Boostpoint® Alpha/Beta Testing Agreement
For Boostpoint® Create.AI

This Boostpoint Alpha/Beta Testing Agreement (this “Agreement”) is an agreement between Boostpoint, Inc., a Pennsylvania corporation having a place of business at 117 S West End Ave, Lancaster PA 17603 (“Boostpoint”), and the organization identified by Boostpoint as accessing or using the Pre-Release Technology (as defined below) (“you” or “Company”). 

 

BEFORE ACCESSING OR USING THE PRE-RELEASE TECHNOLOGY, YOU MUST READ THIS AGREEMENT CAREFULLY.  BY (1) CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, (2) ACKNOWLEDGING ACCEPTANCE OF THIS AGREEMENT IN A SEPARATE DOCUMENT REFERENCING OR INCORPORATING THE TERMS OF THIS AGREEMENT, (3) ACCEPTING THIS AGREEMENT IN ANY OTHER MANNER SPECIFIED BY BOOSTPOINT, AND/OR (4) ACCESSING OR USING THE PRE-RELEASE TECHNOLOGY, YOU AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF THE COMPANY YOU WORK FOR OR REPRESENT. BY ACCEPTING THIS AGREEMENT ON BEHALF OF SUCH COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MUST NOT ACCESS OR USE THE PRE-RELEASE TECHNOLOGY.

 

1. Pre-Release Technology. The purpose of this Agreement is to make alpha, beta, and other pre-release versions of Boostpoint’s “Create.AI” application and related materials and information (collectively, the “Pre-Release Technology”) available to you from time to time for the purpose of your providing Boostpoint with feedback on the quality, usability, and performance of the Pre-Release Technology (collectively, the “Test Program”).  You understand that entering into this Agreement does not obligate Boostpoint to provide you with any Pre-Release Technology, and Boostpoint reserves the right to revoke your participation in the Test Program at any time.  Boostpoint is not obligated to provide you any technical or other support for the Pre-Release Technology.  You further agree that Boostpoint has no express or implied obligation to make available a commercial version of the Pre-Release Technology to anyone in the future.  Should a commercial version be made available, it may have functionality or features that are different from the Pre-Release Software, and may be subject to additional fees.

2. Licenses and Ownership.
   
   1. Pre-Release Technology. During the term of and subject to your compliance with this Agreement, Boostpoint grants you a non-exclusive, non-sublicensable, non-transferable, limited, revocable right and license to access and use the Pre-Release Technology, and the outputs, results, responses, images and graphics, questions, scripts, workflows, and other content produced by the Pre-Release Technology as a result of processing Your Inputs (as defined below) (collectively, “Generated Content”),  solely for your internal testing and evaluation purposes in connection with the Test Program and in accordance with the instructions provided by Boostpoint.  YOU MAY USE THE PRE-RELEASE TECHNOLOGY AND ANY GENERATED CONTENT FOR YOUR INTERNAL BUSINESS PURPOSES, INCLUDING, WITHOUT LIMITATION, FOR RECRUITING, HIRING, TALENT ACQUISITION, ADVERTISING, OR HUMAN RESOURCE PURPOSES, OR FOR MAKING DECISIONS RELATING TO EMPLOYMENT.
   2. You shall not (nor authorize nor permit any other person or entity to) (i) modify or create derivative works of the Pre-Release Technology; (ii) distribute, re-sell, sublicense, or publicly display or perform the Pre-Release Technology, Generated Content, any portion thereof, or any materials or information based upon the Pre-Release Technology or Generated Content; or (iii) reverse engineer, decode, disable, decompile, or translate or convert the Pre-Release Technology or any part thereof, or otherwise attempt to derive its source code or protocols, or merge or bundle it with any other software, products or services. All Generated Content is owned by Boostpoint. You shall not make the Pre-Release Technology or Generated Content available to any third party, including, without limitation, to any competitor of Boostpoint. You shall not remove any copyright, confidentiality, proprietary rights, or similar notices from the Pre-Release Technology or Generated Content. You agree not to contest Boostpoint’s title or intellectual property rights in or to the Pre-Release Technology or Generated Content, and you shall not copy or emulate any features or functionality of the Pre-Release Technology or Generated Content.
   3. Your Inputs. “Your Inputs” means any data that is input into the Pre-Release Technology by you or on your behalf, including, without limitation, any prompts, requests, text, graphics, images or any other information or material that you submit to the Pre-Release Technology.  You hereby grant Boostpoint a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide right and license to prepare, compile, download, install, make, have made, use, execute, access, reproduce, distribute, display, perform, modify, and create derivative works, improvements and other enhancements of Your Inputs, including, without limitation, the right to use Your Inputs for product research and development, and for training, testing, and improving the algorithms, machine learning models, and other functionality and features of the Pre-Release Technology.  You acknowledge that you have no expectation of personal privacy or confidentiality with respect to Your Inputs, and you shall ensure that Your Inputs do not contain (i) information about personal or other sensitive topics, such as health information, payment card information, or bank account information, (ii) any other information, the use of which would violate the privacy rights of third parties, or (iii) material in or with respect to which third parties have copyrights or other intellectual property or proprietary rights (including publicity rights), unless you have obtained written licenses from such third parties that permit all uses of such material as contemplated in this Agreement.

3. No Warranties; Disclaimer of Liability. You acknowledge and agree that the Pre-Release Technology is currently unfinished and may contain defects, and you may experience errors, malfunctions, and/or interruptions of service, corruption, or loss of data or information.  ACCORDINGLY, YOU AGREE THAT YOUR USE OF THE PRE-RELEASE TECHNOLOGY AND GENERATED CONTENT IS AT YOUR SOLE RISK, AND THE PRE-RELEASE TECHNOLOGY AND GENERATED CONTENT IS PROVIDED “AS IS” AND “WITH ALL DEFECTS,” AND BOOSTPOINT HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES (EXPRESS OR IMPLIED) CONCERNING THE PRE-RELEASE TECHNOLOGY, GENERATED CONTENT, AND THE TEST PROGRAM, INCLUDING, WITHOUT LIMITATION, ALL SOFTWARE, SERVICES, AND TOOLS ON OR PROVIDED IN CONNECTION WITH THE PRE-RELEASE TECHNOLOGY, GENERATED CONTENT, AND THE TEST PROGRAM, AND SPECIFICALLY INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, ACCURACY OR COMPLETENESS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, COMPLIANCE WITH LAWS, RULES, OR REGULATIONS, FREEDOM FROM BIAS, OR UNINTERRUPTED OR ERROR-FREE OPERATION.  IN ADDITION, BOOSTPOINT SHALL NOT BE LIABLE FOR ANY DAMAGES IN CONNECTION WITH THE DEVELOPMENT OR USE OF THE TEST PROGRAM, PRE-RELEASE TECHNOLOGY OR GENERATED CONTENT, OR ANY OUTAGES, ERRORS, OR DEFECTS THEREIN, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES, OR ANY DAMAGES FOR LOST SALES, PROFITS, BUSINESS, OPPORTUNITIES, OR DATA, WHETHER OR NOT BOOSTPOINT HAS BEEN ADVISED OF OR HAS REASON TO KNOW ABOUT THE POSSIBILITY OF ANY SUCH DAMAGES.  In the event that, notwithstanding the foregoing, Boostpoint is held to be LIABLE for damages or other relief, you agree that Boostpoint’s aggregate liability arising from or relating to this Agreement and your use of the TEST PROGRAM, Pre-Release Technology AND GENERATED CONTENT is limited to direct damages, and will not exceed FIVE HUNDRED U.S. DOLLARS ($500).  THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; PROVIDED THAT BOOSTPOINT WILL HAVE NO LIABILITY WHATSOEVER ARISING FROM YOUR MISUSE OF GENERATED CONTENT OR VIOLATION OF APPLICABLE LAWS.  You will indemnify, defend, and hold harmless Boostpoint and its officers, directors, employees, and agents, from and against any and all claims, actions, demands, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees and litigation costs) relating to or arising out of Your Inputs or your use of the Pre-Release Technology and/or Generated Content.

4. Confidentiality. You agree that all non-public information concerning the Pre-Release Technology, the results of any testing, the terms of this Agreement, and your experience as a participant in development and testing (including any defects, errors, or malfunctions experienced) are the confidential and proprietary information of Boostpoint.  You will only use such information for the Test Program, and will not disclose it to any third party except as may be required by law, provided that you give Boostpoint prior written notice of such disclosure and cooperate with Boostpoint, at Boostpoint’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. At the time of termination, you agree to return all such information to Boostpoint or destroy it (if directed by Boostpoint).  During and after the term of this Agreement, you shall not make disparaging statements about Boostpoint or the Pre-Release Technology.

5. Feedback. As part of the Test Program, Boostpoint will be collecting, using, storing, and processing diagnostic, technical, and usage logs and other information in connection with your use of the Pre-Release Technology (collectively, “Usage Data”). Boostpoint owns and has the right to freely use and share all Usage Data, and all ideas, inventions, suggestions, improvements, and other feedback  provided by you (collectively “Feedback”) in connection with your participation in the Test Program and/or the development and testing of the Pre-Release Technology, without any obligation to obtain your consent or pay any compensation.   You hereby assign all worldwide right, title, and interest in and to the Feedback to Boostpoint, and you shall execute such documents and take such further measures as Boostpoint may reasonably request to record, perfect, or enforce such rights. 

6. Term and Termination. This Agreement will be effective as of the date on which you accept it (as described in the preamble to this Agreement), including by accessing or using the Pre-Release Technology, and will continue for a period of time determined by Boostpoint, in its sole discretion. Boostpoint reserves the right to terminate this Agreement, the Test Program, your participation in the Test Program, and/or to change, add, or delete features, functionalities, or services offered through the Test Program and/or the Pre-Release Technology, at any time in Boostpoint’s sole discretion.  This sentence, and Sections 2(b), 2(c), 3-5, and 8 of this Agreement, will survive termination of this Agreement.  You may terminate this Agreement at any time by written notice to Boostpoint, upon which you may no longer participate in the Test Program or access or use the Pre-Release Technology. 

7. Press Release. Boostpoint may issue a press release regarding Customer’s entry into this Agreement and use of the Services. Boostpoint may also refer to Customer as a customer or user of the Services in marketing materials, trade shows, and other promotional or industry-focused communications, and on Boostpoint’s website.

8. Other Agreements. You may be or become entitled to receive access to other Boostpoint products or services under a separate agreement with Boostpoint.  In such case, that separate agreement will govern your access to the other Boostpoint products or services, but will not govern your access to the Pre-Release Technology or Boostpoint’s right to use Your Inputs.

9. General. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without reference to conflicts of laws principles.  Any dispute between the parties, whether or not arising from this Agreement or its performance, shall be determined by one arbitrator in binding arbitration administered by the American Arbitration Association, in Philadelphia, Pennsylvania.  The arbitrator’s award shall be final and binding on the parties, and may be entered and enforced in any court of competent jurisdiction. You acknowledge that your actual or threatened violation of this Agreement could cause irreparable harm and significant injury to Boostpoint that may be difficult to ascertain. Accordingly, notwithstanding the foregoing, you agree that Boostpoint will have the right to seek immediate injunctive relief from any court of competent jurisdiction to enforce your obligations under this Agreement in addition to any other rights and remedies it may have.  You may not assign this Agreement without Boostpoint’s prior written consent.  Boostpoint may assign this Agreement without your consent.  This Agreement represents the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior negotiations and agreements between the parties regarding the same. This Agreement may only be amended or waived by the mutual written agreement of the parties.  There are no third-party beneficiaries to this Agreement.