PRODUCT TEST AGREEMENT
Updated April 25, 2018
A. The Company is in the process of developing certain software product that assists with the mobile app development process (the “Product”).
B. The Company and Tester desire to have Tester use the Product and provide feedback to the Company, subject to and in accordance with the terms of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. USE OF PRODUCT
1.1. Sale and Use. Subject to the terms and conditions of this Agreement, Tester will use the Product for personal use only as defined in this Agreement.
1.2. Fees. Tester will not receive any compensation for the use of the Product pursuant to the terms of this Agreement for using the Product and the related services provided by the Company.
1.3. Restrictions on Use. Tester will not: (a) modify, alter or improve the Product; (b) rent, lease, license, loan, resell, transfer, distribute or otherwise make the Product or the related services available to any third party without the prior written consent of the Company; (c) reverse engineer the Product (or any component thereof), or decompile or disassemble any software or firmware components of the Product, or authorize a third party to do any of the foregoing; or (d) mortgage, pledge or encumber the Product in any way.
1.4. Care of Product; Repair. Tester will use the Product only according to the instructions of the Company. Upon download of the Product to Tester, Tester assumes and will bear the risk of all loss or damage to his/her phone or other devices.
2. FEEDBACK. Tester agrees to: (a) use the Product and cooperate with the Company in evaluating the Product; (b) if requested, work with the Company to identify and resolve any errors, problems or defects in the Product discovered by Tester or the Company, and in identifying additional uses and functions for the Product. In addition to the foregoing, Tester may be asked to provide the Company with feedback report in connection with the Product and the related services. All feedback, comments, and suggestions for improvements that Tester provides to the Company hereunder are referred to collectively as “Tester Feedback
3. OWNERSHIP AND CONFIDENTIALITY.
3.1. Ownership. Tester acknowledges and agrees that all Tester Feedback will be the sole and exclusive property of the Company. Tester hereby irrevocably transfers and assigns to the Company and agrees to irrevocably assign and transfer to the Company all of Tester's right, title, and interest in and to all Tester Feedback, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, “Intellectual Property Rights”) therein. At the Company’s request and expense, Tester will execute documents and take such further acts as the Company may reasonably request to assist the Company to acquire, perfect and maintain its Intellectual Property Rights and other legal protections for the Tester
3.2. Feedback. Tester acknowledges and agrees that, as between the parties, the Company own all right, title, and interest in and to the Product and related services, including all Intellectual Property Rights therein, even if the Company incorporates any Tester Feedback into subsequent versions of the Product. Tester will not earn or acquire any rights or licenses in the Product or in any the Company Intellectual Property Rights on account of this Agreement or Tester's performance under this Agreement.
3.3. Confidentiality. Tester shall hold in the strictest confidence and shall not directly or indirectly disclose, divulge, reveal, report, publish or otherwise communicate, or use for his or her own benefit or the benefit of any other person, partnership, corporation, firm or other entity, or use to the detriment of the Company, or misuse in any way, any Confidential Information. “Confidential Information” means any and all confidential and proprietary information of the Company, in whatever medium and however communicated, including, without limitation, information about the Product and variations thereof, research data, feedback, marketing plans, or strategies.
4.1. Warranty Disclaimers. Tester acknowledges that the Product is being provided "AS IS." THE COMPANY 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.
4.2. Acknowledgment of Beta Product. Without limiting the generality of the foregoing, Tester acknowledges and agrees that: (a) the Product is in the development stage with initial functionality only; (b) the Product may not operate properly, be in final form or fully functional; (c) the Product may contain errors, design flaws or other problems; (d) it may not be possible to make the Product fully functional; (e) the information obtained using the Product, including location, may not be accurate; and (f) the Company has the right unilaterally to abandon development of the Product, at any time and without any obligation or liability to Tester.
4.3. Warranty. The Company does not warrant that the services related to the Product and the Product will be uninterrupted, reliable, accurate, available, error free, and free from unauthorized access. Tester acknowledges and agrees that it should not rely on the Product or related services for any reason. Use of the Product and related services, including use of any analysis or information provided in connection thereto, by Tester or any third party shall be at Tester's sole risk and liability.
4.4. Third Party Providers. Tester acknowledges that certain services related to the Product are provided or dependent upon by third party providers (e.g. cellular operators). The Company is not responsible for any act or omission or the availability or quality of any products or services provided by such third parties.
5. LIMITATION ON LIABILITY. IN NO EVENT WILL THE COMPANY BE LIABLE TO TESTER OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE THE PRODUCT OR RELATED SERVICES OR FOR ANY ERROR OR DEFECT IN THE PRODUCT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE COMPANY 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 AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
6. TERM AND TERMINATION.
6.1. Term. This Agreement will automatically terminate upon completion of the testing or as determined by the Company.
6.2. Effect of Termination. Upon any termination or expiration of this Agreement, Tester’s right to use the services provided by the Company in connection with the Product will automatically terminate. Tester shall promptly delete the Product from his/her devices.
6.3. Survival. The provisions of Sections 1.3, 1.6, 2, 3, 4, 5, 6.2, 6.3, and 7 will survive any termination or expiration of this Agreement.
7. GENERAL PROVISIONS.
7.1. Assignment. Tester may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of The. Any attempted assignment without such consent will be null and of no effect.
7.2. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California (excluding its body of law controlling conflicts of law).
7.3. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect.
7.4. Waiver. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default.
7.5. Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth below or to such other address as may be specified by either party to the other in accordance with this Section.
7.6. Entire Agreement. This Agreement constitutes the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersede any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.