Last updated: December 15, 2021
This Beta Tester Agreement (the “Agreement”) is made effective on December 15, 2021 by and between the Tester (as defined below) and:
Spark Mail Limited (the "Company" or “Spark”), a company organized and existing under the laws of the Republic of Ireland, with its head office located at 6 Harcourt Terrace, Dublin 2, D02P210 Ireland, company number 630862.
In connection with Spark testing activities, as proposed or agreed to by Spark from time to time, by installing the Spark Desktop Beta (the “Software”) on your device you, as a tester and participant in such activities (the “Tester”), hereby unconditionally agree strictly adhere to the following terms and conditions:
The Company shall provide the Tester with a copy of the Software and instruct the Tester on using it and the desired test data to be gained.
This Agreement does not impose any obligation on Spark to disclose any information concerning the Software to the Tester.
The Tester shall test the Software under customarily expected operating conditions in the Tester's environment during the test period. The Tester shall gather and report test data as mutually agreed upon with the Company.
All bug or error reports, feedback, photos, videos, audio clips, audiovisuals, other media, comments, or ideas the Tester submits to Spart about the Software will be considered as “Ideas,” and Spark will have the right to use and disclose such Ideas as it deems necessary.
The Tester acknowledges that the Software is proprietary to, and a valuable trade secret of, the Company and is entrusted to the Tester only for the purpose outlined in this Agreement. The Tester shall treat the Software in the strictest confidence. The Tester agrees that it will not, without the Company's prior written consent:
Should the Tester fail to honor the above restrictions, the Company shall be entitled to claim damages, including direct losses and lost future profit, from the Tester.
The Tester shall take reasonable security precautions to prevent the Software from being seen by unauthorized individuals whether directly, via any video platform, any other media, or otherwise.
The test period shall last from December 15th, 2021, until 31 December 2022. This Agreement shall terminate at the end of the test period or when the Company asks the Tester to cease testing activities, whichever occurs first. The restrictions and obligations contained in Articles 3, 6, 7, 8, and 9 shall survive the expiration, termination, or cancellation of this Agreement and continue to bind the Tester, its successors, heirs, and assigns.
Upon receipt of a request from the Company, the Tester shall erase the Software from all devices and/or storage mediums, including online storage services.
The Tester understands and acknowledges that the Software is a test product, and its accuracy and reliability are not guaranteed. Owing to its experimental nature, the Tester is advised not to rely exclusively on the Software for any reason. The Tester waives any claims it may have against the Company arising out of the performance or non-performance of the Software.
THE SOFTWARE IS PROVIDED "AS IS, “ AND THE COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, CONCERNING IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
The Tester’s obligations in this Agreement are necessary and reasonable to protect Spark and its business. Due to the unique nature of the Software, monetary damages would be inadequate to compensate Spark for any breach by the Tester of this Agreement. Accordingly, the Tester hereby agrees that any breach or threatened breach of this Agreement may cause irreparable injury to Spark and, in addition to any other remedies available at law, in equity, or otherwise, Spark will be entitled to obtain injunctive relief against the Tester’s threatened or continuing breach of this Agreement.
The Company shall not be responsible for any loss or damage to the Tester or any third parties caused by the Software or by the Company's performance of this Agreement.
THE COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF THE SOFTWARE OR ANY PERFORMANCE OF THIS AGREEMENT.
The Tester understands and acknowledges that the Software is provided for its use for testing purposes only. This Agreement does not constitute a grant or an intention or commitment to grant any right, title, or interest in the Software or the Company's trade secrets to the Tester. The Tester may not sell or transfer any portion of the Software or demonstrate its design to any third party or use the Software in any manner.
This Agreement is personal to the Tester. The Tester shall not assign or otherwise transfer any rights or obligations under this Agreement.
This Agreement contains the entire understanding and agreement of the parties relating to the subject matter hereof. Any representation, promise, or condition not explicitly outlined in this Agreement shall not be binding on either party.
This Agreement is made under and shall be construed according to the laws of the Republic of Ireland.