Spekit Testing Participation Agreement
Last Updated: July 10, 2023
This Testing Participation Agreement (“Agreement”) is entered into between Spekit Inc. (“Company”) and the individual participant (“Participant”) for their voluntary participation in Company’s testing activities. By checking a box denoting acceptance of this Agreement, or by participating in Company’s Testing Program or otherwise accessing the Test Material, you agree to be legally bound by the terms of this Agreement.
Participant is an individual that desires to participate in Company’s Testing Program, which provides access to confidential materials, services, products, and features currently in development by Company. Company will receive the benefit of Participant’s feedback and reports as a tester of Company’s materials, services, products, and features. Company and Participant agree to the following:
1. Test Material.
All materials, services, designs, products, and features (including any related components, accessories, and documentation) provided by Company in connection with the Testing Program shall be referred to in this Agreement as the “Test Material.”
Company grants Participant a personal, non-exclusive, non-transferable license to use each Test Material solely for the purpose of Participant’s internal evaluation and testing of the Test Material for Company. The Test Material may not be disclosed (publicly or privately), sublicensed, sold, assigned, leased, loaned, or otherwise transferred by Participant to any third party, for any reason.
3. Third Party Software.
The Test Materials may contain, be hosted by, associated with or use certain software that is owned by third parties (“Third Party Software”). Third Party Software is subject to terms and conditions other than those in this Agreement. Participant may view the relevant licenses and/or notices for such Third Party Software on their respective websites. A list of third party software can be provided upon request. As applicable, the terms of Participant’s use of the Third Party Software is subject to and governed by the applicable third party licenses and/or terms of service, except that the Sections “License”, “Disclaimer of Warranty” and “Limitation of Liability and Indemnity” of this Agreement also govern Participant’s use of the Third Party Software. Participant agrees to comply with the terms and conditions of the relevant Third Party Software licenses and/or terms of service.
4. Company’s Obligations.
- Company will deliver the Test Material to Participant.
- Company will provide technical support for the Test Material.
- Company has no obligation to develop or provide any updates or revisions to the Test Material, and Company reserves the right to alter or adjust performance specifications for the Test Material as it deems necessary or desirable.
- Company will provide any instructions, safety information, warnings or cautions concerning the Test Material.
5. Participant’s Obligations and Representations.
- Participant agrees to test and evaluate the Test Material as requested and described in any instructions provided by Company. Participant agrees to familiarize itself with the Test Material information, instructions and documentation provided by Company and to only use or test the Test Material as directed. Participant will promptly notify Company of any and all functional flaws, errors, anomalies, and problems directly or indirectly associated with the Test Material known to or discovered by Participant. Participant agrees to provide Company with such reports via the methods designated by Company and to promptly respond to any and all reasonable inquiries, questionnaires, surveys, and other test documents submitted to Participant by Company.
- If Participant is a company or other entity, Participant shall designate to Company, an employee or representative who will serve as the single point of contact and who will be responsible for maintaining communication with Company.
- Any feedback, ideas, modifications, suggestions, improvements, and the like made by Participant with respect to the Test Material (“Supportive Information”) will be the property of Company. Participant agrees to assign, and hereby assigns, all right, title, and interest worldwide in the Supportive Information and the related intellectual property rights to Company. Company may disclose or use Supportive Information for any purposes whatsoever without any obligation to Participant.
- Participant agrees to pay all incidental costs (such as, costs for Internet and phone services, accessories, cabling, etc.) associated with the testing of the Test Material and incurred during Participant’s possession of the Test Material, unless otherwise agreed to in writing by both parties.
- Company will provide a $25 gift card to the Participant upon completion of their testing activities as specified by Company. The gift card will be provided to the Participant within a reasonable timeframe after the completion of their testing activities.
- The Participant acknowledges that they are solely responsible for any tax obligations or liabilities that may arise from receiving the gift card. The Company will not be held accountable for any tax-related matters concerning the compensation provided.
- Any compensation is discretionary based on a good faith effort by Participant, as solely determined by Company.
- Participant acknowledges that as a tester, Participant, the members of Participant’s household, or Participant’s employees (as applicable, “Recipients”), may have access to, and Company may disclose to Participant, certain valuable information belonging to and relating to Company which Company considers confidential, including, but not limited to, information concerning the Test Material, the Test Material’s trademark(s) and trade name(s), computer programs, user manuals, sales and marketing plans, business plans, processes, and other trade secrets (“Confidential Information”). Participant shall ensure that Participant and all Recipients, use the Confidential Information solely for testing purposes and shall not disclose, without Company’s written consent, such Confidential Information to third parties or use such Confidential Information for their own benefit or for the benefit of third parties.
- If Participant is a company or other entity, Participant shall disclose Confidential Information only to those of its employees who need to know such information for the purpose of testing Company’s products and services, and who are subject to written obligations of confidentiality.
- Participant acknowledges that the Test Material contains Confidential Information developed or acquired by Company and that all right, title and interest therein and in other Company Confidential Information remain vested in Company. Participant shall not, and shall ensure that all Recipients do not, disclose that it is evaluating or testing or has evaluated or tested the Test Material (or the results of such testing) to any third party without Company’s prior written consent, including but not limited to disclosure over social media. In addition, Participant agrees to treat any communications and reports prepared under this Agreement as Confidential Information and will not divulge the existence or content of such communications or reports to any third party without Company’s prior written consent.
- This Agreement shall impose no obligation of confidentiality upon Participant with respect to any portion of the Confidential Information which: (i) now or hereafter, through no act or failure to act on Participant’s part, becomes generally known or available; (ii) is known to Participant at the time Participant receives same from Company as evidenced by written records; (iii) is hereafter furnished to Participant by a third party as a matter of right and without restriction on disclosure.
9. Proprietary Rights; No Right to Copy, Modify, or Disassemble.
- The Test Material provided by Company and all copies thereof, are proprietary to and the property of Company. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents and other intellectual property rights in or associated with the Test Material are and will remain vested in Company and Participant shall have no such intellectual property rights in the Test Material.
- Participant may not, and shall prevent all Recipients from attempting to, copy or reproduce the Test Material without Company’s prior written consent, except as reasonably needed to perform its obligations hereunder. Participant may not, and shall prevent all Recipients from attempting to, copy or reproduce any software or documentation provided by Company, without Company’s prior written consent, except as is reasonably needed to perform Participant’s obligations under this Agreement. Each permitted copy of software or documentation must contain Company’s proprietary and copyright notices in the same form as on the original. Participant shall not remove or deface any portion of any legend provided on any part of the Test Material.
- Participant agrees to secure and protect the Test Material in a manner consistent with the maintenance of Company’s rights therein and to take appropriate actions by instruction or agreement with any of its employees or agents.
- Participant shall not, and shall prevent all Recipients from attempting to, reverse engineer, alter, modify, disassemble or decompile the Test Material, or any part thereof, without Company’s prior written consent.
10. Disclaimer of Warranty.
By its nature, the Test Material may contain errors, bugs and other problems that could cause system failure and the testing and quality assurance of the Test Material may not yet be completed. Participant acknowledges and agrees that the Test Materials may contain, in Company’s sole discretion, more or fewer features or different licensing terms than subsequent commercial release versions. Because the Test Material is subject to change, Company reserves the right to alter the Test Material at any time, and any reliance on the Test Material is at Participant’s own risk. Without limiting any disclaimer of warranty or other limitation stated herein, Participant agrees that any Test Materials are not considered by Company to be suitable for commercial use, and that they may contain errors affecting their proper operation. PARTICIPANT ACCEPTS THE TEST MATERIAL “AS IS.” COMPANY MAKES NO WARRANTY OF ANY KIND REGARDING THE TEST MATERIAL. COMPANY HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTIES RIGHTS. NEITHER COMPANY NOR ITS LICENSORS WARRANT THAT THE TEST MATERIALS OR THE THIRD PARTY SOFTWARE WILL MEET PARTICIPANT’S REQUIREMENTS, THAT THE OPERATION OF THE TEST MATERIALS OR THE THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE TEST MATERIALS WILL BE CORRECTED.
11. Term and Termination.
- The term of this Agreement shall begin on the date set forth above (or, if no date is given, then the later of the dates each party accepted this Agreement) and shall continue until terminated as set forth below. Upon termination of this Agreement for any reason, the obligation to protect Confidential Information shall survive such termination.
- This Agreement shall terminate upon ten (10) days prior written notice by either party.
- Upon termination of this Agreement, Participant agrees to (a) return the Test Material and all copies thereof to Company, if requested by Company in writing to do so, within seven (7) days after such termination, or (b) if requested by Company to do so, certify to Company in writing that the Test Material and all copies thereof have been destroyed. The provisions of, and the obligations of the parties under, Sections 5, 7, 8, 9, 10, 11 and 12, and any other provisions that would normally survive, shall survive the termination of this Agreement.
12. Limitation of Liability and Indemnity.
IN NO EVENT SHALL COMPANY BE LIABLE TO PARTICIPANT OR ANY THIRD PARTY FOR ANY GENERAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL, OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE TEST MATERIAL OR THE TRANSACTIONS CONTEMPLATED HEREIN, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Participant agrees to indemnify and hold Company, its officers, directors and employees harmless from any losses (including attorneys’ fees) that result from any third-party claims related to Participant’s or its designated participants access, use or misuse of the Testing Materials or intellectual property rights, or any act or omission by Participant or its participants in violation of this Agreement.
13. Exporting Restrictions; United States Government Legends.
Test Materials, including Software, provided to Participant may be subject to United States Export Restrictions. Participant agrees not to export or re-export any Test Material or accompanying documentation in violation of any applicable laws and regulations of the United States or the country in which Participant obtained them.
A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
15. Assignment; Severability.
Participant shall not assign any rights or delegate any obligations under this Agreement, by operation of law or otherwise, without Company’s prior written consent; any attempted assignment shall be null and void and shall result in the termination of this Agreement. If any part of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement which shall remain in full force and effect.
16. Governing Law.
This Agreement shall be governed by the laws of the State of Colorado, excluding any such laws that might direct the application of the laws of another jurisdiction. The parties agree that the federal or state courts located in Denver, Colorado shall have exclusive jurisdiction to hear any dispute under this Agreement.
17. Entire Agreement.
This Agreement represents the entire agreement between the parties regarding the subject matter hereof and supersede any and all prior agreements between the parties, whether written or oral, regarding the subject matter hereof. This Agreement may not be modified or amended except by the written acceptance of both parties.