WEBPLANNER BETA TESTING AGREEMENT
THIS BETA TESTING AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF THE
SERVICES DURING THE BETA TESTING PERIOD.
BY ACCEPTING THIS AGREEMENT BY CLICKING A BOX INDICATING YOUR
ACCEPTANCE, 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.
This Agreement was last updated on September 22, 2010. It is
effective between You and Experience In Software as of the date of You
accepting this Agreement.
means viruses, worms,
time bombs, trojan horses and other harmful or malicious code, files, scripts,
agents or programs.
or webplanner means the
online, web-based applications and platform provided by us via www.webplanner.com and/or other designated websites.
or "Your" means the company or other legal entity for which you
are accepting this agreement, and affiliates of that company or entity.
"Your Data" means all electronic data or
information submitted by you to services.
TERMS AND CONDITIONS
In Software has developed Webplanner including modifications,
enhancements, improvements, updates, additions, derivative works,
documentation and related material ("services").
In Software desires that services be tested prior to general release.
- You wish
to serve as a beta test site for services;
NOW, THEREFORE, in consideration of the mutual
covenants and premises herein contained, the parties hereto agree as follows: Experience In Software grants to you
a non-exclusive, non-transferable license to use services, free of charge,
solely for beta testing and beta use from effective date of agreement to 15
days after official release date of the product(s), subject to the terms and
We shall: (i) provide to you basic support for the services at no additional
charge (ii) use reasonable efforts to make the services available 24 hours a
day, 7 days a week, except for: (a) planned downtime (of which we attempt to
give at least 4 hours notice via email, or (b) any unavailability caused by
circumstances beyond our reasonable control, including without limitation, acts
of god, acts of government, flood, fire, earthquakes, civil unrest, acts of
terror, strikes or other labor problems (other than those involving our employees),
or internet service provider failures or delays, and (iii) provide the services
only in accordance with applicable laws and government regulations.
You shall (i) be responsible for users’ compliance with this agreement, (ii) use
commercially reasonable efforts to prevent unauthorized access to or use of the
services, and notify us promptly of any such unauthorized access or use, and (iii)
use the services only in accordance with applicable laws and government
regulations. You shall not (a) make the services available to anyone other than
users, (b) sell, resell, rent or lease the services, (c) use the services to
store or transmit malicious code, (d) interfere with or disrupt the integrity
or performance of the services, or (e) attempt to gain unauthorized access to
the services or their related systems or networks.
Services may be subject to limitations, such as, limits on disk storage space.
your data. As
between us and you, you exclusively own all rights, title and interest in and
to all of your data.
Data loss. Any data you enter into services,
and any customizations made to services by or for you, during the beta testing
period will be permanently lost unless you subsequently purchase a subscription
to services. You will be able to
export your projects and project documents before the end of the beta testing
period and 15 days thereafter.
Beta testing. In consideration for receiving the
opportunity of testing services, you
agree to serve as a "beta site" for
services and will notify experience in software of all problems and
ideas for enhancements which come to your attention during the period of this
agreement, and hereby assigns to experience in software all right, title and
interest to such enhancements and all property rights therein including without
limitation all patent, copyright, trade secret, mask work, trademark, moral
right or other intellectual property rights.
property. You agree
that Webplanner is the sole property of Experience In Software until it is
officially released and includes valuable trade secrets of experience in
software. You agree to treat
services as confidential and will not without the express written authorization
of Experience In Software:
Demonstrate, copy, sell or market services to any third
Publish or otherwise disclose information relating to
performance or quality of services
to any third party;
Modify, reuse, disassemble, decompile, reverse engineer or
otherwise translate services or any portion thereof.
code. Webplanner is
prerelease code and is not at the level of performance or compatibility of a
final, generally available product offering. Services may not operate correctly
and may be substantially modified prior to first commercial release, or
withdrawn. Services is provided "as is" without warranty of any kind.
The entire risk arising out of the use or performance of services remains with
you. In no event shall experience in software be liable for any damage
whatsoever arising out of the use of or inability to use services, even if
experience in software has been advised of the possibility of such damages.
completion of the beta test, you agree to provide, if requested, material,
statistics, or information that is not deemed confidential to your business for
use in press releases, customer testimonials, and as a reference in marketing
and sales initiatives by experience in software. You will provide a quote to experience in software that may
be used in a press release.
with laws. This
license agreement shall be governed, construed and enforced in accordance with
the laws of the United States of America and of the State of California. Any
notice required by this agreement shall be given electronically.
agreement constitutes the entire and only agreement between the parties for services and all other prior
negotiations, representations, agreements, and understandings are superseded
hereby. No agreements altering or supplementing the terms hereof may be made
except by means of a written document signed by the duly authorized
representatives of the parties.
Except as expressly provided herein, neither party makes any warranties of any
kind, whether express, implied, statutory or otherwise, and each party
specifically disclaims all implied warranties, including any warranties of
merchantability or fitness for a particular purpose, to the maximum extent
permitted by applicable law.
liability. In no
event shall either party's aggregate liability arising out of or related to
this agreement, whether in contract, tort or under any other theory of
liability, exceed $100.
consequential and related damages.
In no event shall either party have any liability to the other party for any
lost profits or revenues or for any indirect, special, incidental,
consequential, cover or punitive damages however caused, whether in contract,
tort or under any other theory of liability, and whether or not the party has
been advised of the possibility of such damages. The foregoing disclaimer shall
not apply to the extent prohibited by applicable law.
Failure of Experience In Software 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.
Validity. 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.