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Magpleasure Ltd. Beta Test Agreement
This EULA is a legal agreement concerning the Software between You, as either an Individual or a Single Business Entity and Magpleasure Ltd. This Agreement supersedes and replaces any prior proposal, representation, or understanding you may have had with Magpleasure relating to the software.
Whereas Magpleasure has software and associated documentation which requires objective independent testing (beta testing); and
Whereas You have agreed to conduct such beta testing using such software and associated documentation (“Product”) and to provide the results of such beta testing to Magpleasure.
Therefore, Magpleasure and You agree as follows:
1. LICENSE GRANT
The terms and conditions in this Beta Test Agreement shall apply to any and all Products provided to You by Magpleasure for Beta Testing. Each individual Product shall be more fully described in the documentation that will accompany the individual Product. Magpleasure grants You a non-exclusive and non-transferable license, without right to sublicense, to use the Product for internal testing purposes only. Unless it is specifically agreed by Magpleasure, You may not use the Product to operate your business, develop other hardware or software for ongoing use, or provide service to others. You may not sell or transfer the Product to another person or entities who are interested in it. You may not make copies of any software or any hard-copy documentation except those copies that are necessary for use in the Beta Test process. In addition, You are not entitled to Magpleasure support services which are usually provided for our products and services. Instead, Beta support will be provided by Magpleasure during the testing period. Magpleasure reserves the right at any time not to release a commercial version of the Product or, if released, to alter prices, features, licensing terms, or other characteristics of the commercial release.
You shall endeavor to provide to Magpleasure reasonable suggestions, comments and feedback regarding the Product, including but not limited to usability, bug reports and test results, with respect to the evaluation and testing of the Product (“Feedback”). If you agree to provide the results of such internal testing, you shall provide all such results to Magpleasure promptly, in no event later than the date of first commercial availability for that particular Product. You grant Magpleasure, under all of Your intellectual property and proprietary rights, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, and create derivative works of, the Feedback as part of any Magpleasure offering, (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Magpleasure offering, (iii) solely with respect to Your copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties. For purposes of this Section, “Magpleasure Offerings” shall mean, individually and collectively, (i) any Magpleasure product, technology, service or component of any of the foregoing, including pre-release and commercially released versions, (ii) any specification or other proposal for any such product, technology, service or component, and (iii) any Magpleasure documentation. Magpleasure covenants not to disclose the source of the Feedback to third parties without Your express written permission, which permission shall not be unreasonably denied. If the Feedback contains information You consider confidential, you shall identify such information in writing at the time you provide the Feedback to Magpleasure. The licenses of this paragraph shall not extend to such identified confidential information.
3. TERM AND TERMINATION
The license granted under this Agreement commences with first use of the Product. The license grant for any particular Product shall terminate upon the date of first commercial availability. The license will automatically terminate if You fail to comply with the limitations described herein. Either Party may terminate this Agreement by written notice provided to the other Party at any time. Upon termination of this Agreement, You must uninstall the Product and associated documentation, which Magpleasure provided to You, from your website. After the date of first commercial availability for a particular Product, You must uninstall the Product and associated documentation, which Magpleasure provided to You, from your website. No copies of any software provided by Magpleasure may be retained by You and all such copies shall be either returned or erased.
4. PROPRIETARY RIGHTS
Legal title, ownership rights, and intellectual property rights to the Product shall remain in Magpleasure and/or its suppliers. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any way with Magpleasure or its suppliers’ ownership rights with respect to the Product.
Except as otherwise expressly permitted in this Agreement, and in addition to any other restrictions herein, You may not (i) modify or create any derivative works of the Product, including translation or localization; (ii) decompile, unbundle, disassemble or reverse engineer the Product, or attempt to derive the source code for the Product (except to the extent applicable laws specifically prohibit such restriction); (iii) redistribute, encumber, sell, rent, lease, sublicense, use the Products in a timesharing or service bureau arrangement, or otherwise transfer rights to the Product; (iv) copy the Product (except for an archival copy which must be stored on media other than a computer hard drive and which must be uninstalled from all test and production stores upon the expiration of this Agreement) or its documentation; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Product; (vi) modify any header files or class libraries in the Product; (vii) publish any results of benchmark tests run on the Product or disclose Product features, errors or bugs to a third party without Magpleasure’s prior written consent; (viii) use the Product for any purpose other than internal testing purposes; or (ix) use the Product in any way after the date of first commercial availability for that particular Product.
You acknowledge that the Product, its existence, its features, its capacities, its capabilities, its thresholds, its limitations, and mode of operation, any related materials provided by Magpleasure, including this Agreement, the beta test results compiled by You, and other technical, business, product, marketing, and financial information, plans, and data relating to the Product and Magpleasure are Confidential Information of Magpleasure. You agree (i) to hold the Confidential Information in strict confidence, (ii) not to disclose any Confidential Information to any third parties, and (iii) not to use any Confidential Information for your own use or for any purpose except the purposes of this Agreement. You may disclose Confidential Information to employees who have a bona fide need to know such Confidential Information, and then only to the extent necessary to carry out testing under this Agreement. You will have executed or shall execute appropriate written agreements with your employees sufficient to enable You to comply with the provisions of this Agreement. You agree to take all reasonable measures to protect the secrecy of Confidential Information and avoid disclosure or use of Confidential Information other than expressly authorized herein, which measures shall take the form of the highest degree of care that You utilize to protect your own information of a similar nature and importance, but in any case not less than reasonable care. You agree to notify Magpleasure via contact form on our website of any misuse or misappropriation of Confidential Information that may come to your attention. All copies of tangible items, including but not limited to documents and magnetic media, containing or embodying Confidential Information which have been provided by Magpleasure will be promptly uninstalled from all test and production stores after the beta testing.
7. DISCLAIMER OF WARRANTY
THE PRODUCT IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY YOU. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, Magpleasure MAY SERVICE, REPAIR OR REPLACE THE PRODUCT AT ITS CHOICE AND EXPENSE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Magpleasure OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. Magpleasure IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
9. EXPORT CONTROL
You understand that the Product may be subject to export control laws and regulations. YOU MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT PRODUCT(S) OR ANY UNDERLYING INFORMATION OR TECHNOLOGY.
(a) This Agreement and any attached appendices constitutes the entire agreement between the parties concerning the subject matter hereof. (b) This agreement shall be interpreted and enforced in accordance with the laws of Hong Kong Special Administrative Region. The parties agree that no action by one party against the other may be brought in any court, in any jurisdiction, except according to the terms of this paragraph. The Parties agree with the choice of Wanchai as a judicial district. No termination or expiration of this agreement shall affect the right to arbitrate disputes.