BETA TEST AGREEMENT
This Beta Test Agreement (the "Agreement") by and between Bryte, Inc., ("Bryte") a Delaware corporation, having its principal place of business at 221 Main Street, #570, Los Altos, California 94022 and Beta Customer, ("User") is entered into as of the date you accept these terms ("the Effective Date").
This Agreement sets forth the terms and conditions for the beta installation, use, test and support of certain Bryte products prior to formal product release.
(a) "Product" means the BRYTE bed and related Documentation.
(b) "Beta Test Period" means the period of time to be determined by Bryte.
(c) "Documentation" means such supporting written materials as Bryte may in its discretion provide to User in connection with their use of a Product.
This Agreement sets forth the terms and conditions for the beta installation, use, test and support of the Product at a User site prior to formal product release. Upon receiving the Product, and for the duration of the Beta Test Period, Bryte hereby grants to User a personal, non-exclusive, non-transferable, revocable right to use (i) the Product for the sole purpose of evaluating the Product and (ii) the Documentation provided with the Product in support of User’s authorized use of the Product.
- OBLIGATIONS OF USER
(a) Testing. During the Beta Test Period, User shall experiment with, test and operate the Product under normal operating conditions and record test data from such experiments, tests and operations. User shall provide Bryte with the results of its experimental and test operations on the Product on a periodic basis and shall cooperate with Bryte in additional tests which Bryte reasonably believes necessary or useful to perfecting the Product.
(b) Feedback. User shall provide feedback to Bryte concerning the functionality and performance of the Product from time to time as reasonably requested by Bryte including, without limitation, identifying potential errors and improvements. User shall notify Bryte of any failure, error or other malfunction of any part of the Product within five (5) business day of such occurrence.
(c) Modifications. User agrees to promptly implement such modifications and changes that Bryte may make to the Product during the Beta Test Period as they are provided by Bryte. User understands that these modifications and changes may be incompatible with previous modifications and could include substantial changes to the system and its operating procedures. Except as otherwise specified in this Agreement or at the written direction of Bryte, User shall not alter or modify any Product during the Beta Test Period without Bryte’s prior written approval.
- OBLIGATIONS OF BRYTE
(a) Delivery. Bryte agrees that Bryte, or a third party designated by Bryte, will deliver the Product to User within a reasonable time after execution of this Agreement by both parties, or at a time otherwise agreed in writing by Bryte. Bryte shall be responsible for shipping costs to deliver the Product to User.
(b) Technical Assistance. Bryte will provide User such technical assistance as Bryte may deem necessary to properly install and operate the Product at the beta test site.
(c) Modifications. During the Beta Test Period, Bryte will consult with User regarding the performance of the Product and will evaluate the test data and error reports provided by User.
(d) Data. Bryte collects personally identifiable data for product evaluation purposes and agrees to keep such data confidential. Upon User’s written request, Bryte agrees to delete such data.
- DISCLAIMER OF WARRANTY
(a) THE PRODUCT (INCLUDING DOCUMENTATION) IS PROVIDED HEREUNDER "AS IS". BRYTEMAKES AND USER RECEIVES NO WARRANTIES IN CONNECTION WITH THE PRODUCT, OR MODIFICATIONS OR IMPROVEMENTS THERETO, DELIVERED HEREUNDER, WHETHER EXPRESS, IMPLIED OR STATUTORY. BRYTE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NON INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. BRYTE MAKES NO GUARANTEES AS TO THE COMMERCIAL AVAILABILITY OF THE PRODUCT, AND RESERVES THE RIGHT AT ANY TIME NOT TO RELEASE A COMMERCIAL RELEASE OF THE PRODUCT OR, IF IT DOES SO, TO ALTER PRICES, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY, OR OTHER CHARACTERISTICS OF THE COMMERCIAL RELEASE.
(b) Acknowledgment of Beta Product. User acknowledges and agrees that: (a) the Product is not an official product and has not been commercially released by Bryte; (b) the Product may not operate optimally or properly, be in final form or be 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 output of the Product may not be accurate and may not accurately correspond to information inputted or extracted from any database or other source; (f) use of the Product may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) Bryte is under no obligation to release a commercial version of the Product; and (h) Bryte has the right unilaterally to abandon development of the Product, at any time and without any obligation or liability to User.
(a) Ownership. User acknowledges that the Product is loaned to User for beta testing and that Bryte retains ownership of all right, title and interest to the Product, the Product design and Documentation, and the intellectual property rights therein and thereto (including without limitation, all patent rights, design rights, copyrights and trade secret rights) subject to the usage right granted in Section 2. User agrees not to (i) copy, modify, decompile, disassemble or reverse engineer the Product, make derivative works based upon the Product, or use the Product to develop any products, without Bryte’s prior written approval, (ii) sell, license, rent, or transfer the Product to any third party, (iii) offer to others the use of the Product or any portion thereof, or (iv) move the Product outside of the location to which the Product was originally shipped.
(b) Modifications. User hereby assigns to Bryte, User’s entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications or improvements to the Products (including without limitation, feedback and other information which is provided by User to Bryte in connection with the Product) which User may propose or make during the Beta Test Period or which User and Bryte may jointly make during the Beta Test Period.
This Agreement shall terminate upon the end of the Beta Test Period. Either party may also terminate this Agreement at any time for any reason or for no reason by providing the other party with written notice of termination. Upon any such termination, the Beta Test Period shall end on the date of such termination.
Upon termination of this Agreement, User shall immediately cease use of the Product, and shall return to Bryte the Product and all Proprietary Information and data (including all copies thereof) then in User's possession or custody or control and certify in writing as to such action. User shall be responsible for the costs of insuring and shipping the Product to Bryte. Sections 5 through 10 shall survive any termination of this Agreement.
- LIMITED LIABILITY
IN NO EVENT WILL BRYTE BE LIABLE TO USER OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT BRYTE 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. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS CLAUSE SHALL OPERATE OR BE DEEMED TO OPERATE TO EXCLUDE OR LIMIT LIABILITY TO A GREATER EXTENT THAN IS PERMITTED BY LAW.
- CONFIDENTIAL INFORMATION
User acknowledges that, in the course of using the Products and performing its duties under this Agreement, it may obtain information relating to the Products and to Bryte which is of a confidential and proprietary nature ("Proprietary Information"). Such Proprietary Information shall include, without limitation, trade secrets, know how, invention techniques, processes, programs, schematics, the existence or results of the Beta Test, Product features, testing scope, performance data and test results, software source documents, data, customer lists, financial information, and sales and marketing plans or information. User shall at all times, both during the term of this Agreement and for a period of at least three (3) years after its termination, keep in trust and confidence all such Proprietary Information, and shall not use such Proprietary Information other than as expressly authorized by Bryte under this Agreement, nor shall User disclose any such Proprietary Information to third parties without Bryte’s written consent. User further agrees to immediately return to Bryte all Proprietary Information (including copies thereof) in User's possession, custody, or control upon termination of this Agreement at any time and for any reason. The obligations of confidentiality shall not apply to information which (i) has entered the public domain except where such entry is the result of User’s breach of this Agreement; (ii) prior to disclosure hereunder was already in User’s possession without any non disclosure obligation; or (iii) subsequent to disclosure hereunder is obtained by User on a non-confidential basis from a third party who has the right to disclose such information to the User.
Neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party. Any press release or publication regarding this Agreement is subject to prior review and written approval of the parties.
(a) The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California, United States of America, as of performed wholly within the state and without giving effect to the principles of conflict of law. The parties agree that any dispute arising from or related to this Agreement shall be brought in federal or state courts located in San Francisco, California, and both parties agree to submit to the jurisdiction of such courts.
(b) No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under this Agreement. All claims must be brought within twelve (12) months following the date such claim arose.
(c) User shall not assign, in any manner, this Agreement or its right, obligation or interest in or under this Agreement, whether by operation of law, merger, acquisition of stocks or assets, or otherwise, without the prior written consent of Bryte.
(d) In the event of a breach, the breaching party will pay to the other party any reasonable attorneys' fees and other costs and expenses incurred by such other party in connection with the enforcement of any provisions of this Agreement.
(e) All notices required or permitted under this Agreement will be in writing and will be deemed given when: (a) delivered personally; (b) sent by confirmed facsimile (followed by the actual document in air mail/air courier); (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two (2) days after deposit with a commercial express air courier specifying next day delivery, with written verification of receipt. All communications will be sent to the addresses set forth in the cover sheet of this Agreement, or to such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph.
(f) Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
(g) This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties. This Agreement may only be modified by a written document executed by the parties hereto.
.(h) This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.
The parties hereto have caused this Agreement to be duly executed as of the date you accept the terms above.