Terms of Service - Beta Testing

Beta Testing Terms of Service

THE LEGAL AGREEMENTS SET OUT BELOW GOVERN YOUR PARTICIPATION IN BETA TESTING AND USE OF BETA PRODUCTS OR SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “AGREE,” AND DO NOT ACCESS OR USE THE BETA PRODUCTS OR SERVICES. YOU ACKNOWLEDGE THAT BY USE OF THE BETA PRODUCTS OR SERVICES, YOU AGREE TO ABIDE BY AND THEREFORE ARE BOUND BY THESE TERMS.

Review the terms and conditions for participation as a Beta Tester and use of Wizzard Media’s Beta Products or Services. These Terms and Conditions (“Terms”) apply to testing of Beta Products or Services including but not limited to software, services, websites, and Smartphone or other app offerings (“Beta”). Beta Products and Services are the property of Webmayhem, Inc. doing business as Liberated Syndication and as Libsyn and its licensors. Webmayhem is a wholly owned subsidiary of FAB Universal Corp.

These Terms of Service are a legally binding Agreement between you (“Tester”) and Libsyn (“Company”), governing the use of Beta Products and Services. By use of the Beta, you agree to abide by and are therefore bound by the Terms, together with all updates, additional terms, distribution licenses and all of Libsyn’s Terms, rules and policies that collectively constitute the Agreement. If you do not agree to these Terms or do not have full power and authority to enter into this Agreement, do not use the Beta.

1. Company Obligations

Company shall provide Tester with a copy of Beta and any necessary documentation and instruct Tester on how to use it and what test data is desired by Company. Upon satisfactory completion of the testing, Company shall furnish Tester with an expedited release, as appropriate of the production version of Beta, contingent upon Company’s decision to proceed with production of Beta.

2. Tester’s Obligations

Tester shall test Beta and provide and keep Company aware of the test results. Tester shall use Beta under normally expected operating conditions in Tester’s environment during the test period unless otherwise instructed by the Company. Tester shall gather and report test data as agreed upon with Company.

3. Trade Secret

Betas are proprietary to, and a valuable trade secret of, Company. It is entrusted to Tester only for the purpose set forth in this Agreement. Tester shall maintain Beta in the strictest confidence. Tester will not, without Company’s prior written consent:

(a) disclose any information about Beta including but not limited to, its design and performance specifications, its code, and the existence of the beta test and its results to anyone other than Tester’s employees who are performing the testing and who shall be subject to nondisclosure restrictions at least as protective as those set forth in this Agreement;

(b) copy any portion of Beta or documentation, except to the extent necessary to perform beta testing; or

(c) reverse engineer, decompile or disassemble Beta or any portion of it.

4. Security Precautions

Tester shall take reasonable security precautions to prevent Beta from being seen by unauthorized individuals when stored on Tester’s computers, platforms or devices. Tester shall take reasonable care to protect Beta and all associated documentation in a secure location such as a locked office, desk or file cabinet when not in use.

5. Term of Agreement

The test period shall be outlined for each Beta as provided in the Beta documentation. This Agreement shall terminate at the end of the test period or when Company asks Tester to remove Beta, whichever occurs first. The restrictions and obligations contained in Clauses 4, 7, 8, 9 and 10 shall survive the expiration, termination or cancellation of this Agreement, and shall continue to bind Tester, its successors, heirs and assigns.

6. Return of Beta and Materials

Upon the conclusion of the testing period or at Company’s request, Tester shall within 10 days delete all portions of Beta from all Tester’s computers, platforms or devices.

7. Disclaimer of Warranty

Beta is a test product and its accuracy and reliability are not guaranteed. Tester shall not rely exclusively on Beta for any reason. Tester waives any and all claims Tester may have against Company arising out of the performance or nonperformance of Beta.

BETA IS PROVIDED AS IS, AND COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

8. Limitation of Liability

Company shall not be responsible for any loss or damage to Tester or any third parties caused by Beta. COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT

OR TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF BETA OR ANY PERFORMANCE OF THIS AGREEMENT.

9. No Rights Granted

This Agreement does not constitute a grant or an intention or commitment to grant any right, title or interest in Beta or Company’s trade secrets to Tester. Tester may not sell or transfer any portion of Beta to any third party or use Beta in any manner to produce, market or support its own products. Tester shall not identify Beta as coming from any source other than Company.

10. No Assignments

This Agreement is personal to Tester. Tester shall not assign or otherwise transfer any rights or obligations under this Agreement.

11. General Provisions

(a) Relationships: Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint-venture or employee of the other party for any purpose.

(b) Severability: If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.

(c) Integration: This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This Agreement may not be amended except in a writing signed by both parties.

(d) Waiver: The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.

(e) Attorney Fees and Expenses: In a dispute arising out of or related to this Agreement, the prevailing party shall have the right to collect from the other party its reasonable attorney fees and costs and necessary expenditures.

(f) Governing Law: This Agreement shall be governed in accordance with the laws of the Commonwealth of Pennsylvania.

(g) Jurisdiction: The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Allegheny County, Pennsylvania in any action arising out of or relating to this Agreement. The parties waive any other venue to which either party might be entitled by domicile or otherwise.

Effective: July 15, 2014

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