Beta Program Agreement

BETA PROGRAM AGREEMENT

This Beta Program Agreement ("Agreement") is entered into as of by and between Company Name: (Provider), and Participant Name: (Participant). Provider and Participant are each a "Party" and together the "Parties."

RECITALS

WHEREAS, Provider is developing certain software, hardware, services or combinations thereof identified as (Beta Products) and desires to obtain testing, evaluation and feedback from selected third parties; and

WHEREAS, Participant desires to evaluate the Beta Products and provide feedback under the terms and conditions set forth herein; and

WHEREAS, the Parties wish to set forth the terms governing access to the Beta Products, confidentiality, intellectual property rights and related obligations.

NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 "Beta Products" means the pre-release software, hardware, documentation, updates, patches, test builds, and related materials provided by Provider to Participant pursuant to this Agreement.

1.2 "Confidential Information" means all non-public information disclosed by a Party to the other Party, whether disclosed orally, visually, or in writing, including without limitation technical data, trade secrets, business and product plans, customer information, pricing, and the Beta Products, but excludes information that is: (a) publicly known through no breach of this Agreement, (b) rightfully received from a third party without restriction, (c) independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information, or (d) required to be disclosed by law or a binding order of a court of competent jurisdiction (subject to the notice provisions below).

2. PARTICIPATION

2.1 Provision of Access. Provider shall provide Participant with access to the Beta Products for the limited purpose of evaluating and testing during the Term. Provider may deliver the Beta Products by electronic means or physical media as determined by Provider.

2.2 Participant Obligations. Participant will: (a) use the Beta Products solely for testing and evaluation; (b) not use Beta Products in production environments without Provider's prior written consent; (c) comply with Provider's reasonable user guides and testing instructions; and (d) not attempt to circumvent, modify, reverse engineer, decompile or disassemble the Beta Products except to the extent such restriction is prohibited by applicable law.

3. CONFIDENTIALITY

3.1 Non-Disclosure. Each receiving Party shall: (a) hold the disclosing Party's Confidential Information in strict confidence; (b) use such Confidential Information solely to exercise rights and perform obligations under this Agreement; and (c) permit access only to employees, contractors and advisors who have a need to know and are bound by confidentiality obligations at least as protective as those herein.

3.2 Duration. Confidentiality obligations shall continue during the Term and for a period of years after termination or expiration of this Agreement.

4. INTELLECTUAL PROPERTY

4.1 Ownership. Provider retains all right, title and interest in and to the Beta Products and all associated intellectual property rights. No rights are granted to Participant except for the limited, non-exclusive, non-transferable, revocable license to use the Beta Products as expressly set forth herein.

4.2 Feedback. Participant hereby grants to Provider a perpetual, irrevocable, worldwide, royalty-free, transferable, sublicensable license to use, reproduce, modify, distribute and exploit any suggestions, ideas, enhancement requests, recommendations, or other feedback provided by Participant relating to the Beta Products ("Feedback") without obligation of attribution or accounting.

5. DATA AND PRIVACY

Provider may collect technical, diagnostic and usage data from the Beta Products including crash reports and performance metrics. Such data may be used by Provider for product development, quality assurance and security purposes. Participant represents that any data provided to Provider that identifies natural persons will be provided in compliance with applicable privacy laws.

Data retention by Provider will be for a period not to exceed days absent further agreement.

6. TERM AND TERMINATION

6.1 Term. The term of this Agreement commences on the Effective Date and continues for a period of months unless earlier terminated as provided herein.

6.2 Termination for Convenience. Either Party may terminate this Agreement for any reason upon days' prior written notice to the other Party.

6.3 Effect of Termination. Upon expiration or termination, Participant shall cease all use of the Beta Products and return or destroy Provider's Confidential Information. Termination will not relieve either Party of obligations accrued prior to termination, including payment, confidentiality and indemnification obligations.

7. WARRANTIES AND DISCLAIMERS

7.1 Limited Warranty. Provider represents that it has the right to grant the rights set forth in this Agreement. Other than this express representation, the Beta Products are provided "AS IS" and Provider expressly disclaims all other warranties, whether express, implied, statutory or arising by course of dealing, including any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.

8. INDEMNIFICATION

Participant shall indemnify, defend and hold harmless Provider and its officers, directors, employees and agents from and against any third-party claims, liabilities, damages, losses and expenses (including reasonable attorneys' fees) arising out of Participant's use of the Beta Products, breach of this Agreement, or violation of applicable law, except to the extent such claims arise from Provider's gross negligence or willful misconduct.

9. LIMITATION OF LIABILITY

9.1 Exclusion of Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY.

9.2 Aggregate Cap. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS OR LIABILITY FOR BODILY INJURY OR WILLFUL MISCONDUCT, EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF $100.00 OR THE TOTAL AMOUNTS PAID BY PARTICIPANT TO PROVIDER UNDER THIS AGREEMENT.

10. NOTICES

Notices shall be in writing and deemed given when delivered personally, sent by certified mail (return receipt requested), or sent by nationally recognized overnight courier to the address provided above or to such other address as a Party may designate by notice in accordance with this Section.

11. AMENDMENTS; WAIVER

No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both Parties. The waiver by either Party of a breach of any provision shall not operate as a waiver of any subsequent breach.

12. COUNTERPARTS; ELECTRONIC SIGNATURES

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. The Parties agree that electronic signatures shall be deemed original signatures for all purposes.

13. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to conflict of law principles. This Agreement, together with any documents incorporated herein, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings and communications, whether written or oral. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.

14. MISCELLANEOUS PROVISIONS

14.1 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, except that Provider may assign this Agreement in connection with a merger, acquisition or sale of substantially all of its assets.

14.2 Independent Contractors. The Parties are independent contractors and nothing in this Agreement creates a partnership, joint venture, agency or employment relationship between them.

ADMINISTRATIVE INFORMATION

Participant grants Provider permission to publicly identify Participant as a Beta tester: Yes

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