SOFTWARE BETA TESTER NONDISCLOSURE AGREEMENT
This is an agreement, effective, between HYPESTER OU ("Hypester") and YOU ("Tester"), in which Tester agrees to test the Beta Trial of a game known as SKYFRONT (the "Beta Trial") and keep Hypester aware of the test results.
1. Company's Obligations
Hypester shall provide the Tester with a copy of the Beta Trial and any necessary documentation and instruct Tester on how to use it and what test data is desired by Hypester.
2. Tester's Obligations
Tester shall test the Beta Trial under normally expected operating conditions in the Tester's environment during the test period. Tester shall gather and report test data as agreed upon with Hypester. Tester agrees to perform such tasks as Hypester shall direct related to the Beta Trial in a timely manner as requested by Hypester.
3. Beta Trial a Trade Secret
You acknowledge that Hypester, through the investment of significant time, effort, and expense has created the Game and the related confidential information and that Hypester is providing You confidential and/or proprietary trade information, intellectual property, business information or materials as part of the Beta Trial and that Hypester wishes to maintain the confidentiality of its Confidential Information. As a material inducement to Hypester to enter into this Agreement and to permit You access to participate in the Beta Trial. You hereby expressly represent and agree that You will not disclose, nor make any use of, or benefit from, directly or indirectly. The Confidential Information of Hypester. (a) “Confidential Information” as used in this Agreement shall mean any and all information or material, of every kind and form, in electronic or tangible form, relating to the Beta Trial, the Game or any other Hypester products and services which are made available to You by Hypester under this Agreement. This Section 3 and the terms below in will survive the termination of this Agreement.
Confidential Information includes, but is not limited to, all Feedback and all other information relating to the Beta Trial, Your selection as a Beta Trial participant, the Game (including but not limited to information and ideas relating to the Game, software, software code, designs, graphics, rules, playing strategies, artwork, visual depictions, plot, theme, settings, characters, characterizations, skills, emails, screenshots, marketing emails, marketing and promotional plans, current, future or proposed products or services of Hypester, written or printed documents, announcements or prereleases, product samples, artwork, graphics, promotional and/or marketing items), the Beta forums and other private Hypester forums, business and/or trade secrets, testing protocols, processes, and standards relating to the Game and/or associated products or services of Hypester.
(b) For the purposes of this Agreement, the term Confidential Information does not include information or material Hypester discloses to You that You can demonstrate by written record (i) was known to You and in Your possession, without restriction as to use or disclosure prior to the disclosure by Hypester; or (ii) is obtained, without restriction as to use or disclosure, from a source lawfully in possession of the information and having the right to disclose it without an obligation of confidentiality; or (iii) is independently developed by You (excluding Feedback) without use or knowledge of Hypester’s Confidential Information; or (iv) has been made publicly available by Hypester.
(c) You agree to hold in strictest confidence and not to disclose or reveal to any person or entity Confidential Information without the express prior written consent of a duly authorized representative of Hypester. In particular, You must not discuss the Beta Trial with anyone associated with a competing videogame, any videogame publisher or developer, any news or information service (whether television, magazine, online, newspaper or otherwise), or review, report, Game footage, online blog, or in any online forum or chat room, other than the official Beta Forum or specifically designated private Hypester forum. Except as expressly authorized by Hypester, You additionally agree not to use any of the Confidential Information for any purpose whatsoever or to disclose any of the Confidential Information at any time to any third party by direct or indirect means. Without limiting the generality of the foregoing, You agree that any reports or announcements concerning Confidential Information which are not made or authorized by Hypester, and which appear prior to Hypester’s official disclosure of such Confidential Information, shall not release You from Your obligations hereunder with respect to such Confidential Information. It shall be Your duty to secure the authorization of Hypester in the event of any reasonable doubt on Your part regarding the status of disclosed Confidential Information.
(d) You shall not copy, alter, modify, disassemble, reverse engineer, or decompile the Game, Confidential Information, or any materials received during the Beta Trial or otherwise attempt to derive source code from the Game without the prior written consent of Hypester.
(e) Nothing contained in this Agreement shall be construed to create any obligation on the part of Hypester to disclose any Confidential Information to You. Hypester reserves the right to suspend, restrict, or cancel the Beta Trial, and/or may terminate Your participation in the Beta Trial at Hypester’s sole and absolute discretion.
4. Security Precautions
Tester shall take reasonable security precautions to prevent the Beta Trial from being seen by unauthorized individuals whether stored on the Tester's hard drive or on physical copies such as CD-ROMS, diskettes or other media. Tester shall lock all copies of the Beta Trial and associated documentation in a desk or file cabinet when not in use.
5. Term of Agreement
The test period shall last from 7th of September 2017, 6PM (GMT) until 10th of September 2017, 9PM (GMT). This Agreement shall terminate at the end of the test period or when Hypester asks the Tester to remove the Beta Trial, whichever occurs first. The restrictions and obligations contained in Clauses 4, 7, 8, 9 and 10 shall survive the expiration, termination or cancellation of this Agreement, and shall continue to bind the Tester, its successors, heirs and assigns.
6. Return of Beta Trial and Materials
Upon the conclusion of the testing period or at Hypester's request, Tester shall within 10 days delete all portions of the Beta Trial from computer memory.
7. Disclaimer of Warranty
Beta Trial is a test product and its accuracy and reliability are not guaranteed. Tester shall not rely exclusively on the Beta Trial for any reason. Tester waives any and all claims the Tester may have against Hypester arising out of the performance or nonperformance of the Beta Trial.
BETA TRIAL IS PROVIDED AS IS, AND HYPESTER DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability
Hypester shall not be responsible for any loss or damage to the Tester or any third parties caused by the Beta Trial. HYPESTER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF THE BETA TRIAL OR ANY PERFORMANCE OF THIS AGREEMENT.
9. No Rights Granted
This Agreement does not constitute a grant or an intention or commitment to grant any right, title or interest in the Beta Trial or Hypester's trade secrets to the Tester. Tester may not sell or transfer any portion of the Beta Trial to any third party or use the Beta Trial in any manner to produce, market or support its own products. Tester shall not identify the Beta Trial as coming from any source other than Hypester.
10. No Assignments
This Agreement is personal to the Tester. Tester shall not assign or otherwise transfer any rights or obligations under this Agreement.
11. General Provisions
(a) Relationships: Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose.
(b) Severability: If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.
(c) Integration: This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This Agreement may not be amended except in a writing signed by both parties.
(d) Waiver: The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
(e) Attorney Fees and Expenses: In a dispute arising out of or related to this Agreement, the prevailing party shall have the right to collect from the other party its reasonable attorney fees and costs and necessary expenditures.