THIS IS AN AGREEMENT ("AGREEMENT") MADE BY AND BETWEEN YOU AND ANY PARTIES RELATED TO YOUR MUSIC ("BETA CONTENT") AND DISTRO POWERED BY GAMERIZED, ("DISTRO") CONCERNING YOUR PARTICIPATION IN THE BETA PROGRAM ("BETA
PROGRAM") AND ACCESS TO AND USE OF THE BETA SOFTWARE (THE "BETA
PLEASE READ THIS AGREEMENT CAREFULLY
BY USING THE BETA SOFTWARE AND PARTICIPATING IN THE BETA PROGRAM, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE, YOU MAY NOT PARTICIPATE IN THE BETA PROGRAM NOR ACCESS OR USE THE BETA SOFTWARE. TO THE EXTENT OF ANY CONFLICTS BETWEEN THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY STANDARD TERMS AND CONDITIONS ACCOMPANYING THE BETA SOFTWARE, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL GOVERN SOLELY TO THE EXTENT OF SUCH CONFLICTS. THIS AGREEMENT REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR PARTICIPATION IN THE BETA PROGRAM AND ACCESS TO AND USE OF THE BETA SOFTWARE, AND YOU AGREE THAT ANY SUCH DISPUTE OR CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR ARBITRATION. PLEASE REVIEW SECTION 14 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR PARTICIPATION IN THE BETA PROGRAM AND ACCESS TO AND USE OF THE BETA SOFTWARE.
The Beta Software provided to you through the Beta Program on https://distro.gamerized.com and https://distro1.gamerized.com, or any service accessed through the Beta Software, is identified as pre-commercial, evaluation, "alpha" or "beta" software. Subject to your compliance to this Agreement and all materials presented to you through the Beta Program, Distro hereby grants you a restricted, non-exclusive, non-transferable, revocable, and limited license to install and use the Beta Software on a personal mobile device that you own and control, in machine-executable object code form only and solely for your personal, non-commercial use for the purposes of the Beta Program. This license shall apply only for the time period authorized by Distro ("Beta Period") and solely to the extent necessary to enable you to test and provide Feedback to Distro regarding the Beta Software. Such license will automatically terminate upon the expiration of the Beta Period, which period may be extended or terminated by Distro at any time, in its sole discretion, but, unless you are in breach of this Agreement, Distro will if feasible, use commercially reasonable efforts to provide you with prior notice of any change to the duration of the Beta Period, which may include posting a notice within the web pages associated with the Beta Program. Notwithstanding the Beta Period, you acknowledge and agree that Distro may include technical measures in the Beta Products that render them inoperable after a specified period of time and you agree that you will not circumvent such technical measures, nor attempt to do so. In consideration of the grant of license to the Beta Software, you agree that you will provide Distro with Feedback on Beta Software as Distro reasonably requests, including ongoing feedback regarding bugs and faults experienced during the Beta Period, without any compensation or reimbursement of any kind from Distro, and that the Section below entitled "Feedback" will apply to such Feedback. Distro may specifically request that you complete a survey related to a specific Beta Software and you agree to complete any such surveys. Distro reserves the right to modify or discontinue, temporarily or permanently, the Beta Software or any product or service to which it connects, with or without notice and without liability to you. Distro may at its sole discretion from time to time develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance of the Beta Software or related processes of services ("Updates"). Distro may develop Updates that require installation by you before you continue to access or use the Beta Software or related services. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system. Feedback. You may provide feedback to Distro about your use and experience while using the Beta Software. Unless Distro otherwise agrees in writing, you hereby agree that Distro shall own all feedback, comments, suggestions, recommendations, ideas, concepts, and changes that you provide to Distro regarding your use and experience while using the Beta Software and all associated intellectual property rights (collectively the "Feedback") and you hereby assign to Distro all of your rights, title and interest thereto. You will not knowingly provide Distro any Feedback that is subject to third-party intellectual property rights. You agree to cooperate fully with Distro with respect to signing further non legally binding documents and doing such other acts as are reasonably requested by Distro to confirm that Distro owns the Feedback and to enable Distro to register and/or protect any associated intellectual property rights and/or confidential information.
You understand and agree that the intent of the Beta Program is to test pre-commercial Beta Software which may contain bugs, incomplete features, or other errors, and may not yet have the approvals and certifications for commercial access. Accordingly, in no event shall you use the Beta Software in any productive or another environment where you are relying on the performance of the Beta Software. The beta Software is a pre-commercial release version of Distro's products, software, and services and is not intended to represent or perform in the same manner as a commercial product, software, or services, and You should ensure that You regularly back up any data used with such materials. In addition, the beta software contains features, functionality, or APIs for software or services that are not yet commercially available. You acknowledge that such beta software, or any portion thereof, may not be announced, promoted, displayed, or made commercially available by Distro in the future, or maybe made available with significant changes, and Distro has no express or implied obligation to You to announce or make any of such Beta software or any portion thereof available. You acknowledge and agree that all testing and evaluation You conduct with respect to the beta software AND RELATED SERVICES is done entirely at Your own risk.
EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW IN YOUR JURISDICTION, THE BETA PROGRAM AND ITS ASSOCIATED SERVICES AND INFORMATION, AND THE BETA SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ALL CONDITIONS, GUARANTEES, REPRESENTATION, AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXCLUDED.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION, DISTRO IS NOT RESPONSIBLE FOR THE AVAILABILITY, USE, PERFORMANCE, OR NON-PERFORMANCE OF THE BETA PROGRAM AND ITS ASSOCIATED SERVICES, OR THE BETA SOFTWARE, AND IN NO EVENT SHALL DISTRO BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE BETA PROGRAM OR ITS ASSOCIATED SERVICES, OR THE BETA SOFTWARE REGARDLESS OF THE CAUSE OF ACTION THAT GIVES RISE TO SUCH DAMAGES, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND EVEN IF DISTRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to indemnify and hold Distro; Gamerized, Staff, and any of its affiliates harmless from and against any claim, demand, loss, delays, damage, cost, liability, and expense, including reasonable attorneys' fees, resulting from or arising out of your: (a) access to or use of the Beta Program and/or the Beta Software; (b) violation of this Agreement or any law or regulation; or (c) violation of any rights of another party.
You acknowledge and agree that: The successful market launch of a commercially sustainable version of Distro products and services requires you to keep all content within the Beta Program, including the Beta Software (collectively "Beta Content") strictly confidential; The premature release of any of the Beta Content would damage Distro's competitive edge and intellectual property rights; The Beta Content shall not be shared with anyone other than other authorized participants of the Beta Program; You shall not display or discuss "Beta Content" or "Beta Software" to the public or in private by any means including but not limited to (calling, text, emails, direct message, verbal signed speech, vlogs, posts, letters, photos, screen recording, or live streams) "Beta Content" you added or received from or within the "Beta Software." Only Beta Content that has been publicly released by Distro, contracted business partners, or affiliates may be discussed or reshown to the public.
You agree not to use or attempt to use the Beta Program: to upload copyright material in a post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional "junk mail," "spam," "chain letters," “multi-level marketing,” "pyramid schemes," or any other form of solicitation, software, tools, or other materials that contains any (i) virus, Trojan horse, worm, backdoor, shutdown mechanism, malicious code, sniffer, bot, drop dead mechanism, or spyware; or (ii) any other software, tools, information, or other materials that is likely to or is intended to (A) have an adverse impact on the performance of, (B) disable, corrupt, or cause damage to, or (C) cause or facilitate unauthorized access to or deny authorized access to, or cause to be used for any unauthorized or inappropriate purposes, any software, hardware, services, systems, or data ("Malware") (and, if you become aware of the existence of any Malware in or relating to the Beta Program, you will promptly notify Distro in a confidintal matter); to collect or store personal data about other users without the express written permission of those users; to violate any code of conduct or other guidelines which may be applicable to any particular portion of the Beta Program; except as otherwise expressly permitted by Distro or except to the extent this restriction violates applicable laws, reproduce, duplicate (null), copy, sell, trade, resell, or exploit for any private or commercial purposes any portion or use of, or access to, the Beta Program, its associated services, or Beta Software; in any manner which could damage, disable, overburden or impair the Beta Program and/or any related services (or the network(s) connected to such sites or services) or interfere with any other participant’s use and enjoyment of the Beta Program and/or its related services. You may not attempt to gain unauthorized access to Beta Programs and/or any related service, other accounts, other physical or digital systems, or networks connected to the Beta Program, through hacking, password mining, or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available to you through the Beta Program; to publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; to upload, post, transmit, communicate or otherwise make available any material that: (i) you do not have a right to make available, including under any law or under contract or in violation of any duty (such as software protected by intellectual property laws, inside information, password information, proprietary and confidential information learned or disclosed as part of employment relationships or under "Beta" section); or (ii) would or may infringe on any patent, trademark, trade secret, copyright, or other regestered or unregestered proprietary rights of any party; to advertise or offer to sell or buy any goods or services for any business purpose; to copy Beta Content for distribution through any means to individuals who are not participants of the Beta Program for which the Beta Content was made available; or to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, or create a false identity to mislead others.
Notwithstanding any other provision of this Agreement, Distro reserves the right to terminate any user account, limit or deny access and/or participation to the Beta Program at its sole discretion, and to remove any inappropriate content that you upload to the Beta Program at any time without notice to you, however, if feasible, Distro will use commercially reasonable efforts to provide you with notice of termination. You may terminate your user account and access to the Beta Program by submitting such termination requests to Distro at any time by using the relevant mechanism provided by Distro. Upon termination of this Agreement and/or your user account, the rights granted herein automatically terminate, and you must stop using the Beta Software and remove the Beta Software from your device. Any provisions of this Agreement which expressly state that it is to continue in effect after the termination of this Agreement, or which by its nature would survive the termination of this Agreement, shall so survive. U.S. Government Entities. This Section applies to access to or use of the Beta Program and Beta Software by a branch or agency of the United States Government. The Beta Software consists of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and qualify as "commercial items" as defined in 48 C.F.R. 2.101. The Software may be used by the United States Government: (a) for usage by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for usage by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this Agreement with respect to the Beta Software, and any access to or use of the Beta Software by the United States Government constitutes (i) agreement by the United States Government that the Beta Software is "commercial computer software" and "commercial computer software documentation" as defined in this Section; and (ii) acceptance of the rights and obligations herein.