Beta Product Evaluation and Testing Terms & Conditions
1. Scope of Agreement.
Beta Version Recipient is being granted rights under this Agreement for the purpose of testing and providing input and other Feedback to Buildshop regarding one or more of Buildshop’s proprietary, non-commercially available hosted software applications, application platform interfaces, services, features and/or functionalities in connection with a potential partnership evaluation or an Existing Account. This Agreement covers all Beta Products made available to Beta Recipient by Buildshop, including, without limitation, any Beta Products specifically identified by Buildshop as being in “Beta” or any similar stage of development. Buildshop retains sole and absolute discretion as to what, if any, Beta Products will be made available to Beta Recipient during the Term. While Beta Recipient is not required to utilize or enable any Beta Products, if Beta Recipient elects to do so, then Beta Recipient’s use of and access to any such Beta Products shall be subject to the terms of this Agreement.
2. Payment; Fees.
Buildshop reserves the right to charge fees for use and access to the Beta Products or may provide the Beta Products for no charge. Buildshop reserves the right to start charging or revise fee amounts at any time, at its sole discretion, under this Agreement or after the Beta Products are made widely available and incorporated into a Buildshop service.
3. Limited Use Rights.
For the term of the Agreement, Buildshop grants to Beta Recipient a limited, non-transferable, non-exclusive, revocable right to access and use the Beta Product(s) in connection with a potential partnership evaluation or an Account to test its functionality and provide Feedback to Buildshop. Buildshop hosts and retains physical control over the Beta Product(s) and only makes the Beta Product(s) available for access and use by Beta Recipient over the Internet through a Web-browser or mobile device. Nothing in this Agreement obligates Buildshop to deliver or make available any copies of computer programs or code from the Beta Product(s) to Recipient, whether in object code or source code form. Buildshop reserves the right, in its sole discretion, to revoke access and use of the Beta Products at any time. Further, Buildshop reserves the right to enter (“assume into”) the Existing Account as needed to (i) monitor or measure use of the Beta Product(s); (ii) validate certain features or functionality of the Beta Product(s); and (iii) to provide services or support necessary to maintain the Beta Product(s).
4. Use Restrictions.
Recipient may not rent, lease, distribute, or resell the Beta Product(s), or use the Beta Product(s) as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Beta Product(s).
Upon reasonable request by Buildshop, Beta Recipient agrees to provide suggestions, enhancement requests, and recommendations (individually and collectively, “Feedback”) regarding the Beta Product(s). Feedback shall include informing Buildshop about the performance, ease of use, features that may be missing, and any bugs encountered during the use of the Beta Product(s). Buildshop may contact Beta Recipient and Beta Recipient agrees to make available a reasonable amount of time to discuss the Beta Product(s) with Buildshop if so requested. Buildshop may without restriction or fee use, modify and incorporate this Feedback into the Beta Product(s) and other Buildshop products and/or services without any restriction and without any payment.
6. Intellectual Property.
The parties acknowledge that this Agreement does not transfer any right, title or interest in any intellectual property right to the other. Buildshop maintains all rights, title and interest in and to all its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The limited rights granted to Recipient to access and use the Beta Product(s) under this Agreement do not convey any additional rights in the Beta Product(s), or in or to any Intellectual Property Rights associated therewith. Subject only to the limited rights to access and use the Beta Product(s) as expressly provided herein, all rights, title and interest in and to the Beta Product(s) and all hardware, software and other components of or used to provide the Beta Product(s), including all related Intellectual Property Rights, will remain with and belong exclusively to Buildshop.
7. Term of Agreement and Renewal.
This Agreement shall commence upon the Beta Testing Start Date upon provision of the access login when provided to users and shall expire on upon any notification and communication (Verbal/Meeting/Email/Formal Letter) from Buildshop indicating that Beta product is not accessible for any potential reason (upgrade, changes and any other reason). Will renew based on evaluation needs of Buildshop.
8. Termination and Expiration.
Either party may terminate this Agreement at any time, for any or no reason, and at either party’s convenience by providing verbal or written notice to the other. Upon termination of this Agreement, Recipient will notify its Users that their access to the Beta Product(s) has been terminated, and Buildshop may withhold, remove or discard any content, data, or other information that Recipient’s Users post or upload into Buildshop’s system while using the Beta Product(s). Following termination or expiration of this Agreement, Buildshop is not obligated to store, maintain or provide a copy of any content, data or other information that Recipient or its Users made available or provided when using the Beta Product(s). If not earlier terminated, Recipient’s obligations under this Agreement shall terminate upon termination of this Agreement; provided that the foregoing shall not limit Buildshop’s rights pursuant to Section 5 as related to any Feedback provided before or after such termination. Sections 2, 5, 6, 11, and 13 to 16, and all obligations thereunder, shall survive any termination of this Agreement.
9. Suspension of Services.
Buildshop may immediately suspend Recipient or one of its User’s access to and use of the Beta Product(s) if Recipient or one of its Users is in breach of Section 9, provided that the suspension will continue only for as long as reasonably necessary for Recipient to remedy the breach.
10. Confidential Information.
Recipient acknowledges and agrees that participation in the Beta testing under this Agreement will result in Buildshop disclosing certain confidential, proprietary and/or trade secret information related to the Beta Products and/or Buildshop (the “Confidential Information”). Such Confidential Information includes, without limitation, the features, functionality and existence of the Beta Product(s), and any know how, trade secrets, computer programs, source code, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information, business plans or reports made available to Recipient. Recipient agrees that it will not, without the express prior written consent of Buildshop, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information (a) is or becomes generally available to the public through any means other than as a result of any act or omission by Recipient; (b) is rightfully received by Recipient from a third party that is not subject to any obligation of confidentiality with respect thereto and without limitation as to its use; or (c) is independently developed by Recipient without any reliance on any Confidential Information. At the termination of this Agreement or at any time by request of Buildshop, Recipient will return all Confidential Information in its possession to Buildshop and further agrees that it will not duplicate, translate, modify, copy, print, disassemble, decompile or otherwise tamper with the Beta Product(s) or any Confidential Information.
11. Third Party Tool Integrations.
12. Disclaimer of Warranties.
If applicable, one or more Beta Products may integrate with third party services. Beta Recipient hereby consents to the sharing of the information in the Beta Products with these third party services and certifies that it has any and all required consents for doing so.
THE BETA PRODUCT(S) ARE PROVIDED “AS IS”. Buildshop MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE BETA PRODUCT(S), INCLUDING ANY REPRESENTATION THAT THE SERVICES THEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, Buildshop DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN RESPECT OF THE BETA PRODUCT(S). FOR THE AVOIDANCE OF DOUBT, ALL BETA PRODUCT(S) ARE PRELEASE, ARE EXPECTED TO CONTAIN DEFECTS WHICH MAY BE MATERIAL, AND ARE NOT EXPECTED TO OPERATE AT THE LEVEL OF PERFORMANCE OR COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OFFERING. BETA PRODUCT(S) MAY NOT OPERATE ACCURATELY AND MAY BE SUBSTANTIALLY MODIFIED PRIOR TO PUBLIC AVAILABILITY OR WITHDRAWN AT ANY TIME. ACCORDINGLY, ACCESS TO AND USE OF THE BETA PRODUCT(S) IS ENTIRELY AT RECIPIENT’S OWN RISK. IN NO EVENT SHALL Buildshop BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE BETA PRODUCT(S), EVEN IF Buildshop HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF ANY BETA PRODUCT.
13. Indemnity. Recipient agrees to indemnify and hold Buildshop, its officers, directors and employees harmless from any losses (including attorneys’ fees) that result from any third party claims related to Recipient’s (or its Users) access, use or misuse of the Beta Product(s), or any act or omission by Recipient or its Users in violation of this Agreement.
14. Dispute Resolution, Governing Law and Venue.
THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF COLORADO, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN COLORADO, AND YOU IRREVOCABLY CONSENT TO THE VENUE AND THE
JURISDICTION OF SUCH COURTS.
This Agreement does not create a partnership, agency relationship, or joint venture between the parties. Any assignment of this Agreement by Recipient in whole or in part without Buildshop’s prior written consent will be null and void, except an assignment to a successor that is not a competitor of Buildshop’s made in connection with a merger or sale of all or substantially all of Recipient’s assets or stock or to an Affiliate. If this Agreement is translated into a language other than English, the translation is for convenience only, and the English language version will govern. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to affect the parties’ intention and the remaining provisions will not be affected. Failure of Buildshop 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. This Agreement includes any schedules and exhibits attached hereto. Such documents encompass the entire agreement between Recipient and Buildshop with respect to the subject matter hereof and supersede all prior representations, agreements and understandings, written or oral. This Agreement may only be altered, amended or modified by duly executed written instrument. You may not assign this Agreement without the prior written consent of Buildshop. Subject to the foregoing, the Agreement shall be binding upon the parties and their respective administrators, successors and assigns.
16. Updates to these terms and conditions.
We may revise these terms and conditions from time to time. The most current version of the terms and conditions will govern the terms of the beta testing and evaluation activities.