Beta Program

BETA AGREEMENT

PLEASE READ THIS BETA AGREEMENT CAREFULLY. YOU MUST ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO JOIN FONALITY'S BETA PROGRAM.  EXCEPT AS SPECIFICALLY IDENTIFIED HEREIN, THIS AGREEMENT DOES NOT SUPERCEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND FONALITY.

This Beta Test Agreement (the "Agreement") is made between Fonality, Inc., a Delaware corporation, with its principal place of business located at 200 Corporate Pointe, Suite 350, Culver City, 90230 (“Fonality”) and you ("Beta Customer") for the purpose of testing a pre-release version of certain Fonality software (the "Beta Product"). The terms and conditions of this Agreement are intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding, which may involve the Agreement. This Agreement may not be modified except by a writing duly executed by both parties’ authorized representatives.

1.    NATURE OF AGREEMENT. The Beta Product is a release of a Fonality software product that is not generally available for distribution at the time it is made available to Beta Customer and contains updates, enhancements, improvements and other modifications to the generally available production versions of the software. The Beta Product shall be used by Beta Customer for testing purposes and within the parameters as mutually determined by the parties (the "Beta Test"). The purpose of the Beta Test shall be to facilitate the early commercial availability of the Beta Product and to obtain information about Beta Customer’s experience with such.

2.    FEEDBACK. Notwithstanding the terms of any existing non-disclosure or confidentiality agreement between Beta Customer and Fonality, in consideration for receiving a copy of the Beta Product for testing, Beta Customer agrees to inform Fonality of all problems and ideas for enhancements which come to Beta Customer’s attention during the period of this Agreement, and hereby assigns to Fonality all right, title and interest to such ideas and enhancements and all property rights therein including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights. Beta Customer agrees that the feedback prepared by Customer and delivered to Fonality may be used by Fonality for all business purposes without any further consent or accounting in the development, manufacture, marketing, and maintenance of the Beta Product and other Fonality products and services, including reproduction and preparation of derivative works based upon such feedback, as well as distribution of such derivative works.

3.    RESERVATION OF RIGHTS. Fonality retains all right, title and interest in the Beta Product(s) and in all materials delivered in connection with such. Beta Customer has no rights other than those granted in this Agreement.

4.    CONFIDENTIAL INFORMATION. "Confidential Information" shall be defined to include the Beta Product, any software, source code, object code, documentation, Beta Test results, and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by Fonality to Beta Customer.   Under this Agreement, Beta Customer shall observe complete confidentiality with respect to the Confidential Information, and shall use its best efforts and take all reasonable steps to protect such from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. Beta Customer shall promptly notify Fonality of any known unauthorized use or disclosure of the Confidential Information and will cooperate with Fonality in any litigation brought by Fonality against third parties to protect its proprietary rights. Beta Customer may not permit a third party access to, or use of, the Confidential Information without Fonality’s prior written authorization. Beta Customer expressly agrees not to disclose to persons in its own organization who do not have a need to know the existence or contents of (i) the Beta Product(s); (ii) the Beta Test and its results, or (iii) this Agreement. Beta Customer's reports must be marked "Fonality Confidential".   Beta Customer further agrees to treat the Beta Product and any other versions of the software (the “Software”) as confidential and will not without the express written authorization of Fonality (1) demonstrate, copy, sell or market Software to any third party; or (2) publish or otherwise disclose information relating to performance or quality of the Software to any third party; or (3) modify, reuse, disassemble, decompile, reverse engineer or otherwise translate Software or any portion thereof.

5.    DISCLAIMERS & LIMITATIONS OF LIABILITY

a)    THE BETA PRODUCTS AND TECHNICAL SUPPORT (IF ANY) ARE PROVIDED "AS IS" WITHOUT WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE

b)    IN NO EVENT WILL FONALITY BE LIABLE FOR ANY DAMAGES UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS OR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY BETA CUSTOMER BASED ON A THIRD PARTY CLAIM.

c)    The Beta Product may not be at the level of performance, compatibility or reliability of generally available Fonality products. Software may not operate correctly and may be substantially modified prior to first commercial shipment.  Beta Product is provided "AS IS" without warranty of any kind. The entire risk arising out of the use or performance of Beta Product remains with Beta Customer.  Beta Customer understands and agrees that Fonality makes no representation or warranties regarding use of the Beta Product.

 
d)    Fonality agrees to use its reasonable efforts to correct errors associated with the Beta Product within a reasonable time.

e)    Beta Customers understands and agrees that all Linked Servers and Live Backup Servers must be migrated to the Beta Product and that such servers cannot operate on varying levels of software.

f)    Beta Customer understands that the Beta Product may contain fundamental changes to the product that prohibit the ability to roll back to a prior release. Fonality will not be liable for any costs or damages that may arise from any attempt to roll back to prior release, and Beta Customer understands and acknowledges that any such attempt may result in irretrievable loss of data and/or service interruption.

6.    TERMINATION

a)    Due to the roll back contrainsts outlines in 5f, above, , the Beta Customer understands that roll back to prior versions may not be possible and, therefore that Fonality may not be able to grant the Beta Customer’s request to terminate Beta Customer’s participation in the Beta Program without data loss or other potential system damage.

b)    Should a Beta Customer wish to terminate participation in the Beta Program, the Beta Customer must provide Fonality with written notice of this intent.  Fonality will then remove the Beta Customer from the Beta Program effective the next Beta Testing Cycle provided that Beta Testing has not already commenced.  
 
7.    GENERAL

a.    This License Agreement shall be governed, construed and enforced in accordance with the laws of the United States of America and of the State of California. Any notice required by this Agreement shall be given by prepaid, first class, certified mail, return receipt requested to above address or such other address as may be given from time to time under the terms of this notice provision.  

b.    This Agreement constitutes the entire and only agreement between the parties for Software and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties.

c.    Beta Customer shall comply with all applicable federal, state and local laws, regulations, and ordinances in connection with its activities pursuant to this Agreement.

d.    Failure of Fonality to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.

e.    If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.