StealthWare Beta Test Agreement

1. Preamble:
   
   1. This Beta Test Agreement is made and is effective from the date of submission of the form associated with this Agreement or the date of download of Product and is by and between StealthWare Corporation Ltd., including its employees, representatives, agents and affiliates hereafter referred to as ‘Developer’ and the person or body identified by reference to the Name and/or e-mail Address submitted in the form associated with this Agreement and hereafter referred to as ‘Recipient’.
   2. StealthWare Corporation Ltd., is the developer and owner of all products, services, servers or web site(s), hereafter referred to as the ‘Product’, which it desires to be tested by Recipient in what is commonly referred to as a ‘Beta Test’.
   3. The Product contains valuable, confidential and trade secret information owned by the Developer.
   4. The Recipient desires to test the Product to asses it’s suitability for use.
   Now therefore, in consideration of the promises set forth herein, the parties agree as follows:
2. Arrangement:
   Developer agrees to supply the Recipient with the Product and the Recipient agrees to accept the Product, subject to the terms of this Agreement. Recipient agrees to test the Product as provided herein, report to the Developer with respect to the usefulness and functionality of the Product, and uninstall and return the Product to the Developer at the conclusion of the Beta Test, all pursuant to this Agreement.
3. Non-Disclosure:
   1. Recipient acknowledges and agrees that in providing the Product, Developer may disclose to Recipient certain confidential, proprietary trade secret of the Developer, hereafter referred to as the ‘Confidential Information’. Confidential Information may include, but is not limited to the Product, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans. During this Agreement and for four years thereafter, hereafter known as the ‘Non-Disclosure Period’, Recipient agrees that it will not, without the express prior written permission of Developer, disclose or cause to have disclosed, any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information:
      1. Is or becomes generally available to the public through no fault of the Recipient,
      2. Is rightfully received by Recipient from a third party without limitation to it’s use,
      3. Is independently developed by Recipient.
      At termination of this Agreement Recipient will uninstall and return to Developer the Product and all other Confidential Information.
   2. Recipient agrees that it shall not duplicate, translate, modify, reverse engineer, copy, printout, dissemble, decompile or otherwise tamper with Product, or ant firmware, circuit board, hardware or software provided therewith.
4. License:
   Recipient acknowledges that Recipient shall have only a limited, non-transferable, non-exclusive license to use the Product for a period not to exceed 90 (ninety) test days. Recipient acknowledges and agrees that it will not use Product for a purpose that is illegal. Recipient acknowledges that the Product is a ‘Beta Test’ version and is not error or bug free. Recipient agrees that it will use Product carefully and will not use it in any way which may result in loss of it’s or third party’s property or information.
5. Report:
   Recipient will report to Developer, as soon as practical, any perceived defect in the Product and, following the discovery of any material defect, shall terminate it’s use of the Product. At the conclusion of the Beta Test, Recipient shall provide to Developer an evaluation of the Product, including both positive and negative aspects.
6. Termination:
   Recipient may terminate this Agreement at any time prior to expiration of the Beta Test by returning the Product including all Confidential Information and copies thereof, to Developer, along with it’s evaluation report. Developer may terminate this Agreement upon notice to Recipient, subject to Recipient’s obligation to return Product, Confidential Information and copies thereof. The obligation of Recipient in Section 3 shall survive termination of this Agreement. If not earlier terminated, this Agreement shall terminate automatically upon the end of the period set forth in Section 4 and, following Recipient’s return of the Product and the Confidential Information. Upon termination, Recipient agrees to remove from Recipient’s computer or any other equipment on which it may have been installed, any file relating to the Product.
7. Disclaimer:
   StealthWare^tm makes no express or implied representations or warranties regarding the Product, any implied warranties of StealthWare’s ability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, we make no representation that the operation of the Product will be uninterrupted or otherwise error free, and we will not be liable for the consequences of any interruptions or errors.
8. Representations and Warranties:
   1. Developer represents and warrants that it has the requisite right and legal authority to grant license and provide the Product and Confidential Information as contemplated by the Agreement.
   2. Developer makes no other warranty expressed or implied, with respect of the Product, or of any other confidential information and all other warranties, whether expressed or implied, are hereby disclaimed, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose.
   3. Developer will not be liable to Recipient with respect to any subject matter of this Agreement under any contract, negligence, tort, strict liability or any other legal or equitable theory for any indirect, incidental, consequential, special or exemplary damages (including, without limitation, loss of revenue or goodwill or anticipated profits or lost business), even if Developer has been advised of the possibility of such damages. Further, notwithstanding anything to the contrary contained in this Agreement, in no event shall Developer’s cumulative liability to you arising out of or related to this Agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total fees paid by or to Recipient under this Agreement.
   4. Recipient represents and warrant that:
      1. This Agreement has been duly and validly executed and delivered to Recipient and constitutes it’s legal, valid, and binding obligation, enforceable against it in accordance with its terms.
      2. It has the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform it’s obligations under this Agreement, without the approval or consent of any other party.
9. Indemnification: Recipient agrees to indemnify and hold harmless Developer against any and all claims, suits, actions, or other proceedings brought against Developer based on or arising from:
   1. any claim that it’s use of any material provided by Recipient infringes on any copyright, patent, trademark, trade secret or any other intellectual property right of any third party, a breach of this Agreement by Recipient or
   2. Recipient’s breach of any third party intellectual property right or misappropriation of any material,
   3. Any defamatory, libellous act of Recipient or from Recipient’s violation of any third party right of publicity or privacy.
   Recipient will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by Developer in connection with or arising from any such claim, suit, action, or proceeding.
10. Governing Law:
    This Agreement shall be governed by, construed and enforced according to the laws of England.
11. No Assignment:
    1. Recipient shall not assign this agreement without prior written consent of Developer.
    2. This Agreement shall be binding upon and inured to the benefit of the parties had their respective administrators, successors and assigns.
    3. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
12. Headings:
    Heading in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
13. Final Agreement:
    This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement shall be modified only by a further writing that is duly executed by both parties.
14. Arbitration:
    The parties agree that they will use their best efforts to amicably resolve any dispute arising out of or relating to this Agreement. Any controversy, claim or dispute that cannot be so resolved shall be settled by final binding arbitration in accordance with the rules of the American Arbitration Association, and judgement upon the award rendered by the arbitrator or arbitrators shall be entered in any court having jurisdiction thereof. Any such Arbitration shall be conducted in the city where the Developer’s headquarters are located, or such other place as may be mutually agreed upon by the parties. Within 15 (fifteen) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two arbitrators so selected shall select a third arbitrator within 10 (ten) days of their appointment. Each party shall bear it’s own costs and expenses and an equal share of the arbitrators expenses and administrative fees of arbitration.
15. Miscellaneous:
    Recipient agrees that:
    1. it is an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between Recipient and Developer.
    2. It will have no authority to make or accept any offers or representations on behalf of the Developer.
    3. It will not make any statement that reasonably would contradict anything in this Section.

In witness whereof, the parties hereto have executed this Beta Test Agreement as of the date first above written.