FOCUS451, Inc. Beta Testing Agreement
This FOCUS451, Inc. Beta Testing Agreement (together with the Online Order Form hereto, this “Agreement), governs the Client’s (“Client” would be entity who signed up to use services from FOCUS451, Inc.) access and usage of the Products, which may be in a testing phase (“Early Access” or “Beta” phase). Each of FOCUS451 and Tester (also referred as the “User” or “Client”) is a “Party to this Agreement, and collectively the “Parties”. The effective date refers to the date when the Client or their User started using the FOCUS451, Inc. services or signed up to use the services, whichever comes first.
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT;OR,FOR FREE SERVICES, BY USING SUCH SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
WHEREAS, prior to the release of a new version of its Software, FOCUS451 customarily engages in testing of the proposed release in a beta environment; and
WHEREAS, Tester has expressed interest in assisting with such testing, and providing feedback to FOCUS451 concerning same; and
WHEREAS, FOCUS451 may allow Tester to test some or all aspects of a prospective release of Software, at FOCUS451’s sole discretion.
NOW, THEREFORE, FOCUS451 and Tester hereby agree as follows:
a) “Administrator” means the designated contact person of Tester as stated on Exhibit A who is responsible for administering Test Accounts.
b) “Beta Data” means Tester Data and Tester Content which Tester elects to enter into the Beta Site, for access and use within the Beta Site.
c) “Beta Site” means an unreleased prospective version of the Software, inclusive of errors and bugs, in a testing environment.
d) “Tester Content” means any and all written matter, illustrations, documents, or other materials authored by Tester or licensed by Tester from third parties.
e) “Tester Data” means proprietary or personal data regarding Tester or any of its personnel.
f) “Confidential Information” means all information of FOCUS451 disclosed by FOCUS451 to Tester, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which Tester may have access, including, but not limited to, any algorithms, business plans, customer data, customer lists, customer names, design documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know‑how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets, the terms of this Agreement or any other information which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by FOCUS451 or which is of a confidential nature even though not specifically so designated, unless such information is or becomes known to the public through sources other than Tester or Tester Personnel. Confidential Information shall not, however, include any information which Tester can establish: (i) was or has become generally known or available or a part of the public domain without direct or indirect fault, action, or omission of Tester; (ii) was known by Tester prior to the time of disclosure, according to Tester’s prior written documentation; (iii) was received by Tester from a source other than FOCUS451, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by FOCUS451, where such independent development has been documented by the recipient.
g) “Documentation” means any and all printed or electronic materials provided or made available by FOCUS451 to Tester, subsequent to the Effective Date, which relate to Tester’s use of the Beta Site.
h) “Feedback” means suggestions, comments and the like about the Beta Site provided by Tester. Feedback includes, but is not limited to, usability, bug reports, error reports, defect identification, and test results.
i) “Tester Personnel” means those personnel of Tester who have been granted permissible access to the Beta Site via Test Accounts to conduct Testing.
j) “Production” means a post-implementation version of the Software in a live environment.
k) “Release” means the most recent version of the Software placed into Production.
l) “Software” means any and all of FOCUS451’s proprietary software offerings, including without limitation all updates, revisions, bug-fixes, upgrades, and enhancements thereto.
m) “Test Account” means a designated username and password utilized to access the Beta Site.
n) “Testing” means Tester’s usage of the Beta Site in order to examine and evaluate whether certain new features in the Software are suitable for Production.
o) “Testing Services” means the provision of the Beta Site by FOCUS451 to Tester.
2. Testing Services.
a) Provision. FOCUS451, in its sole discretion, may provide the Testing Services to Tester.
b) FOCUS451 Duties. In accordance with the terms and conditions of the Agreement, FOCUS451 shall: (i) make the Beta Site available to Tester via the Internet; (ii) provide the Administrator with a separate password to access the Beta Site; and (iii) provide the Administrator with the ability to establish Test Accounts for its designated Tester Personnel.
c) Maintenance of Beta Data. Beta Data is a temporary subset of Tester Data and Tester Content which Tester voluntarily elects to submit to the Beta Site in connection with Tester’s Testing. Tester expressly understands and acknowledges that Beta Data entered into the Beta Site may be erased, overwritten, deleted, lost, and/or refreshed from time to time, in whole or in part, and may be incomplete and/or contain errors. Beta Data should not be relied upon or utilized by Tester in ordinary course of business or otherwise, i.e. for non-Testing purposes. Tester agrees that it is solely responsible for maintaining copies of any Tester Data and Tester Content it enters into the Beta Site. Tester further agrees it is solely responsible for running all processes for which Testing Services are used independently of and in parallel to Testing Services.
a) Grant. Subject to the terms and conditions of this Agreement, and solely for the Term, FOCUS451 hereby grants to Tester a nonexclusive, non-sublicensable, non-transferable limited license to access and use the Beta Site solely as set forth in this Agreement.
b) Restrictions. In no event shall Tester or its employees, contractors, agents, or Affiliates use or deploy the Beta Site: (i) in violation of applicable laws, rules or regulations; (ii) for commercial exploitation; or (iii) for any reason other than for Testing. Further, Tester shall not, and shall cause its employees, contractors, agents and Affiliates not to: (i) copy all or any portion of the Beta Site; (ii) modify, translate or create any derivative works based upon the Beta Site; (iii) reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from the Beta Site or any part thereof (except to the extent that such restriction is not permitted under applicable law); (iv) make the Beta Site available to any unauthorized third parties; (v) distribute, disclose, market, lease, assign, sublicense, pledge or otherwise transfer all or a portion of the Beta Site; (vi) release the results of its Testing to third parties; (vii) permit the Beta Site to be used for or in connection with processing data or other information on behalf of any third party; or (viii) use the Beta Site other than in accordance with the terms and conditions of this Agreement.
c) Ownership of Beta Data. As between Tester and FOCUS451, Tester exclusively owns all rights, title and interest in and to all Beta Data, subject to the terms, conditions, and limitations as set forth in this Agreement. Tester hereby grants to FOCUS451 a limited license to access and use Beta Data solely for the purpose of performing FOCUS451’s obligations hereunder.
e) Suggestions. FOCUS451 shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Products any suggestions, ideas, enhancement requests, Feedback, recommendations, or other information provided by Tester or its users relating to the operation of the Beta Site.
4. Feedback. Tester acknowledges that the primary purpose of the Testing Services is for FOCUS451 to obtain Feedback from Tester on the Beta Site. Tester warrants that its Feedback is not subject to any license terms that would purport to require FOCUS451 to comply with any additional obligations with respect to any FOCUS451 Products that incorporate any Feedback. Administrator shall notify FOCUS451 of any failure, error, glitches, defects, or other malfunction of any part of the Beta Site within one (1) business day of such occurrence. Notwithstanding the foregoing, the receipt of Feedback from Tester does not obligate FOCUS451 to make modifications or improvements to the Beta Site; in the event FOCUS451 does undertake to make such modifications and improvements to the Beta Site as deemed appropriate by FOCUS451 in its sole discretion, it shall then provide the same to Tester at no cost.
5. Tester Responsibilities.
a) Test Accounts. Tester shall only grant Test Accounts to those personnel it determines are suitable to access the Beta Site while complying with the confidentiality provisions hereunder. Tester has the affirmative duty to protect the Test Accounts. Tester shall apprise its Tester Personnel of all obligations hereunder. Tester agrees that it shall be responsible and liable for the actions of Tester Personnel.
b) Beta Data. In the event Tester and/or Tester Personnel elect to print or export Beta Data from the Beta Site, Tester hereby acknowledges that it does so at its own risk. Tester and Tester Personnel shall be fully responsible and liable for maintaining the confidentiality and security of such Beta Data. Tester is advised to safeguard its Beta Data, to use caution, and not to rely in any way on the correct functioning or performance of the Testing Services.
c) Indemnity. Tester agrees to indemnify, defend and hold harmless FOCUS451 and its Affiliates and the respective officers, directors, employees, independent contractors/consultants, and agents of each (collectively, “Covered FOCUS451 Parties”) from and against any and all claims and causes of action, as well as related losses, liabilities, judgments, awards, settlements, damages, expenses and costs (including reasonable attorney’s fees and related court costs and expenses) (collectively, “Damages”) incurred or suffered by Covered FOCUS451 Parties which directly relate to or directly arise out of Tester’s use of the Beta Site, or in combination with any hardware, software or other materials not expressly authorized by FOCUS451, except as expressly permitted under this Agreement.
6. Representations and Warranties. Each party represents and warrants to the other party that, as of the date hereof: (i) it has full power and authority to execute and deliver this Agreement; (ii) this Agreement has been duly authorized and executed by an appropriate employee of such party; (iii) this Agreement is a legally valid and binding obligation of such party; and (iv) its execution, delivery and/or performance of this Agreement does not conflict with any agreement, understanding or document to which it is a party.
7. Term; Termination.
a) Term. The term of this Agreement commences upon the Effective Date and expires on the earlier of (i) six (6) months following the Effective Date or (ii) a Party’s notice to the other to terminate. This Agreement may be renewed for one or more additional terms upon mutual written agreement of the Parties.
b) Termination By Notice. The Agreement may be terminated by either Party by providing at least thirty (30) days’ prior written notice to the other Party of its intent to terminate.
c) Obligations at Termination. Immediately following the termination of this Agreement, Tester shall cease using the Beta Site and shall return to FOCUS451 all Documentation and Confidential Information provided or made available to Tester in connection with this Agreement (or, at FOCUS451’s option, certify in writing that all Documentation and Confidential Information (as well as all copies thereof) have been destroyed).
8. Non-Disclosure of Confidential Information.
a) Confidentiality. Tester agrees: (i) not to disclose any Confidential Information to any third parties except as mandated by law (ii) not to use any Confidential Information for any purposes except carrying out Tester’s rights and responsibilities under this Agreement; and (iii) to keep the Confidential Information confidential using the same degree of care such Tester uses to protect its own confidential information; provided, however, that Tester shall use at least reasonable care. These obligations shall survive termination of this Agreement.
b) Remedies. If Tester breaches any of its obligations with respect to confidentiality or the unauthorized use of Confidential Information hereunder, FOCUS451 shall be entitled to seek equitable relief to protect its interest therein, including but not limited to, injunctive relief, as well as money damages.
9. Intellectual Property. Except for the limited licenses expressly granted herein, as between the parties, FOCUS451 will and does retain all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to the Beta Site, the Software, and all derivatives, modifications or enhancements thereto. Tester agrees to take any action reasonably requested by FOCUS451 to evidence, maintain, enforce or defend FOCUS451’s Intellectual Property Rights. Tester shall not take any action to jeopardize, encumber, limit or interfere in any manner with FOCUS451’s ownership of and rights with respect to the Beta Site and the Software. All rights not expressly licensed to Tester hereunder are hereby expressly reserved by FOCUS451. Notwithstanding the foregoing, Tester retains all ownership rights to its Beta Data.
a) General. EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, THE TESTING SERVICES ARE PROVIDED “AS IS,” AND TESTER’S USE OF THE TESTING SERVICES IS AT ITS OWN RISK. EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, FOCUS451 DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, WHETHER IMPLIED OR EXPRESS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, FOCUS451 DOES NOT WARRANT THAT THE TESTING SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR COMPLETELY SECURE. FOCUS451 DISCLAIMS ANY AND ALL RESPONSIBILITY FOR THIRD-PARTY CONTENT, THIRD-PARTY LINKS AND WEBSITES, THIRD-PARTY SOFTWARE, AND ANY OTHER CONTENT IN THE TESTING SERVICES.
b) Internet. THE TESTING SERVICES ARE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FOCUS451 IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
a) Mitigation of Damages. FOCUS451 and Tester will each use reasonable efforts to mitigate any potential damages or other adverse consequences arising from or related to the Testing Services.
b) Limitation. NEITHER PARTY WILL BE LIABLE FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, LOSS OF DATA, COMPUTER SYSTEM DAMAGE, INTERRUPTION OF BUSINESS, PROVIDING REPLACEMENT SOFTWARE OR SERVICES, OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOCUS451’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, WILL BE LIMITED TO ONE THOUSAND DOLLARS ($1,000.00). THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND SUCH LIMIT. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS AGREED UPON HEREUNDER BETWEEN TESTER AND FOCUS451 ARE BASED IN PART ON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. Miscellaneous Provisions.
a) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California and the federal laws of the United States of America, without regard to conflict of law principles.
b) Arbitration. FOCUS451 and Tester (the “Parties”) agree that any and all disputes or claims between them, including but not limited to those arising out of or related to this Agreement, breach of or interpretation of this Agreement, misrepresentation, fraud or any other tort, and/or the relationship between the Parties, shall be submitted to private and binding arbitration. This agreement to arbitrate is governed by the Federal Arbitration Act. The Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement or this arbitration provision, including, but not limited to, any claim that all or any part of this Agreement or the arbitration provision is void or voidable. The Parties agree that any and all disputes/claims shall be submitted to arbitration in an individual capacity only, and not as a representative of or member in any class action, representative action or joint/collective action. The arbitrator has no authority to consolidate more than one person’s claims, and has no authority to preside over any form of class, representative, or joint/collective proceeding. The Parties will mutually agree upon the arbitrator. If they cannot, they shall obtain a list of seven (7) arbitrators with knowledge and experience in the claims alleged from a neutral dispute resolution service, and strike names alternatively, starting with the defendant, until one arbitrator remains. The arbitration shall be held in Santa Clara County, California. Each side shall pay 50% of the fees and costs of the arbitration. The arbitrator shall allow reasonable discovery in their discretion and shall issue a brief written decision that includes the essential findings and conclusions upon which the decision or award is based. Only in the event the arbitrator has no jurisdiction over the claims, and/or to confirm, correct or vacate the award in accordance with CCP sections 1285 through 1287.6, the Parties agree to the exclusive jurisdiction of the superior court of the State of California, County of Santa Clara, and/or the federal district court, Northern District of California, and each of FOCUS451 and Tester hereby irrevocably accepts the exclusive personal jurisdiction and venue of those courts for the purpose of any suit, action or proceeding or to confirm, correct or vacate the arbitrator’s decision or award. The parties agree the grounds for vacation of the award are limited solely to those stated in CCP section 1286.2 and for correction of the award are limited solely to those stated in CCP section 1286.6.
c) Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, weather conditions, embargo, riot, epidemic, acts of terrorism, acts or omissions of vendors or suppliers, equipment failures, sabotage, labor shortage or dispute, governmental act, failure of the Internet or other acts beyond such party’s reasonable control, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
d) Counterparts; Facsimile. This Agreement may be executed in any number of counterparts and in facsimile or electronically, each of which shall be an original but all of which together shall constitute one and the same instrument.
e) Entire Agreement. This Agreement contains the entire understanding of the parties in respect of its subject matter and supersedes all prior agreements and understandings (oral or written) between the parties with respect to such subject matter. The exhibits hereto constitute a part hereof as though set forth in full herein.
f) Modifications. Any modification, amendment, or addendum to this Agreement must be in writing and signed by both parties.
g) Assignment. Neither party may assign this Agreement or any of its rights, obligations, or benefits hereunder, by operation or law or otherwise, without the other party’s prior written consent; provided, however, either party, without the consent of the other party, may assign this Agreement to an Affiliate or to a successor (whether direct or indirect, by operation of law, and/or by way of purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of such party, where the responsibilities or obligations of the other party are not increased by such assignment and the rights and remedies available to the other party are not adversely affected by such assignment. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and permitted assigns.
h) No Third Party Beneficiaries. The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.
i) Responsibility for Third-Party Offerings. The Beta Site may contain features capable of interoperating with third-party applications. FOCUS451 shall not be responsible for Tester’s access to, or operation of, third-party applications.
j) Severability. If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, such provision shall be changed by the arbitrator or by the court and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this Agreement shall remain in full force and effect.
k) Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the other party first written above or at such other address as may hereafter be furnished in writing by either party hereto to the other party. Such notice will be deemed to have been given as of the date it is delivered, if by personal delivery; the next business day, if deposited with an overnight courier; upon receipt of confirmation of facsimile delivery (if followed up by such registered or certified mail); and five days after being so mailed.
l) Independent Contractors. Tester and FOCUS451 are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Tester and FOCUS451. Each party understands that they do not have authority to make or accept any offers or make any representations on behalf of the other. Neither party may make any statement that would contradict anything in this section.
m) Headings. The headings of the sections of this Agreement are for convenience only and do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe its meaning, scope or intent.
n) No Waiver. No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.
o) Export Controls. Tester understands that the use of Beta Site is subject to U.S. export controls and trade and economic sanctions laws and agrees to comply with all such applicable laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, and the trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control.
p) Survival. Sections of the Agreement intended by their nature and content to survive termination of the Agreement shall so survive.
The parties hereby execute this Beta Testing Agreement as of the Effective Date:
Administrator Contact Information:
Mailing Address: ______________________________________________________
Email Address: _______________________________________________________