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BETA PARTICIPATION AGREEMENT

This Agreement describes the terms and conditions under which you (“Tester”) may access and use certain features, technologies and services provided by Wireshape, Inc. ("Wireshape") that are not yet generally commercially available (each, a “Beta Service”). Tester’s use of the Beta Services is subject to this Beta Use Participation Agreement (this “Agreement”). This Agreement is separate from and independent of any Wireshape Services Agreement between the Parties and this Agreement does not pertain to any products or services offered under such Agreement. Wireshape and Tester are sometimes referred to collectively as the “Parties” and each individually as a “Party.”

1. Definitions

i. “Beta Materials” means any hardware, software, specifications or other technical documentation related to a specific Beta Service that may be provided to Tester by Wireshape.

ii. “Beta Use” means the testing and evaluation of a specific Beta Service by Tester and certain other Wireshape Testers or business partners.

iii. “Beta Use Information” means all information relating to Tester’s use, testing or evaluation of a Beta Service or any related Beta Materials, including all observations or information regarding the performance, features and functionality of a Beta Service or any related Beta Materials.

iv. “Feedback” means all feedback, suggestions, and ideas that Tester provides to Wireshape or its affiliates concerning improvements or enhancements to a Beta Service or any related Beta Materials.

v. “Confidential Information” means all nonpublic information disclosed by Wireshape party, its affiliates, or the agents of any of the foregoing to Tester, its affiliates, or the agents of any of the foregoing, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation (a) nonpublic information relating to Wireshape’s or its affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs, (b) third-party information that Wireshape or its affiliates are obligated to keep confidential, (c) Beta Materials, Beta Use Information, Feedback, or any other information about or involving (including the existence of) any of the Beta Uses or Beta Services, and (d) the nature, content and existence of this Agreement and any discussions or negotiations between the Parties. Confidential Information does not include any information that (i) is or becomes publicly available without breach of this Agreement, (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party, (iii) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iv) can be shown by documentation to have been independently developed by the receiving party without reference to any Confidential Information.

vi. “Policies” means all policies and guidelines related to any Beta Service, Beta Materials or other web services offered by Wireshape or its affiliates and made available to Tester, including privacy policies, terms of use, acceptable use policies, and any additional terms and conditions for a specific Beta Use.

2. Participation in Beta Uses

i. Generally. Wireshape grants Tester a limited, nonexclusive, non-transferable, revocable access to the following during the term of the applicable Beta Use:
(a) access and use the Beta Service solely for internal evaluation purposes; and (b) use any related Beta Materials solely as necessary to access and use the Beta Service in the manner permitted by this Agreement. After the conclusion of a Beta Use, Tester will not have any further right to use the applicable Beta Service, and if Wireshape releases a generally available version of the Beta Service, Tester’s use of the generally commercially available version will be subject to separate terms and conditions. However, Wireshape does not guarantee that any Beta Service will ever be made generally commercially available, or that any generally commercially available version will contain the same or similar functionality as the version made available by Wireshape during the Beta Use.

ii. Restrictions and Limitations. Tester will not:

a. allow access to any Beta Service or Beta Materials by any third party other than Tester’s employees and contractors who (i) have a need to use or access the Beta Service or Beta Materials in connection with Tester’s internal evaluation activities and (ii) have executed written nondisclosure agreements obligating them to protect the confidentiality of the Beta Service and Beta Materials;

b. use any Beta Service or Beta Materials in violation of any Policies;

c. directly or indirectly reverse engineer, disassemble, reconstruct, decompile, translate, modify, or copy the Beta Service or Beta Materials;

d. violate any usage limits for a Beta Service that Wireshape may communicate to Tester;

e. export or allow access to any Beta Service or Beta Materials in any manner contrary to the export regulations of the United States; or

f. otherwise access or use any Beta Service, or install, copy or use any Beta Materials, in any manner or for any purpose not expressly permitted by this Agreement.

iii. Wireshape may modify the permitted use of or suspend Tester’s access to any Beta Service at any time and for any reason. Beta Services also may be unavailable or their performance may be negatively affected by scheduled maintenance. No service levels or other uptime guarantees apply to the Beta Services. Wireshape will use reasonable efforts to notify Tester in advance of scheduled maintenance, but Wireshape is unable to provide advance notice of unscheduled or emergency maintenance.

iv. Beta Use Information and Feedback. In consideration of the rights granted in this Agreement, Tester will provide Beta Use Information, when and in the form reasonably requested by Wireshape. Wireshape will have a perpetual and irrevocable right to use, evaluate and otherwise exploit all Beta Use Information for its own purposes. Tester will not use any Beta Use Information except for its internal evaluation purposes. Tester assigns all right, title and interest in and to Feedback to Wireshape and acknowledges that Wireshape shall have the right to use and exploit all Feedback and may use the Feedback in any manner without restriction, and without any obligation of confidentiality, attribution, accounting or compensation or other duty to account to Tester. Tester will not provide any Beta Use Information or Feedback unless it has all rights necessary to do so.

3. Term and Termination

i. Term. The term of each individual Beta Use will be specified by Wireshape, but will automatically terminate upon the release of a generally commercially available version of the applicable Beta Service. The term of this Agreement will commence on the date the last Party signs the Agreement and will continue until terminated pursuant to Section 3(ii) below.

ii. Termination. Either Party may terminate Tester’s participation in an individual Beta Use, or this Agreement entirely, at any time for any reason upon written notice to the other Party. Upon termination of this Agreement: (a) all rights and licenses granted to Tester in this Agreement will immediately terminate; (b) Tester will immediately return or, if instructed by Wireshape, destroy all Beta Materials or any other confidential or proprietary information of Wireshape or its affiliates related to any Beta Service or this Agreement; and (c) Sections 2(iv) and 4 through 7 will survive.

4. Confidentiality

i. Use and Disclosure. Tester may not disclose any Confidential Information during the term of this Agreement or at any time during the three (3) year period following the end of the Term.

ii. Publicity. The Tester will not issue any press release or public statement regarding this Agreement or any Beta Use, Beta Service or Beta Materials unless that Wireshape has approved in writing the time, form and content of the information to be disseminated to third parties or the public.

5. Disclaimer of Warranties

THE BETA SERVICES AND BETA MATERIALS ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, WIRESHAPE IS PROVIDING THE BETA SERVICES AND BETA MATERIALS TO TESTER “AS IS”. WIRESHAPE MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES OR BETA MATERIALS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANY PUBLISHED MATERIALS THAT STATE OTHERWISE, WIRESHAPE DOES NOT WARRANT THAT THE BETA SERVICES OR BETA MATERIALS WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

6. Limitation of Liability

NEITHER WIRESHAPE NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE AGGREGATE LIABILITY OF WIRESHAPE AND ITS AFFILIATES AND LICENSORS ARISING FROM OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID (IF ANY) BY TESTER TO WIRESHAPE UNDER THIS AGREEMENT.

7. Miscellaneous

Except for those limited rights expressly granted in Section 2(i), Wireshape and its licensors retain all right, title and interest in and to the Beta Services and the Beta Materials, including all related intellectual property rights. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the Parties. This Agreement further controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the Parties, and all successors to the foregoing who take their rights hereunder. Neither Party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other Party’s prior written consent except that Wireshape may assign and delegate this Agreement pursuant to a transfer of all or substantially all of Wireshape’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to and waivers of any terms of this Agreement must be in a writing that is signed by the Parties hereto and expressly references this Agreement. This Agreement and all expressly referenced documents constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications.