- Participation in the BuyerKiosk Beta Software Program.
The purpose of the BuyerKiosk Beta Software Program (“Beta Program”) is
to make alpha, beta and other pre-release software, pre-release
services, and related documentation, materials, and information
(collectively, the “Pre-Release Software”) available to Beta Program
participants from time to time for the purpose of providing us with
feedback on the quality and usability of the Pre-Release Software. You
understand and agree that participation in the Beta Program is voluntary
and does not create a legal partnership, agency, or employment
relationship between you and V2 Technology Solutions, Inc. (“V2TS”). You
understand that your participation in the Beta Program does not obligate
V2TS to provide you with any Pre-Release Software. V2TS reserves the
right to modify the terms, conditions, and policies of this Beta Program
from time to time, and to revoke your participation in this Beta Program
at any time. If V2TS makes changes to the terms and conditions of this
Agreement, then V2TS will present such revised terms and conditions to
you on this web page.
By participating in the Beta Program, you certify that you are of the
legal age of majority in the jurisdiction in which you reside (at least
18 years of age) and you represent that you are legally permitted to
join the Beta Program. This Agreement is void where prohibited by law
and the right to become a Beta Program participant is not granted in
such jurisdictions. Unless otherwise agreed or permitted by V2TS in
writing, you cannot share or transfer any software or other materials
you receive from V2TS in connection with being a Beta Program
participant.
- Access to Pre-Release Software and Additional Terms.
You understand that V2TS may make Pre-Release Software available to
Beta Program participants for downloading online through the Buyerkiosk
Admin Panel and/or as otherwise provided through the Beta Program (e.g.,
by manual download of an executable file, by providing software
configuration profiles, etc.). From time to time, V2TS, at its option,
may also provide you with software or services as part of the Beta
Program, including but not limited to scripts, code snippets, utilities,
sample code as part of your participation in the Beta Program. All use
of such Pre-Release Software and tools shall be pursuant to the terms
and conditions of this Agreement shall be referred to as “V2TS Software”
for purposes of this Agreement.
- License Grant and Restrictions.
Subject to your compliance with this Agreement, V2TS hereby grants you
a personal, limited license to use the V2TS Software solely for testing
and evaluation purposes and only in connection with this Beta
Program. Except as otherwise permitted under Section 12, this license
does not grant you the right to use the V2TS Software for any other
purpose, or to disclose, reproduce, distribute, modify or create
derivative works of the V2TS Software. You agree not to decompile,
reverse engineer, disassemble, decrypt, or otherwise attempt to derive
the source code of any V2TS Software (except as and only to the extent
the foregoing restrictions are prohibited by applicable law, or to the
extent as may be permitted by licensing terms governing use of
open-sourced components included with any such V2TS Software). Unless
otherwise permitted under Section 12 below, you certify that the V2TS
Software will only be used for testing and evaluation purposes in
connection with the Beta Program, and will not be rented, sold, leased,
sublicensed, assigned, distributed or otherwise transferred. V2TS
retains ownership of all V2TS Software, and except as expressly set
forth herein, no other rights or licenses are granted or to be implied
under any V2TS intellectual property.
- Feedback; Contact from V2TS.
As part of the Beta
Program, you agree to provide bug reports, enhancement requests and/or
support information (collectively, “Feedback”) to V2TS through the
browser-based support system that is accessible by authorized users of the
BuyerKiosk website. V2TS will be free to use any Feedback you provide for
any purpose.
- Definition of Confidential Information.
You agree that
the Pre-Release
Software and any information concerning the Pre-Release Software (including
its
nature and existence, features, functionality, and screen shots), and any
other
information disclosed by V2TS to you in connection with the Beta Program
will be
considered and referred to in this Agreement as “Confidential
Information.” Information that otherwise would be deemed Confidential
Information but (a) is generally and legitimately available to the public
through no fault or breach of yours, (b) is generally made available to the
public by V2TS, (c) is independently developed by you without the use of any
Confidential Information, (d) was rightfully obtained from a third party who
had
the right to transfer or disclose it to you without limitation, or (e) any
third
party software and/or documentation provided to you by V2TS and accompanied
by
licensing terms that do not impose confidentiality obligations on the use or
disclosure of such software and/or documentation will not be considered
Confidential Information under this Agreement. All Confidential Information
remains the sole property of V2TS and you have no implied licenses or other
rights in the Confidential Information not specified in this Agreement.
- Nonuse and Nondisclosure of Confidential Information.
You agree that you
will not disclose, publish, or otherwise disseminate any Confidential
Information to anyone other than individuals who are enrolled in Beta
Program or
as otherwise expressly permitted or agreed to in writing by V2TS. You
further
agree to take reasonable precautions to prevent any unauthorized use,
disclosure, publication, or dissemination of Confidential Information,
including
preventing access to or display of the V2TS Software to third parties. You
agree to use the Confidential Information solely for the permitted uses as
set
forth in this Agreement. You agree not to use Confidential Information
otherwise for your own or any third party’s benefit without the prior
written
approval of an authorized representative of V2TS in each instance. You
hereby
acknowledge that unauthorized disclosure or use of Confidential Information
could cause irreparable harm and significant injury to V2TS that may be
difficult to ascertain. Accordingly, you agree that V2TS will have the
right to
seek immediate injunctive relief to enforce obligations under this Agreement
in
addition to any other rights and remedies it may have.
- Precautions for the use of Pre-Release Software.
You understand that to use
any Pre-Release Software you may need to remove certain pre-loaded,
commercial
V2TS software from your computer and/or device in order to load the
Pre-Release
Software. You further understand that once you load such Pre-Release
Software
onto your computer and/or device, you may be unable to revert back to
the
pre-loaded, commercial release of the V2TS software you were using prior
to
loading the Pre-Release Software or any earlier release of the
Pre-Release
Software. In addition, applications and services you have installed or
been
using may be unable to run or function in the same manner because of
your use of
the Pre-Release Software. You also understand that installing and using
Pre-Release software will impact data within the Winmark Data Recycling
System
(“DRS”). YOU ACKNOWLEDGE THAT BY INSTALLING SUCH PRE-RELEASE SOFTWARE ON
YOUR
COMPUTERS AND/OR DEVICES, THESE COMPUTERS AND DEVICES MAY NOT BE CAPABLE
OF
BEING RESTORED TO THEIR ORIGINAL CONDITION AND THAT APPLICATIONS AND
SERVICES
(INCLUDING DRS) MAY BE AFFECTED BY YOUR USE OF PRE-RELEASE
SOFTWARE. FURTHER,
YOU UNDERSTAND THAT DATA FROM SUCH APPLICATIONS OR SERVICES THAT IS
CREATED OR
CHANGED WHILE USING THE PRE-RELEASE SOFTWARE MAY BE INCAPABLE OF BEING
RESTORED
OR RECOVERED. V2TS SHALL NOT BE RESPONSIBLE FOR ANY COSTS, EXPENSES OR
OTHER
LIABILITIES YOU MAY INCUR AS A RESULT OF YOUR TESTING, INSTALLATION OR
USE OF
PRE-RELEASE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO ANY
EQUIPMENT,
SOFTWARE OR DATA OR ANY LOSS OF DATA OR INFORMATION ARISING FROM YOUR
USE OF
SUCH PRE-RELEASE SOFTWARE. In addition, the Pre-Release Software may
contain
errors or inaccuracies that could cause failures, corruption or loss of
data
and/or information from your computer and/or device or from your
peripherals
(including, without limitation, servers and printers) connected
thereto. V2TS
strongly encourages you to back-up all data and information on your
computer,
devices and/or any peripherals prior to your participation in the Beta
Program.
- No Warranty.
The V2TS Software provided hereunder may be designated as
alpha, beta, development, pre-release, untested, or not fully tested
versions. The V2TS Software may be incomplete and may contain errors or
inaccuracies that could cause failures, corruption and/or loss of data
or
information. You expressly acknowledge and agree that, to the extent
permitted
by applicable law, all use of the V2TS Software is at your sole risk and
that
the entire risk as to satisfactory quality, performance, accuracy and
effort is
with you. V2TS IS PROVIDING ALL CONFIDENTIAL INFORMATION, INCLUDING THE
PRE-RELEASE SOFTWARE, TO YOU SOLELY ON AN “AS IS” BASIS AND WITHOUT ANY
WARRANTY
OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
THE
IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY,
COMPLETENESS,
PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE. You acknowledge that
V2TS
has not publicly announced the availability of the Pre-Release Software,
that
V2TS has not promised or guaranteed to you that such Pre-Release
Software will
be announced or made available to anyone in the future, and that V2TS
has no
express or implied obligation to you to announce or introduce the
Pre-Release
Software or any similar or compatible product, or to continue to offer
access to
the Pre-Release Software in the future.
- Disclaimer of Liability.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, YOU
ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH TESTING, INSTALLATION, OR
USE OF
THE PRE-RELEASE SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING,
WITHOUT
LIMITATION, ANY BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF THE
PRE-RELEASE
SOFTWARE ON YOUR COMPUTER, DEVICES AND/OR PERIPHERALS, AND ANY DAMAGE TO
ANY
EQUIPMENT, SOFTWARE, INFORMATION OR DATA, AND IN NO EVENT WILL V2TS BE
LIABLE
FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER
ARISING
IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, ARISING OUT OF OR
RELATED
TO THIS AGREEMENT, INCLUDING ANY LIABILITY THAT STEMS FROM ANY USE OF
THE
PRE-RELEASE SOFTWARE ON YOUR COMPUTER, DEVICES AND/OR ANY PERIPHERALS
CONNECTED
THERETO, AND/OR FROM ANY OTHER CONFIDENTIAL INFORMATION, AND/OR V2TS’S
PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF V2TS HAS
BEEN
ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
SHALL
V2TS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE
REQUIRED BY
APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF
FIFTY
DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE
ABOVE STATED
REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Term and Termination.
This Agreement will continue in effect until
terminated in accordance with this Section 13. You may terminate this
Agreement
or an individual beta project at any time, for any reason, but only by
returning
or destroying any Confidential Information that is in your possession or
control
(including, without limitation, any Pre-Release Software); provided
however that
if you are unable to purge certain Pre-Release Software from your
computer
and/or devices, then you agree that you will continue to hold the
Pre-Release
Software as Confidential Information. V2TS may terminate this Agreement
or an
individual beta project at any time, with or without cause, immediately
upon
written notice to you, and may terminate this Agreement immediately for
any
breach of the confidentiality provisions set forth herein. Within seven
(7)
days of your receipt of V2TS’s termination notice, or earlier if
requested by
V2TS, you will return, cease all use of, and/or destroy the Pre-Release
Software
and all other Confidential Information as provided in this
Section. Following
termination of this Agreement or an individual beta project for any
reason, the
restrictions of all preceding sections will continue to bind the
parties. The
term of your license to use the V2TS Software granted under Section 3 of
this
Agreement shall commence upon your installation or use of the V2TS
Software and
will terminate automatically without notice from V2TS upon the earlier
of (a)
the next commercial release of the V2TS Software, (b) the termination of
the
individual beta project under which you obtained the V2TS Software, (c)
the
termination of this Agreement, or (d) the date specified in the separate
license
accompanying the V2TS Software (if any).
- No Export.
You agree that you will not export or re-export any of the
Pre-Release Software or Confidential Information received from V2TS
except as
authorized by United States law and the laws of the jurisdiction in
which the
V2TS Software was obtained.
- Third Party Software & Information.
Portions of the V2TS Software may
include third party software and other copyrighted material.
Acknowledgements,
licensing terms, and disclaimers for such material are contained in the
V2TS
Software, and your use of such material is governed by such respective
terms. Mention of third parties and third-party products in any
materials,
advertising, promotions or coupons provided to Beta Program participants
is for
informational purposes only and constitutes neither an endorsement nor a
recommendation. All third-party product specifications and descriptions
are
supplied by the respective vendor or supplier, and V2TS shall have no
responsibility with regard to the selection, performance, or use of
these
vendors or products. All understandings, agreements, or warranties, if
any,
take place directly between the vendors and the prospective users.
- No Waiver or Assignment.
No delay or failure to take action under this
Agreement will constitute a waiver unless expressly waived in writing,
signed by
a duly authorized representative of V2TS, and no single waiver will
constitute a
continuing or subsequent waiver. This Agreement may not be assigned by
you in
whole or in part. Any contrary assignment shall be null and void.
- Governing Law.
Any litigation or dispute resolution between You and V2TS
arising out of or relating to this Agreement, the V2TS Software, or Your
relationship with V2TS will take place in the state of Texas, and You
and V2TS
hereby consent to the personal jurisdiction of and exclusive venue in
the state
and federal courts within that District with respect to any such
litigation or
dispute resolution. This Agreement will be governed by and construed in
accordance with the laws of the United States and the State of Texas,
except
that body of Texas law concerning conflicts of law.
- Severability; Complete Understanding.
If any provision of this Agreement is
found to be unenforceable or invalid, that provision shall be limited or
eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable. This
Agreement,
including any appendices made effective pursuant to this Agreement and
any
additional licenses accompanying the V2TS Software, constitutes the
entire
agreement with respect to the Confidential Information disclosed herein
and
supersedes all prior or contemporaneous oral or written agreements
concerning
such Confidential Information. Except to the extent provided under
Section 2
above, any inconsistencies between this Agreement and any license
agreement
accompanying the V2TS Software will be governed by the license agreement
accompanying the V2TS Software. Except as expressly set forth herein,
any
waiver or amendment of any provision of this Agreement shall be
effective only
if in writing and signed by authorized representatives of both
parties. Any
translation of this Agreement is done for local requirements and in the
event of
a dispute between the English and any non-English versions, the English
version
of this Agreement shall govern, to the extent not prohibited by local
law in
your jurisdiction.