APPatheia LLC [Publisher] and Tester as entered below [Tester] agree that Tester will participate in the Orbulous Test Event under the terms of this Beta Test Agreement [Agreement]. As used in this Agreement, the term Game refers to Orbulous [Game] and its user manual and all other documentation and materials.
1. Term: This Agreement shall be effective as of November 28th , 2018 and shall continue for a period of three (3) years.
2. Confidential Information: Tester acknowledges that as a participant in the Game's beta test, Tester will be given confidential trade secret information. Specifically, Tester agrees that the characteristics, performance, and potential shipment date of the Game, the Game itself (including all software, images, screenshots, and any documentation) and this Agreement are all Confidential Information and constitute trade secrets of the Publisher.
Tester acknowledges that disclosure of Confidential Information could cause serious harm to Publisher and, as an essential term and condition of participating in the test, agrees not to disclose Confidential Information to any person or organization, as well as not conduct any public posting of information. During the Non-Disclosure Period, Tester agrees not to disseminate, publish, or otherwise communicate any review, account, description or other information concerning the Game, except directly to Publisher or with express prior written consent of Publisher.
Tester further agrees not to copy, de-compile, or reverse engineer the Game at any time during or after the beta test.
3. Ownership: Tester acknowledges having no ownership of the Game, its copyright, its trademark, nor any other intellectual property rights in the Game from this Agreement. Tester further acknowledges that no such ownership will be acquired through this Agreement.
Tester agrees that the contents of all oral, written, electronic reports to Publisher, and any other materials, information or ideas, concepts, and know-how provided by Tester (including corrections to problems in the Game and documentation) become property of Publisher and may be used by Publisher for all business purposes, without any accounting or any payment to Tester. Under no circumstances will Publisher become liable for any payment to Tester for any information that Tester provides, whether concerning the Game or otherwise, no matter how such information is used by Publisher or anyone else.
4. Risks: Tester understands that the Game may have errors and produce unexpected results. Tester agrees that any use of the Game, whether as part of this beta test or otherwise, will be entirely at Tester's own risk. Tester agrees to backup data and take any other appropriate measures to protect programs and data.
THE GAME IS PROVIDED "AS IS" AND WITHOUT WARRANTY, EXPRESS OR IMPLIED. PUBLISHER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL PUBLISHER BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, OR ANY INCIDENTAL OR COINSEQUENTIAL DAMAGES, WHETHER RESULTING FROM IMPAIRED OR LOST DATA, SOFTWARE OR COMPUTER FAILURE OR ANY OTHER CAUSE, EVEN IF PUBLISHER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY OTHER CLAIM BY TESTER OR FOR ANY THIRD PARTY CLAIM.
Promotion & Likeness: Tester grants permission to their likeness in photographs, video recordings or electronic images in any and all of its publications, including website entries, without payment or any other consideration. Tester understands and agrees that these materials will become the property of the Publisher and will not be returned. Tester irrevocably authorizes the Publisher to edit, alter, copy, exhibit, publish or distribute these images for purposes of publicizing the Publisher's programs or for any other lawful purpose. In addition, tester waives the right to inspect or approve the finished product, including written or electronic copy, wherein their likeness appears. Additionally, tester waives any right to royalties or other compensation arising or related to the use of their image. Tester agrees to hold harmless and release and forever discharge the publisher from all claims, demands, and causes of action which they, their heirs, representatives, executors, administrators, or any other persons acting on their behalf or on behalf of their estate have or may have by reason of this authorization. Tester affirms they are 18 years of age and are competent to contract in their own name, or if they are under age 18, a parent or guardian has signed below. Tester affirms they have read this release before signing below and they fully understand the contents, meaning and impact of this release.
(a) Relationships: Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose.
(b) Severability: If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as to best to effect the intent of the parties.
(c) Integration: This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations, and understandings. This Agreement may not be amended except in a writing signed by both parties.
(d) Waiver: The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
(e) Attorney Fees and Expenses: In a dispute arising out of or related to this Agreement, the prevailing party shall have the right to collect from the other party its reasonable attorney fees and costs and necessary expenditures.
(f) Governing Law: This Agreement shall be governed in accordance with the laws of the State of California.
(g) Jurisdiction: The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in San Diego County, California in any action arising out of or relating to this Agreement. The parties waive any other venue to which either party might be entitled by domicile or otherwise.
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