1. Participation in the Audiologiks.com Beta Program.

The purpose of the Audiologiks.com Beta Program (“Beta Program”) is to make alpha, beta, and other pre-release services, and related documentation, materials, and information (collectively, the “Pre-Release Services”) available to Beta Program participants from time to time for the purpose of providing Audiologiks.com with feedback on the quality and usability of the Pre-Release Services. 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 Audiologiks.com. You understand that your participation in the Beta Program does not obligate Audiologiks.com to provide you with any Pre-Release Services. Audiologiks.com 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 Audiologiks.com makes changes to the terms and conditions of this Agreement, then Audiologiks.com will present such revised terms and conditions to you on the Beta Program web portal.

By participating in the Beta Program, You certify that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries) 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 Audiologiks.com in writing, you cannot share or transfer any Services or other materials you receive from Audiologiks.com in connection with being a Beta Program participant. The Audiologiks.com Access Code and password you use to login as a Beta Program participant cannot be shared in any way or with any one. You are responsible for maintaining the confidentiality of your Audiologiks.com Access Code and password and for any activity in connection with your account. Notwithstanding the foregoing restrictions in this Section 1, if you are the parent or legal guardian of individuals between the ages of 13 and the legal age of majority in the jurisdiction in which you reside, you may allow such individuals to share your Audiologiks.com Access Code and password for their use in connection with the Beta Program solely under your supervision and only in accordance with this Agreement. You are responsible for such individuals' compliance with and violations of this Agreement and any other Audiologiks.com agreements.

2. Access to Pre-Release Services; Tools; and Additional Terms.

You understand that Audiologiks.com may make Pre-Release Services available to Beta Program participants through the Beta Program web portal, and/or as otherwise provided through the Beta Program (e.g., by providing Services access codes, etc.). From time to time, Audiologiks.com, at its option, may also provide you with additional services as part of the Beta Program, including but not limited to scripts, code snippets, utilities, sample code, troubleshooting applications and bug submission tools (“Tools”) as part of your participation in the Beta Program. All use of such Pre-Release Services and Tools shall be pursuant to the terms and conditions of this Agreement and/or another license agreement accompanying such Pre-Release Services or Tools (collectively, “Pre-Release Services” and “Tools” shall be referred to as “Audiologiks.com Services” for purposes of this Agreement).

If the Audiologiks.com Services is accompanied by a separate license agreement, you agree that the license agreement accompanying such Audiologiks.com Services, in addition to Sections 5 and 6 of this Agreement, shall govern your use of the Audiologiks.com Services. Any inconsistencies between the provisions of the license agreement accompanying the Audiologiks.com Services and Sections 5 and 6 of this Agreement shall be governed by this Agreement. If there is no license agreement accompanying the Audiologiks.com Services, your use of the Audiologiks.com Services will be subject to the provisions of this Agreement. Further, the Audiologiks.com Services may enable access to Audiologiks.com and third party services and web sites (collectively and individually, “Services”). Use of these Services requires Internet access and use of certain Services may require an Audiologiks.com Access Code, may require you to accept additional terms and may be subject to additional fees.

3. License Grant and Restrictions.

Subject to your compliance with this Agreement, Audiologiks.com hereby grants you a personal, limited license to use the Audiologiks.com Services solely for testing and evaluation purposes and only in connection with this Beta Program. Except as otherwise permitted under Section 15, this license does not grant you the right to use the Audiologiks.com Services for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works of the Audiologiks.com Services. You agree not to decompile, reverse engineer, disassemble, decrypt, or otherwise attempt to derive the source code of any Audiologiks.com Services (except as and only to the extent the foregoing restrictions are prohibited by applicable law, or to the extent as may be permitted by licensing terms governing use of open-sourced components included with any such Audiologiks.com Services). Unless otherwise permitted under Section 15 below, you certify that the Audiologiks.com Services 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. Audiologiks.com retains ownership of all Audiologiks.com Services, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Audiologiks.com intellectual property.

4. Feedback; Contact from Audiologiks.com.

As part of the Beta Program, Audiologiks.com will provide you with the opportunity to submit bug reports, questionnaires, enhancement requests, issue reports and/or support information (collectively, “Feedback”) to Audiologiks.com. Audiologiks.com may request this information from you through the Tools as well as by email, web questionnaires, bug forms, and other mechanisms. By agreeing to this Agreement, you agree that Audiologiks.com may contact you from time to time about the Beta Program, and you hereby consent to receive such communications. Except as otherwise set forth in Section 8, you agree that in the absence of a separate written agreement to the contrary, Audiologiks.com will be free to use any Feedback you provide for any purpose.

5. Definition of Confidential Information.

You agree that the Pre-Release Services and any information concerning the Pre-Release Services (including its nature and existence, features, functionality, and screen shots), the Tools, and any other information disclosed by Audiologiks.com 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 Audiologiks.com, (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 Services and/or documentation provided to you by Audiologiks.com and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such Services and/or documentation will not be considered Confidential Information under this Agreement. All Confidential Information remains the sole property of Audiologiks.com and you have no implied licenses or other rights in the Confidential Information not specified in this Agreement.

6. Nonuse and Nondisclosure of Confidential Information.

Except as expressly permitted in this Section 6, you agree that you will not disclose, publish, or otherwise disseminate any Confidential Information to anyone other than individuals who are enrolled in the same Beta Program as you, or as otherwise expressly permitted or agreed to in writing by Audiologiks.com. 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 Audiologiks.com Services 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 Audiologiks.com in each instance. You hereby acknowledge that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Audiologiks.com that may be difficult to ascertain. Accordingly, you agree that Audiologiks.com 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.

7. Precautions for the use of Pre-Release Services.

You understand that to participate in beta releases of Pre-Release Services you may need to remove certain pre-loaded, commercial Services from your computer and/or device in order to load the Pre-Release Services. You further understand that once you load such Pre-Release Services onto your computer and/or device, you may be unable to revert back to the pre-loaded, commercial release of the Audiologiks.com Services you were using prior to loading the Pre-Release Services or any earlier release of the Pre-Release Services. In addition, applications and services you have installed or been using may be unable to run or function in the same manner because of your use of the Pre-Release Services. YOU ACKNOWLEDGE THAT BY INSTALLING SUCH PRE-RELEASE Services ON YOUR COMPUTERS AND/OR DEVICES, THESE COMPUTERS AND DEVICES MAY NOT BE CAPABLE OF BEING RESTORED TO THEIR ORIGINAL CONDITION AND THAT APPLICATIONS AND SERVICES MAY BE AFFECTED BY YOUR USE OF PRE-RELEASE Services. FURTHER, YOU UNDERSTAND THAT DATA (INCLUDING DOCUMENTS) FROM SUCH APPLICATIONS OR SERVICES THAT YOU CREATE OR CHANGE WHILE USING THE PRE-RELEASE Services MAY BE INCAPABLE OF BEING RESTORED OR RECOVERED. Audiologiks.com 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 Services, INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO ANY EQUIPMENT, Services OR DATA OR ANY LOSS OF DATA OR INFORMATION ARISING FROM YOUR USE OF SUCH PRE-RELEASE Services. In addition, the Pre-Release Services 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 (including, without limitation, servers and printers) connected thereto. Audiologiks.com 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. The Pre-Release Services is not intended for use, and should not be used, in production or business-critical systems.

8. Consent to Collection and Use of Data.

8.1 Pre-Release Versions of Audiologiks.com Services.

In order to provide, test and help Audiologiks.com improve its products and services, and unless you opt out in the pre-release versions of Audiologiks.com Services, as applicable, you acknowledge that Audiologiks.com will be collecting, using, storing, transmitting, processing and analyzing (collectively, “Collecting”) diagnostic, technical, and usage logs and information from your devices or computers that are running pre-release versions of Audiologiks.com Services as part of this Beta Program. This information will be Collected in a form that does not personally identify you and may be Collected from your devices or computer at any time, including when you connect automatically over a secure over-the-air connection. The information that would be Collected includes, but is not limited to, general diagnostic and usage data, various unique device identifiers, various unique system or hardware identifiers, details about hardware and operating system specifications, performance statistics, and data about how you use your devices, computer, system and application Services, and peripherals, and, if Location Services is enabled, certain location information. You agree that Audiologiks.com may share such diagnostic, technical, and usage logs and information with partners and third party developers for purposes of allowing them to improve their products and services that operate on or in connection with Audiologiks.com Services. By installing or using pre-release versions of Audiologiks.com Services on your devices or computers, you acknowledge and agree that Audiologiks.com has your permission to Collect all such information and use it as set forth above.

8.2 Other Pre-Release Services and services.

In order to test and improve Audiologiks.com’s products and services, and only if you choose to install or use other Pre-Release Services or services provided as part of the Beta Program, you acknowledge that Audiologiks.com and its subsidiaries and agents may be Collecting diagnostic, technical, usage and related information from other Pre-Release Services or services and from your computer, devices, peripherals or other hardware that uses such Pre-Release Services. You should carefully review the release notes and other information disclosed to you by Audiologiks.com as part of the Beta Program prior to choosing whether or not to install or use any such other Pre-Release Services or services. By installing or using such other Pre-Release Services or services, you acknowledge and agree that Audiologiks.com has your permission to Collect any and all such information and use it as set forth above.

8.3 System Logs and Diagnostic Files.

In addition, as part of your participation in the Beta Program, you may have the option of manually attaching and/or using Audiologiks.com’s Tools to gather detailed hardware and/or system diagnostic files (e.g., kernel logs, Audiologiks.com System Profile logs, hang logs, crash logs, spin logs, install logs, application logs, etc.) from your computer and/or devices (“System Logs”) to send to Audiologiks.com. Such System Logs may include personally identifiable information, including, without limitation, your account name, information regarding your contacts, calendar events, and email correspondence. Providing these System Logs is voluntary, but if you do provide them to Audiologiks.com, then you acknowledge that Audiologiks.com may use them for Audiologiks.com’s diagnostic purposes and to improve the Beta Program and Audiologiks.com’s products and services.

8.4 Privacy Policy.

Data collected pursuant to this Section 8 will be treated in accordance with Audiologiks.com’s Privacy Policy, which is incorporated by reference into this Agreement and which can be viewed at: https://www.Audiologiks.com.com/admin/Privacy.php

9. No Support and Maintenance; Future Products.

During your participation in the Beta Program, Audiologiks.com is not obligated to provide you with any maintenance, technical or other support for the Pre-Release Services. You agree to abide by any support rules and policies that Audiologiks.com provides to you in order to receive such support. You acknowledge that Audiologiks.com has no express or implied obligation to announce or make available a commercial version of the Pre-Release Services 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 Services licensed hereunder.

10. Discussion Forums.

As part of the Beta Program, you may have the ability to participate in discussion forums provided by Audiologiks.com about the Pre-Release Services and other Confidential Information that Audiologiks.com may make available to you. For purposes of such discussion forums, Audiologiks.com is providing a limited exception to Section 6 by allowing you to discuss certain Audiologiks.com Confidential Information received by you. Except for the limited purpose of discussions within such forums, you acknowledge and agree that this Agreement does not grant you the right to copy, reproduce, publish, blog, disclose, transmit, or otherwise disseminate any Audiologiks.com Confidential Information.

11. No Warranty.

The Audiologiks.com Services provided hereunder may be designated as alpha, beta, development, pre-release, untested, or not fully tested versions. The Audiologiks.com Services 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 Audiologiks.com Services is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you. Audiologiks.com IS PROVIDING ALL CONFIDENTIAL INFORMATION, INCLUDING THE PRE-RELEASE Services AND 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 Audiologiks.com has not publicly announced the availability of the Pre-Release Services, that Audiologiks.com has not promised or guaranteed to you that such Pre-Release Services will be announced or made available to anyone in the future, and that Audiologiks.com has no express or implied obligation to you to announce or introduce the Pre-Release Services or any similar or compatible product, or to continue to offer access to the Pre-Release Services in the future.

12. 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 Services AND TOOLS PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF THE PRE-RELEASE Services ON YOUR COMPUTER, DEVICES AND/OR PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, Services, INFORMATION OR DATA, AND IN NO EVENT WILL Audiologiks.com 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 Services ON YOUR COMPUTER, DEVICES AND/OR ANY PERIPHERALS CONNECTED THERETO, AND/OR FROM ANY OTHER CONFIDENTIAL INFORMATION, AND/OR Audiologiks.com’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF Audiologiks.com HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Audiologiks.com’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.

13. Term and Termination.

This Agreement will continue in effect until terminated in accordance with this Section 13. You may terminate this Agreement or an individual project 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 Services); provided however that if you are unable to purge certain Pre-Release Services from your computer and/or devices, then you agree that you will continue to hold the Pre-Release Services as Confidential Information. Audiologiks.com may terminate this Agreement or an individual project 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 Audiologiks.com’s termination notice, or earlier if requested by Audiologiks.com, you will return, cease all use of, and/or destroy the Pre-Release Services and all other Confidential Information as provided in this Section. Following termination of this Agreement or an individual project for any reason, the restrictions of Section 3, 4-8, the last two sentences of Section 9, and 11-19, inclusive, will continue to bind the parties. The term of your license to use the Audiologiks.com Services granted under Section 3 of this Agreement shall commence upon your installation or use of the Audiologiks.com Services and will terminate automatically without notice from Audiologiks.com upon the earlier of (a) the next commercial release of the Audiologiks.com Services, (b) the termination of the individual project under which you obtained the Audiologiks.com Services, (c) the termination of this Agreement, or (d) the date specified in the separate license accompanying the Audiologiks.com Services (if any).

14. No Export.

You agree that you will not export or re-export any of the Pre-Release Services or Confidential Information received from Audiologiks.com except as authorized by United States law and the laws of the jurisdiction in which the Audiologiks.com Services was obtained. In particular, but without limitation, the Audiologiks.com Services 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 Audiologiks.com Services, 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 Audiologiks.com Services 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 this Audiologiks.com Services 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 this Audiologiks.com Services.

15. Third Party Services & Information.

Portions of the Audiologiks.com Services may include third party Services and other copyrighted material. Acknowledgements, licensing terms, and disclaimers for such material are contained in the Audiologiks.com Services, and your use of such material is governed by such respective terms. Mention of third parties and third party products in any materials, advertising, promotions or coupons provided to Beta Program participants is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third party product specifications and descriptions are supplied by the respective vendor or supplier, and Audiologiks.com shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.

16. 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 Audiologiks.com, 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.

17. Governing Law.

Any litigation or dispute resolution between You and Audiologiks.com arising out of or relating to this Agreement, the Audiologiks.com Services, or Your relationship with Audiologiks.com will take place in the Southern District of New York, and You and Audiologiks.com hereby consent to the personal jurisdiction of and exclusive venue in the state and federal courts within that District with respect to any such litigation or dispute resolution. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of New York, except that body of New York law concerning conflicts of law. Notwithstanding the foregoing, if you are an individual entering into this Agreement solely as part of your employment for one of the entities listed below, then the following exceptions shall apply:

  • If you are employed by an agency, instrumentality or department of the federal government of the United States, then this Agreement shall be governed in accordance with the laws of the United States of America, and in the absence of applicable federal law, the laws of the State of New York will apply. Further, and notwithstanding anything to the contrary in this Agreement, all claims, demands, complaints and disputes will be subject to the Contract Disputes Act (41 U.S.C. §§601-613), the Tucker Act (28 U.S.C. § 1346(a) and § 1491), or the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2401-2402, 2671-2672, 2674-2680), as applicable, or other applicable governing authority.
  • If you are employed by a U.S. public and accredited educational institution, then (a) this Agreement will be governed and construed in accordance with the laws of the state (within the U.S.) in which your educational institution is domiciled, except that body of state law concerning conflicts of law; and (b) any litigation or other dispute resolution between you and Audiologiks.com arising out of or relating to this Agreement, the Audiologiks.com Services, or your relationship with Audiologiks.com will take place in federal court within the Southern District of New York, and you and Audiologiks.com hereby consent to the personal jurisdiction of and exclusive venue of such District unless such consent is expressly prohibited by the laws of the state in which your educational institution is domiciled.
  • If you are employed by an international, intergovernmental organization that has been conferred immunity from the jurisdiction of national courts through your intergovernmental charter or agreement, then any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The place of arbitration shall be London, England; the language shall be English; and the number of arbitrators shall be three. Upon Audiologiks.com’s request, you agree to provide evidence of your status as an intergovernmental organization with such privileges and immunities.

This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

18. Government End Users.

The Audiologiks.com Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Services” and “Commercial Computer Services Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Services and Commercial Computer Services Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

19. 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 Audiologiks.com Services, 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. Except to the extent provided under Section 2 above, any inconsistencies between this Agreement and any license agreement accompanying the Audiologiks.com Services will be governed by the license agreement accompanying the Audiologiks.com Services. 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. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern, to the extent not prohibited by local law in your jurisdiction.

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