This Destination Beta Tester Agreement (this “Beta Agreement”) is entered into between BEN Group, Inc., a Delaware Corporation (“BEN”), and you (“You”). This Beta Tester Agreement governs your access to and use of the beta version of the Destination app and corresponding recommendation and analytics services accessible via benlabs.com (“Site”) and corresponding mobile application (the “App,” and together with the Site, the “Beta Services”) offered by BEN 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 Beta Agreement and accept all of its terms. If you do not accept all the terms of this Beta Agreement, then you may not use the Beta Services.
1. Acknowledgment of Beta Services Limitations. You acknowledge that: (a) the Beta Services have not been made commercially available by BEN; (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; and (f) BEN 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 Beta Agreement.
2.1 License Grant to Beta Services. Subject to your compliance with the terms and conditions of this Beta Agreement, BEN hereby grants to you a limited, non-exclusive, non-transferable, with no right to sublicense, revocable license, during the Term of this Beta Agreement, to access and use the Beta Services solely for the purposes of testing and evaluation, and not for general production or commercial use.
2.2 App License. Subject to your compliance with the terms and conditions of this Beta Agreement, BEN hereby grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, and/or other devices and to run the App solely for your own personal non-commercial purposes.
2.3 Restrictions. You acknowledge that the Beta Services contain trade secrets of BEN and its licensors, and, in order to protect such trade secrets and other interests that BEN and its licensors may have in the Beta Services, you agree not to: (i) copy, modify or create derivative works based on the Beta Services; (ii) distribute, sell, transfer, sublicense, lease, lend or rent the Beta Services to any third party; (iii) reverse engineer, decompile or disassemble the Beta Services (unless applicable law permits, despite this limitation); or (iv) make the functionality of the Beta Services available to multiple users through any means.
2.4 Ownership. As between the parties, BEN is the sole owner of all rights, title and interest in and to the Beta Services, including all intellectual property rights therein including without limitation, all enhancements, improvements, adaptations or modifications. You will not acquire any rights or licenses in the Beta Services or BEN’s Confidential Information, except as expressly provided in Section 3.1 this Beta Agreement.
2.5 Feedback. You agree to (a) test the Beta Services and cooperate with BEN in evaluating the Beta Services, and (b) provide BEN with feedback as reasonably requested from time to time. All feedback, comments, and suggestions for improvements that you provide to BEN hereunder are referred to collectively as “Feedback”. You hereby grant BEN 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.
3. User Content and Data.
3.1 User Content. The Beta Services may allow you to import, store, and share content such as text, files, graphics, images, music, audio and video. Anything (other than Feedback) that you post or otherwise make available through the Beta Services is referred to as “User Content.” BEN does not claim any ownership rights in any User Content and nothing in this Beta Agreement will be deemed to restrict any rights that you may have to your User Content. By making any User Content available through the Beta Services you hereby grant to BEN a non-exclusive, perpetual, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating, providing, and improving (including for training, optimizing, and developing) the Beta Services and BEN’s other products and services. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these this Beta Agreement. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Beta Services, nor any use of your User Content by BEN on or through the Beta Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
3.2 Information Collection and Use. BEN may collect, store, retain, and use your personal information (including, without limitation, your email address, IP address, social media account information, and social media posts) to facilitate your use of the Beta Services. BEN may also use or disclose such personal information collected for BEN’s current and future business purposes, such as product development, research, legal compliance, and QA testing, including disclosing such personal information to third parties for such purposes. You agree to all such collection, use, and disclosure of your personal information by BEN. BEN will use and retain such personal information in accordance with applicable laws governing the use and retention of such personal information. Notwithstanding the foregoing, BEN has no obligation to retain any data or information that you may have provided to BEN.
4.1 For purposes of this Beta Agreement, “Confidential Information” means the Beta Services and any information or materials disclosed by or on behalf of BEN 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 Beta Agreement.
4.2 The obligations and restrictions in Section 4.1 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 BEN; (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 BEN; or (d) are independently developed by you without access to any Confidential Information.
4.3 Upon termination of this Beta Agreement, or earlier upon BEN’s request, you will promptly return to BEN, or, at BEN’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 BEN.
4.4 You agree that any breach of this Beta Agreement by you may result in irreparable harm to BEN, for which damages would be an inadequate remedy and therefore, in addition to its rights and remedies otherwise available at law, BEN shall be entitled to seek equitable relief, including injunction, in the event of such breach.
6. Termination. BEN reserves the right to modify or terminate the Beta Services, this Beta 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, this Beta Agreement or your access, the following sections of this Beta Agreement will survive: 2.3, 2.5, 3, 4, 6, and 7 – 10.
7. Warranty Disclaimers. You acknowledge that the Beta Services are being provided “AS IS.” BEN 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. BEN 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 BEN 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. By providing you with access to the Beta Services, BEN does not warrant or guarantee 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. BEN 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.
8. Indemnity. You will indemnify and hold BEN and its officers, directors, employees and agents, harmless and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Beta Services, (b) your User Content, or (c) your violation of this Beta Agreement.
9. Limitation on Liability. IN NO EVENT WILL BEN 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 BETA 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 BEN 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 BETA AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BEN’S LIABILITY HEREUNDER IS LIMITED TO $50.00.
10. Miscellaneous. This Beta Agreement will be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action related to this Beta Agreement will be the state and federal courts located in the Los Angeles, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. This Beta Agreement constitutes the entire and exclusive understanding and agreement between BEN and you with respect to its subject matter, and supersedes and replaces any and all prior oral or written understandings or agreements between BEN and you with respect to its subject matter. If for any reason a court of competent jurisdiction finds any provision of this Beta Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Beta Agreement will remain in full force and effect. You may not assign or transfer this Beta Agreement, by operation of law or otherwise, without BEN’s prior written consent. Any attempt by you to assign or transfer this Beta Agreement, without such consent, will be null and of no effect. BEN may freely assign or transfer this Beta Agreement without restriction. Subject to the foregoing, this Beta Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns. BEN’s failure to enforce any right or provision of this Beta 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 BEN. Except as expressly set forth in this Beta Agreement, the exercise by either party of any of its remedies under this Beta Agreement will be without prejudice to its other remedies under this Beta Agreement or otherwise.
11. Additional Information: Apple App Store. This Section 12 applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries, are third-party beneficiaries of these Beta Agreement, and upon your acceptance of the Beta Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce these Beta Agreement against you as a third-party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.