Beta Evaluation Agreement

This BETA EVALUATION AGREEMENT (the “Agreement”) is entered into by and between Thistle Technologies Inc., (“Company”) and you (“you” or “Customer”), collectively, the “Parties,” and sets forth the terms and conditions under which Company will provide Customer access to a beta version of Company’s product on an evaluation basis. 

PLEASE READ THIS AGREEMENT CAREFULLY.  BY CLICKING ON THE “I ACCEPT” BUTTON, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT; (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY; AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS CUSTOMER, AND TO BIND THAT ENTITY TO THIS AGREEMENT. THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK ON THE “I ACCEPT” BUTTON.  IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS THE SOLUTION.

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, Company will make a new copy of the Agreement available on its website. Any changes to the Agreement will be effective thirty (30) days after posting notice of such changes on the website.  If you do not agree to any change(s), you must immediately stop using the Solution. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT.

1. DEFINITIONS.

   1. “Confidential Information” means any and all information disclosed by either Party to the other which is designated as confidential, or which should otherwise be understood to be confidential, including but not limited to, the Solution, the Documentation, financial information, product plans, business plans, trade secrets, technology, or any other proprietary information, whether transmitted orally, in writing, or by any other media.  Confidential Information does not include information the receiving Party can demonstrate was:  (a) publicly available through no fault of the receiving Party, or (b) obtained from third parties not under confidentiality restrictions.

      1. “Customer Content” means content, software, materials and/or data that is uploaded, transmitted or otherwise provided by Customer and/or its users to the Solution.  

      2. “Documentation” means any and all documentation provided by Company, relating to the Solution and/or Company Materials.

      3. “Effective Date” means the date on which Company first provides Customer access to the Solution.

      4.  “Intellectual Property Rights” means all worldwide trade secrets, patents, copyrights,  trademarks, service marks, moral rights and other intellectual property and proprietary rights, and all applications and registrations therefore

      5. “Solution” means the Company’s beta platform for  delivering new functionality, bug fixes, or security updates to devices which is provided by Company to Customer hereunder.

2. ACCESS.

   1. Access to Solution.  Subject to the terms and conditions of this Agreement, and once the Solution is available for use, at Company’s sole discretion, Company will provide Customer access to the Solution through the Internet.  Customer’s access is a non-exclusive, non-transferable, limited use of the Solution for Customer’s internal evaluation purposes and internal use only with devices that are owned and controlled by Customer.  In the event that Company provides any Customer any downloadable or executable software, applications, instructions, documentation, and other materials (the "Company Materials"), a Company hereby grants Customer limited, royalty-free, nonexclusive, nontransferable, non-assignable, internal use only license during the Beta Testing Period, (without the right to sublicense) to use and reproduce such Company Materials internally on devices owned or controlled by Customer solely as necessary for the purpose of accessing and using the Solution in connection with Customer’s evaluation of the Solution. 

   2. Restrictions. 

      1. Customer may use the Solution in accordance with this Agreement for a period of six (6) months (the “Beta Testing Period”).  Customer understands that any rights to use the Solution beyond the scope of this Beta Testing Period will be subject to the Parties entering into a separate written agreement therefore.

      2. Customer shall not, and shall not permit any third party to: (i) reverse engineer, decompile, disassemble, modify or create any derivative works based on the Solution, Company Materials or Documentation or any portion thereof; (ii) reproduce the Solution, Company Materials or Documentation; (iii) sublicense, distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Solution, Company Materials or Documentation or provide access to the Solution or Company Materials to third parties on a service bureau basis or otherwise; or (iv) use the Solution, Company Materials or Documentation other than as provided herein. 

   3. Customer Content.  Customer hereby grants Company a limited right to: (i) use, host and reproduce the Customer Content during the Beta Testing Period, for the purpose of operating the Solution as made available to Customer hereunder, (ii) transmit and distribute the Customer Content in accordance with the features and functionality of the Solution, including for the purpose of delivering new functionality, bug fixes or security updates to devices designated by Customer through the Solution; and (iii) collect and analyze log and other data related to the Solution and the provision, use and performance and various aspects of the Solution and Company Materials and related systems technologies (“Performance Data”) and use such Performance Data and Customer Content internally to train Company’s algorithms, to troubleshoot, provide, administer, improve and enhance the Solution and Company Materials and for other development, diagnostic, security and corrective purposes.  Customer represents and warrants that it: (a) has all necessary rights, licenses, authorizations, and consents necessary to make the Customer Content available to Company and the Solution and to permit Company to use and exercise its rights in the Customer Content and Performance Data as set forth in this Agreement; and (b) that the Customer Content does not and will not, when used as contemplated hereunder, infringe any third party’s intellectual property rights. Customer agrees to hold Company harmless against any claims, losses, or liabilities arising out of a breach of the preceding representation and warranty.

   4. Ownership.  Company retains all right, title and interest in and to the Solution, Company Materials and Documentation, including all Intellectual Property Rights therein.  Customer acknowledges that this Agreement is not a sale and does not transfer to Customer title or ownership of the Solution or Documentation, but only provides for limited use for evaluation purposes as contemplated herein.  ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO COMPANY.

3. COMMERCIAL AGREEMENT. This Agreement does not provide a commercial license after the Beta Testing Period.  Use after the Beta Testing Period is subject to the Parties entering into and executing a separate written agreement.  If Customer wishes to license the Solution, and Company desires to provide such license, after the Beta Testing Period, the Parties will negotiate regarding such agreement, although neither Party shall be obligated to enter such agreement or negotiate. 

4. FEEDBACK.  Company may periodically request that Customer provide, and Customer agrees to provide to Company, feedback regarding the use, operation, and functionality of the Solution (“Feedback”).  Such Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features.  Company is hereby granted a non-exclusive, world-wide, perpetual, irrevocable, royalty-free, fully paid-up, fully sublicensable and transferable right and license to use and incorporate Feedback into any products and services, to make, use, sell, offer for sale, import, and otherwise exploit such products and services, and to otherwise use, copy, distribute, and otherwise exploit the Feedback without restriction.

5. TERM AND TERMINATION.

   1. Term.  This Agreement will commence as of the Effective Date and will remain in full force and effect for the Beta Testing Period.  Either Party may terminate this Agreement immediately for convenience, for any reason or no reason, at any time before or after the Effective Date by giving ten (10) days prior written notice to the other Party. 

   2. Effects of Termination.  Upon termination of this Agreement for any reason: (i) the rights granted to Customer hereunder will immediately terminate; (ii) Customer shall immediately discontinue any use of the Solution and Company Materials and shall return or destroy all Documentation and Company Materials under its control; (iii) each Party shall promptly return or destroy all Confidential Information and property of the other Party; and (iv) Sections 2.3, 4, 5.2, 6, 7, and 9 will survive.

6. CONFIDENTIALITY. 

   1. Non-Use and Non-Disclosure.  Each Party agrees:  (i) to use Confidential Information of the other Party solely to exercise its rights and perform its obligations under this Agreement; and (ii) not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information of the other Party to any third party without the other’s prior written consent (except that Company may disclose Customer’s Confidential Information to its service providers that are subject to confidentiality obligations for the purpose of enabling Company to provide and support the Solution).  Each Party shall safeguard the Confidential Information of the other Party using the same measures it uses to protect its own Confidential Information, but in no event shall either Party use less than reasonable care in safeguarding the Confidential Information of the other Party.  Either Party may disclose Confidential Information of the other Party which required to be disclosed by law or order of a court or other governmental entity; provided that such Party provides the other Party with prompt notice of such requirement, assists the other Party in seeking a protective order or other protection, and only discloses that portion of the Confidential Information that is required to be disclosed, and provided further that any information so disclosed retains its confidentiality protections for all other purposes.  

   2. Use of Solution.  Customer is responsible for maintaining the secrecy of any passwords or codes that provide access to the Solution as the Confidential Information of Company, and the Parties hereby acknowledge and agree that the Solution, any software provided by Company to Customer, and the Documentation are the Confidential Information of Company notwithstanding any failure to designate such materials as “Confidential.”  

   3. Confidentiality of Agreement.  The terms and existence of this Agreement are confidential and shall not be disclosed to third parties other than in confidence to the Parties’ accountants, counsel, and other advisors, and in confidence to potential acquirers.  Additionally, Company shall have the right to disclose this agreement and its terms to its investors and potential sources of funding.

   4. Remedy.  If either Party breaches, or threatens to breach the provisions of this Section 6, each Party agrees that the non-breaching Party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.

7. WARRANTY DISCLAIMER, RESPONSIBILITY AND LIMITATION OF LIABILITY.

   1. WARRANTY DISCLAIMER.  THE SOLUTION, COMPANY MATERIALS AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.  COMPANY MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOLUTION AND DOCUMENTATION INCLUDING THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.   

   2. RESPONSIBILITY FOR USE.  CUSTOMER, AND NOT COMPANY, SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF THE SOLUTION OR COMPANY MATERIALS, INCLUDING ANY USE OF THE RESULTS OF THE SOLUTION AND DECISIONS MADE OR ACTIONS TAKEN BASED ON THE SOLUTION.  

   3. LIMITATION OF LIABILITY.  EXCEPT FOR A BREACH OF SECTIONS 2.2, 2.3 AND 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR USE OR LOSS OF DATA, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.  IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS (US $100), WHETHER AN ACTION IN CONTRACT, TORT, OR OTHERWISE.  THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.

8. PAYMENT. 

   1. Fees.  Subject to Customer’s compliance with the terms and conditions of this Agreement, and solely during the Beta Testing Period, the Solution shall be provided to Customer free of charge.  Any continued access following the Beta Testing Period shall be subject to the Parties executing a written software agreement. 

   2. Expenses.  Except as may otherwise be agreed in writing by the Parties, each Party shall bear its own expenses in connection with the performance of this Agreement.

9. GENERAL PROVISIONS 

   1. Assignment.  This Agreement may not be transferred or assigned by Customer without the prior written consent of Company.  For purposes of this Section, a sale of assets, merger or other reorganization shall constitute an assignment.  Any purported transfer or assignment in violation of this Section 9.1 shall be null and void.  Company may freely assign this Agreement without Customer’s prior written consent.  This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.

   2. Governing Law.  This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, excluding its conflict of law provisions, and both Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in the San Diego County, California. 

   3. Notices.  All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date it was delivered by courier, or (ii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatory of this Agreement or to such other address or individual as the Parties may specify from time to time by written notice to the other Party.

   4. Severability.  If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

   5. Waiver.  The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. 

   6. Force Majeure.  Neither Party shall be liable for any delay or failure in performance due to acts of God, earthquakes, shortages of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics (including COVID-19), and similar occurrences beyond its control, whether or not foreseeable.  Performance times under this Agreement shall be extended for a period of time equivalent to the time lost because of a delay which is excusable under this provision.

   7. Entire Agreement.  This Agreement together with any attachments constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter herein.  This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party.  No other act, document, usage or custom shall be deemed to amend or modify this Agreement.