ONAPP LIMITED (“cloud.net”) BETA TESTING GENERAL TERMS AND CONDITIONS
(A) OnApp Limited (“cloud.net”, “We”/”Our”/”Us”) provides data hosting capacity and related services which may include access to an international federation of other, third party data hosting capacity providers (“Services”). We provide such Services to third parties such as individual account holders who may have already contracted for Our Services by means of another agreement (“Relationship Agreement”), for example, under Our General Terms and Conditions (“GTCs”).
(B) From time to time, We develop or have developed for Us certain Services with the intention of allowing access/connection/use by third parties such as You (as defined below). Such Services may be for use in a production (as opposed to merely test) environment in connection with live data (as opposed to merely test data). Even though a Service may be not yet suitable for such use because it is not finalised (so-called ‘beta versions’), We wish to be able to test beta versions of the Service in a real-time environment with live data in order to measure access and use of it and to receive automatically generated and collected information and reports related to such access, use and operation of the Service (which may include Personal Data as defined in clause 14 below), and written comments, suggestions, observations, proposals, recommendations, opinions on, amongst other things: (i) how the Service could be modified and/or functionally and/or technically and/or visually improved; and (ii) all problems, faults, errors, bugs, defects, difficulties, shortcomings, design faults, look and feel issues, usability performance, efficiency and reliability issues in the operational performance of the Service (“Feedback”).
(C) In this BTA (as defined below), the expression “You” refers to a person expressly authorised by Us to conduct Beta Product Testing (as defined below) on the terms of the BTA (and “Your” shall be construed accordingly). We are willing to provide Beta Products (as defined below) and related documentation (“Documentation”) to You only for Your use in return for Your Feedback. The use of such Beta Products poses a risk to the user because they may, among other things, malfunction, not function at all, cause hardware or other software to malfunction or not function at all cause data to be erroneous, corrupted, lost and so on. The effects of such consequences may include, among others, financial loss and damage in the form of lost data or communications, software bugs or viruses, errors and other functional or operational defects.
(D) You recognise that there is a potential benefit to You in testing such Beta Products by allowing You to have advance insight into Our developments and providing You with the potential opportunity to influence the final form of beta versions tested by You by providing Feedback to Us. Accordingly, You have requested and We are willing to allow You to test Beta Products on the terms and conditions referred to in the BTA. If You are an existing customer of Ours You are already subject to an existing agreement with Us which shall continue to apply. The provisions of the BTA are applicable only to Beta Product Testing, and are supplemental to Our Relationship Agreement with You, (if any) and intended by You and Us to be contractually binding on You and Us. No payment shall be due to you under the BTA.
(E) This document (“BTGTC”) sets out the general terms and conditions governing the testing and/or use of beta versions of Services and related software and documentation (online or offline), materials, media, data, files, and/or services related to such beta versions developed, distributed. and/or made available by or for Us, (individually and collectively “Beta Products”). Additional terms and conditions may apply to the testing of particular Beta Products and the equipment with which they may be tested (“Authorised Equipment”) and the territory in which You may test them (“Territory”) which may be included in specifications made available with such Beta Products (“Specifications”). Collectively these BTGTC, any additional terms and conditions including any Specifications, user guides and any additional disclaimers (collectively the “Beta Testing Agreement” or “BTA”) wholly and exclusively set out all terms and conditions governing all Beta Product Testing (as defined below) except that if the Beta Product contains third party software then Your use of that third party software (only) will also be subject to that third party’s terms and conditions of its use in addition to the BTA as regards the non-third party elements of the applicable Beta Products. In the event of any conflict between the provisions of a Specification and these BTGTC, the Specification shall prevail. In these BTGTC:
“Authorised Purposes” means, in conjunction with Your use of the Services for Your own personal, private and non-commercial, non-production use: (i) creating and (ii) providing Feedback to Us;
“Beta Product Testing” means loading, installing, running, testing, examining, analysing and operating Beta Products for the Authorised Purposes;
“Intellectual Property Rights” means without limitation, all present and future rights title and interest (as the same may be extended or amended) throughout the world in to under or arising out of all forms of intellectual property including: (i) any national or international patent and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask work registrations; (iv) all trade names, logos, common law trademarks and service marks; trademark and service mark registrations, goodwill, business names and domain names; (v) all so-called ‘sui generis’ rights (otherwise known as database rights); (vi) all rights in registered and unregistered designs; (vii) any other proprietary rights anywhere in the world and all rights or forms of protection having equivalent or similar effect to any of the foregoing; (viii) applications for the grant of any of the foregoing anywhere in the world, and all other rights corresponding thereto throughout the world together with any and all rights of registration, extension and renewal thereof; and (ix) the right to bring legal proceedings to enforce any of the foregoing rights.
- Binding Terms. The BTA shall first become effective upon Your unconditional acceptance of it, or Your first registration to perform Beta Product Testing or upon first installation of or access to any Beta Products for testing by You whichever shall occur first and will continue until terminated in accordance with its terms. You may access the Beta Products and Documentation by downloading them and may use them only with Our express permission. Nobody else is authorised to give such permission on Our behalf. Our permission is given only in the form of the BTA. By clicking the “I Accept” button as a condition of any Beta Products and Documentation that You download and/or use, You merely confirm Your understanding that You are bound by the BTA. It may be that You will not need to click through any “I Accept” button. Despite the absence of such confirmation Your use of Beta Products and Documentation in connection with Our Services shall be subject to the BTA. If You do not agree with any of the BTA then You should not use the Beta Products and Documentation nor access Our Services. You agree that Your access to and use of the Beta Products and Documentation in connection with Our Services shall be deemed to be an unconditional acceptance of the BTA. You may not authorise access by any other person or entity except as We may expressly agree in writing. Your access to and use is lawful only if it is, at all times, strictly in accordance with the BTA. You agree to comply with the BTA when using the Beta Products and Documentation and all applicable laws and regulations, together with any specific usage rules that may be posted in relation to any material and content, capacity or services that You access as part of or via the Beta Products and any applicable conditions imposed by third parties on Your use of their software or systems which has been created or provided by them or on their behalf for use as part of the Beta Products.
- Licence. We hereby grant You a licence only for the Authorised Purposes to access the Beta Products, read all or any part of the Beta Products from the media on which they are sent to You by Us (“Media”) or to which they are lawfully downloaded by You, to load the Beta Products on Your Authorised Equipment for the storage and running of them, to read and possess the Documentation in conjunction with the use of the Beta Products and to possess the Media for such limited purposes. The foregoing licence shall be non-exclusive, non-transferable, non-sub-licensable and terminable at will by Us without cause acting in Our sole discretion.
- Beta Environment. You understand and agree that the Beta Products are to be used only in a Beta Environment for testing purposes and not in a live or production environment or for live or production purposes. You also understand and agree that at any time, whether during or after any period specified by Us for Beta Product Testing, We may, without any liability to You, stop access to or use of any or all of the Beta Products and delete from any equipment or systems used or provided by Us or on our behalf, any and all data that You may have stored or collected as part of the Beta Product Testing with the effect that it shall be irretrievably lost to You and/or Us.
- Prohibited Activities. From time totime We may inform You in writing of certain activities that are prohibited following which You will not perform nor authorise others to perform them. In addition, at all times You shall not and shall not authorise others to:
- access, download, or use the Beta Products and Documentation other than for the Authorised Purposes;
- use the Beta Products in a production environment or for production or live purposes except with our prior express written agreement for production use and not under these BTGTCs at all;
- disclose or distribute to third parties Your Feedback or any part of it;
- copy (except to make one back-up or archival copy of ) the Beta Products or Documentation or adapt them save as expressly permitted in writing or as part of the functionality of the Beta Products;
- communicate and/or make available to the public, republish, upload, broadcast, transmit or use the Beta Products and Documentation in any other way, except for Your own personal, private and non-commercial use, unless otherwise expressly permitted by Us in writing;
- authorise third parties to use the Beta Products and/or Documentation on Your behalf nor authorise, enable nor permit any other person or entity to access the Beta Products or Our Services except with Our express prior written consent;
- publish, reproduce, distribute, lend, rent, otherwise transfer or display any part of the Beta Products or Documentation or any other information necessary to or useful for access to them nor use them to do any of the foregoing except with Our express prior written consent;
- transfer or licence to any third party any right in to or over the Beta Products and Documentation;
- alter or deface any instruction, notice, label, acknowledgment or trade mark in the Beta Products or Documentation.
- use the Beta Products and Documentation to:
i. engage in fraudulent behaviour including fraudulent modification of records;
ii. engage in any conduct that is contrary to Your Relationship Agreement and/or applicable law, regulations, rules, orders or codes of conduct;
iii. transmit personal, defamatory, obscene, racist, sexist or pornographic messages;
iv. access, view, modify, retransmit, distribute, publish, rent, loan, licence or display any data or information including information derived from or in connection with accessing Our Services other than as expressly permitted by Your Relationship Agreement and any other applicable terms or conditions;
v. generate excessive traffic unnecessary for the Authorised Purpose;
vi. commit any illegal or unauthorised act;
vii. imply any endorsement by Us of You or Your products/services;
viii. transmit any time bomb, Trojan horse, malware, spyware, virus, or other code or routine designed to permit unauthorised access to or use of computer software, equipment or systems or to disable, erase, disrupt, impair, or damage their normal operation;
ix. collect personal data (as defined in the Data Protection Act 1998) except in accordance with applicable law;
x. display or transmit information from Our Services to unauthorised third parties;
xi. offer any SaaS-type, cloud-type or service-bureau service.
- Our Obligations. We shall be under no obligation to: (i) provide support with respect to any Beta Product; (ii) continue Beta Product support once commenced; (iii) go live with any production or certified version of a Beta Product; (iv) acknowledge receipt of Feedback, Your authorship of it, attribute it to You, make use of it or contact You about it. You hereby expressly agree that in Our absolute discretion We may do as We wish with the Feedback and authorise third parties to do so without restriction of any kind including export it to any other countries.
- Your Obligations. The licence hereby granted shall be without charge and You shall not be entitled to any remuneration or reward in consideration for Your Beta Product Testing services.
- In consideration for receiving Beta Products for testing and Documentation, You agree to provide Us with Your Feedback to include, where requested, written reports of a specified frequency (daily, weekly etc). Along with automatically generated and collected Feedback, You shall provide Your Feedback to Us as We reasonably direct to such person(s) as We may notify to You from time to time. You will promptly and accurately reply to Our inquiries regarding Your Feedback.
- You hereby irrevocably assign to Us all Intellectual Property Rights in to and under Your Feedback, on a royalty free, transferable, sub-licenseable, fully paid up basis including without limitation the right to make, use, exploit for financial or non-financial gain, copy, modify, sell, distribute, sub-license, adapt, reproduce in another form, publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of, apply for patents in respect of or bring or defend proceedings to enforce or protect Your Feedback whether or not as part of Our products or services.
- You understand that software/system changes may adversely impact on the interoperability of the Beta Product and Our Services. You shall
- comply with communications protocols reasonably notified by Us in writing from time to time;
- ensure that the content of all communications made by You by means of the Beta Products are:
i. decent honest legal and truthful;
ii. lawful under applicable laws;
iii. compliant with applicable regulations;
iv. free from content that would adversely impact on Our Intellectual Property Rights including trade marks, trade names, reputation and goodwill; and
v. in particular, free from personal, defamatory, obscene, racist, sexist or pornographic content.
- promptly upon notice from Us implement any updates or modifications required for use of the Beta Products;.
- not authorise nor give permission for any other person or entity to do something on their own or on Your behalf which are beyond the Authorised Purpose or which the BTA otherwise prohibits or restricts You from doing.
- The Beta Products and Documentation are not directed at nor intended for distribution to, or use by, any person in any country or jurisdiction where such distribution or use would be contrary to local law or regulation. It is Your responsibility to comply with any local law or regulation to which You are subject.
- You agree that You will not use the Beta Products and Documentation in any way that may lead to the encouragement, procurement or carrying out of any criminal or unlawful activity, or cause distress, harm or inconvenience to any other person. You will not do anything that may cause damage to the Services or Our servers, systems or equipment or those of third parties, nor access or attempt to access any data of Our other users or to penetrate or attempt to penetrate the Services’ security measures.
- You shall not reverse engineer, reverse assemble, disassemble or decompile any computer program owned or controlled by Us or Our licensors except to the extent expressly permitted by applicable law.
- You will take all reasonable steps to ensure that no computer viruses, worms, software bombs or similar items are introduced into Your system, or any device that is utilised to access or use the Beta Products.
- Modifications. In its discretion, We need not but may make available to You modifications, changes, updates, and upgrades to the Beta Products and may require You to perform non-standard operations of the Beta Products whilst You are testing them (whether or not based on Feedback from You or others) (“Modifications”). Although such Modifications may be incompatible with previous Modifications and could include substantial changes to the Services, software and operating procedures, You shall promptly implement them. We shall have no liability or responsibility for the incorrect or non-operation of software or hardware arising out of or in connection with the implementation of such Modifications. You shall have sole responsibility for protecting all Your hardware and for protecting and backing-up Your software, data and other information that may be affected. We may issue updates to Beta Products and Documentation. If We do so We may but need not provide information relating to the changes effected by such update or in such new version.
- Warranties. We warrant for Ourselves and You warrant for Yourself that:
- You and We have the full legal right, power and authority to enter into the BTA;
- the performance of the BTA shall not violate any agreement to which You or We are otherwise bound;
- the BTA will constitute the legal, valid and binding obligation of each of You and Us, enforceable against the other in accordance with its terms.
- You warrant and represent that: (i) You will not use Beta Products and Documentation for any purpose other than Beta Product Testing in accordance with the BTA; (ii) You will keep all Beta Products and Documentation acquired by You safe and secure and prevent unauthorized access to, reproduction of, disclosure of, and/or unauthorized use of them including password protecting any device on which they are stored and not storing them on a central storage device accessible by others (eg a shared server); (iii) You will notify Us immediately upon becoming aware of any loss of Beta Products and/or Documentation or any security breach related to them or to Our data, systems or any other elements of the Services; (iv) You will perform the BTA personally and not sub-contract such performance to third parties; and (v) that Your Feedback is original and shall not infringe the Intellectual Property Rights of any third party.
- Your Indemnity. You hereby indemnify and shall defend and hold Us, Our third party service providers and licensors and the officers, directors, employees and agents of Ours, Our third party service providers and licensors (“Indemnified Parties”) harmless from any losses, damages, costs or expenses (and in the case of the professional advisors their reasonable fees) and any and all other liabilities, penalties, fines claims and actions (“Loss”) suffered by the Indemnified Parties (whether or not of a direct, indirect, incidental, consequential, special or exemplary nature), arising in any manner out of or in connection with:
- Your use, or inability to use the Beta Products and/or Your systems (including without limitation any delays, errors or malfunctions thereof;
- any claims made against the Indemnified Parties arising out of or in connection with the use or inability to use the Services by others authorised by You;
- Your breach of the BTA or any applicable law or regulation.
- Limitations, Exclusions and Disclaimers of Liability. We have provided the information available on Our Beta Products and We take great care in ensuring that the information is accurate, however We accept no liability in this respect. You acknowledge and agree that, to the maximum extent permitted by applicable law, the Beta Products and Documentation are provided by Us on an 'as is' and 'as available' basis without any representations or any kind of warranty made (whether express or implied), including as to title and the implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy. Any material downloaded or otherwise obtained through the use of the Beta Products is used at Your own discretion and risk.
- We cannot guarantee and We do not warrant that the Beta Products are free from viruses, malware, contamination or destructive features or against any problems or inadequacies with Your equipment or software.
- The Beta Products may contain bugs and We provide no warranty that they will be free from bugs or similar errors. You should satisfy Yourself as to the reliability of the Beta Products and their freedom from viruses and other detectable malware before commencing use of them. You acknowledge and accept without liability to Us that results of any error or failure, bug, virus or malware may result in loss or damage to You.
- YOU UNDERSTAND AND ACCEPT THAT ALL THE RISKS ASSOCIATED WITH USE OF THE BETA PRODUCTS AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE SUFFERED BY YOU THROUGH ACCESS TO OR USE OF THE BETA PRODUCTS, OUR FAILURE TO PROVIDE THEM, OR THE INCOMPATIBILITY OF THEM WITH ANY EQUIPMENT OR SYSTEMS OF YOURS.YOU UNDERSTAND THAT THE BETA PRODUCTS MAY PRODUCE, CAUSE OR CONTRIBUTE TO ABERRATIONS IN THEIR PERFORMANCE AND/OR THAT OF HARDWARE OR OTHER. YOU UNDERSTAND AND AGREE THAT THERE IS REAL AND SIGNIFICANT RISK OF YOU SUFFERING LOSS AND DAMAGE AS A DIRECT OR INDIRECT RESULT OF YOUR BETA PRODUCT TESTING AND THAT WE ARE UNWILLING TO PERMIT ANY PERSON TO PERFORM ANY BETA PRODUCT TESTING WHO MAY WISH TO RECOVER THE WHOLE OR ANY PART OF ANY SUCH LOSS AND DAMAGE FROM US OR OTHERS. ACCORDINGLY, SUBJECT TO CLAUSES 24 AND 25 OF THESE BTGTC, AS A CONDITION OF YOU BEING ALLOWED TO UNDERTAKE BETA PRODUCT TESTING: (i) YOU HEREBY REPRESENT AND WARRANT THAT YOU WILL NOT MAKE ANY CLAIM AGAINST ANY INDEMNIFIED PARTIES; AND (ii) YOU HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE AND FOREVER RELEASE AND DISCHARGE ALL INDEMNIFIED PARTIES FROM ANY AND ALL CLAIMS, LOSSES AND/OR DAMAGE SUFFERED BY YOU OR THOSE CLAIMING THROUGH YOU DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH ANY BETA PRODUCTS.
- WE DO NOT ACCEPT ANY LIABILITY WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE) FOR DAMAGE TO YOU, YOUR SYSTEMS, EQUIPMENT, OR FOR ANY LOSS OF DATA OR DAMAGE TO EQUIPMENT OR LOSS OF CAPACITY THAT RESULTS FROM YOUR USE OF THE BETA PRODUCTS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THE USE, NON-USE OR DEFECTS IN THE BETA PRODUCTS HOWEVER ARISING AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE AND INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFIT OR OPPORTUNITY.
- SUCH LIABILITY AS WE MAY HAVE SHALL BE LIMITED TO DIRECT LOSS AND DAMAGE SUFFERED BY YOU CAUSED DIRECTLY AND SOLELY BY OUR MATERIAL BREACH OF OUR EXPRESS WARRANTIES SET OUT IN THE BTA. OUR MAXIMUM AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THE BTA WHETHER OR NOT UNDER AN INDEMNITY, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT OF 5000 THOUSAND POUNDS (£5,000.00) IN AGGREGATE IN RESPECT OF ALL CLAIMS.
- YOU ACKNOWLEDGE AND AGREE THAT TECHNICAL PROBLEMS MAY PREVENT US FROM PROVIDING ALL OR PART OF THE BETA PRODUCTS. SAVE AS EXPRESSLY PROVIDED OTHERWISE IN THE BTA. WE MAKE NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY, SUITABILITY, OR PERFORMANCE OF THE BETA PRODUCTS, OR OF ANY THIRD PARTY INFORMATION. WE AND OUR LICENSORS AND THIRD-PARTY SUPPLIERS OF PRODUCTS, INFORMATION OR SERVICES SHALL HAVE NO LIABILITY FOR ERRORS OR OMISSIONS IN ANY DATA, INFORMATION, OR INSTRUCTIONS OR COMMUNICATIONS FAILURE OR LACK OF AVAILABILITY OF SERVICES OR BETA PRODUCTS PROVIDED OR TO BE PROVIDED BY US OR ON OUR BEHALF.
- YOU AGREE THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
- WE DO NOT LIMIT OR EXCLUDE OUR LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM OUR NEGLIGENCE, NOR OUR LIABILITY FOR FRAUD INCLUDING FRAUDULENT MISREPRESENTATION.
- NOTHING IN THIS AGREEMENT LIMITING OR EXCLUDING LIABILITY IN CONNECTION WITH THE BETA PRODUCTS SHALL BE CONSTRUED OR HAVE EFFECT SO AS TO LIMIT OR EXCLUDE LIABILITY IN CONNECTION WITH THE CERTIFIED PRODUCTION-READY VERSIONS OF WHAT WERE ONCE BETA PRODUCTS WHEN GOVERNED BY SEPARATE TERMS AND CONDITIONS OF USE.
- YOU UNDERSTAND AND ACKNOWLEDGE THAT THE BETA PRODUCTS ARE NOT A REPLACEMENT FOR DIRECT ACCESS TO PRODUCTION READY SERVICES. YOU MAY FIND THAT THE CONTENT AND FUNCTIONALITY AVAILABLE VIA THE SERVICES (AND YOUR SYSTEMS) MAY BE DIFFERENT WHEN USING THE BETA PRODUCTS. YOU UNDERSTAND THAT, IN ADDITION TO THE FOREGOING, USING THE BETA PRODUCTS CARRIES OTHER RISKS ASSOCIATED WITH ERRONEOUS DATA, COMMUNICATIONS AND/OR OTHER CONTENT FOR WHICH WE SHALL NOT BE LIABLE.
- It is not technically possible or practical for Us to provide them free of all faults at all times. The information and material provided may include some inaccuracies or typographical errors, which We will endeavour to correct as they come to Our notice. Our Beta Products may sometimes be unavailable for technical reasons, or for maintenance or for Us to make changes. We may also decide at any time to discontinue providing certain of Our Beta Products.
- Our Beta Products are subject to the limitations of the technology on which they rely and may be adversely affected by network performance and other technological or operational factors beyond Our control such as congestion, network coverage, dropped connections and the performance of Your equipment and Your systems and/or those of third party suppliers. We shall have no liability in respect thereof.
- The Beta Products may contain links to other third party sites and services. These links are provided for Your ease of reference and convenience only. We have no control over those third party sites or services and are not responsible for their contents and We are specifically not endorsing or associating with any particular person, site, business, services or material that may be featured on them.
- You agree that We shall not be party to any transaction or contract with a third party that You may enter into and We shall not be liable to You for any loss or damage which You may suffer by using those third party sites and services. You agree that You will not involve Us in any dispute You may have with such third party sites and services.
- Intellectual Property. All right title and interest in, to and under all Intellectual Property Rights in: (i) all Feedback; and (ii) the Beta Products and in any improvements to or modifications of any of the foregoing (which are hereby deemed included in the definition of “Beta Products”) and Documentation (by whichever of Us or You such modifications or improvements are created) shall be and remain wholly, solely and exclusively Our property. You shall not acquire any such right title or interest and to the extent that such right, title or interest therein first vests in You by operation of law or otherwise You hereby irrevocably and unconditionally assign to Us throughout the world without reservation or encumbrance all such right title and interest including all Intellectual Property Rights in and to all such Beta Products and Documentation and Feedback and under all data received or generated through Your use of the Beta Productswithout the requirement of further payment. Beta Products and Documentation supplied under this Agreement may be used only in the manner and to the extent expressly provided for in it and not otherwise and all rights not expressly granted are hereby reserved.
- Confidential Information. You understand and acknowledge that the Beta Products and Documentation are highly confidential and secret information of Ours and that We are entrusting them to Your safe-keeping and that they are only disclosed to You under the conditions of confidence set out in the BTA. As used in this Agreement "Confidential Information" shall mean: (i) all Beta Products and Documentation and all other information about or related thereto; (ii) all other information disclosed by or on behalf of Us that is marked confidential or if not marked confidential that is in the nature of secret, proprietary or confidential information; and (iii) all Feedback. You shall keep in strictest confidence all Confidential Information of Ours, and shall not disclose or make use of any such information (save for the sole purpose of performing Beta Product Testing and providing Feedback to Us) and shall only permit access to Confidential Information of Ours to those persons having a need to know, and who are bound by obligations of confidentiality at least as restrictive as those set out in the BTA.
- The obligations of confidence contained in clause 32 shall continue notwithstanding termination of the BTA but shall not apply to information that: (i) is or becomes part of the public domain through no act or omission of Yours; (ii) was in Your lawful possession prior to the disclosure and had not been obtained by You either directly or indirectly from or on behalf of Us; or (iii) is lawfully disclosed to You by a third party without restriction on disclosure; or (iv) is required to be disclosed pursuant to law or the order of a court or governmental authority. The provisions of this clause shall survive the termination of the BTA for a period of five (5) years from its termination or expiration. On termination of the BTA You shall promptly return to Us all of the Confidential Information in Your power possession custody or control.
- Privacy and Personal Data Protection. You expressly acknowledge and agree that: (i) Feedback may include Your personal data (as that phrase is defined in applicable personal data protection Directives, legislation, public regulations, rules, policies and codes of practice and referred to in the BTA as “Personal Data”); and (ii) the very purpose of allowing You to perform Beta Product Testing is to obtain Feedback from You; and therefore, (iii) We do not offer and it is not possible for You to exercise any Personal Data opt-in or opt-out as part of the BTA or Beta Product Testing process; and (iv) We may obtain, process, store, distribute, exploit and otherwise use Your Personal Data obtained as part of Feedback for any and all purposes associated with the Feedback within or outside the Territory and authorise others to do so to the extent permitted under applicable laws, regulations and codes of practice. Therefore, if You do not wish Us to have these rights in respect of Your Personal Data as part of the Feedback You must not take part in any Beta Product Testing.
- Variation. We reserve the right to change the BTA at any time in Our sole discretion. By continuing to use the Beta Products You are deemed to have accepted the varied Terms. We will provide You with notification of any change in accordance with Our Terms and Policies. Notification by You of Your termination of the BTA will not be effective until We receive it. We will not be liable to You or to any other person in the event that all or any part of the Beta Products and/or Documentation are discontinued, modified or changed in any way.
- Termination. The BTA may be terminated by You on seven days written notice to Us and by Us on immediate written notice to You.The licence hereby granted is purely discretionary and a licence at will that may be terminated by Us at any time with immediate written notice to You in Our sole discretion as regards the Beta Products and Documentation generally or just as regards Your use of them. We may withdraw Beta Products from Beta Product Testing at will on immediate notice to You. Beta Products may be made available for testing only for a limited specified time (“Beta Product Testing Period”). In the absence of any prior termination of the BTA or any individual Beta Product Testing licence granted to You under it, Your licence to test particular Beta Products shall automatically expire immediately on the expiration of the Beta Product Testing Period or on the withdrawal of the applicable Beta Products from Beta Product Testing or on the general release of the finished product (“Deadline”). We shall suspend or terminate Your access to Beta Products or any aspect of them at any time without notice or reason and without liability to You or any third party claiming through or under You in connection with such suspension or termination if:
- You do not comply with the BTA or Our other Terms and Policies;
- We believe You are in breach of or threaten to breach the BTA and/or Our Terms and Policies;
- Your actions cause any degradation to Our Services or degradation of access to them or limits use of Our Services by others, or may place Us in potential or actual breach of agreements with other parties.
- Consequences of Suspension and Termination. Upon suspension of the BTA You shall cease using the Beta Products and Documentation for the period of such suspension. Upon termination of the BTA, or immediately following a Deadline or any prior termination of Your Beta Product Testing licence, You shall cease using the Beta Products permanently and on Our written request, You shall then promptly return to Us all of Our Confidential Information in Your power, possession, custody or control and promptly deliver to Us in writing all of Your Feedback that is then undelivered in respect of all affected Beta Products.
- Termination of the BTA terminates the licence granted under the BTA. That licence may be terminated or caused to expire independent of the BTA in accordance with the provisions of these BTGTC and/or further terms set out in an applicable Specification. Should this BTA terminate or expire it shall thereafter re-commence upon any subsequent registration to perform Beta Product Testing or installation of or first use of any Beta Products for testing by You.
- You shall not make any public comment or disclosure about the BTA.
- Subject to the Relationship Agreement, the BTA represents the entire understanding and agreement between You and Us with respect to the subject matter hereof and supersedes all prior negotiations between You and Us. We may amend or replace any clause or part of the BTA in whole or part by giving You written notice of the changes. If You object to any change You must tell Us within 7 days of the date the notice is deemed received by You in accordance with clause 42(j) below). If You do not do so or if You continue to use or exercise the rights granted to You hereunder You will be deemed to have accepted the change(s). If You give Us notice that You object, then Your rights under the BTA shall terminate immediately upon the giving of such notice by You and You shall immediately cease using the Beta Products and Documentation permanently and acknowledge any subsequent use by You of them will be unauthorised.
- Nothing contained in the BTA shall be construed to make either of You or Us an agent, partner, joint venturer, or representative of the other for any purpose.
- No failure or delay by either You or Us in exercising any right, power or remedy under the BTA, except as specifically provided, shall be deemed as a waiver of any such right, power, or remedy.
- You shall not assign, sub-contract, delegate or otherwise transfer any of Your rights and/or obligations under the BTA in whole or in part to any third party without Our express written consent. Any attempted assignment shall be void and of no effect. You acknowledge that We do and agree that We may sub-contract the provision of Our Services and the creation development and modifications of the Beta Products and Documentation.
- You acknowledge that a breach of the BTA may result in irreparable and continuing damage to Us or Our licensors, for which monetary damages would be an inadequate remedy. Accordingly You agree that in the event of any actual or threatened breach of the BTA, We and any of Our licensors, as applicable, shall have the right to obtain injunctive relief or other equitable relief within or outside the Territory, without the necessity of proving monetary damages or posting a bond or other security, and without prejudice to any other rights or remedies which We or Our licensors may be entitled.
- If any provision of these BTA shall be held void or unenforceable by any competent court or other authority then the remaining provisions of it shall remain in full force and effect. Those obligations which are expressly stated or by implication are intended to survive such termination shall so survive.
- The BTA sets out the full extent of Our and Your rights, obligations and liabilities. In particular, there are no other conditions, warranties, representations or terms, express or implied, that are binding on You or Us except as specifically stated in the BTA. Any condition, warranty, representation or other term concerning its subject matter which might otherwise be implied into or incorporated in the BTA, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded.
- You and We intend that no term of the contract made by the BTA may be enforced by any person who is not a party to it and agree that the provisions of the Contracts (Rights of Third Parties) Act 1999 shall be and hereby are excluded.
- Except as expressly stated herein to the contrary, all notices and other communications required or permitted to be given under the BTA shall be given by You in accordance with Our Terms and Policies and to the extent not so provided therein, may be delivered or transmitted by email to the intended recipient. If sent by email they shall be treated as having been served: (i) if sent before 4pm on a working day, one hour later; or (ii) if sent at any other time, at 9.00am on the following working day.
- The BTA shall be governed by and construed in accordance with the laws of England whose courts shall have exclusive jurisdiction over any and all disputes arising out of or in connection with them.