BETA TEST AGREEMENT
This Beta Test Agreement (“Agreement”), effective immediately upon execution (“Effective Date”),
entered into by and between Brilent, Inc., a Delaware corporation (“Brilent”) and the below signatory
(“Customer”), sets forth the terms and conditions under which Customer will test, evaluate and provide
feedback regarding a beta version of Brilent’s Software (as defined below).
In consideration of the mutual promises and covenants herein, Brilent and Customer agree as follows:
1.
Definitions
a.
“Customer Data” means any electronic data, information or material provided or submitted by
Customer to Brilent through the Service.
b. “Software” means a beta version of Brilent’s proprietary “[Talent Finder]” software which has not
yet been offered to customers on a commercial basis, including all documentation and other
materials related thereto that have been provided to Customer and any modifications,
improvements or enhancements made pursuant to this Agreement.
c.
“Service” means the hosted access and use of the Software as made available by Brilent.
d. “Testing Period” means a period of [sixty (60)] days commencing on the date of delivery of the
Software to Customer. The Testing Period may be extended by mutual agreement of the parties.
2.
Software License and Use
a.
License. Access to the Software is provided as a hosted Service available to Customer through
the Internet. Subject to the terms and conditions of this Agreement, Brilent hereby grants to
Customer a non-exclusive, non-transferable, royalty-free, limited license to access and use the
Service, only during the Testing Period, only for internal testing and evaluation, and only in
accordance with the terms of this Agreement. Customer grants Brilent a non-exclusive, nontransferable license to use, copy, store, modify, and display the Customer Data solely to the
extent necessary to provide the Service. Customer agrees that the Service has not been publicly
launched and is in a testing phase and that Brilent may implement changes to the Service both
during the Term or when the Service is publicly launched. Customer understands that these
modifications and changes may be substantial and could result in the loss or inability to use
features of the Service by Customer. Customer further understands that its participation in the
beta phase of the Service does not necessarily result in the right to participate in any service that
may be eventually launched.
b. Limitations. Customer may not share user name and access to the Service other than with
employees of Customer. Customer may not copy, share, distribute, modify, or make the Software
available to any third party. Customer may not decompile or reverse engineer the Software, or
otherwise attempt to derive source code from the Software (except to the extent that such
activities may not be prohibited under applicable law). Customer shall not remove or alter any
proprietary notices, labels or marks placed on or in the Software. Customer will not use the
Service to violate any rights of third parties, including, but not limited to infringement or
misappropriation of any proprietary or intellectual property rights.
c.
Title. Customer acknowledges and agrees that it is not the owner of the Software, and that all
right, title and interest in and to the Software, and all intellectual property rights therein, shall
remain the property of Brilent and its licensors, are protected by United States intellectual
property laws (including patent, trademark and copyright laws), other applicable intellectual
property laws, and international treaty provisions, and are subject to the express licenses granted
to Customer under this Section 2.a. Brilent and its licensors hereby reserves all rights not
explicitly granted herein.
3.
Customer Obligations
a.
Hosting. Customer and Brilent will agree on a date for Brilent to deliver all information required
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for Customer to access the Service. Customer shall assist Brilent as necessary to register users for
the Service and facilitate access to the Service, including but not limited to performing any
necessary configurations of equipment or software.
b. Testing. Customer agrees to use any operating procedures that may be reasonably required by
Brilent to test and evaluate the Software, and shall work with Brilent to promptly implement any
work-arounds, modifications or changes to the Software, that Brilent may deem necessary.
Customer understands that these modifications and changes may be incompatible with previous
modifications and could include substantial changes to its system and operating procedures.
c.
Communication and Feedback. Once per week during the Testing Period, the Customer Contact
shall provide written and oral feedback regarding the Software, including information related to
bugs, usability issues, testing results, and plans for future testing. In addition, Customer shall
discuss with Brilent the performance of the Software on a periodic basis and shall provide other
information and feedback to the foregoing as reasonably requested by Brilent. All feedback
regarding the Software, including any modifications or additions to the Software suggested by
Customer, shall be owned exclusively by Brilent without any restriction on Brilent’s use and
exploitation thereof, and Customer hereby assigns and transfers all right, title and interest,
including all worldwide intellectual property rights, in and to any feedback to Brilent. Customer
shall execute any documents necessary to affect the foregoing assignment.
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d. Error Notices. Customer shall notify Brilent of any failure, error or other malfunction of any part of
the Software within twenty-four (24) hours of such occurrence. In addition, Brilent shall promptly
suggest any functions that it believes may be useful in the operation of the Software; provided
that Brilent shall not be under any obligation to implement any such suggestions.
4.
Confidential Information
a.
Definition. The term “Confidential Information” means the existence of and terms of this
Agreement, all information regarding the Software, including its existence and any notes,
performance data, results of testing and other documentation and materials related to the
Software (whether prepared by Brilent or Customer), all communications between the parties
hereunder, (including feedback provided by Customer to Brilent pursuant to Section 3.c above)
other information related to the Software or to Brilent’s product plans, business, finances and
customers, however disclosed. However, Confidential Information excludes information (i)
available to the public other than by a breach of this Agreement; (ii) rightfully receiving from a
third party not in breach of an obligation of confidentiality; (iii) independently developed without
access to Confidential Information, as shown by contemporaneous written records, or (iv) known
at the time of disclosure, as evidenced by contemporaneous written records.
b. No Disclosure or Use. Customer may not use any Confidential Information except as expressly
permitted under this Agreement. Customer may not disclose Confidential Information to any third
party without the express written consent of Brilent (except that, solely to the extent necessary for
Customer's internal business needs, Customer may disclose Confidential Information to its
employees or consultants who are bound by a written confidentiality agreement that is at least as
protective of Brilent's rights as this Agreement). Subject to the above, Customer agrees to cease
using any and all materials embodying Confidential Information, and to promptly return such
materials to Brilent upon request. Customer shall use its best efforts to protect the confidentiality
of Confidential Information. Brilent will store and manage Customer Data in a secure manner
similar to its own applications and data that are stored on Amazon Cloud Servers. Brilent may
disclose Confidential Information to its employees or consultants who are bound by a written
confidentiality agreement.
c.
Remedy. In the event of actual or threatened breach of the provisions of Section 4.b above,
Brilent will have no adequate remedy at law and will be entitled to immediate and injunctive and
other equitable relief, without bond and without the necessity of showing actual money damages.
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5.
No Warranty
i.
Customer understands and agrees that because the Software provided hereunder is a beta
version, it may contain design errors and other defects, and that there is no guarantee that
such errors and other defects will be corrected or that a commercial version of the software
will be released. FOR THE FOREGOING REASONS, THE SOFTWARE (INCLUDING ANY
MODIFICATIONS, IMPROVEMENTS, OR ENHANCEMENTS) AND THE SERVICE AND ANY
ACCOMPANYING DOCUMENTATION ARE PROVIDED “AS IS.” BRILENT HEREBY DISCLAIMS
ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
6.
Limitation of Liability
i.
IN NO EVENT WILL BRILENT BE LIABLE FOR LOSS OF DATA, LOST PROFITS, COST OF COVER
OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM
THE USE OF THE SOFTWARE OR THE SERVICE, REGARDLESS OF THE CAUSE OR THE THEORY
OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF BRILENT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. BRILENT'S TOTAL AGGREGATE LIABILITY ARISING OUT OF
THIS CONTRACT, WHETHER FOR BREACH OF CONTRACT OR TORT OR OTHERWISE, WILL
NOT EXCEED ONE HUNDRED DOLLARS ($100.00). THE PARTIES AGREE THAT THE
FOREGOING REPRESENTS A REASONABLE ALLOCATION OF RISK.
7.
Term and Termination
a.
Termination of Testing Period. Unless terminated earlier under Section 7.b, this Agreement shall
terminate on the last day of the Testing Period.
b. Termination by Notice. Either Customer or Brilent may terminate this Agreement at any time
upon delivery of written notice of termination to the other party at least five (5) days prior to the
date of such termination.
c.
Effect of Termination or Expiration. Upon expiration or termination in any event, Customer shall
cease use of the Software and shall immediately return to Brilent all Confidential Information or
copies of Confidential Information, including but not limited to the Software, printed documents,
electronic files and all copies thereof. The following provisions survive termination or expiration
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of this Agreement: 2.c (Title), 3.c (Communication and Feedback; solely with regard to ownership
of feedback), 4 (Confidential Information), 5 (No Warranty), 6 (Limitation of Liability), 7.c (Effect of
Termination or Expiration), and Section 9 (General Provisions).
8.
General Provisions
a.
References. Customer agrees to allow Brilent to identify it as a customer in Brilent’s marketing
and promotional materials, and to act as a reference regarding Customer’s use of the Software
for other potential customers and third parties identified by Brilent.
b. Independent Contractors. The relationship of the parties hereto are independent contractors, and
neither party is an employee, agent, partner or joint venturer of the other.
c.
Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the
law of the State of California without regard to conflict of laws provisions. The federal and state
courts of Santa Clara County, California shall have exclusive jurisdiction and venue to adjudicate
any dispute arising out of this Agreement. Each party hereto expressly consents to the personal
jurisdiction of the courts of California and service of process being effected upon it by email set
forth by the Customer in this agreement..
d. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof and merges all prior discussion between them. No
modification of or amendment to this Agreement, nor any waiver of any rights under this
Agreement, will be effective unless set forth in writing signed by officers of both parties hereto.
e.
Notices. Any notice required or permitted by this Agreement will be in writing and will be sent
by email to the other party at the email address shown at the beginning or end of this
Agreement or at such other email address for which such party gives notice hereunder. Such
notice will be deemed to have been given when delivered or, if delivery is not accomplished by
some fault of the addressee, when tendered. The official Brilent email account for such
communications is support@brilent.com.
f.
Force Majeure. Nonperformance of either party will be excused to the extent that performance is
rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of
suppliers, or any other reason where failure to perform is beyond the control and not caused by
the negligence of the non-performing party.
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g. Assignment and Binding Effect. Customer may not transfer or assign its rights or obligations
under this Agreement, whether by operation of law or merger, without the prior written consent
of Brilent, and any attempted assignment in violation of the foregoing will be void. Subject to
the foregoing sentence, this Agreement will be binding upon and inure to the benefit of the
parties hereto, their successors and assigns.
h.
Partial Invalidity. If any provision of this Agreement is held to be invalid by a court of competent
jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The
parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually
agreed substitute provision.
i.
No Waiver. The failure of either party to enforce at any time any of the provisions of the
Agreement, or the failure to require at any time performance by the other party of any of the
provisions of this Agreement, will in no way be construed to be a present or future waiver of
such provisions, nor in any way affect the validity of either party to enforce each and every such
provision thereafter.
j.
Counterparts. This Agreement may be executed in two or more counterparts, each of which will
be deemed an original and all of which together will constitute one instrument.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this
Agreement as of the date first set forth above.
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