Beta Program Agreement
This Beta Program Agreement (the “Agreement“) for the Use and testing of certain Beta Products prior to their public release is effective as of the date a Beta Product is first Used by, or made available to, Beta Participant (the “Effective Date”). For the avoidance of doubt, Use of Company’s other products and services shall be governed by a separate agreement and this Agreement shall have no effect on such separate agreement. Please read this Agreement carefully before any Use of the Beta Products. Your Use constitutes an unconditional agreement to be bound by this Agreement. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT YOU ARE PROHIBITED FROM USING THE BETA PRODUCTS.
Beta Program Definitions
- “Beta Fees” means the amount payable to Company for Use of the Beta Products.
- “Beta Participant“, “Publisher” or “You” means the entity Using Beta Products, or any entity on whose behalf it uses Beta Products.
- “Beta Participant Data” means all Beta Participant Content and transactional data processed by or provided to the Company in connection with the Beta Products.
- “Beta Period” means the earlier of 90 days after the Effective Date or Company’s commercial release of the Beta Products.
- “Beta Products” means products, features, programs or services identified by Company as beta products, or which are made available by Company to Beta Participant and which are not yet generally available.
- “Beta Program” means an opportunity, during the Beta Period, to Use and assist Company with the pre-release testing of certain Beta Products.
- “Claims” means claims, suits, demands and actions brought or tendered for defense and/or indemnification.
- “Company” means LongTail Ad Solutions, Inc. d/b/a JW Player and its successors and assigns.
- “Content” means all media viewed through, accessed by, uploaded to, streamed through or contributed to the Beta Products, including Videos, images, graphics, animations, sounds, text and music.
- “Distribute” means to sell, transfer, assign, make available to any third party, or circulate.
- “Fee” means the amount payable to the Company required for Use of a Beta Product.
- “Licensing Key” means certain code in a Beta Product that permits the Company to track Use of the Beta Product.
- “Losses” means damages, losses, costs, and liabilities, including reasonable attorney and professional fees.
- “Use” means using, accessing, downloading, installing, providing Content through or otherwise operating a Beta Product.
Beta Participant’s authorization to participate in the Beta Program is at the Company’s sole discretion. Company reserves the right to withdraw such authorization at any time.
Subject to the terms and conditions of this Agreement and Beta Participant’s observance thereof, the Company hereby grants to Beta Participant and Beta Participant hereby accepts a personal, non-exclusive, non-transferable, non-sublicensable, limited right and license to Use the Beta Products solely for its own internal Use during the Beta Period. Any Use of the Beta Products other than as permitted by this Agreement is strictly prohibited. This Agreement does not cover previous or future versions (including public release versions) of the Beta Products, all of which are subject to other agreements. All rights and licenses not expressly granted by this Agreement are reserved by the Company.
Certain Beta Products may consist of or include features for or modifications to existing Company products, software or services subject to other license agreements or terms of service, which shall remain in effect and shall to the maximum extent possible be construed as consistent with this Agreement.
To the extent the Beta Products relate to third-party services, Beta Participant’s Use of the Beta Products shall be subject to the licenses of such third-party services. Beta Participant shall be responsible for its obligations to any such third parties, and Company makes no representation as to the continued access or availability of any such third-party services and shall have no liability related to or arising from such third-party services.
Beta Participant acknowledges that the Beta Products are pre-release versions and, as such, the foregoing description and underlying Beta Product functionality is subject to modification by Company at any time without notice.
Beta Program Obligations
Beta Participant will provide assistance to the Company in connection with the evaluation, testing, usage and trouble-shooting of Beta Products. Beta Participant is expected to commit sufficient time to such testing to meet these reporting requirements, including testing all major features of Beta Products and recording any bugs or other issues it encounters. The parties anticipate that the Company will regularly solicit Beta Participant’s feedback and Beta Participant will timely provide such feedback. Company will have the right to monitor Beta Participant’s Use of the Beta Products.
Except as specifically authorized herein, Beta Participant shall not Distribute, relicense, sell, lease, transfer, encumber, assign or make available for public use any Beta Products. Any attempt to take any such actions is void, and will automatically terminate Beta Participant’s rights under this Agreement.
Fees and Payment
Certain Beta Products may require payment of Beta Fees. Beta Participant must timely pay all Beta Fees due to Company. Beta Participant is prohibited from using the Beta Products if all Beta Fees due have not been paid. Periodic (e.g. monthly) Fees are billed in advance. All Fees are non-refundable except as otherwise provided in this Agreement. Beta Participant shall be responsible to pay all taxes due in connection with the Fees and Beta Participant’s Use of the Beta Products.
Term and Termination
This Agreement shall become effective on the Effective Date and shall terminate at the conclusion of the Beta Period, provided, the Beta Period may be extended by the mutual written consent of the Parties at any time prior to termination. This Agreement is subject to termination by either party for convenience upon written notice, provided, Beta Participant acknowledges that Beta Products may be modified or withdrawn from a Beta Program by the Company at any time without prior notice.
Effects of Termination
Representations and Warranties
Beta Participant represents and warrants that (i) if Beta Participant is an individual, Beta Participant is at least eighteen (18) years old, (ii) if Beta Participant is an entity, its consent to this Agreement has been duly ratified, (iii) it is not a resident of (and will not Use the Beta Products in) a country that the U.S. government has embargoed for Use of the Beta Products, nor is it named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations, (iv) its Use of Beta Products is in compliance with all applicable laws and regulations, (v) it has obtained all necessary consents and permissions under applicable laws from individuals and other persons for its performance of this Agreement and its Use of the Beta Products, including without limitation for all features and operations of the Beta Products, and (vi) it will not decipher, decompile, disassemble, reverse engineer, simulate, derive or attempt to discover any source code or underlying structure, ideas or algorithms from the Beta Products.
THE BETA PRODUCTS ARE BETA RELEASE VERSIONS AND MAY NOT PERFORM AT THE LEVEL OF A COMMERCIAL PRODUCT. COMPANY HAS NO OBLIGATION TO PROVIDE ANY PRODUCT SUPPORT. EXCEPT AS OTHERWISE PROVIDED AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE BETA PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED, USE OF THE BETA PRODUCTS IS AT BETA PARTICIPANT’S OWN RISK AND BETA PARTICIPANT IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF EXERCISING THE RIGHTS GRANTED UNDER THIS AGREEMENT AND ASSUMES ALL RISKS ASSOCIATED THEREWITH, INCLUDING BUT NOT LIMITED TO THE RISKS AND COSTS OF PROGRAM ERRORS, COMPLIANCE WITH APPLICABLE LAWS, DAMAGE TO OR LOSS OF DATA, PROGRAMS OR EQUIPMENT, SUITABILITY FOR HOSTING AND UNAVAILABILITY OR INTERRUPTION.
Limitation of Liability
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE, IN NO EVENT SHALL THE COMPANY BE LIABLE ON ANY LEGAL THEORY (A) FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING LOSS OF REVENUE, PROFITS OR GOODWILL, (B) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, (C) FOR ANY LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, (D) YOUR INABILITY TO USE THE BETA PRODUCTS, INCLUDING AS A RESULT OF ANY (i) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE BETA SOFTWARE, (ii) DISCONTINUATION OF A PORTION OR ALL OF THE BETA PRODUCTS, OR, (iii) WITHOUT LIMITING ANY OTHER OBLIGATIONS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE BETA PRODUCTS FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, OR (E) DIRECT DAMAGES IN EXCESS OF THE TOTAL FEES PAID BY BETA PARTICIPANT TO THE COMPANY PURSUANT TO THIS AGREEMENT, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
Except as otherwise set forth in this Agreement, Beta Participant will indemnify, defend, and hold harmless the Company from and against all Claims, and for all resulting Losses (including attorney’s fees) that result or arise from Claims, which in whole or in part arise from Beta Participant’s Use, reproduction, Distribution or other exploitation of the Beta Products. Beta Participant will pay all amounts agreed to in a monetary settlement of the Claims and all Losses that result or arise from the Claims. Notwithstanding the foregoing, Beta Participant shall have no duty to indemnify or defend the Company from Claims which primarily allege that the Beta Products, as provided to Beta Participant by the Company and used in accordance with the terms hereof, infringes the copyright, patent, or trademark rights of a third party.
Beta Participant acknowledges that it may have access to certain confidential information of the Company concerning Beta Products, Beta Product features, business plans, marketing information, technology, development process, bug reports and other information reasonably expected to be held in confidence (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should reasonably be considered confidential. The existence of the Beta Products and the existence of any relationship between Company and any third parties related to the Beta Products shall also be deemed Confidential Information. Beta Participant agrees that it will not use Confidential Information in any way for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor will it disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary) any Confidential Information and it will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Upon termination or expiration of this Agreement for any reason, Beta Participant will return or destroy, at the Company’s request, all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof.
Nothing herein constitutes or creates an employer-employee, agency, joint venture or representative relationship between the parties.
Beta Participant agrees and certifies that it will not export or re-export, directly or indirectly, the Beta Products contrary to the laws of the United States or any other country from or to which such export or re-export may occur.
Beta Participant acknowledges and agrees that unauthorized Use of the Beta Products or disclosure of Confidential Information may cause the Company irreparable harm for which its remedies at law may be inadequate. Beta Participant hereby agrees that the Company will be entitled, in addition to any other remedies available to it at law or in equity, to obtain immediate injunctive relief to prevent such unauthorized actions.
This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning the subject matter hereof. Company may modify the terms of this Agreement in its sole discretion and such modifications shall take effect and be binding on Beta Participant on the earliest date on which they are posted to the Company’s publicly available website or delivered to Beta Participant via electronic or physical delivery. No one other than the Company has the right to modify this Agreement. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising under this Agreement shall be in the federal and state courts located in New York City, and both parties hereby consent to such jurisdiction and venue for this purpose. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained. Any notice hereunder will be effective upon receipt and shall be given in writing, in English and delivered to the other party at its address given herein or at such other address designated by written notice.
Last Revised: February 12, 2018