TERMS AND CONDITIONS GOVERNING ABACUS DATA SYSTEMS, INC.’S BETA TESTER PROGRAM
1.0 SCOPE. These Terms and Conditions govern all aspects of Beta Tester’s participation in the Abacus Data Systems, Inc.’s Beta Tester Program. Hereinafter, Abacus Data Systems, Inc. shall be referred to as “Abacus” and the Beta Tester Program shall be referred to as “the Program.”
2.0 EFFECTIVE DATE AND TERMINATION.
2.1 Effective Date. Beta Tester’s participation in the Program shall commence on the date that Abacus confirms in writing that Beta Tester has been accepted into the Program.
2.2 Termination. Either party may terminate Beta Tester’s participation in the Program at any time by providing written notice to the other party. Furthermore, Beta Tester’s participation in the Program shall terminate wherein Beta Tester no longer has an active subscription or Maintenance Plan (where applicable) for Abacus products.
3.0 BENEFITS TO BETA TESTER. Beta Tester will receive: early access to new features and functionality of Abacus products or services Beta Tester agrees to test (and which Abacus, at its sole discretion, authorizes Beta Tester to test); direct access to the Abacus Development Team for the particular product(s) or service(s) Beta Tester is testing; and direct access to tier 2 level Client Service Engineers for that product(s) or service(s) Beta Tester is testing. Beta Tester’s use of the particular Abacus product or service shall otherwise be governed by the applicable Terms and Conditions or End User License Agreements applicable to the particular product(s) or service(s), however Beta Tester’s license to use the particular Beta product or service expires upon notification the particular Beta project is complete.
4.0 BETA TESTER QUALIFICATIONS AND RESPONSIBILITIES
4.1 Qualification. Beta Tester participation in the Program is contingent upon Beta Tester having an active and valid subscription or Maintenance Plan (where applicable) for Abacus products or services.
4.2 Responsibilities. As a participant in the Program, Beta Tester shall have the following responsibilities:
(a) Installation: Where applicable, Beta Tester shall allow Abacus to install all new versions of certain agreed upon Abacus beta products and/or services on Beta Tester’s server, network or environment (whichever is applicable) within three (3) business days from when the new version of the agreed upon Abacus product or service is made available. This can be installed in Beta Tester’s staging environment or production environment (whichever Beta Tester chooses).
(b.) Feedback: Client shall provide Abacus with feedback on the Feedback Template (provided by Abacus) within three (30 business days of any request by Abacus for feedback. Client may submit feedback at any point in addition to scheduled times.
(c.) Group Conference: As a participant in the Program, Beta Tester is required to participate in a periodically scheduled (no more than once a month) Feedback Call. Call dates and times TBD with your Beta Manager. There will be multiple dates/times to accommodate all schedules.
5.0 DISCLAIMERS AND INDEMNIFICATION
5.1. Indemnification. Beta Tester shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) Abacus and its directors, officers, employees, agents, stock holders and affiliates (collectively, “Indemnified Parties”) from and against all claims demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arises out of or relate to services provided by Beta Tester to any third party.
5.2. Disclaimers. TO THE FULLEST EXTENT PERMITTED BY LAW, ABACUS SPECIFICALLY DISCLAIMS ALL WARRANTIES IN RESPECT OF THE PRODUCTS OR SERVICES TO BE PROVIDED HEREOF, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. FURTHERMORE, BETA TESTER ACKNOWLEDGES THAT THE PRODUCTS OR SERVICES IT RECEIVES PURSUANT TO THE PROGRAM MAY IN FACT HAVE BUGS AND/OR MAY MALFUNCTION. BETA TESTER EXPRESSLY ACKNOLWEDGES THAT THRE ARE INHERENT RISKS ASSOCAITED WITH USING OR TESTING A BETA PRODUCT OR SERVICE.
5.3. Limitation of Liability. EXCEPT FOR EITHER (1) BETA TESTER'S BREACH OF ABACUS’ INTELLECTUAL PROPERTY RIGHTS, (2) THE BREACH OF SECTION 6.0 ET SEQ; OR (3) PURSUANT TO SECTION 5.1, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (I) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES OR PROFITS, OR (II) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF $1,000, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO ABACUS’ DECISION TO ALLOW BETA TESTER TO PARTICIPATE IN THE PROGRAM.
6.0 CONFIDENTIALITY. The terms of this Section 6.0 shall supersede any separate confidentiality or non-disclosure agreement between the parties related to beta products or services.
6.1 Confidential Information. Beta Tester’s participation in the Program may involve the disclosure of confidential and proprietary information. All versions of Abacus products or services provided to Beta Tester as part of the Program, as well as any design, structure, new features, code, bugs, performance issues related to any version of the Abacus products or services provided to Beta Tester as part of the Program shall be considered “Confidential Information.” The Parties further agree to treat the terms of this Agreement, and the fact of any disclosures made hereunder, as Confidential Information.
Both parties acknowledge and agree that all Confidential Information of the disclosing party and all worldwide right, title, and interest whatsoever therein and thereto, both legal and equitable shall belong to and shall remain the sole and exclusive property of the disclosing party and neither party does hereby acquire any right or license in or to any intellectual property of the other party.
6.2 Protection. The parties each agree not to use any Confidential Information disclosed to it by the other party for its own use or for any purpose other than to carry out discussions concerning, and the undertaking of the Program. Neither party shall disclose or permit disclosure of any Confidential Information of the other party to third parties unless and until they are approved by the disclosing party and a separate agreement essentially identical to this Agreement. Each party agrees that it shall exercise the highest degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care, to protect the secrecy of and avoid disclosure or use of Confidential Information of the disclosing party. Each party agrees to return all originals, copies, reproductions and summaries of the disclosing party’s Confidential Information at the disclosing party’s request. Each party agrees to notify the other immediately upon discovery of any loss, unauthorized disclosure or use of the other party’s Confidential Information, or an’ breach of this Agreement, and will assist the other party) in every reasonable manner to help that part) regain possession
7.0 RELATION OF PARTIES. Nothing herein will create or imply an agency relationship between Abacus and Beta Tester, nor will these Terms and Conditions be deemed to create an employment, partnership or joint venture relationship between Abacus and Beta Tester.
8.0. SEVERABILITY. If any part or parts of these Terms and Conditions are held invalid by a court of competent jurisdiction, the remaining parts of these Terms and Conditions will continue to be valid and enforceable.
9.0. WAIVER. The waiver by either party of a breach or default in any of the provisions of these Terms and Conditions shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that is has or may have hereunder operate as a waiver of any breach or default by the other party.
10.0 INTEGRATION. These Terms and Conditions and any Program Participation Form fully executed by Abacus and Beta Tester sets forth the entire agreement relating to the subject matter hereof and supersedes all prior agreements, discussions and understandings between them, whether oral or written, relating to the subject matter hereof.
11.0 GOVERNING LAW. These Terms and Conditions and any activities arising out of Beta Tester’s participation in the Program shall be construed under the laws of the State of California regardless of conflict of law provisions. Beta Tester and Abacus irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in San Diego County, California for all disputes arising out of or relating to these Terms and Conditions or the Program. Neither party will bring a legal action arising out of or related to these Terms and Conditions or the Program more than two years after the cause of action arose. Beta Tester and Abacus further agree that as a condition precedent to instituting any legal action arising out of these Terms and Conditions or the Program, the parties must participate in a non-binding mediation in San Diego, California before a neutral from JAMS, with the parties equally splitting the costs of that mediation. If the parties cannot agree on a JAMS neutral, the neutral shall be selected by JAMS at its sole discretion. The mediation process shall be initiated by the aggrieved party submitting the case for mediation to JAMS directly, after providing the other party with notice of its intent to institute mediation.
12.0 PREVAILING PARTY. In the event of any litigation arising out of or related to this these Terms and Conditions or the Program, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses associated with such proceedings, including reasonable attorney’s fees. For purposes of this provision, if a matter is filed in any venue other than the state or federal courts in San Diego County, California and the matter is dismissed for improper venue, the party that did not file the action shall be deemed the prevailing party in that action.
13.0 UPDATES TO TERMS AND CONDITIONS. Abacus reserves the right to routinely update, amend or change the Terms and Conditions of the Program. At least 30 days prior to the effective date, Abacus will notify Beta Tester by e-mail of such changes, and a new Terms and Conditions document will be posted at https://www.abacusnext.com/beta-program-terms-conditions. Beta Tester’s continued participation in the Program after the 30th day will serve as consent to the changed terms.