This Agreement sets forth the terms and conditions for the beta installation, use, test and support of Fenix Rise Customer Portal in a User site prior to formal product release. This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties. There are no conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein. This Agreement may only be modified by a written document executed by the parties hereto.
(a) “Product” means the Fenix Net Solutions (FNS) product(s) specified in Schedule A attached hereto, including Software, if any, and Documentation.
(b) “Beta Test Period” mean the period of time set forth in Schedule B during which testing of and adjustments to the Product contemplated hereunder will be undertaken.
(c) “Software” means the computer programs provided in object code format as part of a Product as specified in Schedule A.
(d) “Documentation” means such supporting written materials as FNS may in its discretion provide to User in connection with their use of a Product.
This Agreement sets forth the terms and conditions for the beta installation, use, test and support of certain FNS products in a user site prior to formal product release.
3. OBLIGATIONS OF USER
(a) Testing. During the Beta Test Period, User agrees to run such test suites and other test programs set forth in Schedule B hereto. User also agrees to use such special and non-standard operating procedures as may be reasonably required by FNS to accomplish testing of the Product.
(b) Contacts. The User Contact designated on attached Schedule B shall provide to the Beta Coordinator designated on attached Schedule B, written reports on all test and performance results of the Product on a weekly= basis.
(c) Error Notice. Users Product Manager shall notify FNS of any failure, error or other malfunction of any part of the Product within twenty-four (24) hours of such occurrence.
(d) Modifications. User agrees to promptly implement such modifications and changes that FNS may make to the Product during the Beta Test Period as they are provided by FNS. User understands that these modifications and changes may be incompatible with previous modifications and could include substantial changes to the system and its operating procedures. Except as otherwise specified in this Agreement or at the written direction of FNS, User shall not alter or modify any Product during the Beta Test Period without FNS’ prior written approval.
(e) Access. During the Beta Test Period, User will grant FNS full and free access to the Product to allow FNS to perform under this Agreement at such reasonable times as may be required by FNS.
4. OBLIGATIONS OF FNS
(a) Delivery. FNS agrees that FNS, or a third party designated by FNS, will deliver the Product to User within a reasonable time after execution of this Agreement by both parties, or at a time otherwise agreed in writing by FNS.
(b) Technical Assistance. FNS will provide User such technical assistance as FNS may deem necessary to properly install and operate the Product at the beta test site. FNS will provide User with all test suites to be run by User.
(c) Modifications. During the Beta Test Period, FNS will consult with Users Product Manager regarding the performance of the Product and will evaluate the test data and error reports provided by User. FNS will undertake to make such modifications and improvements to the Product as deemed appropriate by FNS and provide the same to User at no cost; provided, however, FNS is not obligated to make any modifications or improvements.
5. DISCLAIMER OF WARRANTY
THE PRODUCT (INCLUDING THE SOFTWARE, IF ANY, AND DOCUMENTATION) IS PROVIDED HEREUNDER “AS IS”. FNS MAKES AND USER RECEIVES NO WARRANTIES IN CONNECTION WITH THE PRODUCT, OR MODIFICATIONS OR IMPROVEMENTS THERETO, DELIVERED HEREUNDER, EXPRESS, IMPLIED, STATUTORY OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION BETWEEN FNS AND USER. FNS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
6. OWNERSHIP AND SOFTWARE LICENSE
(a) Ownership. User acknowledges that the Product is loaned to User for beta testing and that FNS retains ownership of all right, title and interest to the Product, the Product design and Documentation, and the intellectual property rights therein and thereto (including without limitation, all patent rights, design rights, copyrights and trade secret rights) subject to the Software license granted in this Section 6. User agrees not to (i) copy, modify, or reverse engineer the Product hardware or design, make derivative works based upon the Product, or use the Product to develop any products, without FNS prior written approval or (ii) sell, license, rent, or transfer the Product to any third party. FNS hereby reserves, and User hereby agrees, that FNS shall have a security interest in the Products delivered under this Agreement. If requested by FNS, User agrees to execute and deliver financing statements or any other instruments, recordings or filings deemed necessary by FNS to protect and preserve its right, title and interest in and to the hardware Products under applicable law.
(b) Software License Grant. FNS hereby grants to User and User accepts a personal, non-transferable, non-exclusive license to use the Software subject for the Beta Test Period solely for the purpose of testing and evaluating the Software subject to the following restrictions: (i) at the Users Site listed on Schedule B; (ii) used only with Product listed on Schedule A; and (iii) no copies of Software are made except for one (1) archival copy.
(c) Modifications. User hereby assigns to FNS, Users entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications or improvements to the Products which User may propose or make during the Beta Test Period or which User and FNS may jointly make during the Beta Test Period.
(d) Restricted Rights. FNS software is provided to non-DOD agencies with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the Government is subject to the restrictions as set forth in subparagraph “C” of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19. In the event the sale is to a DOD agency, the governments rights in software, supporting documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202.
This Agreement may be terminated immediately by either party through written notice if either party breaches any of the material provisions of this Agreement and fails to remedy such breach within thirty (30) days after written notification by the other party of such breach.
Notwithstanding the foregoing, this Agreement may be terminated immediately by FNS in the event of Users breach of Section 6, Ownership and Software License, or Section 10, Confidential Information.
Upon termination of this Agreement, User shall immediately cease use of the Product and shall, at its expense, return to FNS all Proprietary Information and data (including all copies thereof) then in User’s possession or custody or control, and certify in writing as to such action.
8. LIMITED LIABILITY
IT IS UNDERSTOOD THAT THE BETA SOFTWARE IS PROVIDED WITHOUT CHARGE FOR LIMITED EVALUATION PURPOSES. ACCORDINGLY, THE TOTAL LIABILITY OF THE COMPANY AND ITS SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $1 US DOLLAR. IN NO EVENT SHALL THE COMPANY OR ITS SUPPLIERS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF THE COMPANY AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. CONSEQUENTIAL DAMAGE WAIVER
IN NO EVENT SHALL FNS OR ITS SUPPLIERS BE LIABLE FOR ANY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA, OR ANY OTHER INDIRECT DAMAGES EVEN IF FNS HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.
10. CONFIDENTIAL INFORMATION
User acknowledges that, in the course of using the Products and performing its duties under this Agreement, it may obtain information relating to the Products and to FNS which is of a confidential and proprietary nature (“Proprietary Information”). Such Proprietary Information may include, but is not limited to, trade secrets, know how, invention techniques, processes, programs, schematics, software source documents, data, Customer lists, financial information, and sales and marketing plans or information which User knows or has reason to know is confidential, proprietary or trade secret information of FNS. User shall at all times, both during the term of this Agreement and for a period of at least three (3) years after its termination, keep in trust and confidence all such Proprietary Information, and shall not use such Proprietary Information other than as expressly authorized by FNS under this Agreement, nor shall User disclose any such Proprietary Information to third parties without FNS written consent. User further agrees to immediately return to FNS all Proprietary Information (including copies thereof) in User’s possession, custody, or control upon termination of this Agreement at any time and for any reason. The obligations of confidentiality shall not apply to information which (i) has entered the public domain except where such entry is the result of Users breach of this Agreement; (ii) prior to disclosure hereunder was already in User’s possession; or (iii) subsequent to disclosure hereunder is obtained by User on a non-confidential basis from a third party who has the right to disclose such information to the User.
Neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party. Any press release or publication regarding this Agreement is subject to prior review and written approval of the parties.
(a) The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of Ohio, United States of America, as of performed wholly within the state and without giving effect to the principles of conflict of law. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
(b) No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under this Agreement. All claims must be brought within twelve (12) months following the date such claim arose.
(c) User shall not assign, in any manner, its right, obligation or interest in or under this Agreement without the prior written consent of FNS.
(d) In the event of a breach, the breaching party will pay to the other party any reasonable attorneys’ fees and other costs and expenses incurred by such other party in connection with the enforcement of any provisions of this Agreement.
(e) All notices required or permitted under this Agreement will be in writing and will be deemed given when: (a) delivered personally; (b) sent by confirmed telex or facsimile (followed by the actual document in air mail/air courier); (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two (2) days after deposit with a commercial express air courier specifying next day delivery, with written verification of receipt. All communications will be sent to the addresses set forth in the cover sheet of this Agreement, or to such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph.
(f) Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
(g) This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.
Beta Release for Fenix Rise Customer Portal
Fenix Rise is a robust support ticketing system with FAQs, estimates, invoices and billing portal for WordPress. This app integrates with WP-Billing and SugarCRM/SuiteCRM in a stand-alone WordPress support site. Main Features include: Responsive design that you can brand with company logo, Customize color scheme based on your company colors, Unlimited support agents (WordPress Users), Unlimited accounts & products with online bill-pay and automatic recurring subscription based billing options.
BETA TEST SITE, TEST SCHEDULE AND TEST OBLIGATIONS DESIGNATED USER CONTACT AND DESIGNATED BETA COORDINATOR
BETA TEST SITE
Please complete the following information regarding your company which is acting as a beta test site.
Company Name: ________________________________________
Primary contact Name: ___________________________________
Phone #: ______________________________
email address: _________________________
Secondary contact Name: ________________________________
Phone #: ______________________________
email address: _________________________
The current plan is for a 3 month beta testing period beginning November 1, 2017 and ending January 31, 2018. This period may be extended an additional two weeks until February 15, 2018 by Fenix Net Solutions(FNS) if additional testing is needed. If additional product releases are called for or if the test schedule changes, FNS will define and provide a new release. If desired, the beta test site may accept a new release prior to December 31, 2017 and the testing will be covered by the terms and conditions of this agreement. The duration of testing for any new release will be defined for that release and provided prior to acceptance by the beta test site.
TEST RESULTS AND REPORTING
This includes gathering information for the purpose of site selection, management of ongoing communication with the Beta site and collection and analysis of testing results
In order to facilitate these tasks, FNS has created and will maintain a web site and test results databases. Beta sites will be expected to use this web site and tools for reporting and communication as the Beta progresses.
FNS is not supplying any test suites for the Beta testing. Beta Sites will be expected to test each of the major functional areas of the product as they would use it in their environment.
BETA TEST OBLIGATIONS
The user is expected to perform comprehensive testing of Fenix Rise Customer Portal. This includes using tools and features in all major feature sets of Fenix Rise as described in Schedule A.
The user is expected to use the FNS Customer Portal web site to report all testing results to FNS including defect reports, product failures, etc. The user will also be expected to complete additional forms and surveys to characterize their experience with Fenix Rise Customer Portal during Beta.
The user is expected to commit sufficient time to this Beta to meet the testing and reporting requirements above.