GENERAL TERMS AND CONDITIONS
A. Zmags has developed an online service including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material ("Platform").
B. Zmags desires that the Platform be evaluated and tested by customers prior to its general release and sale to the public.
C. Customer wishes to serve as a Beta test site for such Platform; and understand that the Soft Launch beta period will run from May 14, 2014 to August 31, 2014, followed by the official public release date of September 1, 2014.
NOW, THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties hereto agree as follows:
1 Zmags grants to Customer the non-exclusive, non-transferable, revocable, limited right to use the Platform. The number of users of the Platform is not limited. The Platform is available for use by the Customer for beta testing and beta use from effective date of agreement written below to the official release date of the products(s), subject to the terms and conditions below.
2 In consideration for receiving access to the Platform for testing, Customer agrees to serve as a "Beta User" for the Platform and will provide Zmags suggestions, comments and feedback regarding the Platform, including but not limited to usability, bug reports, ideas for enhancements (collectively, “Feedback”). and hereby assigns to Zmags 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.
3 Customer agrees that Platform is the sole property of Zmags and includes valuable trade secrets of Zmags. Customer agrees to treat Platform as confidential and will not without the express written authorization of Zmags:
3.1 Copy, sell or market Platform to any third party, without prior written approval, which shall not be unreasonably withheld;
3.2 Publish or otherwise disclose information relating to performance or quality of the Platform to any third party;
3.3 Sublicense to, transfer, network, distribute or permit use of the Platform by any third party; or
3.4 Modify, reuse, disassemble, decompile, reverse engineer or otherwise translate Platform or any portion thereof.
4 Platform is prerelease code and is not at the level of performance or compatibility of a final, generally available product offering. Platform is provided "AS IS" for the purpose of providing Zmags with feedback on the quality and usability of the Platform. The Platform may contain errors or inaccuracies that could cause failures, corruption or loss of data and information. The entire risk arising out of the use or performance of Platform remains with Customer.
5 Zmags reserves the right to modify or suspend the Program (or any part thereof), either temporarily or permanently, at any time, for any reason, and with or without notice to Customer. Zmags has no expressed or implied obligation to provide, or continue to provide, access to the Program, or any part thereof.
6 CUSTOMER UNDERSTANDS AND AGREES THAT THE PROGRAM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ZMAGS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ZMAGS MAKES NO WARRANTY THAT (I) THE PROGRAM WILL MEET CUSTOMER’S REQUIREMENTS; (II)
USE OF THE PROGRAM WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY CUSTOMER AS A RESULT OF THE PROGRAM WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE PROGRAM WILL BE CORRECTED. ANY MATERIAL TRANSMITTED, STORED, ACCESSED OR OTHERWISE MAINTAINED THROUGH THE USE OF THE PROGRAM IS DONE SO AT CUSTOMER’S OWN RISK, AND CUSOMTER IS SOLELY RESPONSIBLE FOR ANY LOSS OR CORRUPTION OF DATA THAT RESULTS FROM ANY SUCH USE OF THE PROGRAM.
7 ZMAGS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF ZMAGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE PROGRAM; (II) ANY CHANGES MADE TO THE PROGRAM OR ANY TEMPORARY OR PERMANENT CESSATION OF THE PROGRAM OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE CUSTOMER TRANSMISSIONS OR DATA ON OR THROUGH THE PROGRAM; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE.
8 The Customer upon completion of the beta test agrees to provide material, statistics, or information that is not deemed confidential to Customer’s business for use in press releases, customer testimonials, and as a reference in marketing and sales initiatives by Zmags. Customer commits to participating in a debriefing meeting and to use the Platform in production after no more than four weeks after having access to the Platform. If the Customer does not comply with this Zmags reserves the right to remove access to the Platform without further notice. Customer will provide a quote to Zmags that may be used in a press release.
9 This Agreement shall be governed, construed and enforced in accordance with the laws of the United States of America and of the State of New York, without regard to its conflict of law provisions. Any notice required by this Agreement shall be given by prepaid, first class, certified mail, return receipt requested to above address or such other address as may be given from time to time under the terms of this notice provision.
10 This Agreement constitutes the entire and only agreement between the parties for access to the Platform and all other prior negotiations, representations, agreements, and understandings related to the Platform 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.
11 Customer shall comply with all applicable federal, state and local laws, regulations, and ordinances in connection with its activities pursuant to this Agreement.
12 Failure of Zmags 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.
13 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.