NEATTUCK
APP BETA TESTING AGREEMENT
PLEASE READ THIS AGREEMENT AND INDICATE YOUR ACCEPTANCE BY
CLICKING THE "I have read the Terms and Conditions provided in the link
above and accept them."; CHECK BOX IN THE SUBMISSION FORM. CLICKING
THAT CHECK BOX MEANS THAT YOU ARE BOUND BY THE TERMS OF THIS
AGREEMENT. YOU MAY NOT ENTER THE NEATTUCK BETA TEST PROGRAM
UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT.
THIS AGREEMENT is made between NeatTuck, LLC (“NeatTuck”), a California
limited liability company, and you, the beta tester (“Tester”).
Tester wishes to evaluate the pre-release test version of certain software, and NeatTuck is
willing to permit Tester to do so on the terms and conditions of this Agreement.
1. THE APP
1.1.
Evaluation of App. NeatTuck and Tester agree that NeatTuck will supply the
NeatTuck mobile application in its non-final, pre-release form (the “App”) for
evaluation by Tester, and Tester will evaluate the App, in accordance with the
terms and conditions of this Agreement.
1.2.
Devices. During the term of this Agreement, the App may be installed and
maintained solely on a single device authorized by NeatTuck.
1.3.
Non-Exclusive License. Subject to the terms and conditions of this
Agreement, Tester is granted a non-exclusive license for evaluation purposes
only during the term of this Agreement. Tester acknowledges that the App
(including any images, icons, graphics, animations, video, audio, music, and
text incorporated into the App) are protected by the copyright laws of the
United States and worldwide.
1.4.
No Support. Tester acknowledges and agrees that NeatTuck has no obligation
to provide customer or technical support with regards to the App, Tester’s
device, or any other customer or technical support.
1.5.
Third Party Software. Tester acknowledges and agrees that the App contains
certain third-party software components, SDK’s and API’s, including, but not
limited to, Google Maps (the “3 rd Party Software”). This 3 rd Party Software is
provided by its publisher, and Tester acknowledges and agrees that NeatTuck
is in no way responsible for its functionality, collection of data, and customer
and technical support, nor is NeatTuck liable for any failure of such 3 rd Party
Software to function correctly.
2. THE TESTER
2.1
Tester Age. By agreeing to this Agreement, Tester hereby represents that they
are at least 18 years of age.
2.2
Consent to Collection of Data. Tester hereby consents to the collection of
personal and usage data in accordance with the App’s Privacy Policy (available
here).
3. CONFIDENTIALITY AND OWNERSHIP
3.1
Confidentiality. Tester acknowledges that the App, the attributes of the App
(including but not limited to their design, functionalities, performance
characteristics and Tester’s evaluation of the App), and any other verbal or
written information that may be supplied by NeatTuck to Tester during the
term of this Agreement, or obtained through Tester’s evaluation of the App, are
collectively Confidential Information that is the confidential and proprietary
property of NeatTuck. Tester will maintain the confidentiality of App and
Confidential Information during the term of this Agreement and thereafter, in
the same manner that it maintains its own confidential information (but with no
less than a reasonable degree of care), and specifically agrees to:
3.1.1
Not disclose the App or any Confidential Information or the existence or
terms of this Agreement to any third party without the prior written
consent of NeatTuck;
3.1.2
Limit internal access to App or Confidential Information only to Tester’s
employees with a need to have access to the App or the Confidential
Information;
3.1.3
Not use the App or Confidential Information for any purpose other than
for evaluating the performance and functionality of the App; and
3.1.4
Not copy, modify, adapt, merge, reverse engineer, reverse compile,
disassemble, sell, rent or lease, loan or sublicense the App or
Confidential Information in whole or in part.
3.2.
Ownership of App. The App and Confidential Information are and will remain
the property of NeatTuck and will be deleted/destroyed/uninstalled no later
than 7 days following the termination of this Agreement. In the event NeatTuck
later makes a release version of the App available for license to Tester, that
license will be made under NeatTuck’s standard license terms and conditions.
The license agreement for any such release version of the App will supersede
the corresponding provisions of this Agreement.
3.3.
No License. Nothing in this Agreement will be construed as granting a license
or conferring any right, expressly, implicitly or otherwise, in the App, the
Confidential Information, or intellectual property rights related to such, other
than as expressly provided in this Agreement.
4. APP TESTING
4.1.
Tester Evaluation. In consideration for NeatTuck making the App available to
Tester for evaluation, Tester agrees to use the App in a simulation of normal
usage circumstances, including the following:
4.1.1.
Placing simulated orders through the App;
4.1.2.
Accepting simulated orders through the App;
4.1.3.
Use the App in order to test for software integrity and find any
bugs/defects;
4.1.4.
“Flood” the App with requests at a designated time to stress test the
App’s backend;
4.1.5.
Other testing activities to be communicated to Tester by NeatTuck.
4.2.
Tester Feedback. Tester agrees to provide NeatTuck with a report/evaluation
at the end of the testing period through the provided feedback mechanism,
which may include a dedicated beta testing forum or online form to fill out.
Additionally, Tester agrees to promptly notify NeatTuck upon the
identification of any bugs, defects or other material operability problems, either
within the in-app feedback mechanism or by email. Tester agrees that
NeatTuck may contact them from time to time to request ongoing feedback
about the App and its performance and functionality.
4.3.
Report Contents. Among other things, each report will include, as applicable,
evaluation of the performance, functionality, and usefulness of the App during
the testing period, information concerning any defects or deficiencies identified
in the App, any workarounds or “fixes” identified for any previously identified
defects, deficiencies or bugs, and any suggested changes or modifications for
the purpose of improving or enhancing the ease of use or performance of the
App.
4.4.
Cost of Installation and Use. Tester will bear all expenses of installation and
use of the App, including expenses related to the purchase and operation of
devices on which the App is installed.
4.5.
Evaluation and Testing Only. NeatTuck makes no representation regarding if
or when NeatTuck may announce the availability of a release version of the
App for download and use. Tester also understands that testing of the App may
not be complete and that the App provided under this Agreement may not meet
applicable qualifications or standards, or conform to NeatTuck’s product
specifications. Accordingly, Tester will use the App furnished under this
Agreement only for purposes of evaluation testing and not for any commercial
use.
5. TERM AND TERMINATION
5.1.
Term. The term of this Agreement will commence on the date that Tester
accepted the Agreement and will end upon the earlier of (i) termination under
the provisions of Section 4 of this Agreement; (ii) the date of Tester’s return or
destruction of the App as specified in Section 2.2 , above; or (3) the effective
date of a superseding license agreement by which the App are licensed to
Tester.
5.1.2
Termination. Notwithstanding any other provision of this Agreement,
NeatTuck, upon written notice to Tester, may terminate this Agreement for its
convenience, in whole or in part, without cost or liability whatsoever. Upon
termination, Tester agrees to destroy/delete/uninstall all App and Confidential
Information and any whole or partial copies of such to NeatTuck.
6. WARRANTIES AND LIMITATION OF LIABILITY
6.1.
NEATTUCK MAKES NO REPRESENTATIONS OR WARRANTIES
REGARDING THE SOFTWARE OR THE CONFIDENTIAL
INFORMATION. THE SOFTWARE AND CONFIDENTIAL INFORMATION
FURNISHED UNDER THIS AGREEMENT ARE FURNISHED “AS IS.”
NEATTUCK SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH
RESPECT TO SOFTWARE FURNISHED UNDER THIS AGREEMENT
INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE,
TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT AND IMPLIED
WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE
OF PERFORMANCE.
6.2.
ADDITIONALLY, NEATTUCK MAKES NO WARRANTY THAT (1) THE
APP WILL MEET TESTER’S REQUIREMENTS, (2) THE APP’S SERVICE
WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (3)
THE RESULTS OF USING THE APP WILL BE ACCURATE OR
RELIABLE, (4) THE QUALITY OF ANY PRODUCTS, SERVICES,
INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED
THROUGH TESTER’S USE OF THE APP WILL MEET TESTER’S
EXPECTATIONS, OR (5) THAT ANY ERRORS IN THE APP WILL BE
CORRECTED.
6.3.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT
TO THE CONTRARY, IN NO EVENT WILL NEATTUCK OR ITS
SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR
ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES
AND DAMAGES RESULTING FROM LOSS OF TIME, DATA, PROFITS,
REVENUE, USE OR ANY OTHER LOSS, EVEN IF NEATTUCK HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE
OF PERFORMANCE OF NEATTUCK’S SOFTWARE, WHETHER BASED
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF
A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE.
7. INDEMNIFICATION
7.1.
Tester Indemnification. Tester agrees to defend, indemnify, and hold NeatTuck
harmless from and against any claims, loss, or damages, including court costs
and legal expenses, arising out of or in connection with Tester’s misuse of the
App, the Confidential Information, or arising out of or in connection with any
breach of any of the terms of this Agreement.
8. GENERAL PROVISIONS
8.1.
Rights and Remedies. All rights and remedies conferred by this Agreement or
by law are cumulative and may be exercised singularly or concurrently. Tester
acknowledges that any unauthorized use, copying, disclosure, distribution of
the App or any related methods, algorithms, techniques, processes or other
information, will cause NeatTuck irreparable harm for which there is no
adequate remedy at law, entitling NeatTuck to prompt injunctive relief in
addition to any other legal or equitable remedies.
.8.2.
Severability. If any provision of this Agreement is held invalid by any law or
regulation, that invalidity will not affect the enforceability of any other
provisions of this Agreement.
8.3.
Governing Law. This Agreement is governed by and will be construed in
accordance with the laws of the State of California, without giving effect to its
conflicts of law or choice of law rules or principles. Both parties hereby agree
that any action arising out of this Agreement will be brought solely under the
relevant courts located in the in any state or federal court located in Los
Angeles, California. Both parties hereby submit to the jurisdiction and venue of
any such court.
8.4.
Effect of Agreement. Tester acknowledges that, in providing Tester with the
App and Confidential Information, NeatTuck has relied upon Tester’s
agreement to be bound by the terms of this Agreement. Tester further
acknowledges that no contract, purchase order, invoice, or other document
originating from Tester and relating to this Agreement will amend or
supplement the terms of this Agreement, even if that document has been signed
by NeatTuck. Tester’s acceptance of any App or Confidential Information will
be conclusive evidence of Tester’s agreement to be bound by all of the terms
and conditions of this Agreement, including the provisions of this Section.
8.5.
Survival.
Unless otherwise agreed by NeatTuck in writing, the provisions of
Sections 2 , 3.5 , 4.2 , 5 , 6 , 7.2 , 7.3 , and 7.6 will survive any expiration or earlier
termination of this Agreement.
8.6.
Entire Agreement. This Agreement constitutes the entire Agreement between
the parties and supersedes all prior negotiations and communications, oral or
written, between the parties with respect to the subject matter hereof, and no
deviation from these terms and conditions will be binding unless in writing and
signed by the party against whom the same is sought to be enforced.