BETA TESTING AGREEMENT
This BETA TESTING AGREEMENT (this “Agreement”), effective as of the date of your consent to this Agreement (the “Effective Date”), is by and between you (“you” or “your”) and Sympliact, Inc. (the “Company”) and concerns your access and use of the Beta Products (defined below), which are being offered to you by the Company for beta testing purposes only. You and the Company are sometimes referred to herein each as a “Party” and collectively as the “Parties.” In consideration of the premises and promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
Definitions. As used in this Agreement, the term:
“Agreement,” “Company,” “Party,” “Parties,” “you,” and “your,” respectively, has the meaning ascribed to it in the
Introductory Paragraph or Recitals of this Agreement.
“App” means the mobile software application commonly known as the “Sympliact” app, together with its pages and features.
“Beta Products” means the Site, the App, and any hardware, software, platforms, content, codes, equipment, materials, and other materials (including, without limitation, all patches, fixes, updates, and all related documentation) provided by the Company for use in connection with the Site and/or the App, as well any and all products and services provided on or through any of the foregoing, whether as beta versions, release versions, or other versions.
“Beta Testing Services” has the meaning ascribed to it in Section 3 below.
“Confidential Information” collectively means: (i) any and all non-public information or materials related to or concerning the Company and/or the Company’s business practices, business records, market research, financials, product research, medical research, or patients (including, without limitation, those patients’ personal matters, and medical history); (ii) any and all non- public information or materials relating to the Beta Products or your beta testing of the Beta Products (including, without limitation, the existence of the Beta Products, your service as a beta tester for the Beta Products, the Beta Products’ names, and the Beta Products’ source codes, designs, operations, formats, and other content, information, services, features, and functions); and/or (iii) any and all non-public information or materials which the Company designates (orally or in writing) as “confidential” or “private.”
“Device(s)” has the meaning ascribed to it in Section 7 below.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended, and the regulations promulgated
“PHI” means “Protected Health Information,” as that term is defined under HIPAA.
“Site” means the sympliact.com website, together with its pages and features.
“Term” shall have the meaning ascribed to it in Section 2(a) below.
“User Account” means your personal online account and profile for the Site and the App.
“User Information” has the meaning ascribed to it in Section 13(a) below.
“User Materials” has the meaning ascribed to it in Section 6(b) below.
“User(s)” means any registered or other authorized end user of the Beta Products, including, without limitation, you. For the avoidance of doubt, two of the conditions precedent to your becoming an “authorized” end user of the Beta Products are (i) your acceptance and agreement to this Agreement in its entirety, and (ii) your compliance with provisions of Section 14 below that are applicable to you.
Term; Termination; Survival.
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Term. This Agreement shall be and remain in effect for the period beginning on the Effective Date and continuing through your completed provision of the Beta Testing Services (the “Term”), unless earlier terminated in accordance with this Agreement.
Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events, whichever is earlier: (i) the expiration of the Term; (ii) the mutual written agreement of the Parties; or (iii) three (3) business days after a Party delivers a written notice of termination to the other Party for any reason or no reason.
Survival. If this Agreement is terminated for any reason, then the following shall survive: (i) all defined terms under this Agreement; (ii) all rights, titles, interests, privileges, and payments under this Agreement which accrued as of the date of termination; and (iii) the terms and conditions of Sections 2(c), 4, 5, 6(b), 7, 8(c), 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 of this Agreement
Beta Testing Services. During the Term, and subject to the terms and conditions of this Agreement, you agree to test, evaluate, and provide the Company with your truthful and candid feedback about the Beta Products (including, without limitation, usability, bug reports, test results, and suggestions for improvements and enhancements) (collectively, “Beta Testing Services”). For the avoidance of doubt, the only products and services offered by the Company to you under this Agreement are the Beta Products, in whole or in part, for the aforementioned beta testing purposes only.
Relationship. The Company is interested only in the results of the Beta Testing Services delivered by you under this Agreement; thus, the manner and means of achieving such results are subject to your exclusive control. Accordingly, you acknowledge and agree that there is no relationship of agency, fiduciary, employment, franchise, partnership, or joint venture between the Parties; that the Company does not, and shall not be deemed to, direct or control you (or any other Users) generally or in your performance under this Agreement (including, without limitation, in connection with your provision of any Beta Testing Services); that you retain the sole right to determine whether, when, where, how, how long, and for how much you will perform the Beta Testing Services (whether those Beta Testing Services are arranged through the Site, through the App, or by other means as you deem appropriate); that the Company is not responsible or liable for the acts, errors, or omissions of you or any other in relation to your use of the Beta Products or your provision of the Beta Testing Services; that you have the sole responsibility for any obligations or liabilities to any third parties that may arise from your provision of the Beta Testing Services; that you have no authority to bind the Company to any agreements, to incur any obligations on the Company’s behalf, or to hold yourself out as an agent, employee, partner, or representative of the Company; that you are not entitled to any employee benefits from the Company (including, without limitation, health insurance, workers’ compensation insurance, unemployment compensation, disability, liability, or any other type of insurance); and that, except as expressly set forth in this Agreement or otherwise mutually agreed by the Parties in a signed writing, you are responsible for all costs and expenses incident to performing and completing the Beta Testing Services, and you shall provide your own materials, supplies, and equipment for performing those Beta Testing Services. In other words, with respect to one another, you are merely an independent contractor of the Company for all purposes hereof.
Intellectual Property Ownership.
Ownership. Any and all past, present, and future rights, titles, interests, and privileges throughout the world in and to the Beta Products and all elements and derivatives of the foregoing (including, without limitation, all software programs and related screen displays, source codes, object codes, text, videos, music, photographs, images, graphics, recordings, documentation, data, instructions, technologies, formulas, know how, revisions, supplements, versions, editions, adaptations, series, editing, layouts, compilations, collections, processes, and unique concepts, as well as all copyrights and all moral rights of the author in any of the foregoing, all trademarks used in connection with any of the foregoing, all goodwill of the businesses symbolized by those trademarks, all patents concerning any of the foregoing, and all trade secrets in any of the foregoing) are owned, licensed, or permissibly used by the Company; and in no event shall you have or retain any rights, titles, interests, or privileges in or to any of the foregoing other than those limited rights expressly licensed to you under this Agreement for the limited purpose of providing the Beta Testing Services.
Transfer of Rights, If Any. The Parties acknowledge and agree that the Company is, and that the Parties have always known the Company to be, the exclusive owner of all past, present, and future rights, titles, interests, and privileges throughout the world in and to any and all of your contributions, if any, to the Beta Products and any and all elements, derivatives, results, proceeds, and rights of the foregoing (including, without limitation, any and all feedback, unique concepts, and other suggestions that you provide about the Beta Products, such as, by way of example only, usability, bug reports, test results, and suggestions for improvements and enhancements) on a “work made for hire” basis; but if any part of the foregoing is not a “work made for hire,” then you hereby irrevocably and forever convey, assign, and otherwise fully transfer to the Company all of your past, present, and future rights, titles, interests, and privileges throughout the world in and to the same.
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6. Grant of Rights.
Limited License – Beta Products. Subject to the terms and conditions of this Agreement, and any associated payment and registration obligations as imposed by or with the prior consent of the Company, the Company grants you a non-exclusive, personal, freely-revocable, non-transferable, non-sub-licensable, and universe-wide license during the Term to access and use the Beta Products on your Devices for the limited purpose of providing the Beta Testing Services. You may not rent, lease, lend, sell, transfer, redistribute, or sublicense all or any part of the Beta Products; and if you sell or otherwise transfer to a third party a Device on which any Beta Products are installed, then you must remove those Beta Products from such Device before doing so. Your unauthorized use of the Beta Products, or any breach by you of this Agreement, automatically terminates the foregoing license.
Limited License – User Materials. All names, information, communications, ratings, and content that you submit to or publish on or through the Beta Products, if any and as applicable, is hereinafter defined as the “User Materials.” By submitting User Materials to or publishing User Materials on or through the Beta Products, you hereby grant the Company a non-exclusive, irrevocable, royalty-free, fully-paid, transferable, sub-licensable, perpetual, and universe-wide license to host, store, reproduce, transmit, distribute, sell, resell, license, sublicense, market, modify, adapt, create derivative works, communicate, publish, syndicate, publicly perform, publicly display, archive, and otherwise use and exploit all or any part of such User Materials and any elements and derivatives thereof in any manner, medium, or form, whether now known or hereinafter devised, as the Company sees fit in its sole discretion.
Your Devices. Certain portions of the Beta Products may be configured for, and the Company may offer the Beta Products to you through, certain computers, tablets, smart phones and/or other electronic devices (“Device(s)”), and this Agreement shall apply with equal force and measure to your access and use of the Beta Products through such Devices. You are responsible for obtaining and updating the Device, software, operating system, carrier and network access necessary to properly visit, access, register with and use the Beta Products. The Company does not guarantee that the Beta Products or any portions thereof will function on or in connection with any particular Device, software, operating system, carrier, or network. If you visit, access, register with or use the Beta Products through a particular Device, then you hereby acknowledge and agree that information about your use of the Beta Products through that Device or its carrier or network (such as, by way of example only, the identity of your Device or its carrier or network) may be communicated to the Company and/or certain third parties. ALL OR ANY PART OF THE VOICE, MESSAGE, AND DATA FEES, RATES, CHARGES AND TAXES OF YOUR DEVICE’S CARRIER OR NETWORK, OR ANOTHER THIRD PARTY, MAY APPLY TO YOUR ACCESS AND/OR USE OF THE BETA PRODUCTS. THE COMPANY IS NOT RESPONSIBLE FOR, AND YOU FURTHER ACCEPT FULL RESPONSIBILITY FOR, ALL DEVICE, CARRIER AND NETWORK FEES, RATES, CHARGES AND TAXES WHICH MAY APPLY, IF ANY.
Registration. To secure the right to access and use all or certain portions of the Beta Products, you may be required to register with and create a personal user account with the Company through one or more of the Beta Products (“User Account”). As part of the registration process, you may be required to satisfy certain conditions precedent imposed by the Company (including, for example, providing additional information to the Company, and entering into additional agreements with the Company). Unless otherwise permitted by the Company in writing, you may only have one (1) non-transferable User Account.
User Account Activity and Information. You are responsible for all activity that occurs under your User Account, and you are prohibited from authorizing or allowing any third party to access or use your User Account. Accordingly, you should take all steps necessary to protect and keep secret your User Account details and access information (including your login name and password). You should also maintain accurate, complete, and up-to-date information in your User Account (including, without limitation, maintaining a valid and current payment method and email address) because your failure to do so may result in your inability to access, use, and/or receive all or any part of the Beta Products and/or the Company’s termination of this Agreement. For security purposes, you shall immediately notify the Company if you suspect a third party has gained access to or is using your User Account without authorization. For the avoidance of doubt, the Company has the unencumbered right to access and use, and to allow its agents, employees, representatives, contractors, and vendors to access and use, the information in your User Account in order to facilitate the exercise and performance of the Company’s rights and obligations under this Agreement, the operation of the Beta Products, the provision and performance of the Service, and/or any other rights, obligations, products, and services related to the subject matter of this Agreement (including, without limitation, payments, and communications), provided that the Company shall be required to comply with the provisions of any applicable Business Associate Agreement or HIPAA Authorization.
Indemnification. IF YOU FAIL TO COMPLY WITH ANY TERMS OR CONDITIONS OF SECTION 8(B) ABOVE (WHETHER INTENTIONALLY OR UNINTENTIONALLY), THEN YOU ACCEPT FULL RESPONSIBILITY FOR THE CONSEQUENCES THEREOF(INCLUDING, WITHOUT LIMITATION, ANY UNAUTHORIZED CHARGES AND PAYMENTS, ANY UNAUTHORIZED CHANGES TO
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YOUR USER ACCOUNT INFORMATION AND SETTINGS, AND ANY UNAUTHORIZED ACCESS OR USE OF YOUR USER ACCOUNT),AND AGREE TO INDEMNIFY, RELEASE, AND HOLD HARMLESS THE COMPANY AND THE COMPANY’S OFFICERS, DIRECTORS,MEMBERS, MANAGERS, OWNERS, PARTNERS, AGENTS, EMPLOYEES, REPRESENTATIVES, PARENTS, SUBSIDIARIES,AFFILIATES, SUCCESSORS, TRUSTEES, ASSIGNS, TRANSFEREES, CONTRACTORS, VENDORS, AND LICENSEES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, SUITS, DEMANDS, ACTIONS, JUDGMENTS, LOSSES, DAMAGES, FINES, PENALTIES,AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OR ALL SUCH INDEMNITEES, OR ASSERTED AGAINST ANY OR ALL SUCH INDEMNITEES BY THIRD PARTIES, ARISING OUT OF OR IN CONNECTION WITH YOUR FAILURE TO COMPLY WITH SUCH TERMS OR CONDITIONS.
9. Electronic Communications.
Express Consent. YOU HEREBY EXPRESSLY CONSENT TO THE COMPANY AND THE COMPANY’S AFFILIATES AND VENDORS SENDING YOU ANY TYPE OF ELECTRONIC MESSAGE (INCLUDING, WITHOUT LIMITATION, ADVERTISING, TELEMARKETING,OR OTHER COMMERCIAL E-MAILS AND TEXT MESSAGES, INFORMATIONAL E-MAILS OR TEXT MESSAGES, AND ELECTRONIC NOTICES, UPDATES, AND NEWSLETTERS), WHETHER THROUGH THE SITE, THROUGH THE APP, THROUGH YOUR USERACCOUNT, BY PERSONAL COMMUNICATION, BY E-MAIL, BY TEXT MESSAGE, BY AUTOMATIC TELEPHONE DIALING SYSTEM,BY ARTIFICIAL OR PRERECORDED VOICE, BY ONLINE SOCIAL MEDIA, OR BY ANY OTHER ELECTRONIC MEDIA MEANS OR FORMS. BY GIVING SUCH CONSENT, YOU AGREE THAT NO SUCH COMMUNICATION SHALL VIOLATE THE TELEPHONECONSUMER PROTECTION ACT, THE CAN-SPAM ACT, OR ANY OTHER APPLICABLE LAWS, RULES, OR REGULATIONS. VOICE, MESSAGE, AND DATA FEES, RATES, CHARGES, AND/OR TAXES MAY APPLY TO YOU, AND YOU ARE RESPONSIBLE FOR PAYMENT OF THE SAME. YOU ARE NOT REQUIRED TO GRANT THE FOREGOING CONSENT AS A CONDITION FOR PURCHASE OR LICENSE OF ANY OTHER OF THE COMPANY’S PRODUCTS OR SERVICES.
Opt-Out. You may opt-out of receiving any electronic messages from the Company as described in Section 9(a) above any time by any reasonable means, including, without limitation and by way of example, by sending an e-mail firstname.lastname@example.org with a subject line of “Opt-Out of Electronic Communications.” You acknowledge that opting out of receiving any of the foregoing types of communications may impact your receipt, the success, and/or the performance of all or any part of the Beta Programs.
10. No Monetary Compensation. You shall not be entitled to receive any compensation, payments, or benefits from all or any part of the Beta Products, the Beta Testing Services, any elements or derivatives of the foregoing, or any of your contributions to the foregoing (including, without limitation, revenue, profits, royalties, residuals, credits, accounting rights, or audit rights), in exchange for your Beta Testing Services.
11. Taxes. The Company may report any and all payments made to you under this Agreement to the Internal Revenue Service and other taxing authorities as appropriate under applicable law. Nothing in this Agreement shall be construed as requiring the Company to compensate you for any adverse tax effect associated with any payments or withholdings the Company makes with respect to you.
12. Non-Disclosure. You hereby acknowledge and agree that, as between the Parties, all Confidential Information is the exclusive property of the Company. Further, you agree that in no event shall you disclose all or any part of the Confidential Information to any third party without the prior written consent of the Company in each instance, and shall forever hold the same in strict confidence. Notwithstanding the foregoing, you may disclose applicable portions of the Confidential Information: (a) to a third party if the Company has authorized that particular disclosure in a signed writing; (b) to your attorneys, provided, however, that you are personally responsible for ensuring your attorneys’ compliance with the terms and conditions of confidentiality set forth in this Agreement to the same degree as if they were you; (c) to the extent necessary to comply with the law or the valid order of a court of competent jurisdiction (e.g., a subpoena), in which event you shall, in advance of any such disclosure, seek confidential treatment of such information, and reasonably notify the Company in advance in order to allow the Company a reasonable opportunity to intervene as the Company deems appropriate in its sole discretion; or (d) to the extent necessary to enforce or protect your rights under this Agreement, in which event you shall, in advance of any such disclosure, seek confidential treatment of such information, and reasonably notify the Company in advance in order to allow the Company a reasonable opportunity to intervene as the Company deems appropriate in its sole discretion.
13. User Information.
a. Collection and Use of User Information. The Company, itself or through third parties, may search for, and/or collect personal and non-personal information and other data about you through or during the course of the User Account registration process, your use of the User Account, your use of the Beta Products, and/or your provision of the Beta Testing Services (including, without limitation, your communications through the User Account or the Beta Products, your personally identifiable
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information, and your PHI) (collectively, “User Information”). Your User Information may be stored, processed, transferred, accessed, and/or used by the Company and/or third parties in furtherance of the Company’s legitimate business or legal needs or purposes (including without limitation, for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with the Company’s legitimate business needs), subject to the provisions of any applicable Business Associate Agreement or HIPAA Authorization. You expressly consent to all such searches, collections, storage, processes, transfers, accesses, and uses of your User Information.
Disclosure of User Information. Subject to applicable law, the Company shall have the right, but not the obligation, to disclose to itself, its employees, its attorneys, its business advisors, its financial advisors, the Beta Products’ administrators, vendors, and researchers, any insurance company, and/or any government authorities all or any part of your User Information for any and all of the following reasons, and you expressly consent to all such disclosures of your User Information:
such disclosure might aid the Company in its efforts to research, develop, improve, or enhance the Beta Products;
there is any type of complaint, dispute, controversy, or claim concerning you and/or your provision of the Beta Testing Services (including, without limitation, an accident involving the provision of your Beta Testing Services, or any type of dispute between you and another User);
such disclosure is necessary, in the Company’s sole discretion, to protect, enforce, and/or defend the Company’s rights under or in connection with this Agreement;
it is required, in the Company’s sole discretion, by applicable law, court order, or governmental authorities (e.g., to comply with a subpoena);
it is necessary, in the Company’s sole discretion, to (A) protect the safety, rights, property, or security of the Company, the Company’s properties, or any third parties, (B) protect the safety of the public for any reason (including, without limitation, the facilitation of insurance claims related to the Beta Products), (C) detect, prevent, or otherwise address fraud, security, or technical issues related to you and/or your Beta Testing Services, or (D) prevent or stop any activity which the Company, in its sole discretion, believes may pose any type of legal or ethical risk to the Company, the Company’s properties, or any third parties; or
it is required or necessary, in the Company’s sole discretion, for insurance or other purposes related to the Beta Products.
Retention of Your User Information. The Company may retain your User Information for as long as it believes necessary; as long as necessary to comply with its legal obligations, to resolve disputes, and/or to enforce its agreements; and/or as long as needed to provide you with the Beta Products and/or any other products or services. The Company may dispose of or delete your User Information at any time, except as set forth in any other agreement or document executed by the Company or as required by law.
14. Protected Health Information. The Beta Products’ target Users are healthcare providers (e.g., doctors, medical staff, clinics) and their individual patients. If you are a healthcare provider, then, as an additional condition to your becoming an “authorized” end user of the Beta Products, you hereby acknowledge and agree to the Business Associate Agreement attached hereto as “Exhibit A.” If you are a patient, then, as an additional condition to your becoming an “authorized” end user of the Beta Products, you acknowledge and agree to the HIPAA Authorization attached hereto as “Exhibit B.”
a. Linked Technologies. The Beta Products may contain links to third-party websites, networks, platforms, servers, and/or applications (“Linked Technologies”). The Linked Technologies are not under the control of the Company. The Beta Products contain these links only as a convenience to you.
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OF SUCH LINKED TECHNOLOGIES ANY INFORMATION, CONTENT, GOODS, SERVICES, PROMOTIONS, ADVERTISEMENTS, PROGRAMS,CODES, OR OTHER ITEMS WHICH MAY BE FOUND ON OR EXCLUDED FROM SUCH LINKED TECHNOLOGIES. IF YOU DECIDE TO ACCESS ANY LINKED TECHNOLOGIES, THEN YOU DO SO AT YOUR OWN RISK.
Suspension or Termination of Beta Products. The Company may suspend or terminate the function or existence of all or any part of the Beta Products at any time, and without notice or recourse, as the Company deems advisable in its sole discretion. THECOMPANY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY(S) FOR ANY LOSS OR DAMAGE THAT IS CAUSED BY OR ARISES FROM OR IN CONNECTION WITH ANY SUCH SUSPENSIONS OR TERMINATIONS (INCLUDING, WITHOUT LIMITATION AND BY WAY OF EXAMPLE ONLY, REFUNDS, LOST PROFITS, LOST OPPORTUNITIES, MONETARY DAMAGES, DISRUPTION IN OR LOSS OF SERVICE, OR LOSS OF CONTENT).
Refusal of Products and Services. The Company has the right to refuse its products and services to you (including, without limitation, the Beta Products) at any time, and without notice or recourse, as the Company deems advisable in its sole discretion.
Terms and Condition. You hereby acknowledge and agree to the additional terms and conditions, which are incorporated by reference into this Agreement, as attached hereto as “Addendum 1.”
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of, and this Agreement shall be deemed effective as of, the Effective Date.