NIRVANA BETA TESTING AGREEMENT

THIS BETA TESTING AGREEMENT (the “Agreement”), effective as of the acceptance of this Agreement (the “Effective Date”), is entered into between the User of the Nirvana Services through the Application you have downloaded (“User” or “you”) and Nirvanahq Inc. (“Nirvana”, “we”, or “us”) (each a “Party” and, collectively, the “Parties”).

For the purposes of this Agreement, “Application” means the Nirvana desktop application for Windows or MacOS that you have downloaded from Nirvana.

BY CLICKING ON THE APPROPRIATE BUTTON AND/OR DOWNLOADING AND USING THE APPLICATION, USER ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  

The Parties agree as follows:

  1. User agrees during the Beta Test Period (as defined in Section 6) to use and test features of the Application and to voluntarily report on all testing results to Nirvana via email to desktop+beta@nirvanahq.com, including any errors, bugs, defects and other failures of the Application, as well as any Feedback, as defined below. User may implement and use such modifications, enhancements, error corrections, bug fixes, new releases, or other updates to or for the Application that Nirvana may make to the Application during the Beta Test Period.
  1. Nirvana shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Application or other feedback that User may, alone or jointly with Nirvana, propose or make during the Beta Test Period during the Beta Test Period (collectively, “Feedback”). User hereby irrevocably (i) assigns all User’s right, title and interest in and to the Feedback to Nirvana and (ii) waives in favour of Nirvana, its successors and assigns any and all moral rights that User has or may have in the Feedback. User further agrees to provide Nirvana such assistance as it may require to document, perfect, and maintain its rights to the Feedback. 
  1. Provision of Application. Nirvana shall make the Application available to User during the Beta Test Period, solely for the purpose of User’s use thereof. Nirvana may, at its sole discretion, provide User such technical assistance as Nirvana may deem necessary to properly install and operate the Application.
  1. No Other Obligations. Nirvana is not obligated under this Agreement to provide any documentation, maintenance/technical support, or updates/upgrades to the Application, though we will certainly attempt to do so! 
  1. Ownership and Restrictions. Nirvana retains ownership of all right, title and interest to the Application and the intellectual property rights therein and thereto (including without limitation, all patent rights, design rights, copyrights and trade secret rights). Except as provided hereunder, User will have no right to loan, license, sublicense, rent, transfer, assign, sell, distribute, change, alter, copy, amend, modify, make derivative works based upon the Application, use the Application to develop any products or Application, combine the Application with other software or code, reverse engineer, decompile, disassemble, publish, disclose, display or make available, in whole or in part, or otherwise use the Application in any manner whatsoever. User will not remove any proprietary, copyright, patent, trademark, design right, trade secret or any other proprietary rights legends from the Application. Any right not expressly granted herein is reserved by Nirvana. User shall not use or permit others to use the Application for the purpose of creating, improving or otherwise assisting in the development of a system which performs or may perform functions similar to, or competitive with, the Application. 
  1. Term; Termination. This Agreement will begin on the Effective Date and will automatically terminate on the date on which a generally commercially available version of the Application is released to the general public through the Widows and MacOS App Stores, or via the Nirvana website (the “Beta Test Period”).
  1. User hereby expressly acknowledges and agrees that the Application (including any modifications or improvements thereto) may not be ready for general commercial release and may contain bugs, errors or defects. Accordingly, Nirvana is providing the Application to user “as is”. Nirvana, its suppliers and licensors make no representations or warranties or covenants, express or implied, in respect of the Application, including without limitation, statutory or implied warranties or conditions of merchantability, accuracy, non-infringement, satisfactory quality or fitness for a particular purpose, all of which are expressly disclaimed and excluded. Nirvana does not guarantee that the Application will ever be made generally commercially available, or that any generally commercially available release of the Application will contain the same or similar functionalities/features as the Application made available by Nirvana to User under this agreement. 
  1. Limitation of Liability. In no event will Nirvana, its officers, directors, employees, agents, suppliers or licensors shall be liable for any loss, damages, claims or costs whatsoever, including any indirect, incidental, consequential, special, punitive or exemplary damages (including, without limitation, any loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other pecuniary loss), arising out of relating to this Agreement or caused by the use, misuse or inability to use the Application, even if Nirvana has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in contract, warranty, tort, negligence, strict liability or under any other legal theory. In any event, Nirvana’s aggregate liability and that of its suppliers and licensors under or in connection with this agreement will be limited to the amount paid by the user for the Application, if any. User acknowledges and agrees that the limitations and exclusions of liability set out in this section 8 are fair and reasonable in the commercial circumstances of this agreement and that Nirvana would not have entered into this agreement but for the inclusion of such limitations and exclusions.
  1. Confidential Information and Privacy.Confidential Information” means all non-public, confidential or proprietary information of Nirvana or its suppliers/licensors relating to the Application, including without limitation all software (including source code), technology, intellectual property, trade secret and other information and data relating to the Application, all Feedback, User data and all testing information provided by User to Nirvana. User shall not use the Confidential Information in any manner except as reasonably required to test the Application and shall keep confidential of Confidential Information and shall protect the Confidential Information with the same degree of care as User employs in the protection of its own confidential and proprietary information, but at least with a reasonable degree of care. Nirvana shall not use Confidential Information except to provide the Application and Services. User shall not disclose any Confidential Information to any person. User acknowledges that the restrictions contained in this Section 9are reasonable and necessary to protect Nirvana’s legitimate interests. User understands and agrees (i) that the remedies at law for the violation of this Section 9 will be inadequate, (ii) that such violation will cause irreparable injury within a short period of time, and (iii) that in addition to any and all other remedies Nirvana may have at law and in equity Nirvana shall be entitled to preliminary injunctive relief and other injunctive relief against such violation without the necessity of proving actual damages.Your Use of the Application and Services are also governed by Nirvana’s Privacy Policy at https://nirvanahq.com/privacy.
  1. Governing Law. This Agreement will be governed by, interpreted and construed in accordance with the laws of the Province of Québec, Canada and the laws of Canada applicable therein, other than rules governing conflicts of laws. Each of the Parties agrees that any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be submitted to the exclusive jurisdiction of the courts of the Province of Quebec, Canada (district of Montréal). The foregoing choice of jurisdiction and venue shall not prevent Nirvana from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
  1. User is an independent contractor and the User is not the agent or employee of Nirvana. User may not assign, delegate or otherwise transfer this Agreement or any of his/her/its rights or obligations hereunder without Nirvana’s prior written consent. If any of the provision contained in this Agreement are found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not be in any way affected or impaired hereby. The provisions in Sections 7 to 11 will survive termination or expiration of this Agreement. The Parties have requested that this Agreement be drafted in English. Les parties aux présentes ont exigé que le présent contrat soit rédigé en langue anglaise.

 

Last Updated: May 21, 2019