BETA TESTER AGREEMENT
The following BETA TESTER AGREEMENT (this “Agreement”) is entered into and effective as of [DATE] (the “Effective Date”) by and between Parkside Research, with offices at 12045 East Waterfront Drive, Playa Vista, California 90094 (collectively, “Provider”) and [Tester Name], an individual residing in [Tester Address] (“Tester”).
In consideration of the promises and the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Provider and Tester hereby agree as follows:
1.1 Beta Products Defined. “Beta Products” shall mean any pre-release version of the Provider hardware and/or software products identified on Appendix A (attached hereto and incorporated herein by this reference) whether labeled alpha, beta, pre-release, preview or otherwise. Beta Products also include any updates, upgrades, bug fixes, or enhancements to such products which Provider, in its sole discretion, may choose to provide or make available to Tester. Additional products may be added to the Beta Products upon completion and delivery by Provider of one or more supplemental Appendix “A”s identifying such additional products, and Tester agrees by its acceptance and use of the Beta Products identified in each such Appendix A that this Agreement shall apply to all the Beta Products identified on all Appendix “A”s prepared in accordance with this Agreement; provided, however, that Provider shall endeavor to use version designators to distinguish between and among the Appendices (e.g., “Appendix A-1”).
1.2 Limited License. During the term of this Agreement, Provider may furnish Tester with master copies of software to be used in connection with the Beta Products. Provider hereby grants, and Tester hereby accepts, on the terms and conditions of this Agreement, for the term defined in Section 5, a non-transferable, non-exclusive, royalty-free license to make the number of copies of such software or as otherwise authorized in writing by Provider, for use at any Tester site solely for the purposes outlined in this Agreement. The license and other terms and conditions set forth in this Agreement shall apply to all master copies of such software furnished by Provider to Tester during the term of this Agreement and all copies of such software made and used by Tester in accordance with this Agreement. Tester shall use such software only for evaluation of such software’s applicability, usability, performance and design and to enable Tester to fulfill its evaluation and reporting obligation under Section 2 below. Tester shall not reverse engineer, alter, modify, disassemble or decompile the Beta Products, or any part thereof, without Provider’ prior written consent.
1.3 Additional Restrictions. Tester agrees (a) not to copy, transfer, assign, rent, resell, sublicense, lease, loan, distribute or use the Beta Products other than as expressly authorized in this Agreement and (b) to refrain from using the Beta Products to perform, support or augment its business purposes or processes other than to test the performance of the Beta Products in such an environment, or (c) to refrain from using the Beta Products for any other purpose other than as expressly authorized herein. Tester acknowledges that the Beta Products are provided by Provider for testing and evaluation purposes only. Without Provider’s prior written approval, Tester will not make or provide any public statement or disclosure concerning Tester’s use of the Beta Products. Employees, directors, officers, contractors and agents of competitors of Provider are prohibited from becoming a Tester or receiving Beta Products under this Agreement.
1.4 Title. Tester agrees that Provider and/or its licensors own all right, title and interest in the Beta Products and in all patents, trademarks, trade names, inventions, copyrights, know how, trade secrets, and other intellectual property rights relating to the design, manufacture, operation or service of the Beta Products. Tester shall not remove or deface any proprietary notice or portion thereof provided on any part of the Beta Products.
1.5 Support and Costs. Tester acknowledges and agrees that Provider is not obligated to provide technical support of any kind for the Beta Products. Provider has no obligation to develop or provide any updates to the Beta Products. Tester agrees to pay all incidental costs (such as Internet and phone services, accessories, cables, etc.) associated with evaluating the Beta Products, unless otherwise agreed in writing by both parties in Appendix A.
1.6 Open Source Software. The Beta Products may contain open source software. Provider will provide all material required under the applicable open source license as part of the Beta Products. Tester will comply with all terms of any applicable open source licenses. Source code for certain open source software in the Beta Test Materials may be requested as provided in the “Open Source Information” section of the “Contact Us” tab at the bottom of the www.linksys.com website.
2. EVALUATION, REPORTING AND RETURN. Tester shall evaluate each Beta Product in Appendix A and provide complete reports based upon such evaluation (“Reports”) to Provider at agreed upon intervals. Reports shall be made to a designated representative of Provider by telephone and/or in writing as Provider deems reasonable and useful. Notwithstanding any other provision in this Agreement, Provider shall own and have the right to use ideas, information, understandings, modifications, suggestions and concepts (collectively, “Feedback”) derived directly from Tester’s Reports delivered pursuant to this Section 2, without restriction and without compensating Tester therefor. Tester understands and agrees that the Beta Product may track user statistics and for the purposes of this Agreement such user statistics is deemed part of the Reports and Feedback. Tester hereby assigns all right, title and interest worldwide in the Feedback and related intellectual property rights to Provider. Upon Provider’s request for the return of the Beta Product, Tester agrees to return the Beta Product in good condition (taking into account reasonable wear and tear) to Provider within seven days of Tester’s receipt of Provider’s request to do so, or, upon the request of Provider, to destroy the Beta Product. If Tester fails to return or destroy the Beta Product within this seven-day period, Tester may not be considered for future beta testing projects of Provider.
3. CONFIDENTIAL INFORMATION. Without the prior written consent of Provider, Tester shall not at any time, either personally or by means of third parties, make any statement or disclosure or supply any information or material (including, without limitation, the Beta Products, Reports or any portion thereof) to any third party (other than Provider’s agents at Provider’s direction) or to the public relating to any matter arising hereunder or to the affairs of Provider coming within Tester’s knowledge by reason of this Agreement (collectively, the “Confidential Information”). All Confidential Information is and shall remain the sole property of Provider. Tester agrees to take all reasonable precautions to prevent any unauthorized disclosure of any Confidential Information and, in any event, shall use its best efforts to protect the confidentiality of the Beta Products. The terms of this Agreement are deemed Confidential Information of Provider. Upon Provider’s request, or upon the termination or expiration of this agreement, Tester shall return all Confidential Information (including any copies, summaries, extracts, and other forms thereof) within its possession or control and within the possession or control of its employees and representatives. ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS-IS” BASIS. Provider does not make any representation or warranty as to the accuracy or completeness of the Confidential Information or any component thereof. No license of any Intellectual Property Rights is granted by any disclosure of Confidential Information.
4. WARRANTY DISCLAIMER. By their nature, the Beta Products are “pre-release” and is not at the level of performance and compatibility of a final, generally available, product offering. The Beta Products may contain errors, bugs and other problems which could cause system failure and the testing and quality assurance of the Beta Product may not yet be completed. Because the Beta Products are subject to change, Provider reserves the right to alter the Beta Products at any time, and any reliance on the Beta Products is at Tester’s own risk. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE BETA PRODUCTS AND CONFIDENTIAL INFORMATION PROVIDED HEREUNDER ARE PROVIDED “AS IS”, AND PROVIDER DOES NOT MAKE AND SPECIFICALLY DISCLAIMS, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE BETA PRODUCTS, USE OF THE BETA PRODUCTS, CONFIDENTIAL INFORMATION, AND/OR USE OF THE CONFIDENTIAL INFORMATION (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), AS WELL AS ANY WARRANTIES THAT THE BETA PRODUCTS AND/OR CONFIDENTIAL INFORMATION (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR-FREE. SPECIFICALLY, AND WITHOUT LIMITING THE FOREGOING, TESTER ACKNOWLEDGES THAT IT HAS REQUESTED THE BETA PRODUCTS AND CONFIDENTIAL INFORMATION, AND THAT PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE FITNESS OF THE BETA PRODUCTS OR CONFIDENTIAL INFORMATION FOR ANY PURPOSE.
5. TERM AND SURVIVAL. This Agreement shall continue until the earlier of (a) two (2) years from the Effective Date or (b) upon delivery of written notice of termination by Provider. This Agreement may be terminated at any time for any reason by either party giving ten days prior written notice to the other party. The parties acknowledge that Provider is under no obligation to release any final product or Beta Product to the public. Upon termination of this Agreement or a particular Agreement Appendix, Tester will comply with Provider’s instructions regarding the disposition of Beta Products as set forth in Section 2. The provisions of Sections 1.3, 1.4, 1.6. 2, 3, 4, 6, and 7 of this Agreement shall survive the termination of this Agreement for any reason.
6. LIMITATION OF LIABILITY. IN NO EVENT SHALL PROVIDER BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FOR INTERRUPTED COMMUNICATIONS OR NETWORK OUTAGES, OR FROM ANY DEFECT, ERROR, OR MALFUNCTION OF THE BETA PRODUCTS OR ANY SERVERS RELATED TO THE BETA PRODUCTS, EVEN IF PROVIDER OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF PROVIDER UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO FIVE HUNDRED DOLLARS ($500.00).
7. GENERAL PROVISIONS.
7.1 Assignment. Tester may not assign, delegate or otherwise transfer its rights and/or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of Provider (to be granted or withheld in its sole discretion). This Agreement and each and every provision hereof will be binding upon and will inure to the benefit of the parties and their permitted successors and assigns.
7.2 ENFORCEMENT MATTERS. This Agreement and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of California without regard to conflicts of laws principles. In addition, this Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA), even if that law has been adopted in California, and the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded. Each party to this Agreement irrevocably (a) submits to the exclusive jurisdiction of any state or federal court located in Los Angeles County, California in litigating any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and (b) agrees that any such action or proceeding may be litigated only in such courts. Each party to this Agreement waives, to the fullest extent permitted by law, the defenses of lack of personal jurisdiction, inconvenient forum, and improper venue to the maintenance of any such action or proceeding. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as is contemplated by this section by certified or registered mail, return receipt requested, to its address for the giving of notices as set forth in this Agreement. Any final judgment rendered against a party in any such action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. In the event of any action or proceeding between the parties arising out of or relating to this Agreement, the prevailing party shall be entitled to recover and shall be awarded, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and experts’ fees and expenses) incurred in any such action or proceeding and any appeal in connection therewith. The Agreement shall be interpreted in accordance with its fair meaning and not in favor or against either party. The operative Agreement shall be the original English language Agreement executed by the parties, and notwithstanding any translation that may be made by Tester or any other party. In the event of a conflict between the translation and the English language version, the English language version shall take precedence over the translation and the terms and conditions shall be construed in accordance with the English language Agreement.
7.3 Independent Contractors. In performing their respective duties under this Agreement, each of the parties will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither of the parties will hold itself out in any manner that would be contrary to the provisions of this Section.
7.4 Entire Agreement. This document contains the entire agreement and understanding concerning the subject matter between Tester and Provider and supersedes all prior negotiations, proposed agreements, and all other agreements, whether written, oral, or otherwise. This Agreement may be amended only by a writing signed by authorized individuals for both Provider and Tester. Tester warrants and represents that Tester’s signatories whose names appear below are duly authorized to agree to this Agreement and are not under the age of 18.
7.5 Severability. In the event that it is determined by a court of competent jurisdiction as a part of a final non-appealable judgment that any provision of this Agreement (or part thereof) is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of the Agreement will remain in full force and effect.
7.6 Notices. Any notices required under the provisions of this Agreement shall be given in writing at the address of each party set forth at the beginning of this Agreement, or to such other address as either party may substitute by written notice to the other in the manner contemplated herein.
7.7 Compliance with Laws; Export Restrictions. Tester shall comply with all applicable federal, state and local laws, regulations and ordinances, including but not limited to the laws and regulations of the United States and Participant’s country of residence, if different from the United States, relating to this Agreement. Tester agrees not to export or re-export any software or accompanying documentation (or any copies thereof) or any Beta Product utilizing software or accompanying documentation in violation of any applicable laws and regulations of the United States or the country in which Tester obtained them. The software, firmware or other parts of the Beta Product covered by this Agreement may contain strong data encryption code, which cannot be exported outside the United States or Canada. Tester agrees not to export or re-export, either physically or electronically, any encrypted Beta Product or accompanying documentation without obtaining written authorization from the U.S. Department of Commerce.
7.8 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. All claims must be brought within twelve (12) months following the date such claim arose.
IN WITNESS WHEREOF, the parties have executed and delivered the Agreement for all purposes as of the Effective Date.
Tester Signature: __________________________
The following shall be considered to be "Beta Products" as that term is defined in the Beta Tester Agreement executed by the above referenced Tester with an Effective Date as indicated above. Additional products may be added to the Beta Products upon completion of one or more supplemental Appendix As.
You will be testing the following product: