BETA TESTING AGREEMENT
In order to participate in this Beta Testing Program, you must read and accept the terms of the agreement below. Please read the BETA TESTING AGREEMENT closely.
THIS BETA TESTING AGREEMENT (this “Agreement”) DESCRIBES THE TERMS BY WHICH TREXT OFFERS LICENSEE ACCESS TO AN ACCOUNT (the “Account”) TO UTILIZE A PRE-RELEASE PRODUCT BEING DEVELOPED BY OR FOR TREXT ALLOWING FOR SMS OR MASS TEXT-BASED COMMUNICATION, CURRENTLY KNOWN AS TREXT (the “Project”), SOLELY AS PART OF A CLOSED BETA TESTING PROGRAM ESTABLISHED BY TREXT (the “Beta Program”).
1. YOUR ACKNOWLEDGEMENTS AND REPRESENTATIONS.
1.1. You acknowledge that the Beta Program will run from the time you are first given access to the Project or any other software or materials as may be provided by Trext as part of the Beta Program (collectively, the “Beta Materials”), and will end upon the expiration of the Beta Program, unless otherwise extended or terminated unilaterally by Trext at Trext’s sole discretion. Furthermore, Trext may, in its sole discretion for any reason and at any time during the Beta Program terminate your participation therein without any form of compensation due to you whatsoever for this termination.
1.2. You acknowledge that Trext providing you access to the Beta Materials during the Beta Program constitutes the sole and sufficient consideration for this Agreement and that Trext has not made any other promises, whether express or implied, regarding any other form of consideration for your participation in the Beta Program.
1.3. Trext may, in its sole discretion, terminate the Beta Program at any time.
1.4. You agree that while the role you will play in helping Trext develop better software is helpful; it does not constitute a critical or vital role in the development of the Project such as to entitle you to claims of ownership or rights to receive any other compensation of any kind for your participation.
2. LICENSE AND RESTRICTIONS; LICENSE FEES.
2.1. In the event that you receive the Beta Materials from Trext, you are granted the revocable, limited right to use the Beta Materials for the sole purpose of evaluating the Beta Materials as permitted under this Agreement as part of the Beta Program. You may not use, copy, modify, sell, lease, rent, distribute, transfer or disclose any part of the Beta Materials, except as otherwise expressly provided herein, in any media, whether in whole or in part, or provide any access to the Project or the Beta Materials, whether by means of disclosing the password or sharing access or otherwise, to any employee, consultant, contractor, or third party who: (i) does not have a need to know and obtain access thereto in order to give effect to the purposes of this Agreement; or (ii) is not legally bound to maintain the proprietary and confidential nature of such materials and information and to limit use and copying thereof and access thereto as required by this Agreement. All other rights are reserved to Trext.
2.2. You will not:
(a) sublicense to, transfer, distribute or permit use of the Beta Materials by, any third party;
(b) reverse engineer, decompile, or disassemble the Beta Materials;
(c) make copies of the Beta Materials;
(d) export the Beta Materials in violation of the export control laws of the United States of America or other countries; or
(e) share your account with any third party.
2.3. You will use the Beta Materials and participate in the Beta Program in a manner consistent with any and all applicable laws, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and the Health Insurance Portability and Accountability Act of 1996, each as amended, and all regulations thereunder. You agree that Trext reserves the right, but does not have the obligation, to decline to send any communications that Trext, in its reasonable discretion, determines or believes will constitute a breach of your obligations in the preceding sentence or is otherwise inappropriate, offensive or objectionable.
2.4. During the Beta Program, you will pay Trext the fees according to the plan you choose when you establish your account. Fees will be charged to your credit or debit card on a monthly basis, on or about the first day of the month (unless you choose Trext’s Seed plan, in which case you will not be charged for the first month). If you exceed the number of texts permitted in any month under the applicable plan, Trext will notify you by email as soon as possible and you will be charged an additional fee for that month at the rate of $0.15 per text. If this Agreement is terminated, whether by Trext or by you, Trext will not refund any portion of the fees previously paid. However, if you decide to upgrade your plan (i.e., if you change from Seed to Sapling or from Sapling to Tree) other than on the first day of a month, your Trext will prorate your charges for that month based on the number of days in the month you were under each plan. Without limiting any of Trext’s other rights in this Agreement, Trext reserves the right to terminate your participation in the Beta Program, and the grant of license herein, pursuant to Section 5 if these fees are not paid on a timely basis.
3. INDEMNIFICATION AND RELEASE. You (a) agree to indemnify, defend and hold Trext harmless from and against all claims, losses, liabilities, damages, expenses, and costs (including, without limitation, reasonable fees for attorneys and expert witnesses) which result from any breach or alleged breach of any of your covenants, representations, warranties or obligations herein, and (b) hereby release, Trext and its direct and indirect parents, subsidiaries, affiliates and sister corporations, and their respective officers, directors, employees and agents, from and against any losses, liabilities, claims, obligations, costs and/or expenses (including legal fees) which result from, arise out of or in connection with the use of the Beta Materials and/or your participation in the Beta Program.
4. FEEDBACK. YOU ACKNOWLEDGE THAT ANY FEEDBACK, ANALYSIS, SUGGESTIONS OR COMMENTS YOU PROVIDE OR THAT ARE PROVIDED BY YOUR EMPLOYEES, CONTRACTORS OR CONSULTANTS TO TREXT (INCLUDING, BUT NOT LIMITED TO, BUG REPORTS AND TEST RESULTS), WHETHER REQUESTED BY TREXT OR VOLUNTARILY PROVIDED BY YOU OR YOUR EMPLOYEES, CONTRACTORS OR CONSULTANTS AND ANY USAGE DATA (collectively, “Feedback”), WILL BE THE SOLE AND EXCLUSIVE PROPERTY OF TREXT, AND YOU HEREBY ASSIGN ALL OF YOUR RIGHT, TITLE AND INTEREST IN THE FEEDBACK, AND ALL INTELLECTUAL PROPERTY RIGHTS RELATED THERETO TO TREXT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE THAT TREXT WILL HAVE THE PERPETUAL AND IRREVOCABLE RIGHT TO USE, MODIFY, AND OTHERWISE EXPLOIT ALL OR PART OF YOUR FEEDBACK OR ANY DERIVATIVE THEREOF IN ANY MANNER OR MEDIA NOW KNOWN OR HEREAFTER DEVISED WITHOUT ANY REMUNERATION, COMPENSATION OR CREDIT TO YOU. You hereby represent and warrant that you have right to assign and grant the rights set forth herein, and that any Feedback which is provided by you hereunder is original work made solely by you and does not infringe any third party intellectual property rights.
5. TERMINATION. Your participation in the Beta Program, and the grant of license herein, may be terminated by Trext at any time, for any reason or for no reason, in Trext’s sole and absolute discretion, by providing written or emailed notice to you. You may, at any time and for any reason or for no reason, terminate your participation in the Beta Program by providing written or emailed notice to Trext. The termination of your participation in the Beta Program however, will not modify or supersede the survival provisions set forth below. Upon termination of the Beta Program or your participation in it for any reason as provided herein, all license rights granted to you by Trext hereunder will terminate immediately.
6. CONFIDENTIALITY; RETURN OF BETA MATERIALS.
6.1. “Confidential Information” means (a) any and all information relating to, contained in or relayed through the Beta Materials, the Project, and/or the Beta Program, including, without limitation, information relating to (i) the performance, capabilities and contents of the Beta Materials, (ii) your Feedback and the Feedback provided by your employees, consultants and contractors, (iii) any other Beta Program participant’s Feedback, and (iv) any Trext employee’s feedback and comments, (b) the existence and terms of this Agreement, and (c) any and all information relating to the future or proposed Projects, services or business operations of Trext; however, “Confidential Information” does not include information which is or becomes generally known to the public by any means other than as a result of your acts or omissions.
6.2. You will safeguard and prevent unauthorized use or disclosure of the Confidential Information and will require your employees, consultants and contractors to safeguard and prevent unauthorized use or disclosure of the Confidential Information. You agree and will require your employees, contractors and consultants to keep the Confidential Information in confidence and will not publish, disclose, distribute, transmit, post or otherwise make available, directly or indirectly, any Confidential Information to any third party except as otherwise expressly set forth herein. However, you may disclose the Confidential Information in accordance with a judicial or governmental order; provided, however, that (a) you give Trext prompt written notice of such order so Trext has opportunity to seek a protective order or other appropriate remedy to such order, prior to disclosure and will comply with any applicable protective order or equivalent, (b) you provide Trext with all reasonable assistance in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information, and (c) you disclose only such portion of the Confidential Information as is either permitted by Trext or required by the court, tribunal, governmental agency or other authority, subject to any protective order or confidential treatment obtained by Trext.
6.3. You agree that at the request of Trext, you will return to Trext any and all copies of the Project and Beta Materials, and any other Confidential Information, in any format, made available to you by Trext. The return of the material will not affect your obligations to treat the Confidential Information disclosed to you as confidential.
6.4. YOU ACKNOWLEDGE THAT THERE ARE VERY SERIOUS POTENTIAL CONSEQUENCES TO YOU IF YOU VIOLATE YOUR CONFIDENTIALITY OBLIGATIONS.
7. OWNERSHIP. Except for the revocable, limited license expressly granted hereunder, Trext retains all right, title and interest in and to the Beta Materials and all copies thereof. The Project and any other Beta Materials provided hereunder are protected by United States copyright laws and international treaty provisions. You acknowledge that Trext and/or its licensors own all intellectual property rights in and to the Beta Materials, including, without limitation, all patent rights, copyrights, inventions, trade secret rights, trade dress rights, trademark rights and intellectual property rights therein and thereto. You may not remove the copyright or other proprietary rights notices from the Beta Materials. Except for the revocable, limited license as expressly provided herein, Trext does not grant you any express or implied right in any patents, copyrights, trademarks, or trade secret information of Trext, and/or its licensors. As further provided above, you agree that Trext and/or its licensors or licensees own all right, title, and interest in any and all of your Feedback, without any remuneration, compensation or credit to you. To the extent that any of the rights assigned herein cannot presently be assigned under applicable law, you agree to assign such rights at such time as the rights are capable of being assigned. You agree at Trext’s request to execute such further documents and to do such further acts as may be necessary or desirable to document, perfect, register or enforce Trext’s and/or its licensor’s ownership of any of the rights, title and/or interests hereunder, in whole or in part including, without limitation, execution of a copyright assignment in a form provided by Trext in its sole discretion. If you fail or refuse to execute any such documents, you hereby appoint Trext as your attorney-in-fact, which appointment is coupled with an interest and is irrevocable, to act on your behalf and to execute, deliver, record and file such documents. The rights granted, assigned and/or to be assigned by you hereunder are granted for the entire universe and will inure in perpetuity, and, as set forth above, no further consideration will be payable to you at any time in connection therewith. You will acquire no right to use, and will not use without Trext’s prior written consent, the names, characters, artwork, designs, tradenames, copyrighted materials, trademarks or service marks of Trext or its parent, related or subsidiary companies, employees, directors, officers, shareholders, assigns, successors, licensors or licensees in any manner other than in accordance with this Agreement.
8. INJUNCTIVE RELIEF. You acknowledge and agree that a breach or threatened breach of this Agreement will cause irreparable injury, that money damages would be an inadequate remedy, and that Trext will be entitled to ex parte injunctive relief without bond, to restrain you from such breach or threatened breach. Nothing in this section will be construed as preventing Trext from pursuing any and all remedies available to it, including the recovery of money damages from you.
9. NO WARRANTY; NO LIABILITY FOR DAMAGES; CHARACTER DATA.
9.1. YOU ACKNOWLEDGE THAT THE PROJECT IS A PRE-RELEASE PRODUCT. YOU ACKNOWLEDGE THAT THE PROJECT MAY CONTAIN ERRORS AND DEFECTS. THE PROJECT AND BETA MATERIALS ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT TREXT HAS NO OBLIGATION TO MAKE THE PROJECT AVAILABLE FOR USE FOR ANY PERIOD OF TIME, NOR TO MAKE IT AVAILABLE AT ALL.
9.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TREXT WILL NOT BE LIABLE TO YOU OR ANYONE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING WITH RESPECT TO THIS AGREEMENT, THE PROJECT, OR OTHER BETA MATERIALS PROVIDED HEREUNDER, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL TREXT’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED FIFTY US DOLLARS (US$50.00).
9.3. You acknowledge that the Project will run in a test environment and that Trext has the right to modify, delete or edit the content of any SMS or text communication you send or attempt to send as part of your use of the Project and the Beta Materials.
10.1. Expiration or earlier termination of this Agreement or the Beta Program shall not impair or affect any of your liabilities or obligations which have accrued on or before the date of expiration or earlier termination of this Agreement or the Beta Program. Further, all provisions of this Agreement which by their nature contemplate performance after the expiration or earlier termination of this Agreement or the Beta Program, including all provisions that contain obligations of confidentiality, indemnity, defense, representations, warranties, waiver or release made, will survive such expiration or earlier termination.
10.2. The laws of Massachusetts, excluding its conflicts-of-law rules, govern this Agreement. You expressly agree that exclusive jurisdiction for any claim or dispute with Trext or relating in any way to your participation in this Beta Program or your use of Beta Materials will be the Federal or state courts located in Boston, Massachusetts and you further agree and expressly consent to the exercise of personal jurisdiction in such courts in connection with any such dispute including any claim involving Trext or its parent, affiliates, subsidiaries, employees, contractors, officers, directors, vendors and content providers.
10.3. If any provision of this Agreement will be held invalid or unenforceable, in whole or in part, such provision will be modified to the minimum extent necessary to make it valid and enforceable, and the validity and enforceability of all other provisions of this Agreement will not be affected thereby.
10.4. This Agreement may be modified only by a writing executed by the parties.
10.5. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties relating to its subject matter.
10.6. You may not assign or transfer its rights or obligations under this Agreement without the prior written consent of Trext.
10.7. The parties are independent contractors of one another. Nothing herein shall be deemed to create any relationships of agency, partnership, or joint venture between the parties.
10.8. Unless otherwise expressly provided herein, all notices required or permitted hereunder shall be in writing and shall be addressed to the appropriate party as set forth above, unless another address shall have been designated and shall be delivered by hand or by registered or certified mail, postage prepaid.