Insteon Technologies Beta Test Agreement
This Agreement is by and between Insteon Technologies, Inc. located at 4790 Irvine Blvd. Suite 105-665, Irvine, CA 92620, and party ("Tester"). In consideration of the mutual covenants and agreements contained herein, the parties agree to the following terms and conditions:
1. THE PRODUCTS
A. Insteon Technologies has developed certain electronic computer equipment and/or software programs (the "Products"). Insteon Technologies agrees to make available such Products to Tester prior to their initial commercial shipment in exchange for Tester's agreement to test and evaluate the Products according to the terms and conditions set forth below.
B. The Products supplied by Insteon Technologies to Tester are "beta-level" products and have not yet met all performance specifications established by Insteon Technologies for general release and shipment to present and potential end-users thereof Tester, therefore, understands that the Products may not perform as documented or otherwise represented.
2. RESPONSIBILITIES OF TESTER
A. Tester shall be responsible for notifying Insteon Technologies of any and all functional flaws, errors, anomalies and problems directly or indirectly associated with the Products, and shall respond to any and all reasonable inquiries, questionnaires, surveys and other test documents submitted to Tester by Insteon Technologies.
B. Tester agrees that all right, title and interest to any reports, feedback, or suggestions relating to an improvement of the Products or any invention relating to an improvement of the Products conceived in or made as a result of Tester's performance of this Agreement shall become the exclusive property of Insteon Technologies and that Insteon Technologies may disclose and use such for any purposes whatsoever, entirely without obligation of any kind to Tester.
C. Tester, shall not disassemble, decompile, or in any way reverse engineer the Products.
D. Tester agrees to pay all incidental costs associated with the testing of the Products and incurred during Tester’s possession of the Products, unless otherwise agreed to in writing by both parties.
3. RESPONSIBILITIES OF INSTEON TECHNOLOGIES
A. Insteon Technologies shall repair or adjust the Products to meet performance specifications as quickly as is reasonable and possible. Insteon Technologies reserves the right to alter or adjust performance specifications as it deems necessary or desirable. If, during the beta-testing period, significant changes are made to the Products, an upgraded beta version of the Products shall be provided to Tester. Tester must return previous unit.
4. RIGHTS AND LICENSES
A. Insteon Technologies hereby grants Tester a license to use the Products solely for testing purposes and Tester agrees not to reproduce, sell, transfer or otherwise distribute the Products, or any copies thereof, to any third party. The Products shall be used only in conformance with Insteon Technologies’s recommended operating environment, and according to Insteon Technologies’ instructions, which may from time to time be amended by Insteon Technologies, at its sole discretion.
B. The release of the Products to Tester does not constitute a commercialization of the Products, but rather is a release for testing purposes only. Nothing herein shall be construed as expressly or impliedly granting any license for or right to any patents, copyrights, trademarks, or other ideas made, conceived, acquired or owned by Insteon Technologies.
5. WARRANTY/LIMITATION OF LIABILITY
A. Insteon Technologies, at its sole option, releases the product for commercial sales, Insteon Technologies will, extend the product warranty to the ‘beta test’ product. The warranty period will begin on the date of commercial sale of the product.
B. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, INSTEON TECHNOLOGIES MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SHALL NOT BY VIRTUE OF HAVING DELIVERED THE PRODUCTS BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY AS TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN OR CONDITION OF, OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP IN, THE PRODUCTS. IN NO EVENT SHALL INSTEON TECHNOLOGIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS, EVEN IF INSTEON TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. CONFIDENTIALITY
A. Tester acknowledges and agrees that the Products contain and represent confidential, proprietary information of significant value to Insteon Technologies, including trade secrets, know how, ideas, intellectual property, inventions, plans, computer programs, etc., all of which is hereinafter referred to as "Confidential Information."
B. Confidential Information does not include information that Tester can prove (i) is known to the Tester prior to or at the time of its disclosure by Insteon Technologies, as evidenced by written records, (ii) is or becomes publicly known through no wrongful act of the Tester, (iii) is lawfully received from a third party without a breach of any restrictions, or (iv) is furnished to any third party by Insteon Technologies without similar restrictions as contained herein.
C. All Confidential Information disclosed to Tester shall be kept confidential by Tester, and shall be used solely for testing purposes. Tester agrees that it will not, either during the term hereof or for a period of two (2) years after the termination of this Agreement, directly or indirectly, make use of or divulge the Confidential Information to any person, firm, corporation, entity, or business organization, and it shall use its best efforts to prevent the publication or disclosure of the Confidential Information or any information concerning the business, accounts or finances of, or any of the methods of doing business used by Insteon Technologies or of the dealings, transactions, or affairs of Insteon Technologies or any of its customers which have or which may have come to Tester's knowledge during the term of this Agreement. Tester shall promptly notify Insteon Technologies if it becomes aware of any unauthorized disclosure or use of the Confidential Information.
7. TERM AND TERMINATION
A. This Agreement shall begin on the date of its execution by Insteon Technologies and shall remain in force and effect until either (i) the Products meet performance specifications established by Insteon Technologies and are made commercially available generally to end users, or (ii) the date which follows twelve (12) months after the effective date of this Agreement. All obligations of confidentiality as set forth in Section 7 shall continue for a period of two (2) years following termination or expiration of this Agreement.
B. Tester may terminate this Agreement at any time, for any reason, by giving written notice to Insteon Technologies. Insteon Technologies may terminate this Agreement at any time in the event Insteon Technologies elects not to continue development or repair work on the Products for any reason whatsoever. Insteon Technologies may terminate this Agreement immediately if Tester breaches any provision of this Agreement.
C. In the event, Insteon Technologies, at its sole discretion, decides to not release the product for commercial sales, the Tester will be required to return the product and will receive a full refund for the purchase price of the ‘beta product.
8. MISCELLANEOUS
A. This Agreement is the entire agreement between the parties pertaining to the subject matter hereof. Any modifications or amendments to this Agreement must be consented to in writing by both parties.
B. Tester hereby acknowledges that unauthorized disclosure or use of the Products and/or Confidential Information will cause substantial and irreparable injury to Insteon Technologies, that money damages would not adequately compensate for such injury, and that Insteon Technologies therefore is entitled to, among other remedies, immediate injunctive and other equitable relief for any breach of this Agreement.
C. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors, legal representatives and assigns. Notwithstanding the foregoing, Tester shall not assign its rights or obligations hereunder without the prior written consent of Insteon Technologies.
D. In the event of a dispute regarding this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs incurred in enforcing its rights hereunder.
E. This Agreement shall be governed by and construed pursuant to the laws of the state of California.