BETA TEST LICENSE AGREEMENT Introduction. This is a legal Agreement between you and PowerQuest Corporation ("PowerQuest") regarding a Beta version of a PowerQuest Product. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING IT OR DECLINING IT. You may accept the Agreement either by signing a paper copy of the Agreement or by clicking on the "ACCEPT" button displayed by PowerQuest with an electronic copy of the Agreement. You may decline the paper copy of the Agreement by not signing; you may decline the electronic copy by clicking on the "DO NOT ACCEPT" button. IF YOU DECLINE THE AGREEMENT, YOU ARE NOT LEGALLY LICENSED TO USE THE BETA. If you decline, you must promptly return all materials, including software on disks or other media, manuals, and any other literature and supplies concerning the Beta, which you received from PowerQuest. IF YOU ACCEPT THE AGREEMENT, YOU AGREE TO BE LEGALLY BOUND BY ITS TERMS AND CONDITIONS. PowerQuest designs and develops proprietary software and associated documentation ("Product"). PowerQuest and you both want you to use, evaluate, and test a beta test version of the Product ("Beta") before the Product's general release, and to report the results to PowerQuest. Accordingly, you and PowerQuest agree as follows: Licenses. PowerQuest grants you a personal, royalty-free, non-exclusive license to use one copy of the Beta for evaluation only. PowerQuest is not required to make the Beta or the Product available as a standard PowerQuest product. You agree to test the Beta, to document the test results, and to promptly submit the results to PowerQuest. In particular, you must promptly and fully inform PowerQuest of all errors, difficulties or other problems with the Beta, including the conditions under which such problems occurred. Copies. PowerQuest will provide you with one copy of the Beta. You are responsible for providing all computer and other facilities needed to evaluate the Beta. You may use the Beta only on your personal computer systems ("System") and only according to this Agreement and the instructions supplied in Beta documentation. You may copy the Beta partially or completely only to personally test the Beta on the System or to include in your report(s) to PowerQuest. No other right to reprint or copy the Beta in whole or in part is granted. Each copy must contain PowerQuest's patent, copyright, and trademark notices and other proprietary legends; this includes partial copies. You may not transfer this Agreement or its license to another or sublicense another without prior written permission from PowerQuest, and any attempt to do so is null and void. All rights not expressly granted to you in this Agreement are reserved entirely to PowerQuest. No source code license. This license does not grant access to or provide any rights in source code. The Beta software may be used only in binary executable form. You may not disassemble, decompile, or in any way reverse engineer the Beta. While you may not modify or enhance the Beta in any way, PowerQuest welcomes your suggestions for modifications to the Product. Termination. Your license ends as soon as one or more of the following events occur: (a) the Product is authorized for general release by PowerQuest; (b) You violate any part of this Agreement; (c) DISABLING CODE placed in the Beta software by PowerQuest disables previously available features of the Beta software; (d) You destroy all copies of Beta components in your possession, custody, or control; or (e) PowerQuest decides to terminate this Agreement and does so by sending written (electronic or paper) notice to your last known address. PowerQuest may terminate the license at any time, with or without cause. On or after termination, PowerQuest has the right to take immediate possession of all Beta components and all copies, wherever located, without further demand or notice. Within five (5) days after termination of the license, you will either (a) return to PowerQuest all Beta components, or (b) destroy all copies of Beta components in your possession, custody, or control. All provisions of this Agreement concerning warranties, remedies, ownership, possible commercial releases, confidentiality, governing law, venue, and/or limited liability shall survive termination of the Agreement. Confidentiality. You acknowledge that the Beta is an experimental product of PowerQuest which has only been partially tested. The Beta has not been authorized for general release by PowerQuest. Accordingly, you agree to treat all discussions, materials, documentation, and software related to the Product and the Beta, including without limitation all previous discussions, as Confidential Information of PowerQuest. The fact that you are testing or have tested the Beta is also Confidential Information. You agree not to divulge any such Confidential Information to any third party without prior written approval from PowerQuest. For instance, you agree not to sell, transfer, publish, disclose, display, or otherwise make available the Beta or copies of the Beta or any other Confidential Information in any form, including but not limited to flow charts, logic diagrams, object codes, source codes and technical documentation, to anyone (including other beta testers) without prior written approval from PowerQuest. You also agree to secure and protect the Beta and all copies in a way that protects PowerQuest's rights. For instance, you agree to take appropriate action by instruction or agreement with your employees who are permitted access to the Beta under this Agreement. In particular, employees who will receive access to the Beta shall agree to the conditions of this Agreement before being given access. Ownership. The Product and Beta and all copies, and all information relating to the Product and Beta, including but not limited to tests, reports, modifications, and other information you may create, are the property of PowerQuest. All applicable rights in copyrights, trademarks, trade secrets and other intellectual property rights in the Product and Beta and any modifications, including all information relating to the Product and Beta regardless of its type or form, are and will be owned entirely by PowerQuest. For instance, to the extent your reports are copyrightable, they are works made for hire and/or will be assigned to PowerQuest. All content accessed through the Beta is the property of the applicable content owner and may be protected by copyright law or other laws. This Agreement gives you no rights to such content. ALL WARRANTIES DISCLAIMED. POWERQUEST MAKES NO REPRESENTATIONS ABOUT THE COMPLETENESS, ACCURACY OR OPERATION OF THE BETA, ABOUT THE SUITABILITY OF THE SOFTWARE, OR ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE SOFTWARE, FOR ANY PURPOSE. THE BETA IS PROVIDED "AS IS" WITHOUT EXPRESS, IMPLIED OR OTHER WARRANTIES. FOR INSTANCE, POWERQUEST MAKES NO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THIS BETA IS PROVIDED GRATUITOUSLY AND, ACCORDINGLY, POWERQUEST SHALL NOT BE LIABLE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY YOU OR ANY USER OR POSSESSOR OF THE BETA. POWERQUEST HAS NO OBLIGATION TO SUPPORT THIS BETA OR ISSUE UPDATES TO THIS BETA. LIMITATIONS ON LIABILITY. NEITHER POWERQUEST NOR ITS SUPPLIERS SHALL BE LIABLE FOR (A) INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, DIRECT, OR INDIRECT DAMAGES OF ANY SORT, WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE, EVEN IF THEY HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR KNOW OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY CLAIM BY ANY OTHER PARTY. POWERQUEST WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR IN CONNECTION WITH POWERQUEST'S PERFORMANCE OR THE DELIVERY, USE, OR INABILITY TO USE, OR PERFORMANCE OF THE BETA, INCLUDING BUT NOT LIMITED TO ANY CLAIMS ALLEGING POWERQUEST'S NEGLIGENCE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. NO CLAIM MAY BE BROUGHT BY YOU UNDER THIS AGREEMENT MORE THAN THREE MONTHS AFTER YOU KNEW OR SHOULD HAVE KNOWN OF THE ALLEGED GROUNDS FOR THE CLAIM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. Backups. Because the Beta is experimental, you should not assume the Beta will operate without interruption or error. In particular, you have the sole responsibility for adequate protection and backup of any data used in connection with the Beta. Commercial Release. All decisions about any commercial release of the Product lie solely with PowerQuest, including without limitation all decisions regarding the existence, pricing, features, specifications, licensing terms, release dates, general availability and/or other characteristics of any commercial release. Neither party, by virtue of this Agreement, is authorized as an agent, employee or legal representative of the other. Export. You may not download or otherwise export or re-export the Beta or any underlying information or technology in violation of any export provisions of the United States or any other applicable jurisdiction, including without limitation the Export Administration Act of 1979 and related regulations. Restricted Government Rights. Use, duplication or disclosure by the Government is subject to restrictions set forth in the Restricted Computer Software definition, Rights in Technical Data and Computer Software clause, Commercial Computer Software-Restricted Rights provisio...
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