Beta Tester Agreement

SOFTWARE BETA  TEST AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN YOU (PERSONALLY AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR A LEGAL ENTITY) (“PARTICIPANT”) AND LEIDEN LABS AND ITS AFFILIATED ENTITIES (“LEIDEN LABS”). LEIDEN LABS AGREES TO LICENSE THE BETA SOFTWARE TO PARTICIPANT ONLY IF PARTICIPANT ACCEPTS ALL THE TERMS AND CONDITIONS CONTAINED IN THIS BETALICENSE AGREEMENT (“BETA AGREEMENT”). BY ACTIVELY APPLYING VIA THE RELATED LINKS ON THIS WEBSITE OR INDICATING ASSENT ELECTRONICALLY OR LOADING THE BETA SOFTWARE OR OTHERWISE USING THE BETA SOFTWARE, PARTICIPANT CONSENTS TO BE BOUND BY THIS BETA AGREEMENT. EACH TIME PARTICIPANT ACCESSES BETA SOFTWARE, PARTICIPANT ACCEPTS, ON EACH SUCH OCCASION, THE TERMS AND CONDITIONS OF THIS BETA AGREEMENT.

This Beta Agreement is effective as of the date it is accepted by Participant (“Effective Date”) and sets forth the general terms and conditions under which Leiden Labs may, from time-to-time, provide to Participant the software (“Beta Software”) accompanying this Agreement or as otherwise identified on the applicable schedule to this Agreement (“Schedule”).

1. GRANT OF LICENSE. Leiden Labs hereby grants to Participant a nonexclusive, nontransferable, nonsublicensable license to use a binary copy of the Beta Software solely for Participant’s internal, non-commercial testing and evaluation purposes or as may be further described in a Schedule and in accordance with the terms and conditions of this Beta Agreement (the “Purpose”). If specified in an applicable Schedule, Participant may use the Beta Software on a limited basis in a production environment, but only to the extent necessary to complete its testing and evaluation of the Beta Software, and provided that such use is only for internal, non-commercial purposes.

2. TESTING. Participant will test and evaluate the Beta Software. In addition, Participant will promptly report to Leiden Labs any problems or defects encountered in the Beta Software.

3. TERM AND TERMINATION. During the term of the Beta Agreement, Participant will have the right to use the Beta Software for the Purpose until: (i) ninety (90) days from the Effective Date, (ii) the expiration date specified in an executed Schedule, or (iii) the termination of the Beta Agreement or the applicable Schedule as set forth below (“Test Period”). Either party may terminate this Agreement or an applicable Schedule at any time upon advanced written noticed to the other party. Upon expiration or termination of this Beta Agreement or the applicable Schedule, Participant will immediately cease all usage of the Beta Software and destroy and erase from computer memory the Beta Software together with all copies, modifications and merged portions in any form. If requested by Leiden Labs, Participant will certify in writing within three (3) days of the request that Participant has complied with the terms of this provision.

4. INSTALLATION AND USE. Participant may install the Beta Software onto the number of computers solely as specified in the applicable Schedule or as otherwise necessary to use the Beta Software in accordance with this Agreement.

5. INTELLECTUAL PROPERTY RIGHTS. Leiden Labs and/or its licensors shall retain all right, title and interest in the Beta Software, including without limitation, any and all copies, improvements, enhancements, modifications and derivative works thereof. Participant does not acquire any rights, express or implied, in the Beta Software, other than those specified in this Beta Agreement.

6. OTHER BETA AGREEMENT RESTRICTIONS. Participant agrees not to cause or permit the (i) reverse engineering, disassembly, decompilation or other attempt (a) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in, or (b) to derive the source code of the underlying ideas, algorithms, structure or organization from the Beta Software, except to the extent required by law; (ii) distribution, use, copying, modification, rental, lease, sublease, sublicense, or transfer of the Beta Software or documentation thereto (“Documentation”), except as expressly provided in this Beta Agreement; (iii)creation of any derivative works based on the Beta Software or Documentation; (iv) use of the Beta Software or Documentation by or on behalf of any party other than Participant. In addition, if applicable, Participant may only use the Beta Software on a device that is the designated system (as specified in the Schedule) to which such Beta Software is licensed.

7. FEEDBACK. Any comments or suggestions provided by Participant regarding the Beta Software (the “Feedback”) shall be deemed non-confidential to Participant. By providing such Feedback, Participant grants to Leiden Labs, under Participant’s intellectual property rights, a worldwide, royalty-free, irrevocable and non-exclusive license, with the right to sublicense to Leiden Labs licensees and customers, to use and disclose the Feedback in any manner Leiden Labs chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of Leiden Labs and its sublicensee’s products embodying such Feedback in any manner and via any media Leiden Labs or its sublicensees choose, without reference or obligation to Participant. Participant will not give Leiden Labs any Feedback (i) that Participant has reason to believe is subject to any patent, copyright, or other intellectual property claim or right of any third party; or (ii) subject to license terms that seek to require any Leiden Labs product incorporating or derived from any Feedback, or other Leiden Labs intellectual property, to be licensed to or otherwise shared with any third party. Unless otherwise set forth in the applicable exhibit or authorized by Participant in writing, Leiden Labs shall not use or reference Participant’s name in its public use of such Feedback.

8. CONFIDENTIAL INFORMATION. The Beta Software, Documentation, Beta Software-related information and any other proprietary technology or know how provided to Participant by Leiden Labs under this Beta Agreement is the confidential information of Leiden Labs (“Confidential Information”). Participant will hold all Confidential Information in confidence for a period of five (5) years from the date of termination or expiration of this Beta Agreement. Participant will use the Confidential Information only as expressly authorized in this Beta Agreement and Participant will protect the Confidential Information by using the same degree of care as Participant would use to protect its own Confidential Information of like nature, but no less than a reasonable degree of care, from the unauthorized use, dissemination or publication of the Confidential Information. Participant is not obligated with respect to Confidential Information that Participant can prove: (a) is or becomes a matter of public knowledge through no fault of Participant; (b) is rightfully received by Participant from a third party without a duty of confidentiality; (c) is independently developed by Participant (excluding the Feedback) without use or reference to the Confidential Information; (d) is disclosed under operation of law or (e) is disclosed by Participant with Leiden Labs prior written consent. Unauthorized use or disclosure of Confidential Information may cause Leiden Labs irreparable harm; therefore, Leiden Labs will have the right to enforce this agreement and any of its provisions by injunctive or other equitable relief.

9. NO OBLIGATION. Leiden Labs is under no obligation to provide technical support for the Beta Software; however, Leiden Labs may at its sole discretion elect to provide certain support for the Beta Software. Any updates or support deliverables provided by Leiden Labs are included in the definition of “Beta Software” for purposes of this Beta Agreement. Leiden Labs is under no obligation to develop, maintain or market the Beta Software or to release production or general availability versions. Future versions of the Beta Software, if any, may not be compatible with the current evaluation release of the Beta Software.

10. DISCLAIMERS OF WARRANTY. PARTICIPANT ACKNOWLEDGES THAT THE BETA SOFTWARE IS EXPERIMENTAL IN NATURE AND IS PROVIDED TO PARTICIPANT ON AN “AS IS” BASIS. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LEIDEN LABS
AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES REGARDING THE BETA SOFTWARE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT TO LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

11. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL LEIDEN LABS OR ITS SUPPLIERS BE LIABLE TO PARTICIPANT FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS BETA AGREEMENT, EVEN IF LEIDEN LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. INDEMNIFICATION. Participant agrees to defend, indemnify and hold harmless Leiden Labs from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of Participant’s use of the Beta Software or breach of any provision of this Beta Agreement. Leiden Labs reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Participant. Participant will provide reasonable cooperation in the defense of any claim.

13. SURVIVING TERMS AND CONDITIONS. Section 5 (“Intellectual Property Rights”), 6 (“Other Beta Agreement Restrictions”), 8 (“Confidential Information”), 9 (“No Obligation”), 10 (“Disclaimer of Warranties”), 11 (“Limitation of Liability”), 12 (“Indemnification”), 16 (“General Terms”) and 13 (“Surviving Terms and Conditions”) will survive expiration or termination of this Beta Agreement.

15. GENERAL TERMS. This is the entire agreement between Participant and Leiden Labs and supersedes any terms of any other agreement that may be included with the Beta Software, including any shrink-wrap or click wrap. This Beta Agreement will be governed by and construed under the laws of the State of California, without giving effect to such state’s conflict of laws principles. Any legal action or proceeding related to this Beta Agreement shall be instituted in a state or federal court in King County, Washington. Leiden Labs and Participant agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. Leiden Labs shall have the right to verify Participant’s compliance with its obligations under this Agreement by performing a reasonable review of Participant’s applicable business records and the Participant’s use of the Beta Software within Participant’s computing environment. If any provision of this Beta Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this Beta Agreement. No amendment to this Beta Agreement will be binding unless evidenced by a writing signed by an authorized representative of the party against whom it is sought to be enforced. No waiver by either Leiden Labs or Participant of any breach or default under this Beta Agreement shall be deemed to be a waiver of any other breach or default under this Beta Agreement. Participant may not assign this Beta Agreement, in whole or in part and whether by operation of contract, law or otherwise, without the prior express written consent of Leiden Labs. A change of control in the ownership of Participant shall constitute an assignment.