Terms for Beta Test Participation

Valid from October 2021

Kinicho Ltd, a private limited company with a registered office at 15 Salisbury Terrace, Liverpool, L15 4HD  (“Kinicho”) is developing new products which require testing prior to commercial release (including parts, software, programs and the like hereinafter altogether referred to as “Product”).

The following Terms for Beta Test Participation represent the contractual conditions between you (“Tester”) and Kinicho. By participating you declare yourself in agreement with these terms.

Section 1 - Scope of the Tests

  1. The Tester has agreed to test the Product free of charge by using the Product on a minimum of one computer system. The Tester will evaluate the quality, content and functionality of the Product as well as its marketability ("Beta Test").

  2. The Tester knows and agrees that Kinicho might track the Tester’s behaviour while testing, and might use external services as offered by third parties like e.g. Mixpanel for these purposes.

  3. The Product may be updated/upgraded from time to time during Beta Test, and the Tester ensures to always use the last version of the Product for Beta Test, as well as taking care that updates/upgrades are properly installed on the aforementioned computer system.

 

Section 2 - Beta Test Reports, Availability

  1. As part of the Beta Test, the Tester will produce written reports on the Product's performance (“Reports”). Such Reports include identification of any errors, bugs or shortcomings in the Product as well as the Tester's comments and observations.

  2. The Tester will be available by email and telephone for discussions with Kinicho employees during the Beta Test period.

 

Section 3 - Beta Test Period

The Tester undertakes to carry out such Beta Testing for an unlimited period. Kinicho and the Tester have the right to terminate the Beta Test any time after testing a certain Product without observance of a notice period.

Section 4 - Loan Equipment for Beta Testing

  1. For the purposes only of performing the Beta Test, Kinicho may provide the Tester with the necessary equipment ("Equipment") as loan and free of charge for the Beta Test period.

  2. The Tester will return the Equipment any time upon notice by Kinicho or at the end of the Beta Test period, or permit Kinicho to collect the Equipment.

  3. The Tester shall not at any time do or permit anything which may affect Kinicho’s right, title or interest in the Equipment or in the Product.

 

Section 5 - Decompiling, Reverse Engineering

  1. The Tester promises neither to copy nor to decompile nor to have copied or decompiled the Product or programs which might be part thereof. The Tester shall not, except as otherwise expressly provided herein, modify, decompile, reverse engineer the Product or programs which might be parts thereof.

  2. The Tester further promises to keep the Product or programs which might be part thereof at a safe place so that access and in particular any of the aforementioned activities by third parties are prevented.

 

Section 6 - Exclusion of Warranty and Liability

  1. The Tester acknowledges that the Product is still under development and is for Beta Test purposes only and accordingly, is provided "AS IS" without any warranty of any kind and is being tested by the Tester at own risk.

  2. The Tester further agrees that neither Kinicho nor any other person involved in creating, installing, delivering, testing or using the Product shall be liable for any direct, indirect, consequential or incidental loss (for examples of data) or damage arising from or relating to the Product or its testing hereunder. This limitation of the liability shall not apply in case of acting with intent or gross negligence.

 

Section 7 - Confidentiality

  1. “Confidential Information” shall mean the Product and all business, financial, technical or otherwise related information in any form whether oral, written or in electronic form, directly or indirectly from Kinicho, unless Kinicho has confirmed in writing its non-confidential character.

    1. Confidential Information shall mean especially, but is not limited to:

      1. information with respect to ideas, plans, inventions, their technical implementation, methodology, techniques, specifications, the existence, scope and activities of any research, developments, manufacturing, rights on software, rights on databases, algorithms, copyrights, trademarks, designs, patents and applications with respect to IP;

      2. information with respect to finances, business plans, analyses, projects, processes, testing methods, technical data, sources of supply;

      3. any know-how or other trade secret;

      4. any Usage, change, copy or reproduction or discussion about any of the aforementioned items.

    2. Confidential Information does not include information which Tester can prove:

      1. after disclosure by Kinicho becomes part of the public domain;

      2. the Tester can demonstrate to have had rightfully in its possession prior to disclosure to The Tester by Kinicho;

      3. is independently developed by the Tester without using any Confidential Information;

      4. the Tester rightfully obtains from a third party who has the right to transfer or disclose it to the Tester without limitation.

  2. Tester acknowledges that Kinicho has a particular interest in maintaining the confidentiality of all its Confidential Information. The Tester shall safeguard the Confidential Information using the same degree of care as the Tester uses to safeguard its own confidential and proprietary information, and shall take all necessary measures to prevent unauthorized or accidental disclosure of the same.

  3. The Tester undertakes to not disclose the Confidential Information to any third person or entity, without the prior written consent of Kinicho.

  4. The Tester agrees to only disclose the Confidential Information to its directors, officers, employees and agents, if any, on a need-to-know basis and that Tester shall not use the Confidential Information for its own or third party's benefit or for any purpose other than the subject of the Agreement. The Tester agrees to ensure that its directors, officers, employees, agents, if any,  are advised of the confidential nature of the Confidential Information and undertakes to ensure that they are prohibited from copying or revealing for any purpose whatsoever the contents of the Confidential Information. The Tester guarantees the non-disclosure of all or any part of the Confidential Information by its directors, officers, employees and agents, if any, and that they shall not use the Confidential Information for any purpose other than the subject of the Agreement.

  5. In the event that the Tester is requested to disclose all or any part of the Confidential Information under the terms of a valid and effective order issued by a court of competent jurisdiction or by a judicial or administrative agency or legislative body, the Tester agrees to

    1. immediately notify Kinicho of the existence, terms and circumstances surrounding such request,

    2. consult with Kinicho on the advisability of taking available legal steps to resist or narrow such request, and

    3. if disclosure of such Confidential Information is required or deemed advisable, exercise its best efforts, if legally possible, to obtain an order or other reliable assurance that confidential treatment shall be accorded to such portion of the Confidential Information to be disclosed which Kinicho designates.

  6. The secrecy obligation and the responsibility imposed on the Tester under this Agreement shall survive the expiration or termination of this Agreement.

 

Section 8 - No Further Rights

The Tester acknowledges that nothing contained herein is intended or shall be construed to convey to the Tester any rights or license of any intellectual property rights of Kinicho.

 

Section 9 - Responsibility

  1. In case of a breach by the Tester of any of Tester’s obligations Kinicho shall be entitled to cease immediately the disclosure of any further information and to claim full compensation for the damages, direct and indirect, suffered as a consequence of said breach.

  2. For each single case of violation of the confidentiality obligations the Tester shall pay a penalty of GBP10,000 (ten thousand pounds sterling) which shall not be accounted to damages suffered by Kinicho as a result of such violation. An objection of continuity of a violation is excluded.

 

Section 10 - General Conditions

  1. This Agreement cannot get transferred to a third party regarding the rights the Tester got granted.

  2. This Agreement contains all agreements made. Written and/or verbal ancillary agreements do not exist. Any future amendments and/or supplements must be agreed to in writing. This also applies to renouncing the written form requirement. An email is not meeting the requirement of the written form.

  3. The legal ineffectiveness of a provision shall not affect the legal effectiveness of the other contractual parts. The Parties undertake to replace an ineffective provision with an effective regulation, coming as close as possible to the desired economic result while corresponding to the contractual purpose in the best possible way.

  4. The place of performance as well as the exclusive court of jurisdiction for all disputes arising from this contract is London, England. The law of the United Kingdom of Great Britain & Northern Ireland applies under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).