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Beta test agreement addendum

Last updated Jan 24, 2020

This Beta Test Agreement Addendum (“Beta Test Agreement") applies to all users of the websites (each a “Site”) operated by AXIOS Media Inc. (“AXIOS Media,” “we,” “us,” and “our”) and services made available through the Sites (collectively, the “Site” and such services, the “Services”) who have been selected by AXIOS Media to participate in the beta test (the “Beta Test”) of our mobile application (the “App”). This Beta Test Agreement should be read carefully in order to understand your rights and responsibilities, as well as ours. By agreeing to participate in the Beta Test, you acknowledge and agree that you have read, understood, and agree to be bound by this Beta Test Agreement. This Beta Test Agreement shall be considered an integral part of AXIOS Media’s Terms of Use (“Terms of Use Agreement”) (available at www.axios.com/legal/terms-of-use, as updated from time to time). This Beta Test Agreement, together with the Terms of Use Agreement, sets forth the legally binding terms for your participation in the Beta Test. Participants in the “Beta Test” are referred to as “Beta Testers” or “you” in this Beta Test Agreement, Beta Testers are referred to in the Terms of Use Agreement as “Users” or individually as a “User” or “you.” For purposes of this Beta Test Agreement, references to the “Site” in the Terms of Use Agreement shall be deemed to include the App.  Capitalized terms that are used in this Beta Test Agreement shall have the meaning set forth herein, or if not defined in the Beta Test Agreement, shall be defined as set forth in the Terms of Use Agreement.

a. For the avoidance of doubt, this Beta Test Agreement applies only to the Beta Test of our App and to Beta Testers participating in the Beta Test.  This Beta Test Agreement does not apply to the Services provided by AXIOS Media to Users pursuant to the Terms of Use Agreement.

b. Beta Tester represents and warrants that he or she has the legal authority to bind and lawfully enter the Customer into the Order Form.

c. This Beta Test Agreement will terminate automatically upon termination of the Beta Test or as earlier terminated pursuant to the terms of this Beta Test Agreement.

Beta Tester acknowledges and agrees that the App is being made available to Evaluator for download via the TestFlight application or the Google Play store.

a. AXIOS Media may periodically request that Beta Tester provide feedback regarding the use, operation and functionality of the App, including by way of online surveys and 1:1 interviews (the "Beta Test Interviews") (“Feedback”). Such Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features. Beta Tester hereby assigns to AXIOS Media all rights in the Feedback and agrees that AXIOS Media shall have the right to use the Feedback and related information in any manner it deems appropriate.

b. Beta Tester may but is not obligated to provide such feedback to AXIOS Media.

a. AXIOS Media hereby grants to Beta Tester a royalty-free, nonexclusive, non-transferable internal use license under copyright to use, display, execute, and perform the App, for the purposes of evaluating the performance and functionality of the App.

b. Beta Tester agrees that it will not (i) reproduce, modify, distribute, transfer, disclose, or make available to any third party other than other Beta Testers any portion of the App (or any related documentation) in any form; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the App; or (ii) publish any performance or benchmark tests or analyses relating to the App, or the use thereof.  Except as provided  herein, Beta Tester agrees not to permit any third party access to the App, or to any materials generated by AXIOS concerning the App, or to discuss the Beta Test, the App, or its functionality with any third party, without AXIOS Media’s prior written approval.

The App is unannounced and is not available to the public. Providing the App to Beta Tester does not constitute a sale or an announcement that the App, or that any other product or services, will be available from AXIOS Media. During the BetaTest Interviews, AXIOS may provide Beta Tester with Confidential Information related to the App. For purposes of this Beta Test Agreement, “Confidential Information”will mean technical and non-technical information provided by AXIOS related to the App that is identified by AXIOS as confidential or proprietary at the time it is disclosed or that Beta Tester knew, or reasonably should have known, is confidential information of AXIOS  Beta Tester agrees that at all times, and notwithstanding any termination or expiration of this BetaTest Agreement, Beta Tester will hold in confidence not disclose to any third party any Confidential Information except as approved in writing by AXIOS, and will use the Confidential Information with at least the same degree of care that it uses to protect its own confidential information, but in no case, less than reasonable care.  Notwithstanding the foregoing, Beta Tester will not have any obligations with respect to any portion of the Confidential Information if Beta Tester can demonstrate that such Confidential Information (a) was in the public domain at the time it was disclosed to Beta Tester; (b) entered the public domain subsequent to the time it was disclosed to Beta Tester through no fault of Beta Tester; (c) was in BetaTester’s possession free of any obligation of confidence at the time it was disclosed to Beta Tester; (d) was rightfully communicated to Beta Tester free of any obligation of confidence subsequent to the time it was disclosed to BetaTester; (e) was developed by employees or agents of Beta Tester who had no access to the Confidential Information; or (f) to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that Beta Tester provides AXIOS with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or assist AXIOS in obtaining, a protective order preventing or limiting the disclosure. Confidential Information is and will remain the sole property of AXIOS and Beta Tester will use it solely for the purposes of this Beta Test Agreement.

Certain items of software may be provided with the App that are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. Each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Beta Test Agreement limits Beta Tester’s rights under, or grants Beta Tester rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, AXIOS Media makes such Open Source Software, and our modifications to that Open Source Software, available by written request at the notice address specified in Section 8 of the Terms of Use Agreement.

In addition to the disclaimer of warranties set forth in Section 5 of the Terms of Use Agreement, Beta Tester acknowledges that the App is pre-production and has not been completely tested in all situations, and that AXIOS Media HAS MADE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE APP, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

The following applies to any version of the App that you access through or downloaded from TestFlight or the Apple App Store. The following applies to any version of the App that you access through or downloaded from TestFlight or the Apple App Store (the "Apple Store Sourced App"):

  1. You acknowledge and agree that (i) the Beta Test Agreement is concluded between you and AXIOS Media only, and not Apple, and (ii) AXIOS Media, not Apple, is solely responsible for the App Store Sourced App and content thereof. Your use of the App Store Sourced App must comply with the App Store Terms of Service.
  2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced App.
  3. In the event of any failure of the App Store Sourced App to conform to any applicable warranty, you may notify Apple, and, to the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the App Store Sourced App. As between AXIOS Media and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of AXIOS Media.
  4. You and AXIOS Media acknowledge that, as between AXIOS Media and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced App or your possession and use of the App Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  5. You and AXIOS Media acknowledge that, in the event of any third-party claim that the App Store Sourced App or your possession and use of the Apple Store Sourced App infringes that third party’s intellectual property rights, as between AXIOS Media and Apple, AXIOS Media, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Beta Test Agreement.
  6. You and AXIOS Media acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Beta Test Agreement as related to your license of the App Store Sourced App, and that, upon your acceptance of the terms and conditions of the Beta Test Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Beta Test Agreement as related to your license of the App Store Sourced App against you as a third-party beneficiary thereof.
  7. Without limiting any other terms of the Beta Test Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced App.

a. In addition to the termination provisions set forth in Section 7 of the Terms of Use Agreement, you may terminate this Beta Test Agreement, and your participation in the Beta Test, at any time and for any reason by providing us notice of termination at the notice address specified in Section 8 of the Terms of Use Agreement.

b. Even after this Beta Test Agreement has been terminated, the following provisions of this Beta Test Agreement will remain in effect: Sections 1; 3; 4(b); 5; 6; 7; 8; and 9.

This Beta Test Agreement, together with the Terms of Use Agreement, is the final, complete and exclusive agreement with respect to the Beta Test and supersedes and merges all prior discussions or agreements between the parties.  In the event of any conflict between the terms of this Beta Test Agreement and the Terms of Use Agreement related to the Beta Test, the terms of this Beta Test Agreement shall prevail.

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