Beta Tester Agreement
General Terms and Conditions
- This Beta Tester Agreement is a legal agreement (hereinafter "Agreement") between Lotus Eyes LLC ("Lotus Eyes") and you, either an individual or a single entity (hereinafter "Licensee").
- This Agreement covers the current beta versions of the software programs known as Purpose and Purpose for iPad, the associated media, any printed materials, data, files and information and any "online" or electronic documentation ("Software"), and which has been provided to Licensee without payment of any fees or costs.
- Lotus Eyes desires that the Software be tested prior to general release. Lotus Eyes shall provide Licensee with a copy of Software.
- Licensee wishes to serve as a Beta Tester for such Software.
- This Agreement takes precedence over any other agreement or terms embedded within the Software.
Assent to Be Bound
By clicking the "I accept the terms..." checkbox on the Request An Invitation page, by executing a written copy of this Agreement, or by installing, copying or otherwise using this Software, Licensee agrees to be bound by the terms of this Agreement. If Licensee does not agree with any term or condition, do not download, order, open, install or use the Software or product package. In addition, certain third party code may be provided with the Software and/or Service. The third-party license terms accompanying such code, and not the terms of this Agreement, will govern your use of such code.
THE BETA SOFTWARE LICENSED HEREUNDER MAY CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE, FOR WHICH NO FEES HAVE BEEN CHARGED OR ARE DUE FROM LICENSEE, IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. LICENSEE IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SOFTWARE AND/OR ACCOMPANYING MATERIALS.
Feedback from Licensee
It is expressly understood, acknowledged and agreed that Licensee shall, regardless of whether or not formally requested to do so, provide to Lotus Eyes reasonable suggestions, comments and feedback regarding the Software, including but not limited to usability, bug reports and test results, with respect to Software testing (collectively, "Feedback"). Contingent upon all of the terms and conditions herein and especially upon Licensee's obligations to provide Feedback, Licensee grants Lotus Eyes, under all of Licensee's intellectual property and proprietary rights, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (a) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of the Feedback as part of any Lotus Eyes product, technology, service, specification or other documentation (individually and collectively, "Lotus Eyes Products"); (b) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Lotus Eyes Product. Further, Licensee warrants that Licensee's Feedback is not subject to any license terms that would purport to require Lotus Eyes to comply with any additional obligations with respect to any Lotus Eyes Products that incorporate any Feedback.
Grant of License
Subject to the terms and conditions of this Agreement, Lotus Eyes grants to Licensee a non-exclusive, non-transferable license (without the right to sublicense) (a) to use the Software in accordance with the documentation solely for purposes of internal testing and evaluation, and (b) to copy Software for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies.
Restrictions on Grant
Except as otherwise specifically permitted in this Agreement, Licensee may not: (a) Modify or create any derivative works of any Software or documentation, including translation or localization (code written to published APIs (application programming interfaces) for the Software shall not be deemed derivative works); (b) Copy the Software except as provided in this Agreement or elsewhere by Lotus Eyes; (c) Separate Software, which is licensed as a single product, into its component parts; (d) Sublicense or permit simultaneous use of the Software by more than one user; (e) Reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code in the Software (except to the extent applicable laws specifically prohibit such restriction); (f) Redistribute, encumber, sell, rent, lease, sublicense, use the Software in a timesharing or service bureau arrangement, or otherwise transfer rights to any Software. You may NOT transfer the Software under any circumstances; (g) Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (h) Publish any results of benchmark tests run on any Software to a third party without Lotus Eyes prior written consent; or (i) Use any Software on more computers or computing devices than the number licensed, or by more developers than the number licensed, as applicable.
Beta-Software Product Support
Software is prerelease code and is not at the level of performance or compatibility of a final, generally available product offering. Software may not operate correctly and may be substantially modified prior to first commercial shipment, or withdrawn.
Lotus Eyes is under no obligation to provide technical support under the terms of this license, and provides no assurance that any specific errors or discrepancies in the Software will be corrected.
Ownership and Copyright of Software
Title to the Software and all copies thereof remain with Lotus Eyes and/or or its suppliers. The Software is copyrighted and is protected by United States copyright laws and international treaty provisions. Licensee will not remove copyright notices from the Software. Licensee agrees to prevent any unauthorized copying of the Software. Except as expressly provided herein, Lotus Eyes does not grant any express or implied right to Licensee under Lotus Eyes patents, copyrights, trademarks, or trade secret information.
The enclosed Software is Confidential Information. Licensee will not disclose Software or any comments regarding Software to any third party without the prior written approval of Lotus Eyes. Licensee will maintain the confidentiality of Software with at least the same degree of care that you use to protect your own confidential and proprietary information, but not less than a reasonable degree of care under the circumstances. Licensee shall take reasonable security precautions to prevent Software from being seen by unauthorized individuals. Licensee will not be liable for the disclosure of any Confidential Information which is: (a) in the public domain other than by a breach of this Agreement on Licensee's part; or (b) rightfully received from a third party without any obligation of confidentiality; or (c) rightfully known to Licensee without any limitation on use or disclosure prior to its receipt from Lotus Eyes; or (d) independently developed by Licensee's employees; or (e) generally made available to third parties by Lotus Eyes without restriction on disclosure.
Term Of This Agreement
Licensee's rights with respect to the Beta Software will terminate upon the earlier of: (a) the initial commercial release by Lotus Eyes of a generally available version of the Software or (b) six months after the last date Licensee receives the Software or any update thereto. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof.
Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will completely delete and uninstall the Software, documentation, and all other tangible items in Licensee's possession or control that are proprietary to or contain Confidential Information.
Limitation on Liability
Provision of any Software under this Agreement is experimental and shall not create any obligation for Lotus Eyes to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop Software either to Licensee or to any other party.
THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF SOFTWARE REMAINS WITH LICENSEE. IN NO EVENT SHALL LOTUS EYES BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF LOTUS EYES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Failure of Lotus Eyes to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.
If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.
Licensee acknowledges that Software is of U. S. origin. Licensee agrees to comply with all applicable international and national laws that apply to the Software, including the U. S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U. S. and other governments.
This Agreement constitutes the complete and exclusive agreement between Lotus Eyes and Licensee with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. This Agreement may not be amended except in a writing duly signed by an authorized representative of Lotus Eyes and Licensee.