Beta Test Participation Agreement

This Beta Use Participation Agreement (this “Agreement”) is made and entered into by and between Urban Airship, Inc. (“Urban Airship”), and the “Customer” specified in the signature block below. This Agreement is separate from and independent of any Urban Airship Services Agreement between the Parties and this Agreement does not pertain to any products or services offered under such Agreement. This Agreement describes the terms and conditions under which Customer may access and use certain features, technologies and services that are not yet generally commercially available (each, a “Beta Service”). Urban Airship and Customer are sometimes referred to collectively as the “Parties” and each individually as a “Party.”

1. Definitions

   • “Beta Materials” means any hardware, software, specifications or other technical documentation related to a specific Beta Service that may be provided to Customer by Urban Airship.

   • “Beta Use” means the testing and evaluation of a specific Beta Service by Customer and certain other Urban Airship customers or business partners.

   • “Beta Use Information” means all information relating to Customer’s use, testing or evaluation of a Beta Service or any related Beta Materials, including all observations or information regarding the performance, features and functionality of a Beta Service or any related Beta Materials.

   • “Feedback” means all feedback, suggestions, and ideas that Customer provides to Urban Airship or its affiliates concerning improvements or enhancements to a Beta Service or any related Beta Materials.

   • “Confidential Information” means all nonpublic information disclosed by Urban Airship party, its affiliates, or the agents of any of the foregoing to Customer, its affiliates, or the agents of any of the foregoing, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation (a) nonpublic information relating to Urban Airship’ or its affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs, (b) third-party information that Urban Airship or its affiliates is obligated to keep confidential, (c) Beta Materials, Beta Use Information, Feedback, or any other information about or involving (including the existence of) any of the Beta Uses or Beta Services, and (d) the nature, content and existence of this Agreement and any discussions or negotiations between the Parties. Confidential Information does not include any information that (i) is or becomes publicly available without breach of this Agreement, (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party, (iii) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iv) can be shown by documentation to have been independently developed by the receiving party without reference to any Confidential Information.

   • “Policies” means all policies and guidelines related to any Beta Service, Beta Materials or other web services offered by Urban Airship or its affiliates and made available to Customer, including privacy policies, terms of use, acceptable use policies, and any additional terms and conditions for a specific Beta Use.

2. Participation in Beta Uses

   1. Generally. Urban Airship grants Customer a limited, nonexclusive, non- transferable, royalty-free, revocable license to do the following during the term of the applicable Beta Use: (a) access and use the Beta Service solely for internal evaluation purposes; and (b) install, copy, and use any related Beta Materials solely as necessary to access and use the Beta Service in the manner permitted by this Agreement. After the conclusion of a Beta Use, Customer will not have any further right to use the applicable Beta Service, and if Urban Airship releases a generally available version of the Beta Service, Customer’s use of the generally commercially available version will be subject to separate terms and conditions. However, Urban Airship does not guarantee that any Beta Service will ever be made generally commercially available, or that any generally commercially available version will contain the same or similar functionality as the version made available by Urban Airship during the Beta Use.

   2. Restrictions and Limitations. Customer will not:

      1. allow access to any Beta Service or Beta Materials by any third party other than Customer’s employees and contractors who (i) have a need to use or access the Beta Service or Beta Materials in connection with Customer’s internal evaluation activities and (ii) have executed written nondisclosure agreements obligating them to protect the confidentiality of the Beta Service and Beta Materials;
      2. use any Beta Service or Beta Materials in violation of any Additional Policy;
      3. violate any usage limits for a Beta Service that Urban Airship may communicate to Customer;
      4. export or allow access to any Beta Service or Beta Materials in any manner contrary to the export regulations of the United States; or
      5. otherwise access or use any Beta Service, or install, copy or use any Beta Materials, in any manner or for any purpose not expressly permitted by this Agreement.

      Urban Airship may modify the permitted use of or suspend Customer’s access to any Beta Service at any time and for any reason. Beta Services also may be unavailable or their performance may be negatively affected by scheduled maintenance. No service levels or other uptime guarantees apply to the Beta Services. Urban Airship will use reasonable efforts to notify Customer in advance of scheduled maintenance, but Urban Airship is unable to provide advance notice of unscheduled or emergency maintenance.

   3. Beta Use Information and Feedback. In consideration of the rights granted in this Agreement, Customer will provide Beta Use Information, when and in the form reasonably requested by Urban Airship. Urban Airship will have a perpetual and irrevocable right to use, evaluate and otherwise exploit all Beta Use Information for its own purposes. Customer will not use any Beta Use Information except for its internal evaluation purposes. Urban Airship has a perpetual and irrevocable right to use and exploit all Feedback and may use the Feedback without accounting or compensation to Customer. Customer will not provide any Beta Use Information or Feedback unless it has all rights necessary to do so.

3. Term and Termination

   1. Term. The term of each individual Beta Use will be specified by Urban Airship, but will automatically terminate upon the release of a generally commercially available version of the applicable Beta Service. The term of this Agreement will commence on the date the last Party signs the Agreement and will continue until terminated pursuant to Section 3.2.

   2. Termination. Either Party may terminate Customer’s participation in an individual Beta Use, or this Agreement entirely, at any time for any reason upon notice to the other Party. Upon termination of this Agreement: (a) all rights and licenses granted to Customer in this Agreement will immediately terminate; (b) Customer will immediately return or, if instructed by Urban Airship, destroy all Beta Materials or any other confidential or proprietary information of Urban Airship or its affiliates related to any Beta Service or this Agreement; and (c) Sections 2.4 and 4 through 7 will survive.

4. Confidentiality

   1. Use and Disclosure. Customer may not disclose any Confidential Information during the term of this Agreement or at any time during the three (3) year period following the end of the Term. If the Parties have executed a separate non-disclosure agreement (the “NDA”) and there is a conflict between the terms of the NDA and the terms of this Section 4.1, the terms of the NDA will control.

   2. Publicity. Neither Party will issue any press release or public statement regarding this Agreement or any Beta Use, Beta Service or Beta Materials unless the other Party has approved in writing the time, form and content of the information to be disseminated to third parties or the public.

5. Disclaimer of Warranties

   THE BETA SERVICES AND BETA MATERIALS ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, URBAN AIRSHIP IS PROVIDING THE BETA SERVICES AND BETA MATERIALS TO COMPANY “AS IS.” URBAN AIRSHIP MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES OR BETA MATERIALS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANY PUBLISHED MATERIALS THAT STATE OTHERWISE, URBAN AIRSHIP DOES NOT WARRANT THAT THE BETA SERVICES OR BETA MATERIALS WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

6. Limitation of Liability

   NEITHER URBAN AIRSHIP NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE AGGREGATE LIABILITY OF Urban Airship AND ITS AFFILIATES AND LICENSORS ARISING FROM OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID (IF ANY) BY COMPANY TO Urban Airship UNDER THIS AGREEMENT.

7. Miscellaneous

   Except for those limited rights expressly granted in Section 2.1, Urban Airship and its licensors retain all right, title and interest in and to the Beta Services and the Beta Materials, including all related intellectual property rights. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. This Agreement further controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing who take their rights hereunder. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except that Urban Airship may assign and delegate this Agreement pursuant to a transfer of all or substantially all of Urban Airship’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to and waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Multnomah County, Oregon. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement and all expressly referenced documents constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including any reseller or similar agreements previously executed by the parties. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth below each Party’s signature.