BETA TEST PANEL AGREEMENT
Thank you for agreeing to be a Beta User and to provide
feedback on Merscom products!
NOTE: By clicking
the “I Accept” Button below, or by downloading, installing, copying or using
the Product (as defined below), you agree to be bound by the terms of this
Agreement. If you do not agree to the
terms of this Agreement, Merscom does not grant you permission to download,
install, copy or use the Product.
By
accepting this Agreement, you certify that you are at least eighteen (18) years
old, are not employed or affiliated with any company that develops, markets, or
licenses games, or that publishes information related thereto. Any license to use the Product is void if these
conditions are not met.
This is a
binding, legal agreement (“Agreement”)
between you, the end user (“You” or,
in the possessive form, “Your”), and
Merscom, LLC (“Merscom”).
This
Agreement governs Your use of a pre-release, beta version of the Merscom game
you are downloading, including all associated computer software (the “Software”), content, graphics, and
documentation (collectively, the “Product”). The Product is protected by copyright laws
and international copyright treaties, as well as other intellectual property
laws and treaties. The Product is licensed,
not sold.
1. Grant of License. This Agreement grants You the following
rights provided that You comply with all terms and conditions of this
Agreement:
a) During the
term of this Agreement, Merscom grants You a limited, non-exclusive, non-transferable
license to use one copy of the Product, solely for your personal use and
enjoyment and to evaluate the Product for the purpose of providing feedback to Merscom. You may not modify, rent, lease, sell,
sublicense, assign, or otherwise transfer or provide to a third party, or allow
a third party access to, any portion of the Product, and shall not use or copy
the Product except as provided in this Agreement. You also may not reverse engineer, decompile
or disassemble any portion of the Product.
b) You agree to
provide feedback regarding the Product to Merscom in the form reasonably requested
by Merscom, including but not limited to suggested enhancements, usability, bug
reports, test results, and overall impressions and experience (collectively “Feedback”). You acknowledge and agree
that Merscom may monitor Your use of the Product, such as Your type, frequency
and degree of use, and the performance of the Program, and all information
gathered from such monitoring shall be considered part of the Feedback. You
also agree that Merscom shall own all rights in, and may freely use, disclose,
reproduce, license, distribute, sublicense and otherwise commercialize in any Merscom
product, technology, service, specification or other documentation, the
Feedback. Due to the nature of the beta
Product, Merscom provides no assurance that any specific errors or
discrepancies in the Product will be corrected. You acknowledge and agree that You will
receive no compensation for your providing Feedback under this Agreement.
c) Without
limiting the foregoing, You agree that Merscom may use individual quotes made
by You as part of your Feedback in its product packaging and marketing
materials, including its web site, so long as You are not personally
identified.
d) You
acknowledge and agree that the Product is not fully completed and that You may
receive access to only portions of the Product, in Merscom’s discretion. The Product may contain errors that cause
loss of data or computer system functionality.
2. Term. The term of this Agreement shall continue for [three
(3) months after you receive the Product, or until You have used the Product
for 10 hours, whichever comes first], unless earlier terminated by either party
with notice at any time, with or without cause.
This Agreement will also
automatically terminate without notice upon commercial release of the Product,
unless terminated earlier. You agree to
promptly uninstall the Software from any computers under your control and
return to Merscom, or destroy all full or partial copies of the Product and all
other Confidential Information upon the termination of this Agreement (or upon Merscom’s
request). Sections 1(b), 1(c), 4, 5, 6,
7, 8 and 9 of this Agreement shall survive the termination or expiration of
this Agreement.
3. Product Maintenance and Updates. Merscom may, but is not obligated to, provide
You with maintenance, technical support, updates and/or additional pre-release
versions of the Product. If Merscom does
provide any updates to or modifications of the Product and/or related
information (collectively, “Updates”),
such Updates will also be deemed “Product” under this Agreement and shall be governed
by this Agreement. Merscom is not
obligated to make the Product commercially available and, if it does, is not
obligated to provide You a copy of the commercially released version.
4. Confidentiality.
a) The Product,
including its design, storylines, features, characters, graphics, content,
business model, performance, and related information (including but not limited
to your Feedback; collectively the “Confidential
Information”) are proprietary and confidential information to Merscom and
its suppliers. You agree not to disclose
or provide the Confidential Information to any third party, including but not
limited to any web site or electronic or hardcopy publication that disseminates
information regarding games. However,
You may disclose Confidential Information in accordance with a judicial or
other governmental order, provided that You give Merscom reasonable written notice
prior to such disclosure and that You comply with any applicable protective
order or equivalent. You may use the Confidential Information only
in conjunction with Your personal license grant set forth in Section 1(a)
above.
b) You shall
not be liable to Merscom for disclosure of information which You can prove (i)
is already known to You without an obligation to maintain the same as
confidential; (ii) becomes publicly known through no wrongful act of Yours; (iii)
is rightfully received from a third party without breach of an obligation of
confidentiality owed directly or indirectly to Merscom; or (iv) is
independently developed by You.
c) You agree
that money damages will not be an adequate remedy for any breach of this
Agreement and that Merscom shall be entitled to equitable relief, including an
injunction and specific performance, in the event of any breach or threatened
breach of this Agreement, in addition to any other remedies available to Merscom
at law or in equity. You waive the
defense that an adequate remedy at law exists for any breach or threatened
breach of this Agreement.
5. Intellectual Property Rights. All title and intellectual property rights in
and to the Product (including but not limited to any images, photographs,
animations, video, audio, music, text and software incorporated into the
Product), and any copies of the Product that You are permitted to make under
this Agreement, are owned by Merscom or its suppliers. You may not use any
content incorporated into the Product outside of or independently of the
Product. If the Product contains
documentation which is provided only in electronic form, You may print one copy
of such electronic documentation. You may
not copy the printed materials accompanying the Product. All rights not expressly granted to You are
reserved by Merscom and its suppliers.
6.
Disclaimer
of Warranties. THERE ARE NO WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE PRODUCT INCLUDING,
BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, or CONFORMITY TO ANY REPRESENTATION OR
DESCRIPTION. THE PRODUCT IS LICENSED
“AS-IS” AND MERSCOM DOES NOT
WARRANT TO YOU THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF
THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. the entire risk as to the quality and
performance of the PRODUCT is borne by YOU.
should the PRODUCT prove defective in any respect, YOUR SOLE REMEDY IS
TO DISCONTINUE USE AND TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION
2. UNDER NO CIRCUMSTANCES SHALL MERSCOM BE LIABLE FOR ANY LOSS, COST, EXPENSE, OR
DAMAGE TO YOU, WHETHER DIRECT OR INDIRECT, RESULTING FROM THE USE OF THE
PRODUCT, EVEN IF YOU INFORM MERSCOM ABOUT SUCH LOSS, COST, EXPENSE OR DAMAGE. THE PRODUCT IS IN PRE-RELEASE FORM AND MAY
NEVER BE RELEASED OR MAY CHANGE SUBSTANTIALLY BEFORE ITS COMMERCIAL
RELEASE.
7. Governing Law/Jurisdiction/Attorneys Fees. This
Agreement shall be construed and controlled by the laws of the State of North
Carolina without regard to any choice-of-law provisions. The United Nations Convention on the
International Sale of Goods shall not apply to this Agreement. You consent to exclusive jurisdiction and
venue in the federal courts sitting in the Eastern District of North Carolina,
unless no federal jurisdiction exists, in which case You consent to exclusive
jurisdiction and venue in the state courts of
8. Export Restrictions. You acknowledge that Product may be subject
to U.S. export jurisdiction. You agree to comply with all applicable
international and national laws that apply to the Product, including the U.S.
Export Administration Regulations, as well as end-user, end-use and destination
restrictions issued by U.S. and other governments.
9. General. This
Agreement constitutes the complete and exclusive agreement between You and Merscom
with respect to its subject matter, and supersedes all prior or contemporaneous
oral or written communications, proposals, representations, understandings, or
agreements not specifically incorporated herein. This Agreement may be amended only in a
written amendment signed by both parties. You may not assign this Agreement or any
rights hereunder without the prior written consent of Merscom, and any
attempted assignment is null and void. The
parties are and intend to be independent contractors. Failure to insist upon
strict compliance with this Agreement shall not be deemed a waiver of any
future right arising out of this Agreement.
Captions are intended solely for the convenience of the reader and form
no part of this Agreement.
If you have any questions concerning this Agreement, please contact Merscom
at rko@merscom.com.