WELLEST INC.
B
THIS BETA PARTICIPATION AGREEMENT (the “Agreement”), effective as of the date you accept this Agreement (“Effective Date”), is by and between Wellest Inc., a Delaware corporation (“Wellest”), and you, an individual or a corporate entity, where applicable, as a beta tester (“you”, “your”, and / or “Reviewer”), relating to any and all content pertaining to the Application (defined below).
Wellest is engaged in the creation and development of an unreleased software application for third party users, such as you, to interact with, store, and monitor certain lifestyle data relevant to promoting personal health (the “Application”). If you are selected to be a Reviewer, your confidential access to and participation in the Beta Trial (defined below) are subject to the following terms and conditions, which constitute a binding legal agreement between you and Wellest, as of the Effective Date.
To confirm your agreement, you must click on the “Accept” button upon registering your user account on the Application. By clicking the “Accept” button, you represent and warrant to Wellest that (i) you have read this Agreement prior to accepting and are fully familiar with its contents; (ii) you are 18 years of age or older as of the Effective Date; (iii) you have not, and will not in the future, enter into any agreement or understanding, whether written or oral, with any third party that impedes or conflicts with the performance of your obligations set forth in this Agreement; and (iv) your representations are true and correct as of the Effective Date. If you do not so agree or if you cannot make such representations, you will not be permitted to beta test the Application.
1. Role of Reviewer:
1.1. You agree to participate in live usage testing of the Application (“Beta Trial”) and test the Application as part of the Beta Trial pursuant to all of Wellest’s instructions and requirements, and provide feedback to Wellest from the perspective of a user concerning the features or related elements of the Application. You agree to perform such tasks as Wellest shall direct in a timely manner as requested by Wellest.
1.2. You warrant that you will not commercially exploit or otherwise deal with any Wellest intellectual property, trademark, copyright, or trade secret that is embedded in the Application or part of the Beta Trial. You shall make no use of, nor derive any benefit, or permit others to make any such use or derive any such benefit from the Application, Confidential Information (defined below), directly or indirectly, unless expressly authorized in writing by Wellest.
1.3. You acknowledge the reliance of Wellest on your honest, good faith, and unbiased commentary, suggestions, and evaluations of the Application. You represent and agree that you will act at all times with the highest ethical standards.
1.4. You acknowledge that Wellest will request suggestions, feedback, commentary, ideas, concepts, inventions, designs, art work, programs, programming techniques, or other statements (collectively, “Feedback”) from you concerning the Application or other Confidential Information including, but not limited to, bug reporting, evaluation of the Application’s User Interface (UI) and User Experience (UX) systems, up to 10 UI / UX online surveys, and up to 5 general marketing and market evaluation surveys. You acknowledge that any feedback that you may suggest, disclose, or present to Wellest during the term of this Agreement, expressly including but not limited to any and all patent, copyright, trademark, and trade secret rights related thereto, is original, voluntary and automatically shall become the property of Wellest and its designees. You acknowledge and agree that Wellest shall be free to disclose and use your Feedback as it sees fit without any obligation of any kind to you. You hereby assign and agree to assign Wellest all right, title, and interest in and to, and hereby waive and agree not to exercise any “moral rights” to, all Feedback provided to Wellest that relate to the Beta Trial (including the Application and Confidential Information). You hereby constitute and appoint Wellest as your attorney-in-fact for the purpose of executing such documentation. The rights of Wellest pursuant to this subparagraph constitute a power coupled with an interest, with rights of substitution and delegation, and are irrevocable.
1.5. You acknowledge that all tasks that you may undertake for or on behalf of Wellest relating to the Beta Trial, whether at the request of Wellest or otherwise, shall be performed in return for the compensation outlined in the “Compensation to Reviewer” section below, and without any expectation of any additional financial compensation or benefit now or in the future. Additionally, you understand and agree that your failure to perform any tasks, as will be requested by Wellest, which are in good faith related to the responsibilities outlined in this “Role of Reviewer” section, particularly sub-section 1.4 above, shall constitute a material breach of this Agreement and shall waive any and all Wellest’s obligations to you as outlined in the “Compensation to Reviewer” section below.
1.6. You agree that you are acting as an independent contractor. Nothing contained in this Agreement shall in any way constitute or establish an intention of any association, partnership, or joint venture between the parties hereto. Neither party shall have the right, power, or authority to make any representation or warranty on behalf of, or to assume or create any obligation, whether express or implied, binding on, the other party in any manner whatsoever.
1.7. You acknowledge and agree that all intellectual property associated with or relating to the Beta Trial, Confidential Information (including the Application), software, techniques, know-how, processes and methodologies (including but not limited to test results, statistical information, and other information generated from or created during the undertaking of the Beta Trial) are and shall remain the absolute property of Wellest. Nothing in this Agreement shall be construed in any way to grant you any license, right, interest, or expectation whatsoever, express or implied, under any patent, trademark, copyright, trade secret, know-how or technology that Wellest may now have or hereafter have or generate relating to the Beta Trial, Confidential Information, this Agreement, other Wellest Applications or Wellest affiliates’ applications or property that may be disclosed hereunder. Nothing in this Agreement shall be construed in any way to create or confer a right, interest, or expectation of a right or interest. You in or to any tangible or intangible property or property right of Wellest, or in or to any Confidential Information, as hereinafter defined, which may be disclosed by Wellest to you.
2. Non-Disclosure of Confidential Information: You acknowledge that Wellest, through the investment of significant time, effort, and expense, is providing you confidential and / or proprietary trade information, intellectual property, business information or materials as part of the Beta Trial and that Wellest wishes to maintain the confidentiality of its Confidential Information. As a material inducement to Wellest to enter into this Agreement and to permit you access to participate in the Beta Trial, you hereby expressly represent and agree that you will not disclose, nor make any use of, or benefit from, directly or indirectly, the Confidential Information of Wellest.
2.1. “Confidential Information” as used in this Agreement shall mean any and all information or material, of every kind and form, in electronic or tangible form, relating to the Beta Trial, Application or any other Wellest products and services which are made available to you by Wellest under this Agreement, whether or not designated as Confidential Information by Wellest. Confidential Information includes, but is not limited to, all information relating to the Beta Trial, your selection as a Beta Trial participant, the Application (including but not limited to information and ideas relating to the Application, software, software code, designs, graphics, artwork, visual depictions, settings, emails, screenshots, marketing emails, marketing and promotional plans, current, future or proposed products or services of Wellest, written or printed documents, announcements or prereleases, product samples, artwork, graphics, promotional and / or marketing items), the Beta Trial forums and other private Wellest forums, business and / or trade secrets, testing protocols, processes, and standards relating to the Application and / or associated products or services of Wellest.
2.2. For the purposes of this Agreement, the term Confidential Information does not include information or material that you can demonstrate by written record (i) was known to you and in your possession, without restriction as to use or disclosure prior to the disclosure by Wellest; or (ii) is obtained, without restriction as to use or disclosure, from a source lawfully in possession of the information and having the right to disclose it; or (iii) is independently developed by you without use or knowledge of Wellest’s Confidential Information.
2.3. You agree to hold in strictest confidence and not to disclose or reveal to any person or entity Confidential Information without the express prior written consent of a duly authorized representative of Wellest. In particular, you must not discuss the Beta Trial with anyone associated with a competing website, any website publisher or developer, any news or information service (whether television, magazine, online, newspaper or otherwise), or review, report, online blog, or in any online forum or chat room, other than the official Beta Trial forum or specifically designated private Wellest forum. Except as expressly authorized by Wellest, you additionally agree not to use any of the Confidential Information for any purpose whatsoever or to disclose any of the Confidential Information at any time to any third party by direct or indirect means. Without limiting the generality of the foregoing, you agree that any reports or announcements concerning Confidential Information which are not made or authorized by Wellest, and which appear prior to Wellest’s official disclosure of such Confidential Information, shall not release you from your obligations hereunder with respect to such Confidential Information. It shall be your duty to secure the authorization of Wellest in the event of any reasonable doubt on your part regarding the status of disclosed Confidential Information.
2.4. You shall not copy, alter, modify, disassemble, reverse engineer, or decompile the Application, Confidential Information, or any materials received during the Beta Trial without the prior written consent of Wellest. If such a prohibition is not permitted pursuant to applicable law, you shall provide Wellest written notice prior to undertaking any such reverse engineering, and shall give Wellest a reasonable amount of time to provide any interface information required by law prior to commencing such reverse engineering. At Wellest’s request or upon completion, you agree to promptly return to Wellest any and all of these materials and all copies and notes that may have been made.
2.5. Nothing contained in this Agreement shall be construed to create any obligation on the part of Wellest to disclose any Confidential Information to you. Wellest reserves the right to suspend, restrict, or cancel the Beta Trial, and / or may terminate your participation in the Beta Trial at Wellest’s sole and absolute discretion.
3. Compensation to Reviewer: In return for participating in this Beta Trial and providing Wellest with the services outlined in the “Role of Reviewer” section above, particularly sub-part 1.4 thereof, Wellest shall compensate you by providing free early access to the Application as part of the Beta Trial.
4. Privacy Policy: As part of the Beta Trial, Wellest shall collect certain information about you and from you via the Application. Wellest will not share any of this information, regardless of type and sensitivity, with any third parties. However, by providing this information to Wellest, you acknowledge and confirm that (i) this information is true to the best of your knowledge; and (ii) Wellest may use this information in whatever manner it deems fit in connection with analyzing your use of the Application and bettering the services in connection with the Application.
Wellest permits residents of California to use its services. Therefore, it is the intent of Wellest to comply with the California Business and Professions Code §§ 22575-22579. If you are a California resident you may request certain information regarding our disclosure of personal information to any third parties for their direct marketing purposes. Various provisions throughout this Agreement address requirements of the Californian privacy statutes. In summary, you must presume that we collect electronic information from all users. You may contact us at contact@wellest.com with any questions.
5. No Warranty: WELLEST MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, FUNCTIONALITY OR PERFORMANCE OF THE BETA TRIAL, WEBSITE, CONFIDENTIAL INFORMATION, OR ASSOCIATED SERVICES AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES. WELLEST FURTHER DISCLAIMS ALL LIABILITY FOR ANY SETTINGS SELECTED BY YOU AND FOR ANY PROGRAMS, FILES, OR CONTENT ON OR IN YOUR COMPUTER, SYSTEMS, OR COMMUNICATIONS. WELLEST EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE CONFIDENTIAL INFORMATION, BETA TRIAL, OR ASSOCIATED SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
During the Beta Trial, Wellest may modify the Application software, forums, and related content and services automatically and without notice. You acknowledge and agree that software and / or content may be modified by Wellest and that modifications may cause a loss of data or content or loss of function or utility in or on your hardware. You hereby acknowledge and agree that Wellest may make all such modifications and that, to the extent permitted by applicable law, is not liable for any loss of data, content, function or utility. You WAIVE protections afforded by statute or law, and agree that Wellest is not liable for nor has control over your actions; your account and / or sub-account(s); any loss of data, content, function or utility; or any behavior of other testers participating in the Beta Trial. You further release, discharge, and hold harmless Wellest, its affiliates, and each of its and their respective officers, directors, employees, stockholders, members and agents from any and all claims, losses, causes of action and liabilities of any kind arising out of or relating in any way to your participation in the Beta Trial.
6. Limitations of Liability: Wellest shall have no liability to YOU for any loss or damage whatsoever caused or arising out of the provision of Confidential Information, Beta Trial access, or other related services, whether due to Wellest’s negligence or failure to perform or FOR any other reason. In no event SHALL Wellest’s aggregate liability related to this Agreement, regardless of legal theory, exceed $100.00.
7. Remedies of Wellest: The parties agree that your obligations pursuant to this Agreement are of a unique character and that the material breach of any obligation by you provided in this Agreement will cause Wellest irreparable injury. Therefore, Wellest shall be entitled to immediate equitable relief to prevent such injury and / or damage. All remedies hereunder, and all remedies provided at law, shall be deemed cumulative and are not exclusive.
8. Term and Termination: This Agreement will remain in effect unless and until terminated by Wellest with or without cause at any time. The obligations of confidentiality hereunder with respect to any and all Confidential Information shall survive any termination of this Agreement.
9. Continuing Effect: The provisions of Sections 1, 2.2, 2.3, 2.4, 3-7 and 10-12 shall survive termination of this Agreement.
10. Entire Agreement; No Waiver; Assignment and Miscellaneous: This Agreement constitutes the entire understanding between the parties relating to the subject matter hereof. No prior or present agreements or representations regarding the subject matter hereof shall be binding upon the parties hereto unless incorporated in this Agreement. The paragraph headings are intended for reference convenience only and will not be of any effect in construing the meanings of the paragraphs. Any waiver or modification of this Agreement shall not be valid unless in writing and signed by Wellest. In the event any provision of this Agreement is determined by a court of competent to be void, invalid, or otherwise unenforceable, the remainder of the Agreement will continue in full force and remain in effect according to its stated terms and conditions. This Agreement shall bind and inure to the benefit of Wellest and its successors and assigns. This Agreement is personal to you and you shall not sublicense, subcontract, assign, transfer, or convey your rights hereunder.
11. Notice to Wellest: Any notice to Wellest shall be made by certified mail addressed to:
Wellest Inc.
Attention: Legal Notice
60 29th St
Suite 112
San Francisco, CA 94110
12. Governing Law: This Agreement and all disputes arising out of or related to this Agreement (or any part thereof) shall be governed by, and any arbitration hereunder shall apply, the laws of the State of California, USA, excluding its conflicts of laws principles. Any dispute, controversy or claim arising out of or relating to this Agreement (or any part thereof), including its interpretation, performance or termination, shall be finally resolved by the state or federal courts in San Francisco, California.
