BY CLICKING ON THE "YES" OR “I ACCEPT” BUTTON (OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THE TERMS OF THIS AGREEMENT), BY DOWNLOADING, ACCESSING OR INSTALLING THE BETA PRODUCT, OR BY COMPLETING THE SIGN-UP PROCESS FOR THE BETA PRODUCT, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT.
This BETA TEST AGREEMENT (the “Agreement”) is by and between Flexspeak, Inc. and its affiliates (collectively, “Flexspeak”) and you (“Licensee” or “You”).
- “Beta Product” shall mean those products, software, services, and/or features that are designated as beta or pre-release versions of Flexspeak or a Flexspeak partner and are provided to You during the term hereof.
- License. Flexspeak grants to You a non-exclusive, non-transferable, non-sublicensable license to use the Beta Product solely for the purposes of testing, research, and evaluation. You shall not modify, disassemble, decompile, reverse engineer, rent, lease, loan, transfer, or make copies of the Beta Product.
- Ownership. All title, interest, and ownership rights in and to the Beta Product and associated documentation, including any improvements, modifications, and enhancements made thereto, are and shall remain in Flexspeak or Flexspeak's partners. Except for those rights expressly granted herein, no other rights are granted, either express or implied, to You.
- Confidentiality. The Beta Product, the fact of its existence, all accompanying documentation, and all information disclosed by Flexspeak to You hereunder or otherwise in connection with the Beta Product, including without limitation performance data, features and other information relating to or obtained from the Beta Product, is “Confidential Information” of Flexspeak. You will not use the Confidential Information except as necessary under this Agreement, and will not disclose any portion of the Confidential Information to any other person, company, or entity. You will use all reasonable steps to protect the Confidential Information from unauthorized use or disclosure. Confidential Information does not include information that: (1) was rightfully known by You at the time of disclosure without an obligation of confidentiality, (2) is lawfully obtained by You from a third party without restriction on use or disclosure, or (3) is or becomes generally known to the public through no fault or breach of this Agreement by You.
- Intellectual Property Rights. Licensee acknowledges that all intellectual property rights in the Beta Product, including any improvements, modifications, or enhancements made thereto, shall remain the exclusive property of Flexspeak or Flexspeak’s partners. Licensee shall not claim any ownership rights in any element of the Beta Product and agrees not to challenge or do anything inconsistent with such ownership.
- Injunctive Relief. Licensee acknowledges that the unauthorized use, transfer, or disclosure of the Beta Product or breach of any terms of this Agreement may cause irreparable injury to Flexspeak for which monetary damages may not be an adequate remedy. Therefore, in addition to any other rights or remedies it may have at law or in equity, Flexspeak shall be entitled to seek injunctive relief to enforce the terms of this Agreement.
- Termination. This Agreement shall terminate upon the release by Flexspeak of a publicly available version of the Beta Product. In the event that a publicly available version of the Beta Product is not released within 18 months from the effective date of this Agreement, this Agreement will automatically terminate unless mutually extended in writing by both parties. Flexspeak does not guarantee that any such publicly available version will be released.
- Data & Feedback. You agree that Flexspeak may obtain information and data from You in connection with Your registration, installation, and use of the Beta Product including, without limitation, personal information. Flexspeak may also collect and process technical and performance information about your use of the Beta Product and use this information to support and troubleshoot issues, provide updates, analyze trends and improve Flexspeak products or services. Flexspeak shall be allowed to use such data and share such data with Flexspeak partners for the program purposes. You hereby consent to Flexspeak processing and transferring this information, including, if any, personal information, in conformity with the Flexspeak Privacy Policy, as updated from time to time. Further, You shall provide feedback to Flexspeak concerning the functionality and performance of the Beta Product from time to time as reasonably requested by Flexspeak, including, without limitation, identifying potential errors and improvements. You will also be invited to complete surveys regarding the Flexspeak devices. Feedback provided to Flexspeak through any of the foregoing methods in connection with the Beta Product may be used by Flexspeak and its partners to improve or enhance products, services and/or features and, accordingly, Flexspeak shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit such feedback without restriction.
- THE BETA PRODUCT MAY CONTAIN ERRORS AND IS PROVIDED FOR LIMITED EVALUATION ONLY. THE BETA PRODUCT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FLEXSPEAK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
- THE TOTAL LIABILITY OF FLEXSPEAK ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $100. IN NO EVENT SHALL FLEXSPEAK HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Miscellaneous. This Agreement shall be governed by the laws of California without reference to conflict of laws principles. You shall not assign this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of Flexspeak. You shall comply in all respects with all U.S. and foreign export and re-export laws and regulations applicable to the technology and documentation provided hereunder. This is the entire agreement between the parties relating to the subject matter hereof. No waiver or modification of this Agreement shall be valid unless in writing signed by each party. 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.
