Beta Tester Agreement

Last updated: August 26, 2024

This Beta Tester Agreement (the “Agreement”) is entered into as of the date when the Tester accepts the terms of this Agreement (the "Effective Date") by installing the Software (as defined below) 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 office located at Glandore Business Centre, Grand Canal House, 1 Grand Canal Street Upper, Dublin 4, D04 Y7R5, company number 630862.

RECITALS

WHEREAS, the Company is engaged in developing software known as "Spark Desktop Beta" (the “Software”);

WHEREAS, the Tester wishes to participate in the beta testing of the Software, and the Company desires to obtain feedback from the Tester on the Software;

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:

1. COMPANY'S OBLIGATIONS

1.1 The Company agrees to provide the Tester with a free copy of the Software for beta testing purposes and will provide the necessary instructions and guidance for its use.

1.2 The Company is under no obligation to disclose any specific information regarding the Software to the Tester beyond what is necessary for the beta testing.

2. TESTER'S OBLIGATIONS

2.1 "Tester" shall mean the individual or entity accepting this Agreement and participating in the beta testing of the Software.

2.2 The Tester agrees to:

1. Use the Software under typical operating conditions within their environment.
2. Provide the Company with feedback, reports, and any other data as agreed upon.
3. Refrain from using the Software for any purpose other than testing, including but not limited to commercial use or redistribution.
4. Promptly report any bugs, errors, or issues encountered during testing.
5. Maintain the confidentiality of the Software as stipulated in Section 3.

2.2 All feedback, including bug reports, suggestions, media, or other contributions from the Tester concerning the Software (collectively, “Ideas”), shall be the property of the Company, and the Company may use such Ideas in any manner it deems appropriate.

2.3. If the Company has reasonable grounds to believe that the Tester fails to comply with the obligations outlined in clause 2.2 above, the Company may suspend or permanently discontinue the Tester’s access to the Software or any of its functionalities without prior notice.

3. CONFIDENTIALITY AND TRADE SECRETS

3.1 The Tester acknowledges that the Software is proprietary and a valuable trade secret of the Company.

3.2 The Tester agrees to treat all information regarding the Software with the highest level of confidentiality and shall not, without the prior written consent of the Company:

1. Disclose any information about the Software, including but not limited to its design, performance specifications, code, and the results of the beta test, to any third party.
2. Copy or reproduce any part of the Software or its documentation, except as necessary for beta testing.
3. Reverse engineer, decompile, or disassemble the Software.
4. Publish or disclose any screenshots, photographs, technical information, or other details about the Software on any platform, including social media or online forums.

3.3 In the event of a breach of these obligations, the Company shall be entitled to seek damages, including but not limited to, direct losses and lost future profits, and may also seek injunctive relief to prevent further breaches.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 The Company retains all rights, title, and interest in and to the Software, including all intellectual property rights. This Agreement does not grant the Tester any ownership rights or licenses in the Software, except as explicitly stated herein for testing purposes.

4.2 The Tester acknowledges that any enhancements, modifications, or derivatives of the Software that may arise during the course of testing shall be the sole property of the Company, regardless of any contributions made by the Tester.

5. SECURITY PRECAUTIONS

5.1 The Tester shall take all reasonable security measures to prevent unauthorized access to the Software, whether directly or indirectly, through any media or platform.

6. DATA PROTECTION AND PRIVACY

6.1 The Tester agrees that any personal data collected during the course of the beta testing shall be processed in accordance with applicable data protection laws, including the General Data Protection Regulation (GDPR) if applicable.

6.2 The Tester consents to the processing of their data as necessary for the purposes of this Agreement.

6.3 The Company agrees to handle all personal data with the utmost care and in accordance with the GDPR.

7. TERM AND TERMINATION

7.1 This Agreement comes into legal force when the Tester installs the Software. This Agreement shall remain in effect until terminated by either party.

7.2 Either party may terminate this Agreement at any time, with or without cause.

7.3 Upon termination, the Tester must cease all use of the Software and comply with Section 8 regarding the deletion of the Software.

7.4 The obligations and restrictions set forth in Sections 3, 4, 5, 6, 9, 10, 11, and 12 of this Agreement shall survive the termination or expiration of this Agreement.

8. DELETION OF SOFTWARE

8.1 Upon request by the Company, the Tester shall permanently delete all copies of the Software from all devices, storage media, and online storage services.

8.2 The Tester shall provide written confirmation to the Company that the Software has been deleted.

9. DISCLAIMER OF WARRANTY

9.1 The Tester acknowledges that the Software is provided on a beta basis and is inherently experimental.

9.2 The Company makes no warranties, express or implied, regarding the Software, including but not limited to any implied warranties of merchantability or fitness for a particular purpose.

9.3 The Software is provided "AS IS," and the Tester uses it at their own risk.

9.4 The Company reserves the right to suspend, alter, or discontinue the operation of the Software or your access to it without prior notice, which may result in loss of your data. You are solely responsible for securing yourself from the irretrievable loss of your data and agree not to use the Software as a single place of storage for your data. 

10. TESTER’S LIABILITY

10.1 The Tester acknowledges that the obligations set forth in this Agreement are necessary and reasonable to protect the Company's interests.

10.2 The Tester agrees that any breach of this Agreement may result in irreparable harm to the Company, for which monetary damages would be insufficient.

10.3 Therefore, the Company shall be entitled to seek injunctive relief, in addition to any other remedies available at law or equity, to prevent or address any breach or threatened breach by the Tester.

11. LIMITATION OF LIABILITY

11.1 The Company shall not be liable for any direct, indirect, incidental, special, or consequential damages arising out of or related to the Tester's use of the Software, whether based on contract, tort, or any other legal theory.

11.2 The Tester acknowledges that the Company’s liability for any claim arising out of or relating to this Agreement or the Software shall not exceed the amount paid by the Tester to participate in the beta testing, which is typically zero.

12. INDEMNIFICATION

12.1 The Tester agrees to indemnify, defend, and hold harmless the Company, its affiliates, officers, directors, employees, and agents from any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to:

1. The Tester’s breach of any term or condition of this Agreement.
2. The Tester’s unauthorized use of the Software.
3. Any claim that the Tester’s feedback or Ideas infringe on the intellectual property rights of any third party.

13. NO RIGHTS GRANTED

13.1 The Tester understands that the Software is provided solely for testing purposes and that this Agreement does not grant the Tester any rights, title, or interest in the Software or any of the Company's trade secrets.

13.2 The Tester may not sell, transfer, or demonstrate the Software to any third party or use it in any other manner not expressly permitted by this Agreement.

14. NO ASSIGNMENT

14.1 The Tester may not assign or transfer any of their rights or obligations under this Agreement without the prior written consent of the Company.

15. ENTIRE AGREEMENT

15.1 This Agreement constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes all prior agreements, discussions, and understandings, whether oral or written.

16. AMENDMENTS

16.1 The Company may amend this Agreement in its sole discretion at any time. In case of any material changes, the Company shall provide notice on its website or within the Software, and/or send an email notification at the address provided by the Tester upon enrolling in the beta testing program. 

17. SEVERABILITY

17.1 If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the Agreement, and the remaining provisions shall remain in full force and effect.

18. GOVERNING LAW AND DISPUTE RESOLUTION

18.1 This Agreement shall be governed by and construed in accordance with the laws of the Republic of Ireland, without regard to its conflict of law principles.

18.2 Any disputes arising out of or in connection with this Agreement shall be resolved through the courts located in Dublin, Ireland. The Tester and the Company agree to submit to the personal jurisdiction of these courts for the purpose of litigating any such disputes.

By installing the Software, the Tester acknowledges that they have read, understood, and agree to be bound by the terms of this Agreement.