THIS BETA TESTING AGREEMENT (the “Agreement”), effective as of the date of acceptance of this Agreement at account creation (the “Effective Date”), is entered into between the User of the Platform who creates the account (“User” or “you”) and Book Oven Inc. (d.b.a. Pressbooks), the owner and operator of the Platform (“Pressbooks”, “we”, or “us”) (each a “Party” and, collectively, the “Parties”).
For the purposes of this Agreement, “Platform” means the web application branded “Pressbooks” available at the URL https://pressbooks.pub including all of its subdomains and subpages, and any associated media and documentation provided or made available to you as part of the testing (printed, electronic and/or online).
BY USING THE PLATFORM, AND CLICKING ON THE APPROPRIATE ACCEPTANCE BUTTON WHEN CREATING AN ACCOUNT, USER ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
The Parties agree as follows:
- Testing. User agrees during the Beta Test Period (as defined in Section 7) to use and test features of the Platform and to voluntarily report on all testing results to Pressbooks via email at firstname.lastname@example.org, including any errors, bugs, defects and other failures of the Platform, as well as any Feedback, as defined below. User may implement and use such modifications, enhancements, error corrections, bug fixes, new releases, or other updates to or for the Platform that Pressbooks may make to the Platform during the Beta Test Period.
- Feedback. Pressbooks shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Platform or other feedback that User may, alone or jointly with Pressbooks, propose or make during the Beta Test Period (collectively, “Feedback”). User hereby irrevocably (i) assigns all User’s right, title and interest in and to the Feedback to Pressbooks and (ii) waives in favour of Pressbooks, its successors and assigns any and all moral rights that User has or may have in the Feedback. User further agrees to provide Pressbooks such assistance as it may require to document, perfect, and maintain its rights to the Feedback.
- Provision of Platform. Pressbooks shall make the Platform available to User during the Beta Test Period, solely for the purpose of User’s use thereof. Pressbooks may, at its sole discretion, provide User such technical assistance as Pressbooks may deem necessary to properly operate the Platform.
- No Other Obligations. Pressbooks is not obligated under this Agreement to provide any documentation, maintenance/technical support, or updates/upgrades to the Platform, though we will certainly attempt to do so.
- Pressbooks Ownership and Restrictions. Pressbooks retains ownership of all right, title and interest to the Platform and the intellectual property rights therein and thereto (including without limitation, all patent rights, design rights, copyrights and trade secret rights). Except as provided hereunder, User will have no right to loan, license, sublicense, rent, transfer, assign, sell, distribute, change, alter, copy, amend, modify, make derivative works based upon the Platform, use the Platform to develop any products or Platform, combine the Platform with other software or code, reverse engineer, decompile, disassemble, publish, disclose, display or make available, in whole or in part, or otherwise use the Platform in any manner whatsoever not consistent with this Agreement. User will not remove any proprietary, copyright, patent, trademark, design right, trade secret or any other proprietary rights legends from the Platform. Any right not expressly granted herein is reserved by Pressbooks. User shall not use or permit others to use the Platform for the purpose of creating, improving or otherwise assisting in the development of a system which performs or may perform functions similar to, or competitive with, the Platform.
- User Ownership. To the extent that the use of the Platform by User results in any intellectual property whatsoever in any ebook or other structured document (“Projects”), such Projects and their associated intellectual property rights shall be owned by the User, subject to any open source license attached to a Project by the User. All text, photos, graphics or other information uploaded to the Platform by User (“User Data”) and their associated intellectual property rights remain the property of the User. User represents and warrants that they have the rights to upload their User Data to the Platform. User grants Pressbooks a royalty-free, worldwide, non-exclusive, non-transferable and non-sublicensable license to use, process and transmit the User Data for the purposes of the provision of the Platform to User.
- Term; Termination. This Agreement will begin on the Effective Date and will automatically terminate on the date on which a generally commercially available version of the Platform is released to the general public or until otherwise terminated by Pressbooks, which may be at Pressbooks’ sole discretion (the “Beta Test Period”).
- Disclaimer. User hereby expressly acknowledges and agrees that the Platform (including any modifications or improvements thereto) may not be ready for general commercial release and may contain bugs, errors or defects. Accordingly, Pressbooks is providing the Platform to User “as is”. Pressbooks, its suppliers and licensors make no representations or warranties or covenants, express or implied, in respect of the Platform, including without limitation, statutory or implied warranties or conditions of merchantability, accuracy, non-infringement, satisfactory quality or fitness for a particular purpose, all of which are expressly disclaimed and excluded. Pressbooks does not guarantee that the Platform will ever be made generally commercially available, or that any generally commercially available release of the Platform will contain the same or similar functionalities/features as the Platform made available by Pressbooks to User under this Agreement.
- Limitation of Liability. To the maximum extent permitted by law, in no event will Pressbooks, its officers, directors, employees, agents, suppliers or licensors shall be liable for any loss, damages, claims or costs whatsoever, including any indirect, incidental, consequential, special, punitive or exemplary damages (including, without limitation, any loss of revenue or profits; lost or damaged data, User Data, or Projects; loss of use, business interruption or any other pecuniary loss), arising out of relating to this Agreement or caused by the use, misuse or inability to use the Platform, even if Pressbooks has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in contract, warranty, tort, negligence, strict liability or under any other legal theory. In any event, Pressbooks’ aggregate liability and that of its suppliers and licensors under or in connection with this agreement will be limited to the amount paid by the user for the Platform, if any. User acknowledges and agrees that the limitations and exclusions of liability set out in this Section 9 are fair and reasonable in the commercial circumstances of this Agreement and that Pressbooks would not have entered into this Agreement but for the inclusion of such limitations and exclusions.
- Confidential Information. “Confidential Information” means: all non-public, confidential or proprietary information of Pressbooks or its suppliers/licensors relating to the Platform, including without limitation all software (including source code), technology, intellectual property, trade secret and other information and data relating to the Platform; all Feedback; User Data and information submitted by the User through the Platform; and all testing information provided by User to Pressbooks. User shall not use the Confidential Information of Pressbooks in any manner except as reasonably required to test the Platform and shall keep confidential of Confidential Information and shall protect the Confidential Information with the same degree of care as User employs in the protection of its own confidential and proprietary information, but at least with a reasonable degree of care. Pressbooks shall not use Confidential Information of User except to provide the Platform and its functions, and shall strictly protect such Confidential Information using standards for the industry. Neither Party shall disclose any Confidential Information of the other Party to any third party. Each Party understands and agrees (i) that the remedies at law for the violation of this Section 10 will be inadequate, (ii) that such violation will cause irreparable injury within a short period of time, and (iii) that in addition to any and all other remedies a Party may have at law and in equity they shall be entitled to seek preliminary injunctive relief and other injunctive relief against such violation without the necessity of proving actual damages.
- Governing Law. This Agreement will be governed by, interpreted and construed in accordance with the laws of the Province of Québec, Canada and the laws of Canada applicable therein, other than rules governing conflicts of laws. Each of the Parties agrees that any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be submitted to the exclusive jurisdiction of the courts of the Province of Quebec, Canada (District of Montréal). The foregoing choice of venue shall not prevent a Party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
- General. User is an independent contractor and the User is not an agent or employee of Pressbooks. User may not assign, delegate or otherwise transfer this Agreement or any of their rights or obligations hereunder without Pressbooks’ prior written consent. If any of the provision contained in this Agreement are found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not be in any way affected or impaired hereby. Sections 8 through 12 and portions of Sections 5 and 6 will survive termination or expiration of this Agreement. The Parties have requested that this Agreement be drafted in English. Les parties aux présentes ont exigé que le présent contrat soit rédigé en langue anglaise.