Effective: March 08, 2023
This Agreement, referred to as the "Beta Testing Agreement," is a legally binding document between the individual referred to as "You," "Your," or "Tester," and Oolio Pty Ltd. The purpose of this Agreement is to govern Your participation in Oolio's preliminary, evaluation or "beta" testing products and/or services. By utilising or participating in such products and/or services, You hereby agree to abide by the terms and conditions set forth in this Agreement.
1. Scope of Agreement
This Agreement confers to the Tester certain rights for the purpose of testing and providing input and other Feedback to Oolio Pty Ltd concerning one or more of Oolio Pty Ltd's proprietary, non-commercially available products and/or services on a temporary basis (collectively referred to as "Beta Products"). The scope of this Agreement includes all Beta Products that are made available to the Tester by Oolio Pty Ltd, including, but not limited to, any Beta Products that Oolio Pty Ltd specifically identifies as being in a preliminary, evaluation, "beta," or any similar state of development. Oolio Pty Ltd reserves the right to exercise sole and absolute discretion over the Beta Products, including the right to modify them at any time. The Tester's use of and access to such Beta Products shall be subject to the terms and conditions set forth in this Agreement.
2. Limited Use Rights
This Agreement establishes the terms under which Oolio grants Tester a limited license to use the Beta Products for testing purposes. The license is non-exclusive, non-transferable, non-sub licensable, and revocable. During the term of this Agreement, Tester may permit its designated participants to access the Beta Products solely for the purpose of testing their functionality and providing feedback to Oolio. Tester is prohibited from using the Beta Products in any session intended primarily for providing general business training to other Tester associates or any audiences outside of Tester, or for any other commercial purpose.
Oolio reserves the right to revoke Tester's access to the Beta Products at any time, monitor or measure Tester's use of the Beta Products, validate certain features or functionality of the Beta Products, and provide services or support necessary to maintain the Beta Products, at its sole discretion. Tester and its designated participants are strictly prohibited from copying, modifying, translating, or creating derivative works of the Beta Products, reverse engineering, decompiling, disassembling, or attempting to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of any part of the Beta Products. Tester may not lend, lease, offer for sale, sell, or otherwise use any part of the Beta Products for the benefit of any other third parties, nor attempt to circumvent any license, timing or use restrictions that are built into any part of the Beta Products.
The Tester hereby agrees to provide feedback, analysis, suggestions, enhancement requests, comments, and recommendations (the “Feedback”) to Oolio in relation to the Beta Products, as and when requested by Oolio. The Feedback shall include the performance, ease of use, any missing features, and identification of any bugs encountered during the use of the Beta Products. The Tester agrees to make themselves available to discuss the Beta Products with Oolio for a reasonable amount of time, if requested.
All right, title, and interest in and to any Feedback provided by the Tester shall belong exclusively to Oolio. The Tester acknowledges and agrees that Oolio shall have the perpetual, irrevocable, and worldwide right to use, modify, license, sublicense and exploit all or part of the Feedback, or any derivative thereof, in any manner or media known now or developed in the future, without providing any remuneration, compensation, or credit to the Tester.
4. Intellectual Property
It is hereby recognised by the concerned parties that this Agreement shall not constitute a transfer of any right, title, or interest in any intellectual property rights to the other party. Oolio affirms its sole and exclusive rights, title, and interest in and to all of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights inherent in and to (i) the Beta Products, (ii) its platform, and (iii) all original works of authorship, inventions, processes, concepts, documents, work product, or other materials, or other proprietary information that may be accessible or provided to the Tester or any participant under this Agreement or prepared by or on behalf of Oolio in connection with the provision of the Beta Products (collectively, "Intellectual Property Rights"). The limited rights granted to the Tester to access and use the Beta Products under this Agreement do not convey any additional rights in the Beta Products or in or to any Intellectual Property Rights associated with them. All rights, title, and interest in and to the Beta Products and all Intellectual Property Rights will remain with and belong exclusively to Oolio, subject only to the limited rights granted to the Tester to access and use the Beta Products as expressly provided herein.
5. Term & Termination
This Agreement shall commence upon Tester's use or participation in the Beta Products and shall continue until its termination in accordance with the provisions outlined herein (the "Term"). Either party reserves the right to terminate this Agreement at any time and for any reason, with the caveat that Tester must provide Oolio with written notice of its intention to terminate this Agreement (email is an acceptable form of written notice). Oolio is under no obligation to provide notice of its intention to terminate the provision of the Beta Products and/or this Agreement. In the event of termination, Oolio may deny Tester and its designated participants access to the Beta Products and may also withhold, remove, or discard any content, data, or other information that Tester or its designated participants have posted, uploaded, or otherwise shared while using the Beta Products. The termination of this Agreement by either party shall not limit Oolio's rights with respect to any Feedback provided before or after the termination.
6. Confidential Information
The Tester hereby acknowledges and affirms that utilising the Beta Products shall lead to the disclosure of certain confidential, proprietary, and/or trade secret information related to the Beta Products and/or Intellectual Property Rights (the “Confidential Information”) by General Assembly. The Tester hereby agrees that it shall not disclose any Confidential Information, in whole or in part, to any third party without the express prior written consent of General Assembly, except in circumstances where such Confidential Information: (i) becomes generally available to the public through means other than by the Tester’s act or omission; (ii) is legitimately obtained by the Tester from a third party that is not obliged to maintain confidentiality in relation thereto and without limitation as to its usage; or (iii) is independently developed by the Tester without reliance upon any Confidential Information.
Protection – The Tester shall be obligated to exercise a level of care equivalent to that used to safeguard its own confidential information of a similar kind (but not lower than reasonable care) in order to (i) abstain from using any Confidential Information for any purpose beyond the scope of this Agreement and (ii) limit access to Confidential Information of the Disclosing Party to those individuals who require access for purposes that align with this Agreement and have executed confidentiality agreements with the Tester that include safeguards that are no less stringent than those specified in this Agreement, unless otherwise authorised in writing by General Assembly. The terms of this Agreement shall not be disclosed by either party to any third party, except for its affiliates and their legal counsel, accountants, or auditors, without the prior written consent of the other party.
This agreement is bound by and includes Oolio's Terms of Service Policy by reference. By entering into this agreement, the Tester consents to Oolio's communication during and after the duration of this agreement, with the intention to engage in the testing of present or forthcoming Beta Products.
Each party hereby affirms and guarantees to the other party that it will execute its obligations under this agreement in accordance with all relevant statutes, regulations, and laws, including but not limited to the export control laws of Australia that apply to the provision and usage of the Beta Products.
9. Disclaimer of Warranties
THE BETA PRODUCTS PROVIDED BY OOLIO ARE PROVIDED "AS IS" AND OOLIO DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. OOLIO FURTHER DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
IT IS HEREBY CLARIFIED THAT ALL BETA PRODUCTS ARE PRE-RELEASE AND ARE EXPECTED TO CONTAIN DEFECTS THAT MAY BE MATERIAL. SUCH BETA PRODUCTS ARE NOT EXPECTED TO OPERATE AT THE LEVEL OF PERFORMANCE OR COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OR SERVICE OFFERING. BETA PRODUCTS MAY NOT OPERATE ACCURATELY AND MAY BE SUBSTANTIALLY MODIFIED PRIOR TO PUBLIC AVAILABILITY OR WITHDRAWN AT ANY TIME. THEREFORE, THE ACCESS AND USE OF BETA PRODUCTS ARE ENTIRELY AT THE TESTER'S OWN RISK.
OOLIO SHALL NOT BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE BETA PRODUCT(S), EVEN IF THE TESTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TESTER IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION, AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF ANY BETA PRODUCT.
10. Indemnity and Limitation of Liability
The Tester hereby agrees to indemnify and hold Oolio, including its officers, directors, and employees, harmless from any losses, including attorneys’ fees, arising from any third-party claims that result from Tester's or its designated participants' access, use, or misuse of the Beta Products or Intellectual Property Rights or any act or omission by Tester or its participants in violation of this Agreement. Oolio shall not be liable to the Tester for any special, indirect, incidental, consequential, punitive or exemplary damages or for loss of profits, revenues, contracts, loss of use, loss of data, business interruption, or cost of replacement goods related to or in connection with this Agreement, even if advised of the possibility of such damages, to the maximum extent allowed by law.
This Agreement hereby establishes that no partnership, agency relationship, or joint venture shall be created between the parties. Tester shall not assign any portion of this Agreement without obtaining prior written consent from Oolio. Furthermore, all terms and conditions outlined in this Agreement shall remain binding on Tester’s successors and permitted assigns. In the event that any provision of this Agreement is deemed unenforceable by a tribunal of competent jurisdiction, said provision shall be modified to the extent possible to achieve the parties’ intent, and the remaining provisions shall continue to be fully enforceable. Oolio’s failure to enforce any right under this Agreement shall not constitute a waiver of that right or Oolio’s ability to later assert that right relative to the specific situation at hand. This agreement shall be exclusively governed by the Laws of Victoria, without considering the conflict of law provisions of Victoria (Australia). Any dispute that arises out of or relates to this agreement shall be subject to the exclusive jurisdiction and venue of the state and federal courts located in Victoria (Australia), and each party hereby consents to the personal jurisdiction and venue of these courts.