This Trusted Tester Tester Agreement ("Tester Agreement") is an addendum to the agreement entered into by and between Qubit and Customer pursuant to a signed Sales Order Form incorporating the Qubit Master Service Agreement (the “Agreement”). Capitalised terms not otherwise defined herein, have the meaning indicated in the Agreement. Unless otherwise provided herein, this Tester Agreement is subject to the terms of the Agreement.
In consideration of Qubit letting Customer test one or more new Qubit products which have not yet been released to the public (the "Usability Study"), Customer agrees to be bound by the terms and conditions in this Tester Agreement. The purpose of the Usability Study is to test and study the usability of certain pre-release product(s) being developed by Qubit which Qubit may (in its sole discretion) agree to make available to Customer for such purposes (each a "Test Product" and together the “Test Products”).
The rights and obligations contained in this Tester Agreement are entirely separate from, and without prejudice to, any existing or future agreement between Customer and Qubit relating to any of Qubit’s products or services other than the Test Products (“Other Agreements”). For the avoidance of doubt, no expiry, termination or breach by either party of this Tester Agreement shall give rise to any right of set-off or termination in relation to such Other Agreements.
1. Upon successful completion of the Usability Study, if Qubit (acting in its sole discretion) is satisfied that a Test Product is fit for general commercial release, Customer and Qubit may agree in a fully termed written agreement signed by both parties the terms under which Customer may be able to continue using such Test Product.
2. Qubit shall at its sole discretion determine when the Usability Study will commence and reserves the right at any time and without liability to withdraw Customer’s participation. This Tester Agreement shall be effective on the date of acceptance by Customer. Either party may without liability immediately terminate Customer’s participation in the Usability Study on giving written notice to the other party. Termination of this Tester Agreement shall not affect the accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination (including those rights expressly or implicitly coming into effect after termination).
3. Whilst taking part in the Usability Study, Customer may provide certain comments, suggestions, data or other information to Qubit (“Feedback”). Qubit shall have the right to retain and use any such Feedback in current or future products or services, without any compensation to Customer.
4. Customer agrees that Qubit may: (a) analyse and monitor Customer’s participation in the Usability Study; (b) record any data resulting from Customer’s participation in the Usability Study; and (c) use such records for Qubit’s own internal business purposes.
5. Customer acknowledges that the Test Products are the property of Qubit and are protected by intellectual property laws. In particular, Customer undertakes that the existence or development of the Test Products as well as any information communicated by Qubit to Customer relating to the Test Products and/or the contents and/or functionality of such Test Products shall be treated as Confidential Information belonging to Qubit.
6. Customer understands that Customer shall not acquire any Intellectual Property Rights or other rights under this Tester Agreement or through Customer’s participation in the Usability Study. Qubit grants to Customer a non-exclusive, non-transferable, terminable (by notice at any time) licence for the term of this Tester Agreement to use the Test Product(s) for the sole purpose of taking part in the Usability Study in accordance with Qubit’s instructions.
7. Customer understands that the Test Products are experimental in nature and may not have been tested in any manner. Qubit does not represent that any Test Product is entirely reliable, accurate or complete. Accordingly, each Test Product is made available for use “as is” and Qubit does not give or enter into any conditions, warranties or other terms with regard to any Test Product. In particular, no condition, warranty or other term is given or entered into to the effect that the Test Products will be of satisfactory (or any other) quality or that the Test Products will be fit for any particular purpose. No other warranties, conditions or terms shall apply and all warranties, conditions or other terms implied at law or by custom are, to the fullest extent permitted by law, excluded.
8. Nothing in this Tester Agreement shall exclude or limit either party’s liability for: (a) death or personal injury resulting from its negligence or the negligence of its servants, agents or employees; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be limited or excluded by applicable law.
9. Subject to paragraph 8, neither party shall be liable under this Tester Agreement (whether in contract, tort or otherwise) for any special, indirect or consequential loss (whether or not such losses were within the contemplation of the parties at the date of this Tester Agreement) suffered or incurred by the other party.
10. Subject to paragraph 8, each party’s total aggregate liability arising from or in connection with this Tester Agreement (whether in contract, tort or otherwise) shall be limited to the sum of £10,000 (ten thousand pounds sterling).
11. This Tester Agreement sets out all the terms between Qubit and Customer with respect to its subject matter, and supersedes any prior oral or written agreements. This Tester Agreement is an addendum to the Agreement and all of the terms of the Agreement apply to this Addendum.
