This Beta Testing Agreement (“Agreement”) constitutes a legal agreement by and between you (“You,” “Your” or “Tester”) and Slingshot Biosciences, Inc., having a place of business at 1250 45th Street, Suite 330, Emeryville, California 94608, USA (“Slingshot”) and states the terms and conditions that govern Your participation in Slingshot’s products and/or services offered on a preliminary, evaluation or “beta” testing basis. By using or participating in any such products and/or services, You agree to abide by the terms of this Agreement. Tester and Slingshot shall be referred to hereinafter individually as a “Party,” and collectively as the “Parties.”
- Scope. Tester is being granted rights under this Agreement for the sole purpose of testing and providing Feedback to Slingshot regarding one or more of Slingshot’s proprietary, non-commercially available products and/or services on a temporary basis (individually and collectively, the “Beta Products”). This Agreement covers all Beta Products made available to Tester including any products identified as being in a preliminary, evaluation, “beta” or any similar state of development. Slingshot retains sole and absolute discretion over the Beta Products and may modify them at any time. Tester’s use of and access to such Beta Products are subject to the terms of this Agreement.
- Use. The Beta Product shall be used by Tester solely for its internal testing and evaluation purposes at Your laboratory/instrument and in accordance with protocols that may be provided by Slingshot (“Testing”), subject to all applicable laws and governmental regulations or policies. The Beta Product shall not, either in whole in part, be provided, transferred or disclosed to any third party. Tester will not assay or attempt to reverse engineer or discover the structure of Beta Product or enable or allow any third party to do so.
- Feedback. Tester agrees to promptly provide feedback, analysis, suggestions, enhancement requests, comment and recommendations to Slingshot regarding Beta Products, including Tester’s feedback concerning the functionality and performance of Beta Product and the identification of improvements, modifications or enhancements (“Feedback”).
- Confidentiality. Tester acknowledges and agrees that its receipt and use of the Beta Products will result in Slingshot disclosing certain confidential, proprietary and/or trade secret information related to the Beta Products and/or Intellectual Property Rights (the “Confidential Information”). Tester agrees that it will not, without the express prior written consent of General Assembly, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information (i) is or becomes generally available to the public through any means other than as a result of any act or omission by Tester; (ii) is rightfully received by Tester from a third party that is not subject to any obligation of confidentiality with respect thereto and without limitation as to its use; or (iii) is independently developed by Tester without any use of or reference to Confidential Information. Tester shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). Tester shall: (i) not to use any Confidential Information for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by Slingshot in writing, to limit access to Confidential Information to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Tester containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third party other than its affiliates and their legal counsel, accountants or auditors without the other party’s prior written consent.
- Intellectual Property. “Intellectual Property” or “IP” means all rights relating to intellectual property throughout the world, including patents, patent applications, trade secrets, know-how, copyrights, moral rights, trademarks, tradenames, inventors rights and any other rights directed to inventions (patentable or otherwise), discoveries, improvements, know-how, formula or other results. Slingshot retains all rights, title and interest in and to all IP and other proprietary rights contained in and related to the Beta Products and all original works of authorship, inventions, processes, concepts, documents, work product and other materials or other proprietary information made accessible or delivered to Tester or prepared by or on behalf of Slingshot in the course of providing the Beta Products. As between Slingshot and Tester, all right, title and interest in and to any Feedback, and Intellectual Property therein, is owned solely and exclusively by Slingshot and is hereby assigned to Slingshot. To the extent that such a grant cannot be made, Tester hereby grants Slingshot a worldwide, perpetual, royalty-free, fully-paid-up, irrevocable, assignable, transferable and exclusive license to use, modify and otherwise exploit Feedback for any of Slingshot’s purposes. Slingshot remains free to distribute the Beta Product to others, at Slingshot’s sole discretion.
- Disclaimer of Warranties. Beta Product is experimental in nature and is provided “as is” and is not to be used for testing, diagnosing or treating humans. Beta Product is provided by Slingshot and accepted by Tester with the understanding that no warranties, express or implied, are given concerning Beta Product, express or implied or statutory, including any warranties of merchantability or fitness for a particular purpose or noninfringement. Slingshot shall not be liable for loss of use, lost profit, business interruption, or any indirect, incidental, consequential, punitive, special or exemplary damages arising out of or related to the Beta Product or this Agreement, however caused and regardless of form of action, whether in contract, tort, strict liability or otherwise, even if a party has been advised of the possibility of damages. In no event will Slingshot’s aggregate cumulative liability for any claims arising out of or related to this Agreement exceed US$1000. Tester indemnifies and holds Slingshot, its officers, directors and employees harmless from any losses (including attorneys’ fees) that result from any third-party claims related to Tester’s access, use or misuse of the Beta Products or any act or omission by Tester in violation of this Agreement.
- Term and Termination. This Agreement commences upon Tester’s use of or participation in the Beta Products and shall continue until terminated as provided herein (“Term”). Either party may terminate this Agreement at any time for any reason upon one (1) week notice. Upon termination or expiration of this Agreement, Tester will discontinue all use of the Beta Product and Tester will, upon direction of Slingshot, return or destroy the Beta Product and all Feedback will be promptly provided to Slingshot. However, the obligations of Paragraphs 4 through 8 shall survive any termination of this Agreement.
- Miscellaneous. This Agreement will not be assigned by Tester without the prior written consent of Slingshot, and any purported assignment without such consent shall be void. Should any one or more of the provisions of this Agreement be held invalid or unenforceable by a court of competent jurisdiction, it shall be considered severed from this Agreement and shall not serve to invalidate the remaining provisions thereof. The parties shall make a good faith effort to replace any invalid or unenforceable provisions with a valid and enforceable one such that objectives contemplated by them when entering this Agreement may be realized. Any delay in enforcing a party’s rights under this Agreement or any waiver as to a particular default or other matter shall not constitute a waiver of such party’s rights to the future enforcement of its rights under this Agreement, excepting only as to any express written and signed waiver as to a particular matter for a particular period of time. Nothing contained in this Agreement shall require or permit Tester or Slingshot to do any act inconsistent with the requirements of any law, regulation or executive order as the same may be in effect from time to time. This Agreement shall be governed by the laws of the State of California, U.S.A., without regard to its choice of law principles, and shall not be amended except in writing executed by the parties. This Agreement supersedes all previous oral and written agreements between the parties and constitutes the only and entire understanding between the parties with respect to the subject matter of this Agreement. The language of this Agreement shall for all purposes be construed as a whole, according to its fair meaning, not strictly for or against either Party, and without regard to the identity or status of any person who drafted all or any part of it.