Terms & Conditions
Read Privacy Policy »CUSTOM CMS BETA TESTING TERMS AND CONDITIONS
THIS BETA TESTING TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) IS A VALID, BINDING AGREEMENT BETWEEN YOU (“TESTER”) AND CUSTOM CMS (“CUSTOM CMS”) AND DESCRIBES THE APPLICABLE TERMS AND CONDITIONS FOR THE USE BY TESTER OF CERTAIN OF CUSTOM CMS’S PRODUCTS THAT ARE NOT COMMERCIALLY AVAILABLE. BY SUBMITTING THE APPLICATION FORM FOR THE BETA TEST PROGRAM AND/OR BY USING THE BETA PRODUCT (DEFINED BELOW), YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MUST IMMEDIATELY CEASE USING THE BETA PRODUCT AND PERMANENTLY DELETE ANY INFORMATION OF THE BETA PRODUCT IN YOUR CARE AND CUSTODY.
RECITALS:
A. Custom CMS has developed, licensed and/or acquired certain right, title and interest in and to computer web software products which have not released for commercial availability and which Custom CMS has identified to Tester as a beta product (collectively the “Beta Product”).
B. The Beta Product is proprietary to Custom CMS and has required substantial time, money and energy to develop license or acquire. The Beta Product contains certain concepts, know-how and techniques, which constitute confidential information, copyrightable material and trade secrets, which are the property of Custom CMS.
C. Custom CMS wishes to allow certain third parties to use the Beta Products for the purposes of evaluating the Beta Product and determining its functionality and commercial viability.
AGREEMENT:
Now therefore, in consideration of the mutual promises and covenants set forth herein, Custom CMS and Tester agree as follows:
1. Grant of License: Subject to the terms and conditions of this Terms and Conditions, Custom CMS grants to Tester a limited non-exclusive, non-transferable license to use, perform, and display the Beta Product internally and solely for the purposes of evaluating and testing the Beta Products. As a condition of the foregoing license grant, Tester agrees to provide Custom CMS “Feedback” on the Beta Products, which shall include the results of all tests on the Beta Product, the existence and type of all technical malfunctions (also known as “bugs”) of whatever form, and all enhancements and modifications (also known as “fixes”) made by Tester to the Beta Product.
2. Term: These Terms and Conditions shall commence upon the execution of by both parties and shall continue in effect until terminated. Either party may terminate these Terms and Conditions for any reason upon ten (10) days prior written notice. Upon termination, Tester shall delete all Beta Product information.
3. Location: Tester agrees that the Beta Product shall be used at the address provided to Tester and shall not be removed from that location without the prior written consent of Custom CMS.
4. Title, Proprietary Right: Title to the Beta Product, including any Feedback, and any copyrights or other proprietary rights therein, belong exclusively to Custom CMS. Tester is entitled solely to a non-exclusive license to use the Beta Product for the limited purpose stated herein. Custom CMS warrants that it has the unqualified right to disclose fully and otherwise license the Beta Product disclosed under these Terms and Conditions. Tester will not make any copies or similar versions of any portion of the Beta Product, or otherwise decompile or disassemble the object code copy of the Program provided pursuant hereto without Custom CMS’s prior written consent. Tester will not transfer or license the use of any portion of the Beta Product to any third party or entity without Custom CMS’s prior written consent. Tester further agrees to respect and not to remove, obliterate or conceal from view any Custom CMS copyright, trademark or confidentiality notice, mark or legend appearing on the Beta Product or on any output generated by the Beta Product.
5. Nature of Obligation: Tester acknowledges that, because of the unique nature of the Beta Product, Custom CMS would suffer irreparable harm in the event that the Tester breaches its obligations under these Terms and Conditions in that monetary damages would be inadequate to compensate Custom CMS for such a breach. The parties agree that in such circumstances, Custom CMS shall be entitled to, in addition to such monetary relief as may be applicable, injunctive relief as may be necessary to restrain any continuing or further breach by Tester, without showing or proving any actual damages sustained by Custom CMS, plus reasonable attorney’s fees.
6. Confidentiality and Non-Disclosure: In consideration of the grants of right of access to, or knowledge of , Custom CMS’s proprietary information and / or technical expertise, the Tester agrees as follows:
(A) For purposes of the Agreement: “Confidential Information” shall mean information or material proprietary to Custom CMS, or any related entity, including but not limited to information related to the Beta Product, which is either not generally known by non-Custom CMS personnel, or which designated as Confidential Information by Custom CMS.
(B) The Confidential Information, including all notes, data, reference materials, sketches, drawings, memoranda, documents and records which in any way incorporate or reflect any of the Confidential Information, shall belong exclusively to Custom CMS and the Tester agrees to turn over all copies of such material in the Tester’s control to Custom CMS upon request, upon completion of the valuation or testing process, or termination of the Tester’s relationship with Custom CMS.
(C) The Tester agrees that all such Confidential Information will be held in confidence and will not be directly or indirectly revealed, reported, published, disclosed or transferred to any person or entity, nor will any of the Confidential Information be utilized for any purpose except to fulfill Tester’s obligations hereunder.
7. No Warranties: TESTER ACKNOWLEDGES AND AGREES THAT CUSTOM CMS DOES NOT BY VIRTUE OF THESE TERMS AND CONDITIONS MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY DIRECTLY TO TESTER RELATING TO THE BETA PRODUCT OR OTHERWISE (INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE).
8. Support Obligations: Tester agrees that Custom CMS shall have no obligation to maintain, correct, update, change, modify or otherwise support the Beta Product that is the subject of these Terms and Conditions. Custom CMS makes no guarantee or commitment as to the success of such Beta Product.
9. Limitation on Damages: CUSTOM CMS SHALL NOT BE LIABLE TO TESTER FOR ANY LOST REVENUE, LOST PROFITS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BY REASON OF ANY PERFORMANCE OR NON-PERFORMANCE UNDER THESE TERMS AND CONDITIONS. FURTHERMORE, CUSTOM CMS SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES.
10. Right to change: Tester acknowledges and agrees that Custom CMS has the right at any time to change, cancel, delay, or withdraw its efforts and schedules toward the Beta Product even to the extent of eliminating or delaying indefinitely the Beta Product.
11. Assignment: These Terms and Conditions shall not be assigned without the express written consent of Custom CMS. Any assignment without such written consent shall be null and void.
12. Certification: Upon termination of these Terms and Conditions, Tester shall return to Custom CMS all materials, data, documentation and information relating to the Beta Product, including all copies, regardless of the form or media on which such materials, data, documentation or information is contained. If Custom CMS so requests, Tester shall certify to Custom CMS that the terms of this Section have been complied with.
13. Governing Law: These Terms and Conditions shall be construed and enforced in accordance with the laws of the Province of Quebec applicable to contracts wholly executed and wholly to be performed therein.
14. Severability: In the event that any provisions hereof are found invalid or unenforceable pursuant to judicial decree or otherwise, the remainder of these Terms and Conditions shall remain valid and enforceable according to its terms.
15. Marketing Activities: Subject to Evaluator’s consent, Evalutor agrees to participate in marketing activities with Custom CMS in relation to the Beta Product.
16. Entire Agreement: These Terms and Conditions constitute the entire understanding and agreement between Custom CMS and Tester with respect to the transactions contemplated herein and supersedes any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein. These Terms and Conditions may not be modified, amended or in any way altered except by an instrument in writing signed by both of the parties hereto.