sfara Beta Program Agreement
Please read all of the following terms and conditions of this sfara Beta Program Agreement (the “Agreement”) carefully. Some features of the Pre-Release Software (as defined below) (including but not limited to the emergency response and roadside assistance features) do not function. The Pre-Release Software does not function when (a) your device is powered off or does not have battery power, (b) your device does not have service or reception or is not connected to the Internet, or (c) the Pre-Release Software or your device hardware or software is not working properly. Your device may not transmit your accurate geographic location if you are not near a cell tower or do not have cellular service in the “on” position on your device.
1. Participation in the sfara Beta Program
The purpose of the sfara Beta Program (the “Beta Program”) is to make beta and other pre- release software, pre-release services and documentation, materials, and information that are related to the sfara Guardian mobile application (collectively, the “Pre-Release Software”) available to Beta Program participants for the purpose of providing sfara 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 sfara. You understand that your participation in the Beta Program does not obligate sfara to provide you with any Pre-Release Software. sfara reserves the right to modify the terms, conditions, and policies of the Beta Program from time to time and to revoke your participation in the Beta Program at any time. If sfara makes changes to the terms and conditions of this Agreement, then sfara will present such revised terms and conditions to you by updating the information available through the sfara Pre-Release Software.
By participating in the Beta Program, you certify that you are of the legal age of majority in the jurisdiction in which you reside (and 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.
You cannot share or transfer any software or other materials you receive from sfara in connection with being a Beta Program participant. You are responsible for maintaining the confidentiality of your username and password and for any activity in connection with your account.
You understand that sfara may make Pre-Release Software available to Beta Program participants for downloading online through the Apple App Store, the Google Play Store, Hockey App, and/or as otherwise provided through the Beta Program. All use of such Pre-Release Software shall be pursuant to the terms and conditions of this Agreement.
2. License Grant and Restrictions
Subject to your compliance with this Agreement, sfara hereby grants you a personal, non-transferable, limited, non-exclusive, worldwide license to use the Pre-Release Software solely for testing and evaluation purposes and only in connection with this Beta Program. The term of this license shall commence upon your installation or use of the Pre-Release Software and will terminate automatically without notice from sfara upon the earlier of the commercial release of the Pre-Release Software or the termination of this Agreement. This license does not grant you the right to use Pre-Release Software for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works of the Pre-Release Software.
You certify that the Pre-Release 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.
You agree not to (a) use the Pre-Release Software in a production environment or for any business purpose, (b) copy the Pre-Release Software other than as required to use the Software as intended by this Agreement, (c) decompile, reverse engineer, disassemble, decrypt, or otherwise attempt to derive the source code of any Pre-Release Software, or (d) modify, adapt, translate or create a derivative work from the Pre-Release Software.
sfara retains ownership of all Pre-Release Software, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any sfara intellectual property.
As part of the Beta Program, sfara will provide you with the opportunity to submit bug reports, questionnaires, enhancement requests, issue reports and/or support information (collectively, “Feedback”) to sfara. sfara may request this information from you by email, web questionnaires, and other mechanisms.
By agreeing to this Agreement, you agree that sfara may contact you from time to time about the Beta Program, and you hereby consent to receive such communications. sfara will be free to use any Feedback you provide for any purpose.
4. Confidential Information
You agree that the Pre-Release Software, any information concerning the Pre-Release Software (including its nature and existence, features, functionality, and screen shots) and any other information disclosed by sfara 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 sfara, (c) is independently developed by you without the use of any Confidential Information, or (d) was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation will not be considered Confidential Information under this Agreement.
All Confidential Information remains the sole property of sfara and you have no implied licenses or other rights in the Confidential Information not specified in this Agreement.
Except as expressly permitted in this Section 4, you agree that you will not disclose, publish, or otherwise disseminate any Confidential Information to anyone other than Beta Program participants, or as otherwise expressly permitted or agreed to in writing by sfara. 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 Pre-Release 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 for any other use or purpose without the prior written approval of sfara.
You hereby acknowledge that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to sfara that may be difficult to ascertain. Accordingly, you agree that sfara 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.
5. Precautions for the use of Pre-Release Software
YOU ACKNOWLEDGE THAT BY INSTALLING PRE-RELEASE SOFTWARE ON YOUR COMPUTERS AND/OR DEVICES, APPLICATIONS AND SERVICES MAY BE AFFECTED BY YOUR USE OF PRE-RELEASE SOFTWARE. FURTHER, YOU UNDERSTAND THAT DATA FROM SUCH APPLICATIONS OR SERVICES THAT YOU CREATE OR CHANGE WHILE USING THE PRE-RELEASE SOFTWARE MAY BE INCAPABLE OF BEING RESTORED OR RECOVERED. SFARA 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 connected thereto.
sfara 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.
6. No Warranty
YOU ACKNOWLEDGE THAT (1) THE PRE-RELEASE SOFTWARE IS A BETA VERSION THAT HAS NOT YET BEEN COMPLETELY TESTED BY SFARA AND IS BEING LICENSED HEREUNDER WITH NO WARRANTY WHATSOEVER, (2) THE PRE-RELEASE SOFTWARE MAY BE INCOMPLETE AND CONTAIN ERRORS OR INACCURACIES, WHICH COULD CAUSE FAILURES, CORRUPTION AND/OR LOSS OF DATA OR INFORMATION, (3) SOME FEATURES OF THE PRE-RELEASE SOFTWARE (INCLUDING BUT NOT LIMITED TO THE EMERGENCY RESPONSE AND ROADSIDE ASSISTANCE FEATURES) DO NOT FUNCTION, AND (4) THE PRE-RELEASE SOFTWARE DOES NOT FUNCTION WHEN (A) YOUR DEVICE IS POWERED OFF OR DOES NOT HAVE BATTERY POWER, (B) YOUR DEVICE DOES NOT HAVE SERVICE OR RECEPTION OR IS NOT CONNECTED TO THE INTERNET, OR (C) THE PRE-RELEASE SOFTWARE OR YOUR DEVICE HARDWARE OR SOFTWARE IS NOT WORKING PROPERLY.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL USE OF THE PRE-RELEASE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFATORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
SFARA IS PROVIDING THE PRE-RELEASE SOFTWARE AND ALL CONFIDENTIAL INFORMATION 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, SECURITY AND FITNESS FOR A PARTICULAR PURPOSE. SFARA DOES NOT WARRANT THAT THE OPERATION OF THE PRE-RELEASE SOFTWARE SHALL BE OPERABLE, UNINTERRUPTED OR ERROR-FREE.
7. 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 SFARA 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 SFARA’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF SFARA HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SFARA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF FIVE DOLLARS ($5.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8. Collection and Use of Data
9. No Support and Maintenance
During your participation in the Beta Program, sfara is not obligated to provide you with any maintenance, technical or other support for the Pre-Release Software.
10. Term and Termination
This Agreement will continue in effect until terminated in accordance with this Section 10. You may terminate this Agreement 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. sfara may terminate this Agreement 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 sfara’s termination notice, or earlier if requested by sfara, 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 for any reason, the restrictions of Sections 2 to 15, inclusive, will continue to bind the parties.
11. No Export
You agree to comply with all applicable trade regulations and export control laws, both domestic and foreign. You agree that you will not export or re-export any of the Pre- Release Software or Confidential Information received from sfara except as authorized by United States law. In particular, but without limitation, the Pre-Release Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the Pre-Release Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Pre-Release Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You certify that the Pre-Release Software will only be used for evaluation and testing purposes, and will not be rented, sold, leased, sublicensed, assigned, or otherwise transferred. Further, you certify that you will not transfer or export any product, process or service that is a direct product of the Pre-Release Software.
12. Third Parties
The Pre-Release Software and materials provided to Beta Program participants may include references to third parties. Any such references are for informational purposes only and constitute neither an endorsement nor a recommendation.
13. Downloading from Apple’s App Store
The following terms apply when you download the Pre-Release Software as a mobile application from Apple’s App Store (the “Apple Mobile Application”). These terms are in addition to all other terms contained in the sfara Beta Agreement. If you have any questions, complaints or claims with respect to the Apple Mobile Application, please contact us at email@example.com.
You acknowledge and agree that (i) the sfara Beta Agreement is concluded between you and sfara only, and not with Apple; and (ii) sfara, not Apple, is solely responsible for the Apple Mobile Application and content thereof. Your use of the Apple Mobile Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Mobile Application.
- In the event of any failure of the Apple Mobile Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the Apple Mobile Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Mobile Application. As between sfara 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 sfara.
- You acknowledge that, as between sfara and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple Mobile Application or your possession and use of the Apple Mobile Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple Mobile Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You acknowledge that, in the event of any third-party claim that the Apple Mobile Application or your possession and use of Apple Mobile Application infringes that third party’s intellectual property rights, as between sfara and Apple, sfara, 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 sfara Beta Agreement.
- You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the sfara Beta Agreement as related to your license of the Apple Mobile Application, and that, upon your acceptance of the terms and conditions of the sfara Beta Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the sfara Beta Agreement as related to your license of the Apple Mobile Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of this sfara Beta Agreement, you must comply with all applicable third-party terms of agreement when using the Apple Mobile Application
- Governing Law
This Agreement will be governed by and construed in accordance with the laws of the United States and the State of New York, without giving effect to any principles of conflicts of law. Any litigation or dispute resolution between you and sfara arising out of or relating to this Agreement, the Pre-Release Software, or your relationship with sfara shall be subject to the jurisdiction of the courts of the State of New York. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by an authorized representative of sfara. This Agreement may not be assigned by you in whole or in part. Any contrary assignment shall be null and void.
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.
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.