, 3, 4.2, 5, 6, 7, 9, 10 and 11.
9. Warranty Disclaimers. YOU ACKNOWLEDGE THAT THE BETA SERVICES ARE BEING PROVIDED “AS IS.” BINOX 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. BINOX MAKES NO WARRANTY THAT ANY OF THE BETA SERVICES WILL MEET YOUR REQUIREMENTS AND/OR THAT THE BETA SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES BINOX MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE BETA SERVICES OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE BETA SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF ANY OF THE BETA SERVICES IS DONE AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM AND/OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
10. Limitation on Liability. IN NO EVENT WILL BINOX BE LIABLE TO YOU 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 BETA AGREEMENT OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE BETA SERVICES OR FOR ANY ERROR OR DEFECT IN THE BETA SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT BINOX 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 BETA AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BINOX’S LIABILITY HEREUNDER IS LIMITED TO $50.00.
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