BETA TESTING AGREEMENT
This Beta Testing Agreement (the “Agreement”) is made by and between TuTu, Inc. (“TuTu”), and you (the “User”).
GENERAL TERMS AND CONDITIONS
A. TuTu operates a video sharing website at TuTu.com. TuTu has developed a system that delivers informational and entertainment audiovisual to cellular telephones, including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material (the “Video System”).
B. TuTu desires that the Video System be tested prior to general release.
C. User wishes to serve as a Beta tester for the Video System.
NOW, THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties hereto agree as follows:
1. TuTu grants to User a non-exclusive, non-transferable license to use the Video System on a single cellular device solely for Beta testing and Beta use from effective date of this Agreement for a period of 30, subject to the term and conditions below.
2. User must meet certain conditions: User must be 18 or older, must reside in the US, and must have a US cellular phone with a US telephone number and must be the responsible party on the cellular phone account. Only the following providers are supported: Cingular, _______, _______. User must complete the sign-in procedure by sending the following text message: “XXXX” to the following number: “0000”.
3. A component of the Video System is the integrated cellular services billing system, and must be tested. As such, the User will be charged $9.99 directly by their cellular carrier to receive the video content. The $9.99 fee shall be reimbursed to User as described in the following Paragraph.
4. User shall receive a Beta tester’s payment (the “Payment”) of $59.99. The Payment includes a reimbursement of the $9.99 cellular service fee, and a $50.00 fee for participating in the Beta testing program. The Payment of $59.99 shall be sent by mail to the User’s address on this Agreement.
5. User agrees to serve as a Beta tester for the Video System and will notify TuTu of all problems and ideas for enhancements which come to User’s attention during the period of this Agreement, and hereby assigns to TuTu all right, title and interest to such enhancements and all property rights therein including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights. Such problems and ideas shall be directed to _______________@TuTu.com.
6. User agrees to respond to reasonable inquiries from TuTu with regard the functionality, performance, and overall experience with respect to the Video System. User, upon completion of the Beta test agrees to provide material, statistics, or information that is not deemed confidential to User’s business for use in press releases, customer testimonials, and as a reference in marketing and sales initiatives by TuTu. User will, if asked, provide a quote to TuTu that may be used in a public statement. User hereby assigns to TuTu all right, title and interest to such communications and resulting enhancements and all property rights therein including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights.
7. User acknowledges and consents to the delivery of some adult content within the Video System. The adult content may not be appropriate to young viewers.
8. The Video System is a prerelease product and is not at the level of performance or compatibility of a final, generally available product offering. The Video System may not operate correctly and may be substantially modified prior to first commercial availability, or may be withdrawn. The Video System is provided “AS IS” without warranty of any kind. The entire risk arising out of the use or performance of Video System remains with User. In no event shall TuTu be liable for any damage whatsoever arising out of the use of or inability to use Video System, even if TuTu has been advised of the possibility of such damages.
9. User agrees that the Video System is the sole property of TuTu until it is officially released and includes valuable trade secrets of TuTu. User agrees to treat the Video System as confidential and will not without the express written authorization of TuTu:
Publish or otherwise disclose the instructions for subscribing to the Video System.
Publish or otherwise disclose information relating to performance or quality of the Video System to any third party.
Modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the Video System or any portion thereof.
Make complaints regarding the Video System to the User’s cellular carrier.
10. Upon the completion of the Beta testing period, the User may choose whether to continue to subscribe to the Video System. At the completion of the Beta testing period, the User will remain subscribed to the Video System. User bears responsibility for terminating the subscription–in the event that the User fails to terminate his or her Video System subscription, the User shall continue to be billed by their cellular carrier at the standard post-Beta service fee of $9.99 per month.
11. This Agreement shall be governed, construed and enforced in accordance with the laws of the United States of America and of the State of Virginia. Any notice required by this Agreement shall be given by prepaid, first class, certified mail, return receipt requested to above address or such other address as may be given from time to time under the terms of this notice provision.
12. This Agreement constitutes the entire and only agreement between the parties for Video System and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties.
13. User shall comply with all applicable federal, state and local laws, regulations, and ordinances in connection with its activities pursuant to this Agreement.
14. Failure of TuTu to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right.
15. If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.