I agree with the following Terms & Conditions
READ THESE TERMS AND CONDITIONS CAREFULLY. BY CHECKING THE “I AGREE” BOX OR ACCESSING OR USING ALL OR ANY PORTION OF THE BETA FEATURES, YOU ARE ACCEPTING ALL OF THESE TERMS AND CONDITIONS. YOU AGREE THAT THESE TERMS AND CONDITIONS ARE ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT CHECK THE “I AGREE” BOX. YOU WILL NOT BE GIVEN ACCESS TO THE BETA FEATURES UNLESS YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU WISH TO USE THE BETA FEATURES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THESE TERMS AND CONDITIONS. THE RIGHTS GRANTED UNDER THESE TERMS AND CONDITIONS ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL. SellPoint, Inc. (“SellPoint”) hosts an online service which enables product manufacturers to make their product videos, images, descriptions, reviews and other promotional content (collectively, “Brand Content”) available to retailers and other media channels through product tours, product pages, brand stores, interactive images and other online services created and hosted using SellPoint’s proprietary platform (the “SellPoint Service”). The SellPoint Service then makes that Brand Content available for display by retailiers who enter into a separate relationship with SellPoint. These Beta Test Terms and Conditions (the “Terms and Conditions”) contain the complete terms and conditions between SellPoint and you regarding your participating in any beta testing of unreleased features of the SellPoint Service (the “Beta Features”). Access to the commercially available features of the SellPoint Service is subject to the terms and conditions of a separate Brand Services Agreement between you and SellPoint. PARTICIPATING IN THE BETA TEST PROGRAM DOES NOT ENTITLE YOU TO ANY COMPENSATION OR ANY FUTURE RIGHTS WITH RESPECT TO THE BETA FEATURES. YOU ACKNOWLEDGE THAT THE BETA FEATURES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL. 1. Use and Access; Restrictions. Subject to the terms of this Agreement, you may use and access the Beta Features solely for testing and evaluation purposes during the term of these Terms and Conditions. You shall not (i) rent, lease, copy, provide access to or sublicense the Beta Features or portions thereof, to a third party or allow a third party to use the Beta Features; (ii) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to Beta Features, except to the extent expressly permitted by applicable law (and then only upon advance notice to SellPoint); (iii) modify or create any derivative product from any Beta Features; (iv) use the Beta Features to develop services or products for sale or include any components of the Beta Features in any product; (v) use any portion of the Beta Features to create a competitive service, product or technology; (vi) make the functionality of the Beta Features available to the public in any manner or publicly disseminate information regarding the performance of the Beta Features; or (vii) remove or obscure any proprietary or other notices contained in the Beta Features. 2. Limited Public Use Right. Notwithstanding the fact that the right to use and access the Beta Features is limited to evaluation and testing, if the Beta Features allow for publication of Brand Content on the Internet, via e-mail or through social media channels, you may use the Beta Features to publicly publish Brand Content during the term of these Terms and Conditions in order to conduct your evaluation. 3. Term and Termination. These Terms and Conditions are effective upon the date you agree to them and expire when terminated in accordance with this Section 2. SellPoint may terminate these Terms and Conditions at any time without cause upon written notice to you. Upon termination, you must cease all use of the Beta Features. Nothing herein obligates either party to enter into any further agreement with the other party. Sections 1 (Use and Access; Restrictions) (regarding use restrictions), 4 (Feedback; Co-Marketing Activities) (regarding SellPoint’s rights to Feedback), 5 (Ownership), 7 (Confidential Information), 8 (No Warranty), 9 (Limitation of Liability), 10 (Brand Content) (regarding indemnification obligations) and 11 (General) shall survive termination of this Agreement. 4. Feedback; Co-Marketing Activities. Upon request from SellPoint, you agree to provide to SellPoint with your feedback regarding the Beta Features, including completion of any evaluation forms provided to you by SellPoint (“Feedback”). You acknowledge that SellPoint shall be free to use or implement any or all of the Feedback and that no payment, royalty or other consideration whatsoever shall be due to you in connection with such Feedback. 5. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, SellPoint and its suppliers have and will retain all rights, title and interest in and to the Beta Features (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights). You acknowledge that you are obtaining only a limited right to use and access the Beta Features and that irrespective of any use of the words “purchase,” “sale” or like terms hereunder no ownership rights are being conveyed to you under these Terms and Conditions or otherwise. All copies, improvements, updates, modifications or enhancements of the Beta Features shall remain the property of SellPoint (including any changes which incorporate any of your ideas, Feedback or suggestions). All rights not granted by SellPoint are reserved. 6. No Support and Maintenance. SellPoint is not obligated to provide any support or maintenance for the Beta Features. These Terms and Conditions do not entitle you to receive access to any future releases or updates. 7. Confidential Information. In the course of our relationship, we may disclose to each other information identified at the time of disclosure as confidential (“Confidential Information”), which may include information concerning our respective businesses and technology. The Beta Features and all Feedback and any other information regarding the performance characteristics of the Beta Features are Confidential Information of SellPoint. All Confidential Information shall remain the property of the disclosing party, and the receiving party shall have no interest in or rights in such Confidential Information except as expressly set forth in this Agreement. Except as authorized herein, each party agrees to maintain all Confidential Information of the other party in confidence, to not use or disclose any Confidential Information and to take all reasonable precautions to prevent any unauthorized disclosure of such information. These restrictions on disclosure will not apply to any information which (a) becomes generally known or publicly available through no act or failure to act on the part of the receiving party; (b) is furnished to others by the disclosing party without restriction on disclosure; (c) is known by the receiving party at the time of receiving such information as evidenced by its records; or (d) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure. 8. No Warranty. THE BETA FEATURES ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. SELLPOINT MAKES NO WARRANTIES REGARDING THE PERFORMANCE OF THE BETA FEATURES OR THAT THE BETA FEATURES WILL EVER BE COMMERCIALLY RELEASED IN THIS OR ANY OTHER FORM. YOU MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. 9. Limitation of Liability. IN NO EVENT SHALL SELLPOINT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. SELLPOINT SHALL NOT BE LIABLE FOR ANY DAMAGES THAT YOU MAY SUFFER IN CONNECTION WITH FAILURE IN THE PERFORMANCE OF THE BETA FEATURES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SELLPOINT’S ENTIRE LIABILITY TO YOU UNDER THESE TERMS AND CONDITIONS SHALL NOT EXCEED $1,000. 10. Brand Content. You shall ensure that your use of the Beta Features and all Brand Content is at all times compliant with all applicable local, state, federal and international law, regulations and conventions. You are solely responsible for the accuracy, content and legality of all Brand Content. You represent and warrant to SellPoint that you have sufficient rights in the Brand Content to grant the rights granted to SellPoint below and that the Brand Content: (a) is not illegal, harmful, threatening, abusive, harassing, defamatory, obscene, pornographic, offensive, invasive of another’s privacy; (b) does not promote bigotry, racism, hatred or harm against any individual or group; and (c) does not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy or other personal or proprietary rights). Subject to these Terms and Conditions, you hereby grant to SellPoint a non-exclusive, worldwide, royalty-free right to use, copy store, transmit, modify, create derivative works of and publicly perform or display your Brand Content solely to the extent necessary to provide the Beta Features, including the right to distribute Brand Content to retailers for public display on the Internet and through other media channels in connection with the Beta Features. You shall indemnify, defend and hold harmless SellPoint from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Brand Content, (b) any action taken (or not taken) by you based upon use of the Beta Features, or (c) any product offered by you in connection with or related to the Brand Features. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of SellPoint at your expense. SellPoint may participate in the defense and settlement of any claim with counsel at its own expense. You shall not settle any claim without SellPoint’s prior written consent if such settlement requires SellPoint to admit any liability, take or refrain from taking any action or pay any amount. 11. General. These Terms and Conditions shall be governed by and construed under the laws of the State of California. Any suit or proceeding arising out of or relating to these Terms and Conditions shall be commenced exclusively in the state or federal courts in San Francisco, California, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. The parties are independent contractors and no employment, agency, or joint venture is created hereunder. All notices, requests and other communications under these Terms and Conditions must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. You may not assign these Terms and Conditions in whole or in part. These Terms and Conditions may not be amended without the prior written consent of both parties. Any purported assignment or amendment in violation of the foregoing shall be void. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. These Terms and Conditions are the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersede all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written.