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Airstream BETA Software Program Agreement

AIRSTREAM BETA SOFTWARE PROGRAM AGREEMENT

PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THE AIRSTREAM BETA SOFTWARE PROGRAM AGREEMENT ("AGREEMENT") CAREFULLY. IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “ACCEPT” BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "DECLINE" BUTTON AND YOU WILL BE INELIGIBLE TO PARTICIPATE IN THE AIRSTREAM BETA SOFTWARE PROGRAM.

AIRSTREAM, INC. (“AIRSTREAM”) BETA SOFTWARE PROGRAM AGREEMENT

  1. Participation in the Airstream Beta Software Program. The purpose of the Airstream Beta Software Program (“Beta Program”) is to 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 Airstream 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 Airstream. You understand that your participation in the Beta Program does not obligate Airstream to provide you with any Pre-Release Software. Airstream 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 Airstream makes changes to the terms and conditions of this Agreement, then Airstream will present such revised terms and conditions to you via e-mail.

By participating in the Beta Program, You certify that you are 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 Airstream in writing, you cannot share or transfer any software or other materials you receive from Airstream in connection with being a Beta Program participant. All use of such Pre-Release Software shall be pursuant to the terms and conditions of this Agreement.

  1. License Grant and Restrictions. Subject to your compliance with this Agreement, Airstream hereby grants you a personal, limited license to use the Pre-Release Software solely for testing and evaluation purposes and only in connection with this Beta Program. This license does not grant you the right to use the Pre-Release Software for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works of the Pre-Release Software. You agree not to decompile, reverse engineer, disassemble, decrypt, or otherwise attempt to derive the source code of any Pre-Release Software (except as and only to the extent the foregoing restrictions are prohibited by applicable law). Except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Airstream intellectual property.
  2. Feedback; Contact from Airstream. As part of the Beta Program, Airstream will provide you with the opportunity to submit bug/issue reports, questionnaires, enhancement requests, and/or support information (collectively, “Feedback”) to Airstream. Airstream may request this information from you through email, web questionnaires, bug forms, and other mechanisms. You may otherwise provide feedback regarding the Beta Program and Pre-Release Software to Airstream via email communications to [email protected]. By agreeing to this Agreement, you agree that Airstream may contact you from time to time about the Beta Program, and you hereby consent to receive such communications. You agree that in the absence of a separate written agreement to the contrary, Airstream will be free to use any Feedback you provide for any purpose.
  3. 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 Airstream 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 Airstream, (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 Airstream 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 Airstream and you have no implied licenses or other rights in the Confidential Information not specified in this Agreement.
  4. Nonuse and Nondisclosure of Confidential Information. Except as expressly permitted in this Section 5, you agree that you will not disclose, publish, or otherwise disseminate any Confidential Information to anyone, except as otherwise expressly permitted or agreed to in writing by Airstream. 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 otherwise for your own or any third party’s benefit without the prior written approval of an authorized representative of Airstream in each instance. You hereby acknowledge that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Airstream that may be difficult to ascertain. Accordingly, you agree that Airstream 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. No Support and Maintenance; Future Products. During your participation in the Beta Program, Airstream is not obligated to provide you with any maintenance, technical or other support for the Pre-Release Software. If, at Airstream’s option, such support is provided, it will be provided in addition to your normal warranty coverage for your Airstream Smart Classic. You agree to abide by any support rules and policies that Airstream provides to you in order to receive such support. You acknowledge that Airstream has no express or implied obligation to announce or make available a commercial version of the Pre-Release Software to anyone in the future. Should a commercial version be made available, it may have features or functionality that are different from those found in the Pre-Release Software licensed hereunder.
  6. No Warranty. The Pre-Release Software provided hereunder may be designated as alpha, beta, development, pre-release, untested, or not fully tested versions. The Pre-Release 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 Pre-Release Software is at your sole risk and that the entire risk as to satisfactory quality, performance accuracy and effort is with you. AIRSTREAM IS PROVIDING ALL CONFIDENTIAL INFORMATION, INCLUDING THE PRE- RELEASE SOFTWARE AND SEEDING TOOLS, 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 Airstream has not publicly announced the availability of the Pre-Release Software, that Airstream 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 Airstream 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.
  7. Disclaimer of Liability. 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 TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL AIRSTREAMAIRSTREAM 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 AIRSTREAM’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF AIRSTREAM HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AIRSTREAM'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.
  8. Term and Termination. This Agreement will continue in effect until terminated in accordance with this Section 9. You may terminate this Agreement 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 Airstream Smart Classic, then you agree that you will continue to hold the Pre- Release Software as Confidential Information. Airstream may terminate this Agreement, 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 Airstream’s termination notice, or earlier if requested by Airstream, you will return, cease all use of, and/or destroy the Pre- Release Software and all other Confidential Information as provided in this Section. Upon termination, and at your request, Airstream will “roll back” your software to the latest commercially available software. Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration, including the confidentiality obligations hereunder.
  9. 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 Airstream, 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.
  10. Governing Law and Jurisdiction. This Agreement and the rights of the Parties hereunder, will be governed by, and interpreted in accordance with, the laws of the State of Ohio without regard to principles of conflict of laws. Any and all disputes between the Parties that may arise out of, pursuant to, or relate to the Agreement shall be litigated or pursued in the US District Court for the Southern District of Ohio and/or the state courts sitting in the County of Shelby of the State of Ohio (the “Ohio Courts”). Each of the Parties hereto hereby irrevocably and unconditionally (a) consents and submits to the exclusive jurisdiction of the Ohio Courts to interpret and enforce the provisions herein and to hear any disputes arising out of or relating to the Agreement, and (b) waives any objection that it may now or hereafter have to personal jurisdiction, the laying of venue or inconvenience of forum in the Ohio Courts.
  11. 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 Pre-Release 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.