Alpha Testing Agreement
PLEASE READ THIS ALPHA TESTING AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE AND SERVICES OFFERED BY THE BROWSER COMPANY OF NEW YORK, INC. (“ COMPANY”). BY CLICKING “ACCEPT” OR BY ACCESSING OR USING THE COMPANY’S SOFTWARE, YOU OR THE ENTITY THAT YOU REPRESENT (“RECIPIENT”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE BETA AGREEMENT CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS (THE “AGREEMENT”). PROVISION OF THE ALPHA SERVICES IS CONDITIONED ON, AND RECIPIENT’S USE OF THE ALPHA SERVICES SHALL CONSTITUTE, RECIPIENT’S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. Use of Alpha Services and Software License. Subject to the terms of this Agreement, Company grants to Recipient a personal, nonsublicensable, nonexclusive license to use the Company’s browser platform and software (the “Alpha Services”), solely for Recipient’s internal testing purposes during the term of this Agreement. Recipient agrees to use the Alpha Services only in the ordinary course of testing and its Evaluation and not (a) in any production environment, or (b) with any confidential data of Recipient’s clients or other third parties. The Company shall at all times retain all title to and ownership of the Alpha Services and all copies thereof. Recipient will not reproduce or modify the Alpha Services or any portion thereof. Recipient shall not rent, sell, lease or otherwise transfer the Alpha Services or any part thereof or use it for the benefit of a third party. Recipient shall not reverse assemble, reverse compile or reverse engineer the Alpha Services, or otherwise attempt to discover any Alpha Services source code or underlying Proprietary Information (as that term is defined below).
2. Confidentiality; Ownership.
Recipient acknowledges that, in the course of using the Alpha Services and performing its duties under this Agreement, it may obtain information relating to the Alpha Services and/or Company (“Proprietary Information”). Such Proprietary Information shall belong solely to Company and includes, but is not limited to, the existence of the Alpha Services, the features and mode of operation thereof, this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. Recipient shall not during the term of this Agreement or thereafter, use (except as expressly authorized by this Agreement) or disclose Proprietary Information without the prior written consent of Company unless such Proprietary Information becomes part of the public domain without breach of this Agreement by Recipient, its officers, directors, employees or agents. Recipient agrees to take reasonable measures to maintain the Proprietary Information and Alpha Services in confidence. Recipient will disclose the Proprietary Information only to those of its employees as are necessary for the use expressly and unambiguously licensed hereunder, and only after such employees have agreed in writing to be bound by the provisions of this Agreement; Recipient is responsible for any noncompliance by its employees. Recipient shall not, without the prior written consent of Company, disclose or otherwise make available the Alpha Services or copies thereof to any third party.
Recipient will not remove or export the Alpha Services or any Proprietary Information or any direct product thereof from the United States. Recipient hereby assigns to Company any invention, work of authorship, mask work, idea, information, feedback or know-how (whether or not patentable) that is conceived, learned or reduced to practice in the course of performance under this Agreement and any patent rights, copyrights (including moral rights; provided that any non-assignable moral rights are waived to the extent permitted by law), trade secret rights, mask work rights, sui generis database rights and all other intellectual and industrial property rights of any sort with respect thereto. Recipient agrees to take any action reasonably requested by Company to evidence, perfect, obtain, maintain, enforce or defend the foregoing.
(a) Recipient agrees to provide written reports every week (if requested by Company), which reports shall answer any questions posed by the Company and disclose: (1) which portions of the Alpha Services have been used, (2) the nature of that use, (3) the extent or amount of use, (4) all errors or difficulties discovered, and (5) the characteristic conditions and symptoms of the errors and difficulties, in sufficient detail to allow the Company to recreate the errors and difficulties itself.
(b) Notwithstanding the foregoing subsection (a), Recipient agrees to notify Company by telephone within ______ days of the discovery of a material error or difficulty in the Alpha Services.
4. Warranty Disclaimer.
The parties acknowledge that the Alpha Services are experimental in nature and everything provided or made available to Recipient hereunder is provided “AS IS” and may not be functional on any machine or in any environment. COMPANY DISCLAIMS ALL WARRANTIES RELATING TO THE ALPHA SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Limitation of Remedies and Damages.
COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
6. Nonassignability. Although fully assignable and transferable by Company, neither the rights nor the obligations arising under this Agreement are assignable or transferable by Recipient, and any such attempted assignment or transfer shall be void and without effect.
7. Execution of Agreement, Controlling Law, Attorneys’ Fees and Severability. This Agreement shall become effective only upon its execution by both Company and Recipient and it shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of laws provisions therein. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
8. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. Any modifications of this Agreement must be in writing and signed by both parties.
9. Equitable Relief. Recipient acknowledges and agrees that due to the unique nature of Company’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Recipient or third parties to unfairly compete with Company resulting in irreparable harm to Company, and therefore, that upon any such breach or threat thereof, Company shall be entitled to injunctions and other appropriate equitable relief without posting a bond in addition to whatever remedies it may have at law.
10. Term; termination. This Agreement shall expire one hundred eighty (180) days after the Effective Date unless sooner terminated as provided herein. Company may terminate this Agreement at any time, for any reason or no reason, upon ten (10) days’ written notice to the Recipient at the address listed above, or immediately upon notice of any breach by Recipient of the provisions of this Agreement. Upon termination, the license granted hereunder will terminate and Recipient shall immediately return any and all documents, notes and other materials regarding the Alpha Services to Company, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect.
11. Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.