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.

DEFINITIONS

"Malicious Code" means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs.

"Services" or webplanner means the online, web-based applications and platform provided by us via www.webplanner.com and/or other designated websites.

"You" 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.

 

GENERAL TERMS AND CONDITIONS

  1. Experience In Software has developed Webplanner including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material ("services").
  2. Experience In Software desires that services be tested prior to general release.
  3. 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 conditions below.

1                      Our responsibilities. 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.

2                      Your responsibilities. 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.

3                      Usage limitations. Services may be subject to limitations, such as, limits on disk storage space.

4                      Ownership of your data. As between us and you, you exclusively own all rights, title and interest in and to all of your data.

5                      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.

6                      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.

7                      Sole 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:

7.1               Demonstrate, copy, sell or market services to any third party;

7.2               Publish or otherwise disclose information relating to performance or quality of services to any third party;

7.3               Modify, reuse, disassemble, decompile, reverse engineer or otherwise translate services or any portion thereof.

8                      Pre-release 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.

9                      Marketing material. Upon 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.

10                  Accordance 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.

11                  Sole agreement. This 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.

12                  Warranties and disclaimer. 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.

13                  Limitation of 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.

14                  Exclusion of 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.

15                  Enforcing relative rights. 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.

16                  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.