TERMS AND CONDITIONS TO VISUALVUALT BETA RELEASE

THIS VISUALVAULT VERSION 6.0 BETA RELEASE IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS ARE AGREED TO BY THE BETA USER CLIENT ("CLIENT"). CLIENT AGREES THAT ANY AND ALL USE OF THE BETA RELEASE IS SUBJECT TO THESE TERMS AND CONDITIONS AND THE VISUALVAULT ACCEPTABLE USE POLICY.

1. License Grant. VisualVault grants a limited, non-exclusive license to Client to use the VisualVault Version 6.0 beta release ("Beta Release") for the sole purpose of evaluating the Beta Release and is subject to these Terms and Conditions. Client shall have no interest other than as a licensee in the Beta Release.t VisualVault is the sole owner of the Beta Release and any and all derivative and associated developments arising or relating to the Beta Release
2.  Use of Beta Release. Client shall not (i) use the Beta Release for any purpose that would violate VisualVault’s Acceptable Use Policy or for the sole purpose of evaluating the Beta Release; (ii) permit individuals or entities other than Client's authorized principals, officers, employees, agents and consultants to use Beta Release; (iv) attempt, or directly or indirectly assist others in attempts, to exploit the Beta Release or any Confidential Information (as defined below) for any commercial purpose; or (v) assert any claim or initiate or support any process that might result in VisualVault being found responsible for damages or liable to pay any costs, expenses or judgments arising from or in any way relating to the Beta Release, these Terms and Conditions, the beta license granted hereunder or any eventual use or commercial license granted hereunder or any eventual use or commercial exploitation of the Beta Release. 
3.  Feedback and Cooperation. Client shall cooperate reasonably with VisualVault in assembling all material information regarding the performance or malfunction of the Beta Release including, but not limited to, all minor or major operational "bugs" and problems, all possible remedial actions, possible enhancements and related products or uses and complete any beta test audit report(s) reasonably requested by VisualVault. VisualVault shall work closely with Client to evaluate the Beta Release and shall return all telephone calls from Client as soon as practicable but, in most cases, within one (1) business day. VisualVault shall using its best efforts to develop remedies for problems with the Beta Release and provide assistance to Client so the Client may "work around" such problems, and shall notify Client of solutions to problems and implement such solutions as soon as reasonably possible.
4.  Confidential Information. All information disclosed by the disclosing party to the receiving party that is not known by, or generally available to the public at large, and that concerns the business and affairs of disclosing party or its affiliates and shall include, without limitation, all information or documentation transferred to the other pursuant to the Client’s use of the Beta Release, and all information and documentation regarding disclosing party's or its affiliates; provided, however, all information of the disclosing party which consists of business plans or products; computer codes or instructions (including source code and object code listings, program logic, algorithms and related documentation, including program notations); marketing and distribution data, methods, plans and efforts; the identities of and the course of dealing with actual and prospective customers, contractors and suppliers; and any other materials that have not been made available to the general public shall be deemed for all purposes to be Confidential Information without further notice by the disclosing party. Any party receiving Confidential Information hereunder agrees that such Confidential Information shall (a) by used by the recipient solely for the purpose for which such Confidential Information is disclosed; (b) remain at all times the property of the disclosing party as the owner of such Confidential Information; and (c) except as may be required by applicable law or legal process, not be distributed, disclosed, or disseminated to anyone, except the recipient's employees, agents or consultants (including employees of its parent, subsidiaries and affiliates) who have a need to know such Confidential Information for the purpose for which it is disclosed and who also agree not to distribute, disclose or disseminate such Confidential Information for any purpose other than as provided herein. Confidential Information does not include information that is (a) generally available to the public other than as a result of breach of these Terms and Conditions; (b) already in the possession of the recipient or the recipient's employees without restriction and prior to disclosure hereunder; (c) lawfully disclosed to the recipient or its employees by a third party, not employed by or otherwise affiliated with the recipient, who is lawfully able to disclose the same; or (d) independently developed by the recipient without use or reference to the Confidential Information disclosed hereunder.
5.  Intellectual Property.  Any and all property rights, including patent rights, copyrights, trademarks and trade secrets, in and to the Beta Release and any modification, discovery, design, know-how, or secret (whether or not patentable or registerable under copyright or similar statutes or subject to analogous protections) that is conceived, discovered, reduced to practice or become possessed of as a result of the Client’s use of the Beta Release (“Invention”) and created by the parties hereto (including, without limitation, such parties' employees, agents or consultants) shall be and remain in VisualVault. Client shall not have any right, title or interest in any such Invention. To the extent that, notwithstanding the foregoing sentence, Client obtains or retains an interest in any Invention, Client hereby irrevocably assigns and transfers to VisualVault any right, title, or interest that Client has or may have in such Invention under copyright, patent, trade secret and trademark law, in perpetuity or for the longest period otherwise permitted by law without the necessity of further consideration. In addition, nothing herein shall be construed as granting a license to Client in, other than the limited rights of use set forth herein.
6.  Termination. The Beta Release license will expire on the full release of Version 6.0 or as sooner terminated in accordance with the underlying agreement or may be terminated by VisualVault at any time upon written notice to Client. 
7.  No Warranty. Client hereby expressly agrees that: VISUALVAULT MAKES NO WARRANTY TO CLIENT OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THE BETA PRODUCT AND DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES THAT THE BETA PRODUCT IS A TEST PRODUCT ONLY, DELIVERED ON AN “AS IS” BASIS AND THAT CLIENT’S USE OF THE BETA PRODUCT SHALL BE AT CLIENT’S SOLE RISK. CLIENT SHALL HAVE THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACK-UP OF ANY DATA USED IN CONNECTION WITH THE TESTING OF THE BETA PRODUCT. VISUALVAULT DOES NOT WARRANT THAT THE BETA PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. IT IS FURTHER UNDERSTOOD BY CLIENT THAT NO COMMITMENT EXISTS ON THE PART OF VISUALVAULT TO RENDER THE BETA PRODUCT IN A CONDITION SUITABLE FOR PRODUCTION USE. 
8.  Limitation of Liability. CLIENT UNDERSTANDS AND AGREES THAT THE BETA RELEASE IS IN THE DEVELOPMENTAL STAGE AND IS LIKELY TO POSSESS DEFECTS FOR WHICH VISUALVAULT CANNOT AND SHALL NOT ASSUME ANY RESPONSIBILITY OR OBLIGATION.  CLIENT AGREES THAT IN NO EVENT SHALL VISUALVAULT BE LIABLE UNDER ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY) FOR (i) DIRECT DAMAGES OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES SUCH AS, BUT NOT LIMITED TO, EQUIPMENT DOWN-TIME, LOSS OF DATA, LOST PROFITS, LOSS OF INFORMATION, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER SIMILAR DAMAGES, or (ii) ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DELIVERY, USE OR PERFORMANCE OF THE BETA PRODUCT. CLIENT SHALL DEFEND, INDEMNIFY, AND HOLD FOREVER HARMLESS VISUALVAULT AND ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, ACTIONS, PROCEEDINGS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES, INCLUDING REASONABLE ATTORNEY FEES, BY REASON OF BODILY INJURY, INCLUDING DEATH, AND/OR PROPERTY DAMAGE OR ANY OTHER ECONOMIC LOSS SUSTAINED BY ANY PERSON AS A RESULT OF THE USE OR OPERATION OF ANY BETA RELEASE WHILE IN CLIENT ’S POSSESSION.
9. Miscellaneous. The Terms and Conditions of this Beta Release shall be governed and construed as an instrument under seal in accordance with the laws of the state of Delaware governing contracts executed and to be performed therein. Any dispute regarding this Beta Release shall be brought in the state of Delaware. The invalidity or unenforceability of any provision of these Terms and Conditions shall not affect the other provisions, or any underlying agreement. The Client shall not assign the license or any rights under these Terms and Conditions without the prior written consent of VisualVault.