IQOQO Alpha Test Agreement

This Alpha Test Agreement (“Agreement”) governs the disclosure of Confidential Information (as defined below) by Samsung Research America, Inc. on behalf of its IQOQO business unit (the “Company”) to you (the “Recipient”) and the Recipient’s use of that Confidential Information, including, without limitation, the Company’s alpha service offering for the product currently known as IQOQO (the “Service”), effective as of the date the Recipient clicks “Accept” and first accesses the Service.

  1. Subject to the terms and conditions of this Agreement, the Company grants Recipient a non-exclusive, non-transferable, non-sublicensable, freely revocable license to use the Service for a period of time to be determined by the Company in its sole discretion, for the sole purpose of testing and evaluating the Service for the benefit of the Company.
  2. If you are accepting this Agreement on behalf of your employer or another entity, you represent and warrant that (a) you have full legal authority to bind your employer, or the applicable entity; (b) you have read and understand this Agreement, and (c) you agree, on behalf of the party that you represent, to this Agreement.
  3. The Recipient agrees that it will at all times hold in strict confidence and not disclose Confidential Information to any third party except as approved in writing by the Company and will use the Confidential Information for no purpose other than evaluating the Service for the benefit of the Company. The Recipient shall only permit access to Confidential Information to those of its employees having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. “Confidential Information” means all non-public materials and information provided or made available by the Company to the Recipient, including, without limitation, the Service, other products and services, information regarding technology, know-how, processes, software programs, research, development, financial information and information the Company provides regarding third parties.
  4. The Recipient’s obligations under this Agreement with respect to any portion of the Confidential Information shall terminate when the Recipient can document that: (a) it was in the public domain at the time it was communicated to the Recipient; (b) it entered the public domain subsequent to the time it was communicated to the Recipient through no fault of the Recipient; (c) it was in the Recipient’s possession free of any obligation of confidence at the time it was communicated to the Recipient; (d) it was rightfully communicated to the Recipient free of any obligation of confidence subsequent to the time it was communicated to the Recipient; or (e) it was developed by employees or agents of the Recipient who had no access to any information communicated to the Recipient. If requested by the Company, the Recipient shall promptly return to the Company all documents, notes and other tangible materials and return or certify the destruction of all electronic documents, notes, software, data, and other materials in electronic form representing the Confidential Information and all copies thereof.
  5. The Recipient agrees that nothing contained in this Agreement shall be construed as granting any ownership rights to any part of the Service or Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right. The Recipient will not, directly or indirectly, (a) copy the Service in any manner or for any purpose; (b) resell, distribute, publicly display or publicly perform the software or Service or any component thereof, by transfer, lease, loan or any other means; (c) decrypt, extract, modify, reverse engineer, decompile, create derivative works from, or disassemble any software programs contained in the Confidential Information or the Service, or otherwise attempt to discover the source code, confidential algorithms or techniques incorporated in the software programs contained in the Confidential Information or the Service; (d) export the software, Service or Confidential Information in violation of any applicable laws or regulations; (e) circumvent, disable or otherwise interfere with security-related features of the software or Service; (f) use the software, Service, or Confidential Information for any illegal purpose, in any manner that is inconsistent with the terms of this Agreement, or to engage in illegal activity; or (g) provide access to the Service, software or Confidential Information to third parties.
  6. As part of the Service, you may be asked to provide suggestions, comments, requests for noticeable bugs and other feedback with respect to the Service (“Feedback”). You hereby assign all right, title and interest in or to such Feedback to the Company and shall cooperate in all actions necessary for such assignment.
  7. This Service is an alpha release offering and is not at the level of performance of a commercially available product offering. The Service may not operate correctly and may be substantially modified prior to first commercial release, or at Company’s option may not be released commercially in the future.  THE SERVICE AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND COMPANY AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  NO ORAL OR WRITTEN ADVICE OR CONSULTATION GIVEN BY COMPANY, ITS AGENTS OR EMPLOYEES WILL IN ANY WAY GIVE RISE TO A WARRANTY.  THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICE REMAINS WITH RECIPIENT.
  8. COMPANY AND ITS LICENSORS SHALL NOT BE LIABLE FOR LOSS OF USE, LOST PROFIT, COST OF COVER, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $50.00 OR THE AMOUNT RECIPIENT ACTUALLY PAID COMPANY UNDER THIS AGREEMENT (IF ANY).
  9. 9. The Recipient’s obligations under this Agreement shall survive any termination of this agreement. This Agreement shall be governed by and construed in accordance with the laws of California, without regard to the conflict of laws principles thereof. The Recipient hereby agrees that breach of this Agreement will cause the Company irreparable damage for which recovery of damages would be inadequate, and that the Company shall therefore be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction, without the necessity of proving actual damages or posting bonds.  The Recipient will not assign or transfer any rights or obligations under this Agreement without the prior written consent of the Company.