NALPEIRON BETA TESTING AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY AND IMMEDIATELY CEASE USING THE SERVICE IF YOU DO NOT AGREE TO IT. BY CLICKING “I AGREE” OR “ACCEPT” (OR OTHER SIMILAR BUTTON), FILLING ANY APPLICABLE FORM, EXECUTING AN ORDER OR ACCESSING THE NALPEIRON PLATFORMS, YOU (“YOU” OR "TESTER") ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY ALL THE TERMS OF THESE BETA TERMS AND CONDITIONS. THESE TERMS CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND NALPEIRON INC.,(“COMPANY” OR “NALPEIRON”) (EACH, A “PARTY” AND COLLECTIVELY, THE “PARTIES”), AND GOVERN YOUR USE OF THE PLATFORMS ON A LIMITED USE BASIS.

IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THESE TERMS AND IN SUCH CASE ALL REFERENCES TO “YOU” OR "YOUR" HEREINAFTER SHALL INCLUDE AND APPLY TO SUCH ENTITY. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THESE TERMS, YOU MAY NOT ACCESS OR USE ANY PART OF THE PRODUCT.

THESE TERMS APPLY TO AND GOVERN THE EXECUTED ORDERING DOCUMENT (SUCH AS AN ORDER FORM, SALES ORDER, PROPOSAL, OR QUOTE) TO WHICH THEY ARE ATTACHED, HYPERLINKED, OR OTHERWISE INCORPORATED (IF ANY) (THE "ORDER"). THESE TERMS ARE HEREBY INCORPORATED BY REFERENCE INTO AND MADE A PART OF SUCH ORDER. THESE TERMS AND THE ORDER ARE COLLECTIVELY REFERRED TO AS THIS "AGREEMENT". TO THE EXTENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN A PROVISION IN THESE TERMS AND A PROVISION IN THE ORDER, THE FORMER SHALL PREVAIL UNLESS THE ORDER SPECIFICALLY STATES OTHERWISE.

THANK YOU FOR SELECTING THE SERVICES OFFERED TO YOU BY NALPEIRON INC. AND/OR ITS SUBSIDIARIES (REFERRED TO AS “NALPEIRON,” “WE,” “OUR,” OR “US”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT GRANTED ANY RIGHTS IN THE SERVICE, AND YOU WILL NOT BE ABLE TO ACCESS OR USE THE SERVICE.

This Beta Testing Agreement (this “Beta Test Agreement”) is legally binding between the entity identified on the Terms of Service, or Order Form (“Tester”), and Nalpeiron, Inc. and its subsidiaries (“Nalpeiron”). This Beta Agreement is effective as of the Effective Date on the applicable Terms of Service/Order Form.

The purpose of Beta Products is to test and study the usability of certain pre-release products(s) being developed by Nalpeiron (“Purpose”), which Nalpeiron may (in its sole discretion) agree to make available to the Tester for such purposes (each a “Beta Product” and together the “Beta Products”). In consideration of Nalpeiron letting Tester test one or more new Nalpeiron products that have not yet been released to the public (“Beta Testing”), Tester agrees to be bound by the terms and conditions of this Beta Agreement.

The rights and obligations in this Beta Agreement are entirely separate from and without prejudice to any existing or future agreement between Tester and Nalpeiron relating to any of Nalpeiron's features or services other than Beta Products.

If the Tester is using one of Nalpeiron’s platforms, then the service terms for these will also apply to any such use.

VERSION / LAST UPDATED

V1.2.2 (11/26/2024).

1. PRODUCTS AND SERVICES

• 1.1. License Grant. Subject to the terms and conditions of this Beta Agreement, Nalpeiron hereby grants Tester a non-exclusive, sub-licensable, non-commercial and non-transferable license during Evaluation Period (defined in Section 6) to: (a) use the Beta Product described in terms of Service/Order Form in object code format, in production environments for Tester’s internal evaluation purposes and to provide Feedback (as defined below) to Nalpeiron; and (b) use the Nalpeiron’s user manuals, handbooks, and installation guides relating to the Beta Product provided by Nalpeiron to Tester solely for Tester’s internal evaluation purposes in connection with Tester’s use of the Beta Product. The Tester will not use the Beta Product for any purpose other than (a) to provide Feedback to Nalpeiron about the Beta Product and/or (2) to evaluate and test such Beta Product internally in connection with assessing whether Tester desires to enter into a commercial license agreement with Nalpeiron for the Beta Product. The parties acknowledge and agree that this Beta Agreement does not provide a commercial license, and Tester’s use of the Beta Product after the Evaluation Period is subject to the parties’ entering into and executing a separate commercial license agreement. The tester is not legally required or obligated to continue with any Beta Product subscription after the Evaluation Period ends.
• 1.2. Use Restrictions. Tester shall not use the Beta Product or Documentation for any purposes beyond the scope of the license granted in this Beta Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Beta Agreement. Tester shall not at any time, directly or indirectly: (a) copy, modify, or create derivative works of the Beta Product or the Documentation, in whole or in part; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Beta Product or the Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Beta Product, in whole or in part; (d) remove any proprietary notices from the Beta Product or the Documentation; or (e) use the Beta Product in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other rights of any person, or that violates any applicable law.
• 1.3. Reservation of Rights. Nalpeiron reserves all rights not expressly granted to Tester in this Beta Agreement. Except for the limited rights and licenses expressly granted under this Beta Agreement, nothing in this Beta Agreement grants, by implication, waiver, estoppel, or otherwise, to Tester or any third party any intellectual property rights or other right, title, or interest in or to the Beta Product. Tester acknowledges that Tester shall not acquire any intellectual property rights or other rights under this Beta Agreement or through the Tester’s participation in the Beta Testing. Nalpeiron grants Tester a non-exclusive, non-transferable, terminable (by notice at any time) license for the term of his Beta Agreement to use the Beta Product(s) for the sole purpose of taking part in the Beta Testing in accordance with Nalpeiron instructions.
• 1.4. Tester Responsibilities. Tester is responsible and liable for all uses of the Beta Product and Documentation resulting from access provided by Nalpeiron, directly or indirectly, whether such access or use is permitted by or in violation of this Beta Agreement. Without limiting the generality of the foregoing, Tester is responsible for all acts and omissions of Tester’s employees, and any act or omission by a Tester’s employee that would constitute a breach of this Beta Agreement if taken by Tester will be deemed a breach of this Beta Agreement by Tester. Tester shall take reasonable efforts to make all Tester’s employees aware of this Beta Agreement’s provisions as applicable to such Tester’s employees use of the Beta Product and shall cause Tester’s employees to comply with such provisions.
• 1.5. Support. Nalpeiron has no obligation under this Beta Agreement to provide support, maintenance, upgrades, modifications, or new releases of the Beta Product or Documentation to Tester. However, Nalpeiron agrees to use its reasonable efforts to correct errors in the Beta Product and Documentation within a reasonable time and shall provide Tester with any corrections it makes generally available to other evaluation participants.

2. PROPRIETARY RIGHTS

• 2.1. Ownership Rights. Tester agrees that Nalpeiron retains all rights, title, and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Products, platforms, technology, tools, Documentation (“Pre-Existing Materials”), Performance Data, Feedback, and any derivative works, modifications, or improvements of any of the foregoing, including that may be incorporated (collectively, “Nalpeiron Technology”).
• 2.2. Feedback. Whilst taking part in Beta Testing, Tester may provide certain comments, suggestions, data, or other information to Nalpeiron (“Feedback”). Nalpeiron shall have the right to retain and use any such Feedback in current or future products or services without compensation to the Tester. If Tester or any of its employees or contractors submits, orally or in writing, suggestions or recommended changes to the Beta Product or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Nalpeiron is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Tester hereby assigns to Nalpeiron on Tester’s behalf, and on behalf of its employees, contractors, and/or agents, all rights, title, and interest in, and Nalpeiron is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Nalpeiron is not required to use any Feedback.
• 2.3. Tester Data. Tester agrees that Nalpeiron may (a) analyze and monitor Tester’s participation in the Beta Testing, (b) record any data resulting from Tester’s participation in the Beta Testing, and (c) use such records for Nalpeiron’s own internal business purposes. All data will be kept private and removed at your request if required.

3. CONFIDENTIALITY

• 3.1. “Confidential Information” means any information of Nalpeiron disclosed to Tester which is marked “confidential” or “proprietary,” or if disclosed orally, is designated as confidential or proprietary at the time of disclosure, or which should otherwise reasonably be understood by Tester to be confidential or proprietary to Nalpeiron, including but not limited to, the Beta Product, the non-public terms of this Beta Agreement, and any information that relates to Nalpeiron’ research, development, inventions, algorithms, trade secrets, processes, patents, patent applications, patent licenses, business, financials, marketing, market data, sales, distribution strategy, contracts, cost and pricing data, the Beta Product (source and object code), hardware, APIs, products, services, specifications, information technology infrastructure, document management strategy, suppliers, manufacturers, beta testers, personnel, and consultants.
• 3.2. Tester shall:
  • 3.2.1. not use Nalpeiron’s Confidential Information except for the Purpose;
  • 3.2.2. hold Nalpeiron’s Confidential Information in strictest confidence and shall not disclose Nalpeiron’s Confidential Information to others, except for its employees or agents who require Nalpeiron’s Confidential Information in order to carry out the Tester’s obligations under this Beta Agreement and who are subject to binding obligations of confidentiality and restricted use at least as protective as those of this Beta Agreement;
  • 3.2.3. protect the confidentiality of Nalpeiron’s Confidential Information using at least the same level of efforts and measures used to protect its own confidential information of like importance, and at least commercially reasonable efforts and measures, including without limitation limiting access to Nalpeiron’s Confidential Information commensurate with the Purpose under this Beta Agreement;
  • 3.2.4. not alter any proprietary notices contained in any Confidential Information and, to the extent Tester creates any documents or other embodiments that contain any Confidential Information, Tester shall identify the confidential and proprietary nature of such; and
  • 3.2.5. notify Nalpeiron as promptly as practicable of any unauthorized use or disclosure of Nalpeiron’s Confidential Information by Tester, its employees, or agents of which Tester becomes aware.
• 3.3. The obligations of Section 3.2 shall not apply to any Nalpeiron’s Confidential Information that:
  • 3.3.1. Tester knew prior to learning it under this Beta Agreement, as demonstrated by written records predating the date it was learned under this Beta Agreement;
  • 3.3.2. is now, or becomes in the future, publicly available information other than by an act or omission of Tester;
  • 3.3.3. a third party discloses to Tester, without any confidentiality obligations and without any breach of any direct or indirect obligation of confidentiality to Nalpeiron, as shown by Tester’s written records contemporaneous with such third party disclosure or
  • 3.3.4. Tester independently develops without the use of or reference to Nalpeiron’s Confidential Information, as demonstrated by Tester’s independent written records contemporaneous with such development.
• 3.4. Tester acknowledges that the Beta Products are the property of Nalpeiron and are protected by intellectual property laws. In particular, Tester undertakes that the existence or development of the Beta Products and any information communicated to Nalpeiron relating to the Beta Products and/or the contents and/or functionality of such Test Products shall be treated as Confidential Information belonging to Nalpeiron.

4. DISCLAIMER OF WARRANTIES

THE BETA PRODUCT AND DOCUMENTATION ARE PROVIDED "AS IS" AND NALPEIRON HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NALPEIRON MAKES NO WARRANTY OF ANY KIND THAT THE BETA PRODUCT AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET TESTER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY BETA PRODUCT, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.

TESTER ACKNOWLEDGES THAT BETA PRODUCTS ARE EXPERIMENTAL IN NATURE AND MAY NOT HAVE BEEN TESTED IN ANY MANNER. NALPEIRON DOES NOT REPRESENT THAT ANY BETA PRODUCT IS ENTIRELY RELIABLE, ACCURATE, OR COMPLETE.

5. LIMITATIONS OF LIABILITY

EXCEPT FOR LIABILITY RELATED TO CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS BETA AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT FOR LIABILITY RELATED TO CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS BETA AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED USD $10.

6. TERM AND TERMINATION

Nalpeiron shall, at its sole discretion, determine when the Beta Testing will commence and reserves the right at any time and without liability to withdraw Tester’s participation. This Beta Agreement is effective as of the Effective Date and, unless terminated earlier pursuant to this Section 6, will continue in effect until 180 days after the Effective Date (the “Evaluation Period”).

Either party may terminate this Beta Agreement at any time, without cause, upon seven (7) days prior written notice. Nalpeiron may terminate this Beta Agreement on written notice to Tester if Tester materially breaches or fails to comply with any terms or conditions of this Beta Agreement and does not cure such breach or failure within ten (10) days after receiving written notice. Upon expiration or earlier termination of this Beta Agreement, the license granted hereunder will also terminate, and Tester shall cease using the Beta Product and Documentation. Termination of this Beta Agreement shall not affect the accrued rights of the parties at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination (including those rights expressly or implicitly coming into effect after termination) or either party’s rights or responsibilities under the Beta Agreement.

7. MISCELLANEOUS

• 7.1. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the Terms of Service/Order Form (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email to legal@Nalpeiron.com (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Beta Agreement, a Notice is effective only (i) upon receipt by the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
• 7.2. Amendment and Modification; Waiver. No amendment to or modification of this Beta Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Beta Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Beta Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
• 7.3. Severability. If any provision of this Beta Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Beta Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Beta Agreement to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
• 7.4. Governing Law; Submission to Jurisdiction. The laws of the State of Colorado in the United States of America will govern this Beta Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Beta Agreement. Any action or proceeding arising from or relating to this Beta Agreement must be brought in the courts in Boulder County, Colorado, U.S. The parties agree that this Beta Agreement is written and construed in English.
• 7.5. Assignment. Tester may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Nalpeiron, which consent shall not be unreasonably withheld, conditioned, or delayed.
• 7.6. Export Regulation. The Beta Product may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Beta Product to, or make the Beta Product accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules and complete all required undertakings (including obtaining any necessary export license or other governmental approval), before exporting, re-exporting, releasing, or otherwise making the Beta Product available outside the US.
• 7.7. US Government Rights. Each of the Documentation and the Beta Product is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer Beta Product” and “commercial computer Beta Product documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefore, Licensee only receives those rights with respect to the Beta Product and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
• 7.8. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 2.1 or, in the case of Licensee, Section 1.2, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
• 7.9. Counterparts. This Beta Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
• 7.10. Survival. Sections 2, 3, 7, 6, and 7 survive any termination or expiration of this Beta Agreement. No other provisions of this Beta Agreement survive the expiration or earlier termination of this Beta Agreement.

8. ENTIRE AGREEMENT

This Agreement is the complete agreement between You and Nalpeiron. It sets forth the entire liability of Nalpeiron, its corporate affiliates, and its Suppliers and your exclusive remedy with respect to the Services and its use. Any modification or waiver of the terms herein by Nalpeiron must be in writing, signed by an authorized representative of Nalpeiron, and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be interpreted to accomplish the objectives of such provision to the fullest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This agreement supersedes all previous communications, representations, or agreements, either oral or written, concerning the subject matter hereof, and no representation or statements of any kind made by any representative of licensor or licensee that are not stated in this agreement shall be binding on Licensor or Licensee including any terms in Licensee purchase orders or contracts.

EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against Company shall only be enforceable against Company, not any other entity or Company's officers, directors, representatives, or agents.

NALPEIRON CONTACT DETAILS

Nalpeiron Inc, 4450 Arapahoe Ave., Suite 100, Boulder, CO 80303, U.S.

COPYRIGHT NOTICE

Copyright Nalpeiron, Inc. All rights reserved. Nalpeiron Licensing Service™, Zentitle™, Zengain™, NSL™, NSA™, PRO-Tector™, Total License Agility™, BetaTracker™, FreeConvertor™, SupportConsole™, EngagePage™, OverdraftTracker™, TrialMaximizer™, ActiveMarketing Suite™ and the Nalpeiron logos, Nalpeiron, and the Nalpeiron company logo are trademarks of Nalpeiron, Inc.

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