A-EON betatesting agreement
CONFIDENTIALITY AND BETA TESTING AGREEMENT
This agreement (this "Agreement") is made and entered into as of this x day of August 2010,
BY AND BETWEEN:
1. IMPORTANT: insert your first name, last name, full address including country and valid e-mail address. If you are a company subject to VAT, please mention full company details including VAT number
Hereafter referred to as “Betatester”;
2. A-EON TECHNOLOGY CVBA, a Belgian corporation with its administrative seat at Langestraat 36, 1741 Ternat, BELGIUM
Hereafter referred to as “A-EON”;
RECITALS
WHEREAS Hyperion Entertainment CVBA has developed AmigaOS 4.1 for a number of PowerPC based hardware platforms;
WHEREAS A-EON has commissioned the high-end AmigaOne X1000 motherboard equipped with a dual core POWERPC CPU and an onboard XMOS chip from a professional hardware design company i.e. Varisys Ltd.;
WHEREAS Hyperion has completed an initial port of AmigaOS 4.1 (including booting to Workbench) for revision 1 of the AmigaOne X1000;
WHEREAS A-EON as decided to produce an initial batch of 100 to 125 units of revision 2 of the AmigaOne X1000 to be rolled-out to qualified betatesters (i.e. technically skilled and knowledgeable users specifically excluding consumers) in order to maximize the quality of both hardware and software for end-consumers;
WHEREAS Betatester undertakes to test said hardware and associated software and file useful bugreports using an industry standard bugtracking database;
WHEREAS A-EON has decided that, due to overwhelming demand and the need to retain only truly motivated betatesters, an advance of 750 euro is payable to A-EON’s bankaccount which shall be reimbursed by A-EON at first request by Betatester at any time prior to the actual shipment of the hardware to Betatester;
WHEREAS it is inevitable that the Parties will disclose confidential information to each other as defined below;
NOW, THEREFORE, for good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.01 Definitions. For purposes of this Agreement, in addition to capitalized terms defined elsewhere in this agreement, the following defined terms shall have the meanings set forth below:
“AmigaOS 4.1” means the multi-media centric operating system for PowerPC based systems developed by Hyperion, in part based on or inspired by AmigaOS 3.x, originally developed by Commodore;
"Confidential information" means any business and technical information of a party hereto that is treated as confidential by such party and furnished to the other party, and which includes but is not limited to computer programs, Source code, Object code, algorithms where such information;
“Hardware” shall mean the revision 2 AmigaOne X1000 motherboard (codenamed “Nemo”) equipped with 2 GB of DDR2 1066 memory, the specifications of which are set out in Annex II hereof;
"Object Code" means software in a machine readable form that is not convenient to human understanding of the program logic, and that can be executed by a computer using the appropriate operating system without compilation or interpretation. Object Code specifically excludes Source Code;
“Parties” means A-EON and Betatester collectively;
“Party” or “a Party” means A-EON or Betatester individually;
"Source Code" means software when written in a form or language understandable to humans, generally in a higher level computer language, and further including embedded comments in the English language.
ARTICLE II.
CONFIDENTIALITY
(a) Each Party may disclose to the other Party Confidential Information as may be necessary to further the performance of this Agreement. Each Party agrees to treat the other's Confidential Information in the manner prescribed herein.
(b) Betatester and A-EON shall protect the other Party's Confidential Information as follows:
(I) Except as specifically provided herein or otherwise permitted by the other Party in writing, each Party may disclose Confidential Information of the other Party only to those employees and agents required to have knowledge of same to perform their duties pursuant to this Agreement. Each Party shall require each such employee or agent to enter into a written non-disclosure agreement containing provisions substantially consistent with the terms hereof prior to the disclosure of Confidential Information to such employee or agent. Each Party shall treat the Confidential Information of the other Party with the same degree of care as it protects its own Confidential Information, and in no event less than a reasonable degree of care.
(II) Except as may specifically be permitted herein, upon the termination of this Agreement, each Party shall return to the other, or, if so requested, destroy all Confidential Information of the other Party in its possession or control, except such Confidential Information as may be reasonably necessary to exercise the rights that survive the termination of this Agreement.
(c) The foregoing obligations of confidentiality shall not apply with respect to either Party's Confidential Information to the extent that it:
(I) is within or later falls within the public domain through no fault of the Party receiving the Confidential Information; or
(II) is, or becomes, available to the receiving party from third parties, who, in making such disclosure, have breached no written confidentiality agreement; or
(III) is previously known by the receiving Party;
(IV) is independently developed by or for the receiving Party without use of the Confidential Information.
(d) In the event any Party receives a request to disclose any Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a governmental body, such Party shall (I) immediately notify the Party that furnished such Confidential Information of the existence, terms and circumstances surrounding such request, (II) consult with such Party on the advisability of taking legally available steps to resist or narrow such request, and (III) exercise reasonable best efforts, at the expense of the Party producing such Confidential Information, to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information as may be disclosed.
ARTICLE III.
ENTRY INTO THE BETATEST PROGRAM AND LIMITED WARRANTY
3.01 Payment of Advance. In order to ensure fair and efficient allocation of the Hardware, Betatester shall pay an advance of 750 (seven hundred and fifty) euro (hereafter: “the Advance”) to A-EON’s Belgian bankaccount by wire transfer. Full wire transfer details are detailed in Annex I hereof. All wire transfer costs shall be born by Betatester (specify “OUR” within the context of the wire transfer costs). The Advance shall be applied against the final cost of the Hardware (which includes memory) which is estimated at 1.150 GBP excluding any taxes (such as VAT) and shipment. Until such time as the Advance has been received together with a duly executed copy of the present Agreement, the performance of this Agreement is suspended.
3.02 Cut-off Date. In order to be eligible for the betatest program, Betatester the Advance needs to arrive in A-EON’s account by no later than September 15, 2010. A-EON reserves the right to extend this period with a maximum of 14 (fourteen) days. Since only a limited batch of the Hardware will be produced for betatesting purposes, boards will be allocated to betatesters on the basis of the date the funds arrive in A-EON’s account with the sole exception of current AmigaOS betatesters who shall have precedence. In the event the full amount as specified in article 3.01 hereof does not reach A-EON by the date specified, A-EON may terminate this Agreement forthwith.
3.03 Multiple Boards. If a Betatester can justify that his access to multiple units of the Hardware is in the interest of the betatest program, A-EON, may, in its sole discretion, decide to allocate multiple units of the Hardware to said Betatester. All other provisions of Article III shall apply (Payment of Advance, Cut-off Date etc.).
3.04 Refund of Advance. Prior to shipment of the Hardware, Betatester may at any time request a full refund of the Advance. All wiring costs for the refund shall be born by Betatester.
3.05 Shipment of the Hardware. The shipment of the Hardware is indicatively scheduled for end of Q4/2010. A-EON will provide more detailed information on shipping times once the lead times of all components are known. Betatester may subsequently opt to apply the Advance against a full AmigaOne X1000 system (including harddrive, optical drive and customized case) or may opt to receive only the Hardware. All shipping costs, taxes (including without limitation VAT, import duties and other levies) shall be born by Betatester. All shipping of the Hardware is handled through AmigaKit LLC.
3.06 Buy Back. Betatester shall not sell the Hardware until such time as the Hardware is commercially available for end-users (i.e. is available for sale by AmigaKit LLC in conjunction with a customized case). In the event Betatester intends to sell the Hardware prior to that date or for a period of one (1) year thereafter, he shall first offer the Hardware for sale to A-EON in the event Betatester opted to buy just the Hardware (i.e. without the customized case). If A-EON decides to exercise its option to buy back the Hardware, the price of the hardware shall be the initial purchase price charged to Betatester minus 10 (ten)%. Payment shall take place once the Hardware has been verified to work correctly. Betatester shall return the Hardware with all shipping costs at his expense and suitably insured. The risk of any damage or loss of the Hardware in transit to A-EON shall be for Betatester.
3.07 Limited warranty. If, during the course of the betatest program or during a period of 1 (one) year thereafter, a fault in the Hardware is revealed which substantially impairs the functionality of the Hardware and which cannot be cured in software, Betatester may return the Hardware to A-EON (or a third party designated by A-EON such as AmigaKit LLC) for rework within a reasonable timeframe depending on the nature of the fault or A-EON may opt to buy back the Hardware in accordance with article 3.06 hereof. Shipping costs shall be born by Betatester and A-EON shall pay for the cost of rework. This limited warranty shall not apply if the Hardware has become defective as a result of any fault or mishandling by Betatester, if the Hardware has been operated beyond its specifications or if the Hardware has been exposed to humidity, extreme temperatures or other unusual operational conditions.
ARTICLE IV.
TERMINATION
4.01 Remedies for Breach or threatened Breach. In the event a Party to this Agreement breaches article II of this Agreement, the damage to the disclosing Party shall be determined at no less than 10.000 (ten thousand) euro without prejudice to the disclosing Party’s right to prove higher damages.
The Parties moreover agree and acknowledge that a breach or threatened breach of any provision of this Agreement may result in irreparable injury, the extent of which would be difficult and/or impractical to assess, and that monetary damages alone would be an inadequate remedy for such breach or threatened breach, in which case, the non defaulting Party shall be entitled to seek injunctive or other equitable relief without posting bond, in addition to, and without prejudice, to any other remedies such as specific performance of this Agreement as may be necessary or appropriate to prevent such unauthorized use or disclosure of Confidential Information without the necessity of proving actual damage by reason of any such breach or threatened breach of this Agreement.
4.02 Termination for Material Breach. Without prejudice to article 4.01 hereof, either Party may, at its option, terminate this agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the other Party, specifically identifying the breach or breaches on which termination is based. Following receipt of such notice, the Party in breach shall have forty-five (45) days to cure such breach or breaches and this Agreement shall terminate in the event that such a cure is not made by the end of said period. The claim of material breach justifying termination shall be limited to the specific breached set forth in the above written notice as explained, supported and negated by evidence.
4.03 Survival. The obligations of the Parties contained in this Agreement shall survive five (5) years after the expiration or termination thereof unless this Agreement provides otherwise.
ARTICLE V.
MISCELLANEOUS
5.01 Entire Agreement. This Agreement collectively sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties shall be bound by any conditions, inducements or representations other than as expressly provided for herein.
5.02 Independent Contractors. In making and performing this Agreement, Betatester and A-EON act and shall act at all times as independent contractors and nothing contained in this Agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between Betatester and A-EON. At no time shall either Party make commitments or incur any charges or expenses for or in the name of the other Party.
5.03 Amendments; Modifications. No amendment, modification or attempt to supersede or cancel any of the terms, covenants, representations, warranties or conditions hereof shall be effective unless such amendment, modification or direction to supersede or cancel such term, covenant, representation, warranty or condition is executed in writing by Betatester and A-EON or, in the case of a waiver, by or on behalf of the Party waiving compliance. No waiver by any Party of any condition, or of any breach of any term, covenant, representation or warranty contained in this Agreement, in any one or more instances, shall be deemed to be a further or continuing waiver of any such condition or breach or a waiver of any other condition or of any breach of any other term, covenant, representation or warranty.
5.04 Severability. The provisions of this Agreement shall be severable, and if any of them are held invalid or unenforceable for any reason, such provision shall be adjusted to the minimum extent necessary to cure such invalidity. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not affect any other provisions of this Agreement.
5.05 Waivers. The waiver of any breach of any provision of this Agreement or failure to enforce any provision hereof shall not operate or be construed as a waiver of any subsequent breach.
5.06 Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of Belgium without regard to conflicts of laws principles.
5.07 Arbitration. Without prejudice to article 4.01 hereof, any disputes arising out of or in relation with this Agreement shall be finally settled under the CEPANI Rules of Arbitration by one or more arbitrators appointed in accordance with those Rules. The arbitration shall be conducted in English and the seat of the Arbitration shall be Brussels, Belgium. The arbitral award shall be final and binding upon the Parties. The substantially prevailing Party shall be entitled to recuperate reasonable attorneys’ fees.
5.08 Counterparts. This Agreement may be executed in any number of counterparts but at least one for each Party, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement.
5.09 Signatures by Facsimile. Any facsimile signature of any Party hereto shall constitute a legal, valid and binding execution hereof by such Party.
5.10 Construction. This Agreement is the product of joint draftmanship and shall not be construed against one Party more strictly than against the other.
5.11 Effect. The Agreement shall be binding upon and inure to the benefit of each Party hereto, and their successors and assigns.
5.12 Assignment. This Agreement shall not be assigned or transferred by either Party (by operation of law or otherwise) without the express, written consent of the other Party.
5.13 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the Parties, by their authorized representatives, have executed this Agreement.
FOR BETATESTER
BY (*):______________________________________
NAME (PRINTED)________________________
TITLE: (for legal entities) ____________________
FOR A-EON TECHNOLOGY CVBA
BY:_____________________________________
NAME (PRINTED) _______________________
TITLE: Director
(*) SIGN HERE AND RETURN BY NORMAL MAIL
ANNEX I: A-EON BANKACCOUNT DETAILS
Accountholder: A-EON Technology CVBA
Address: Langestraat 36
B-1741 Ternat
Belgium
IBAN (*): BE28 0682 5078 3120
BIC/SWIFT: GKCCBEBB
Bankname: DEXIA BANK
Bankadress: Markt
B-1740 Ternat
Belgium
COSTS: IMPORTANT: SPECIFY “OUR” (all costs for sender)
(*) Betatesters outside the EU might also use 068-2507831-20
ANNEX II: SPECIFICATIONS OF THE HARDWARE
Note: The specifications are subject to change. Prior to shipment, A-EON will provide detailed specifications to Betatester.
AmigaOne X1000 specs:
* Dual-core 1.8GHz PowerISA™ v2.04+ CPU
* "Xena" 500MHz XMOS XS1-L1 128 SDS
* 2GB RAM (1066 MHZ DDR2)
Ports and connectors:
* 4x DDR2 RAM slots
* 10x USB 2.0
* 1x Gigabit Ethernet
* 2x PCIe x16 slots (1x16 or 2x8)
* 2x PCIe x1 slots
* 1x Xorro slot
* 2x PCI legacy slots
* 2x RS232
* 4x SATA2 connectors
* 1x IDE PATA connector
* JTAG connector
* 1x Compact Flash
