BETA TEST AGREEMENT AND AMENDMENT TO FEDEX SHIP MANAGER PLACEMENT/FEDEX AUTOMATION AGREEMENT
(1) The FedEx Ship Manager Placement/FedEx Automation Agreement (as applicable) that the undersigned customer (“Customer”) executed to receive FedEx Ship Manager software is amended as follows: FedEx grants Customer a royalty free, personal, non-exclusive, nonassignable and nontransferable license to receive and use FedEx Ship Manager v.31xx software and any future versions thereof (“Software”) solely for the purpose of testing its efficiency in processing select shipping transactions with FedEx and reporting the results to FedEx during the designated software testing period (“Beta Period”). Customer will provide feedback to FedEx during the Beta Period and Customer acknowledges that all feedback may be used by FedEx in any form or manner by FedEx without compensation to Customer.
(2) Customer will not reproduce, distribute, transmit, publish, transfer, commercially exploit or disclose to third parties the Software or the results of its use without FedEx’s written consent.
(3) Customer agrees to provide FedEx with a supporting statement (“Testimonial”) regarding the use of the Software for the benefit of FedEx in connection with FedEx’s marketing, promotional, communication and advertising activities. Once the Testimonial is approved by Customer, Customer waives the right to edit or retract the Testimonial or any descriptive material used in connection therewith. The undersigned hereby relinquishes, assigns, conveys and gives to FedEx all right, title, and interest, including copyright, in and to the Testimonial. FedEx agrees to use the Testimonial in a manner consistent with its intent.
(4) Customer expressly acknowledges that neither FedEx including its parent corporation, affiliates or subsidiaries and their respective officers, directors and employees, nor any of its licensors, (collectively “FedEx”) warrant that the Software will be uninterrupted or error free. FedEx makes no warranties as to the performance of the Software or the results to be obtained from its use. THE SOFTWARE IS PROVIDED ON AN ‘AS IS’ BASIS WITHOUT WARRANTIES OF ANY KIND, FEDEX DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(5) NEITHER FEDEX NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SOFTWARE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF THE SOFTWARE OR INABILITY TO USE THE SOFTWARE BASED ON BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LAW.
(6) In the event of a conflict between this agreement and the FedEx Ship Manager Placement Agreement/FedEx Automation Agreement (as applicable), this agreement shall control. Otherwise, all terms and conditions of the FedEx Ship Manager Placement Agreement/FedEx Automation Agreement are ratified and confirmed. Following completion of the Beta Period, the FedEx Ship Manager Placement Agreement/FedEx Automation Agreement (as applicable) shall control any continued use of the Software.
FSM Hardware Beta Test Agreement
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