SPINFAST BETA TEST TEAM
This is an agreement, effective [today], between Spinfast Pty Ltd, ACN 130 980 728 of Suite 104, 396 Scarborough Beach Rd, Osborne Park, WA 6017 Australia ("Spinfast") and [user] of [address] ("Tester"), in which Tester applies for the opportunity to test unreleased versions of Spinfast's upcoming game programs (the "Games") and keep Spinfast aware of the test results.
- Spinfast's Obligations
Spinfast shall provide Tester with copies of the Games from time to time and instruct Tester on how to use it and what test data is desired by Spinfast.
- Tester's Obligations
Tester shall test the Games under normally expected operating conditions in Tester's environment during the test period. Tester shall gather and report test data as agreed upon with Spinfast. Tester shall allow Spinfast access to Games during normal working hours for inspection, modifications and maintenance.
- Games a Trade Secret
The Games are proprietary to, and a valuable trade secret of, Spinfast. It is entrusted to Tester only for the purpose set forth in this Agreement. Tester shall maintain the Games in the strictest confidence. Tester will not, without Spinfast's prior written consent:
- disclose any information about the Games, its design and performance specifications, its code, and the existence of the beta test and its results to anyone other than Tester's employees who are performing the testing and who shall be subject to nondisclosure restrictions at least as protective as those set forth in this Agreement;
- copy any portion of Games or documentation, except to the extent necessary to perform beta testing; or
- reverse engineer, decompile or disassemble Games or any portion of it.
- Security Precautions
Tester shall take reasonable security precautions to prevent the Games from being seen by unauthorized individuals whether stored on Tester's hard drive or on physical copies such as CD-ROM, flash memory or other media. Tester shall lock all copies of the Games and associated documentation in a desk or file cabinet when not in use.
- Term of Agreement
This Agreement shall terminate at the end of the test period or when Spinfast asks Tester to return the Games, whichever occurs first. The restrictions and obligations contained in Clauses 4, 7, 8, 9 and 10 shall survive the expiration, termination or cancellation of this Agreement, and shall continue to bind Tester, its successors, heirs and assigns.
- Return of Game and Materials
Upon the conclusion of the testing period or at Spinfast's request, Tester shall within 10 days return any physical copies of Games and all related materials to Spinfast and delete all portions of the Games from computer memory.
- Disclaimer of Warranty
The Games are test products and the accuracy and reliability are not in any way guaranteed. Tester shall not rely exclusively on the Games for any reason. Tester waives any and all claims Tester may have against Spinfast arising out of the performance or non-performance of the Games.
THE GAMES ARE PROVIDED AS IS, AND SPINFAST DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability
Spinfast shall not be responsible for any loss or damage to Tester or any third parties caused by the Games.
SPINFAST SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF GAMES OR ANY PERFORMANCE OF THIS AGREEMENT.
- No Rights Granted
This Agreement does not constitute a grant or an intention or commitment to grant any right, title or interest in the Games or Spinfast's trade secrets to Tester. Tester may not sell or transfer any portion of the Games to any third party or use Games in any manner to produce, market or support its own products. Tester shall not identify the Games as coming from any source other than Spinfast.
- No Assignments
This Agreement is personal to Tester. Tester shall not assign or otherwise transfer any rights or obligations under this Agreement.
- General Provisions
- 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.
- Severability: If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.
- 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.
- Waiver: The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
- Legal 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 legal fees and costs and necessary expenditures.
- Governing Law: This Agreement shall be governed in accordance with the laws of Australia and the State of Western Australia.
- Jurisdiction: The parties consent to the exclusive jurisdiction and venue of the courts located in Perth, Western Australia 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.