THE NEXT SYSTEM
PRE-RELEASE BETA TEST USER AGREEMENT
This Pre-Release Beta Test User Agreement (“Agreement”) is an agreement between you (“User”) and NEXT Integrative Minds Life Sciences Ltd. (“NEXT”) and is entered into as of the date of execution of the Agreement by User as set out below.
This Agreement sets out the terms and conditions for NEXT to provide User access to a pre-release version of the NEXT proprietary software, technology and program known as ‘The NEXT SYSTEM’ during The NEXT SYSTEM pre-release Beta test process (“Beta Test”) for the purpose of installation, use, testing and evaluating the pre-release version of The NEXT SYSTEM for the Beta Test Period (as defined below) prior to formal product release.
NOW, THEREFORE, in consideration of the license granted herein by NEXT to User and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. BETA TEST USER COMMITMENT
User acknowledges and agrees that the Beta Test will run for a period of three months or such shorter or longer period of time as may be mutually agreed between the parties (the “Beta Test Period”). User will adopt and use The NEXT SYSTEM, follow and comply with the Beta Test procedures specified by NEXT, as the Beta Test is delivered to User and throughout the entire Beta Test Period. These procedures may include, without limitation, User using standard, special and non-standard operating procedures, providing written feedback, testing, maintaining activity and performance logs, attending meetings or focus groups telephonically or via the Internet, and completing questionnaires or similar documents, all as reasonably requested by NEXT (collectively, “Feedback”). User agrees to provide and update all information forming a part of Feedback that is reasonably necessary for the Beta Test.
User agrees to disclose any Feedback only to NEXT.
User acknowledges that it has no right, title or interest in relation to its contribution or Feedback, and, to the extent that User may be deemed by operation of law to acquire any such right, title, or interest, User hereby assigns and transfers to NEXT all such right, title, and interest. User will not copy, film, videotape, audiotape record or otherwise make a record of, by electronic, digital or any other means, all or any portion of any aspect of the Beta Test, and will not record or take pictures, or assist another person or organization in recording and/or taking pictures of any kind or nature, of all or any portion of the Beta Test or of any participants in the Beta Test.
NEXT hereby grants to User a non-exclusive, non-transferable license (without the right to sublicense) to use The NEXT SYSTEM solely for the purposes of the Beta Test and for the Beta Test Period, all subject to the terms contained in this Agreement. The NEXT SYSTEM is copyrighted and it is licensed to User under this Agreement, not sold to User. By installing, copying or otherwise using The NEXT SYSTEM, User agrees to be bound by the terms of this Agreement. User agrees not to install, copy or otherwise use The NEXT SYSTEM other than as set out in this Agreement.
Except as otherwise specifically permitted in this Agreement, User may not: (a) modify or create any derivative works of The NEXT SYSTEM or accompanying documentation, including translation or localization; (b) copy The NEXT SYSTEM except as provided in this Agreement or elsewhere by NEXT; (c) separate The NEXT SYSTEM, which is licensed as a single product, into its component parts. (d) sublicense or permit simultaneous use of The NEXT SYSTEM by more than one user; (e) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any component of The NEXT SYSTEM; (f) redistribute, encumber, sell, rent, lease, sublicense, use The NEXT SYSTEM in a timesharing or service bureau arrangement, or otherwise transfer rights to The NEXT SYSTEM under any circumstances; (g) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in The NEXT SYSTEM; or (h) publish any information pertaining to The NEXT SYSTEM or any Feedback to a third party without NEXT’s prior written consent. NEXT is under no obligation to provide technical support under the terms of this Agreement, and provides no assurance that any specific errors or discrepancies in The NEXT SYSTEM will be corrected.
2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
“Confidential Information” means any and all information provided to User by NEXT, other than as specifically excluded below. Confidential Information includes, without limitation, The NEXT SYSTEM, promotional materials, business concepts and strategy, and other information regarding NEXT’s products, methods, processes, software, data, databases, tangible or intangible materials embodied in them or relating to them, including without limitation all raw, gross, or compiled statistical information, designs, inventions, specifications, formulas, algorithms, technology or services, NEXT’s actual or anticipated research and development, financial information, operational and technical information or other business information, trade secrets or know-how, NEXT’s customers and all materials relating thereto and all Feedback.
“Confidential Information” does not include any information which, through no improper act or omission by User or any other improper means, (a) has become publicly known and is generally available; (b) User can establish was already in his/her possession at the time of disclosure of such information by NEXT or any NEXT representative; or (c) User can establish became available to User from a source other than NEXT or any NEXT representative without breach of confidentiality obligations.
User acknowledges and agrees that Confidential Information is confidential, proprietary and a trade secret and User will strictly maintain its confidentiality and will not, during the term of this agreement or thereafter (a) use any Confidential Information for any purpose except for Beta Testing; or (b) disclose, sell, copy, disseminate, publish, broadcast or reproduce by any means whatsoever, any Confidential Information to any other party without the express written consent of NEXT and the execution by that party of a like Confidentiality, Non-Competition and Intellectual Property Ownership Agreement.
For greater certainty, any use of Confidential Information for User’s personal benefit or for the benefit of any other person or persons, firm, partnership, association, corporation or other third party other than NEXT, or assisting others in doing so, including using the Confidential Information to develop, market or provide products or services that are the same, or substantially similar, to those of NEXT is strictly prohibited and would be in violation of User’s obligations under this Agreement.
Notwithstanding any provision of this Agreement to the contrary, if User is requested or required in a judicial, administrative or governmental proceeding or otherwise to disclose any Confidential Information, User will provide NEXT with prompt written notice of such request or requirement so that NEXT may seek an appropriate protective order. If, as a result of any such request or requirement, User is, in the written opinion of counsel, compelled to disclose Confidential Information or else stand liable for contempt or other censure or penalty, then such Confidential Information may be disclosed without liability hereunder provided that User complies with the notice provisions of this paragraph.
User will be responsible for any breach of this Agreement by any third party to whom User discloses Confidential Information in accordance with the provisions of this Agreement. The obligation of confidentiality in this Agreement shall last until such time as the Confidential Information ceases to be Confidential Information as defined in this Agreement or until such other time as NEXT may designate in writing.
User will not, for a period of three years after the execution of this Agreement, without NEXT’s express written consent, become engaged, directly or indirectly, either as an individual, or in conjunction with any other person, firm, corporation or other entity, whether acting as a principal, agent, employee, consultant, partner, or in any capacity whatsoever, in a business that offers, develops and/or markets products or programs, or provides services that use, or were developed using, NEXT’s proprietary technologies, methodologies, programs, products and business concepts, including without limitation The NEXT SYSTEM (“Protected Good or Service”).
This provision is in no way intended to impede or constrain the User relative to conducting business in the User’s normal course, including without limitation rendering services such as coaching, training, teaching, consulting and advising services to User’s clients.
User will not, for a period of three years after the execution of this Agreement, without NEXT’s express written consent, either as an individual, or in conjunction with any other person, firm, corporation, or other entity, whether acting as a principal, agent, employee, consultant, or in any capacity whatsoever:
(a) solicit, attempt to solicit, or call upon, or directly or indirectly induce, any client of NEXT, to become User’s client, or the client of any person, firm, association, syndicate, partnership or company in any manner associated with User, in respect of a Protected Good or Service;
(b) solicit, attempt to solicit, or communicate in any way with any consultant or employee of NEXT (“Protected Employee”) for the purpose of having such Protected Employee leave the employ of NEXT; or
(c) hire, whether as an employee, consultant or otherwise, any Protected Employee.
5. OWNERSHIP AND PROTECTION OF INTELLECTUAL PROPERTY
"Intellectual Property" means (a) any and all proprietary rights provided under (i) patent law, (ii) copyright law, (iii) trademark law, (iv) design patent or industrial design law, or (v) any other statutory provision or common law principle, including trade secret law or the law applicable to Confidential Information, which may provide a right in ideas, formulae, algorithms, concepts, inventions, know-how or show-how; and (b) any and all applications, registrations, licenses, sublicenses, franchises, agreements or any other evidence of a right in any of the foregoing. User agrees that NEXT is and shall be the sole and exclusive owner of any and all Intellectual Property created, conceived, invented, developed or authored by User, singly or jointly, including improvements, modifications, enhancements, all derivatives and all other rights to Intellectual Property arising out of User’s participation in the Beta Test or otherwise arising. User hereby assigns all right, title and interest in and to such Intellectual Property so created, conceived, invented, developed or authored to NEXT and irrevocably waives any rights including moral or other rights that User may have in any such Intellectual Property. User agrees to do such things and to execute such further lawful documents, assurances, applications and other instruments as may be required to give effective legal and registered title to NEXT in and to such Intellectual Property, all without further consideration.
The information provided by User will only be used by NEXT as part of the Beta Test and as is necessary for improving The NEXT SYSTEM, to maintain the accuracy of his or her information or to communicate information about NEXT.
User consents to allow NEXT to collect, use, and retain personal information for the purposes stated above.
User understands that he or she has the right to request to review the personal information NEXT has on file about him or her by contacting NEXT in writing.
User understands that he or she may withdraw his or her consent to the collection, use, disclosure and retention of personal information as described above by giving NEXT reasonable written notice. User’s withdrawal of consent still allows NEXT to use personal information (i) in an aggregated fashion, stripped of personal identifiers, and (ii) for archival purposes, as required by law.
User agrees to be videotaped and/or recorded for internal development purposes only. The recordings will not be used other than for quality assurance and development purposes without User’s express written consent.
7. NO LIABILITY
Use of the NEXT System and any related methods, procedures, activities, processes are provided “as is,” “as available,” and without warranties or conditions of any kind, either express or implied, including but not limited to, any express or implied claims or warranties of merchantability or fitness for a particular purpose. The NEXT System licensed hereunder is believed to contain defects and a primary purpose of the Beta Test is to obtain feedback on the NEXT System’s performance and the identification of defects. User is advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of the NEXT System and/or accompanying materials.
User hereby indemnifies and holds NEXT, its directors, officers, managers, shareholders, affiliates, associates, employees, agents and/or people who assist, and its and their executors, administrators, heirs, successors, legal representatives and assigns, harmless from all loss, cost, obligation or damage arising out of User’s participation in the Beta Test or in other activities or events related to the Beta Test.
In no event will NEXT, its directors, officers, managers, shareholders, affiliates, associates, employees, agents and/or people who assist, and its and their executors, administrators, heirs, successors, legal representatives and assigns, be liable for any direct, indirect, incidental, special, or consequential damages, incurred by User or any third party, whether in an action in contract or tort, even if NEXT or any other person was advised of the possibility of such damages.
User acknowledges that that the information provided by NEXT through the Beta Test is a combination of information obtained from a large variety of sources (some of which are referenced), experience and insight, and that such Beta Test information is in no way intended to be, and should not be taken as, complete, comprehensive, or entirely factual. User agrees that any and all information provided to or received by User during the course of the Beta Test or otherwise does not constitute medical, legal, or other professional advice.
This Agreement is governed by and interpreted in accordance with the laws of the Province of Ontario and Canada therein, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or provincial courts located in Toronto, Ontario. To the maximum extent permitted by law, User hereby consents to the jurisdiction and venue of such courts and waives any objections to the jurisdiction or venue of such courts.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted to as best to accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under the Agreement.
Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
All notices required or permitted under this Agreement shall be in writing and shall be deemed given when (a) delivered personally, (b) sent by confirmed electronic communication, (c) three days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) the next day after deposit with a commercial express courier specifying overnight delivery, with written verification of receipt. All communications shall be sent to the addresses set forth on the signature page(s), or to such other address as may be designated by a party by giving written notice pursuant to this paragraph.
This Agreement and any Beta Test procedures specified by NEXT are the complete agreement between the parties concerning the subject matter, and replace any prior oral or written communications between the parties. There are no conditions, understandings, agreements, representations or warranties, expressed or implied, which are not specified herein. This Agreement may only be modified by a written document executed by the parties.
10. INFORMED CONSENT
User acknowledges and understands that the Beta Test was designed for people who clearly understand they are responsible for their own health and well-being before, during and after the Beta Test.
User represents as follows:
a) I know of no reason that I should not participate in the Beta Test;
b) I have considered the nature of the Beta Test and have voluntarily chosen to participate and not as a result of coercion, pressure, a condition of employment or to satisfy anyone other than myself;
c) I am fully aware of what I am undertaking and that there may be risks associated with the Beta Test. I agree that I am responsible for my own participation in the Beta Test and for my own physical, mental and emotional wellbeing, and that NEXT is responsible solely for the orderly presentation of the Beta Test; and
d) If at any time during my participation I come under the care of one or more mental health-care professionals, I agree to notify those professionals of my participation in the Beta Test and continue to update them on a regular basis as I deem appropriate.
e) User acknowledges having received or having had the opportunity to receive independent legal advice regarding this agreement.
I ACKNOWLEDGE THAT I HAVE READ, UNDERSTAND AND AGREE TO COMPLY WITH THE PROVISIONS HEREOF.