This Beta Test Agreement (the “Agreement”) is entered into between The Original Sleep LLC, a Washington limited liability company (“Company”), and you (“You”). This Agreement governs your access to, and use of, certain software and related services (the “Beta Services”) offered by Company solely for testing and evaluation purposes. Further description and related details of the Beta Services may be provided to you at the time you access or engage with the Beta Services. By accessing or using the Beta Services, you agree to be bound by this Agreement and accept all of its terms. If you do not accept all the terms of this Agreement, then you may not use the Beta Services.
1. Terms of Service. You acknowledge and agree that your access and use of the Beta Services will be subject to the Company Terms of Service (accessible at https://www.theoriginalsleep.com) (“ToS”) and Privacy Policy (accessible at https://www.theoriginalsleep.com) (“Privacy Policy”), both of which are incorporated herein by reference, and the Beta Services are part of the Services (as such term is defined in the ToS) for purposes of the ToS and Privacy Policy. In the event of a conflict between the terms of this Agreement and any terms of the ToS, this Agreement supersedes the ToS with respect to your access to and use of the Beta Services.
2. Acknowledgement of Beta Services Limitations. You acknowledge that: (a) the Beta Services have not been made commercially available by Company; (b) the Beta Services may not operate properly, be in final form or fully functional; (c) the Beta Services may contain errors, design flaws or other problems; (d) it may not be possible to make the Beta Services fully functional; (e) use of the Beta Services may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss to your devices; and (f) has no obligation to release a commercial version of the Beta Services or otherwise introduce the Beta Services. You assume all risk arising from use of the Beta Services as further stated in this Agreement.
3. Obligations Under Third Party Agreements. If you have obligations to any third party, such as under the terms, conditions, or policies of a telecommunication services provider that you use or through which you purchase data services, you, and not Company, are solely responsible for your compliance with those requirements. By providing you with access to the Beta Services, Company does not warrant or guaranty that how you may choose to use the Beta Services is allowed by any particular service provider, nor that your use complies with any laws or regulations that may apply to your use or purchase of any other services. Company is not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations or any contracts, rules, policies, or procedures applicable to your activities.
4. License.
4.1.License Grant. Subject to your compliance with the terms and conditions of this Agreement, Company hereby grants to you a limited, nonexclusive, nontransferable, revocable license, during the Term of this Agreement, to access and use the Beta Services solely for the purposes of testing and evaluation, and not for general production or commercial use.
4.2.Restrictions. You acknowledge that the Beta Services contain trade secrets of Company and its licensors, and, in order to protect such trade secrets and other interests that Company and its licensors may have in the Beta Services, you agree not to: (i) reverse engineer, decompile, or disassemble the Beta Services or authorize a third party to do any of the foregoing, (ii) modify the Beta Services, (iii) distribute sell, sublicensee, or otherwise transfer the Beta Services, or (iv) copy the Beta Services, except as strictly necessary to use the Beta Services in accordance with the terms of Section 4.1.
5.Feedback. You agree to (a) test the Beta Services and cooperate with Company in evaluating the Beta Services, and (b) provide Company with feedback as reasonably requested from time to time. All feedback, comments, and suggestions for improvements that you provide to Company hereunder are referred to collectively as “Feedback”. You hereby assign Company all rights, title, and interest in all Feedback. If for any reason such assignment is ineffective, you grant Company a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
6. Ownership. As between the parties, Company is the sole owner of all rights, title, and interest in and to the Beta Services, including all intellectual property rights therein. You will not acquire any rights or licenses in the Beta Services or Company’s Confidential Information, except as expressly provided in Section 4.1 this Agreement.
7. Confidentiality.
7.1. Confidential Information. For purposes of this Agreement, “Confidential Information” means the Beta Services and any information or materials disclosed by or on behalf of Company to you that (a) is marked “confidential” or “proprietary” or with a similar designation at the time of such disclosure, or (b) due to its nature or the circumstances of its disclosure, a person exercising reasonable business judgment would understand to be confidential or proprietary. You agree: (i) to maintain all Confidential Information in strict confidence; (ii) not to disclose Confidential Information to any third parties; and (iii) not to use any Confidential Information for any purpose except for the purpose of testing and evaluating the Beta Services in accordance with this Agreement and the ToS.
7.2.Exceptions. The obligations and restrictions in Section 7.1 will not apply to any information or materials that: (a) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by you; (b) were rightfully known by you prior to the disclosure of such information or materials from Company; (c) are rightfully acquired by you from a third party who has the right to disclose such information or materials without breach of any obligation of confidentiality or restricted use to Company; or (d) are independently developed by you without access to any Confidential Information.
7.3. Termination. Upon termination of this Agreement, or earlier upon Company’s request, you will promptly return to Company, or, at Company’s option, destroy, all tangible items and embodiments containing or consisting of Confidential Information and all copies thereof. All Confidential Information remains the sole and exclusive property of Company.
7.4. Relief. You agree that any breach or threatened breach of this Agreement by you may result in irreparable harm to Company, for which damages would be an inadequate remedy and therefore, in addition to its rights and remedies otherwise available at law, Company shall be entitled to seek equitable relief, including injunctive relief, without necessity of posting a bond or proving actual damages, in the event of such breach or threatened breach.
8. Termination, Reservation of Rights. Company reserves the right to modify or terminate the Beta Services, this Agreement, or your use of the Beta Services, or to limit or deny access to the Beta Services, at any time, in its sole discretion, for any reason, with or without notice and without liability to you. You may discontinue your use of the Beta Services at any time. Upon any termination, discontinuation, or cancellation of the Beta Services, all of your obligations under this Agreement will survive 60 days past the applicable statute of limitations.
9. Warranty Disclaimer. You acknowledge that the Beta Services are being provided “as is”. Company disclaims all warranties, express or implied, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement, and any warranties arising out of course of dealing or usage of trade. Company makes no warranty that any of the Beta Services will meet your requirements and/or that the Beta Services will be uninterrupted, timely or error-free, nor does Company make any warranty as to the results that may be obtained from the use of the Beta Services, or the accuracy of any other information obtained through the Beta Services. you understand and agree that any material and/or data downloaded or otherwise obtained through the use of any of the Beta Services is done at your sole risk and that you will be solely responsible for any damage to your computer system and/or loss of data that results from the download of such material and/or data.
10. Liability Limitations. In no event will Company be liable to you or to any third party for damages of any kind, including, without limitation, direct, special, incidental, punitive, or consequential damages (including loss of use, data, business, or profits) arising out of or in connection with this Agreement or the installation or use of or inability to use the Beta Services or for any error or defect in the Beta Services, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability, or otherwise, and whether or not Company has been advised of the possibility of such loss or damage. The parties have agreed that these limitations will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. To the extent the preceding portion of this section is determined by a court of competent jurisdiction to be unenforceable, then the parties stipulate that Company’s liability hereunder is limited to one hundred U.S. dollars ($100.00).
11. Miscellaneous. This Agreement will be governed and construed in accordance with the laws of the State of Washington, without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action related to this Agreement will be the state and federal courts located in the King County, Washington, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. This Agreement, together with the ToS and Privacy Policy, constitutes the entire and exclusive understanding and agreement between Company and You with respect to its subject matter, and supersedes and replaces any and all prior oral or written understandings or agreements between Company and you with respect to its subject matter. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect. You may not assign or transfer this Agreement, by operation of law or otherwise, without Company’s prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null and of no effect. Company may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns. Company’s failure to enforce any right or provision of this Agreement will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Company. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.