This Tempo Quest  Beta Test Agreement (the “Agreement”) is made and entered into today (the “Effective Date”) by and between Tempo Quest, Inc (“TQI”), a Nevada corporation, having a place of business at 4770 Baseline Rd  Denver, CO 80303 and the  DOWNLOADING Party Department. 

WHEREAS TQI designs, builds, markets, sells and supports computer software products;

WHEREAS TQI desires to have certain product(s) that it produces tested and evaluated, that may include testing of such product(s) prior to their release as general availability versions;

WHEREAS Company is willing to accept a limited, temporary license and access to use such TQI-produced product(s) for the purpose of internally testing and evaluating under the terms and conditions of this Agreement;

NOW THEREFORE in consideration for the mutual obligations undertaken herein, the parties do hereby agree as follows:

1.0          DEFINITIONS.

1.1.         “Beta Test” means a test of the operation and functionality of the Beta Test Product by Company.

1.2.        “Beta Test Product” means individually or collectively, any TQI supplied Software or associated documentation designated specifically as a subject of the Beta Test, typically that has not yet been made generally available to End Users by TQI but excluding Non-Beta Test Software that may be supplied temporarily by TQI solely to support the Beta Test.

1.3.        “Designated Test Environment” means all Non-Beta Test Software, or any other unique or necessary Company-provided hardware, software, or peripherals, as well as facility or environmental constraints and/or requirements.

1.4.                  “End User(s)” means customer(s), which are the ultimate users of a Parties’ products and services, and not a reseller, agent, broker or other intermediary in the chain of distribution.

1.5.                  “Non-Beta Test Software” means any Software supplied temporarily hereunder by TQI to Company solely for purposes of performing or supporting performance of the Beta Test, other than Beta Test Products and excluding other TQI software that may be licensed by Company independent of the Beta Test.

1.6.                  “Software” means any computer programs or code, whether provided in machine-readable object code, intermediate code, interpreted code , executable code or source code, including printed listings of code and copies of code distributed on media, as well as any copies, and all updates, revisions or derivatives thereto.

2.0          LICENSE.  TQI hereby grants to user (a) a temporary, personal, non-transferable, non-sub-licensable and non-exclusive right to use the Beta Test Product and Non-Beta Test Software for a term of 90 (ninety) days (the “Term”), solely for purposes related to the Beta Test, and solely in a Designated Test Environment if one is so specified, and (b) the right to reproduce machine-readable code portions of the Beta Test Product and Non-Beta Test Software in only as necessary for backup or archival purposes to support the right to use licensed herein, provided however, that all such copies shall be considered Beta Test Product or Non-Beta Test Software subject to this Agreement and shall include the same proprietary and copyright notices and legends as supplied by TQI and its suppliers.  Except as expressly permitted in this Agreement, nothing in this Agreement shall imply any other license or other rights with respect to any intellectual property rights of TQI or its suppliers, and TQI reserves all rights in the Beta Test Product and Non-Beta Test Software not expressly granted to Company.

3.0          OWNERSHIP. Title to and ownership of Beta Test Product and Non-Beta Test Software, any copies thereof and any intellectual property rights thereto shall be and at all times remain in TQI or its licensors.  TQI shall have a royalty free, worldwide, transferable, sublicensable, irrevocable license to use, copy, offer for sale, sell or otherwise distribute, and/or incorporate into the Beta Test Product or Non-Beta Test Software and any subsequent, commercially released, non-beta test versions thereof, any suggestions, recommendations or other feedback provided by User relating to the operation of the Beta Test Software under and for the duration of any and all IP rights relating to such suggestions, recommendations or other feedback.  Subject to the foregoing, TQI shall acquire no right, title or interest from User or its licensors under this Agreement in or to any applications, program code independently developed by User or its third party licensors.  User agrees to take any action reasonably requested by TQI to evidence, perfect, obtain, maintain, or enforce the foregoing.

4.0          EXCLUSIONS.  Company shall not directly or indirectly, nor permit any third party to: (i) modify, reverse assemble, decompile or disassemble or otherwise reverse engineer any portion of the Beta Test Product and/or Non-Beta Test Software; (ii) use any of TQI’s Confidential Information disclosed hereunder to create any software or documentation for use by Company or any third parties, or copy, create derivative works of, or otherwise modify any Beta Test Product or Non-Beta Test Software.  The Beta Test Product and Non-Beta Test Software shall be used by Company solely for the purpose of conducting the Beta Test internally in a non-production environment for non-production purposes and shall not be used to provide a service or benefit to any End User of Company.  Neither Party shall make any press release or other public announcement related to this Agreement, the Beta Test, Beta Test Product, or results of any Beta Test performed hereunder without the prior written consent of the other Party.

5.0          SUPPORT. TQI is under no obligation to support the Beta Test Product and Non-Beta Test Software in any way, nor to provide any modification, error correction, bug fix, new release or other update (each an “Update”) to or for the Beta Test Product and Non-Beta Test Software.  In the event TQI, in its sole discretion, supplies any Update to User, such Update shall be deemed Beta Test Product or Non-Beta Test Software hereunder and shall be subject to the terms and conditions of this Agreement. 

6.0          DELIVERY, INSTALLATION AND DE-INSTALLATION.  Beta Test Product and Non-Beta test Software will be provided by TQI via online download.  User shall carry out installation of the Beta Test Product or any Non-Beta Test Software at User’s premises at the start of the Beta Test.  Promptly upon the end of the Term or other termination of this Agreement, User will cease access and/or use of, and de-install, permanently erase from any storage media, and/or otherwise render unusable, any and all Beta Test Product and Non-Beta Test Software and any copies thereof.  At TQI’s request, User will provide a certificate of destruction to TQI

7.0    CONFIDENTIALITY

7.1          Confidentiality Information.  Information disclosed by a Party to the other in the course of performance under this Agreement will be deemed to be confidential (i) if when disclosed in tangible form, it is marked as “Confidential” or similar legend, or (ii) if when orally disclosed, it is designated at the time of disclosure or in an email to the recipient within 15 days thereafter as being confidential, or (iii) if the materials are of a reasonably apparent confidential or proprietary nature (“Confidential Information”).  For avoidance of doubt, but not limited thereby, all information relating to the design, functionality, specifications, quality and performance of the Beta Test Product and Non-Beta Test Software, the contents of this Agreement other than its existence and general nature, are deemed to be the Confidential Information of TQI.

7.2          Confidentiality Obligations. Confidential Information shall remain the sole property of the discloser and shall not be disclosed by the recipient to any third party without the express written consent of the discloser.  The recipient agrees to maintain the confidentiality of the discloser’s Confidential Information and to protect the discloser’s Confidential Information from any unauthorized copying, use, distribution or transfer of such information.  The recipient will not use any Confidential Information of the discloser for any purpose except as necessary for recipient’s performance of its rights and obligations under this Agreement, and will disclose the Confidential Information of the discloser only to its employees or contractors who have a need to know such Confidential Information for purposes of this Agreement and who are bound by a written agreement with recipient to maintain the confidentiality of such Confidential Information in a manner consistent with this Agreement. Without limiting the generality of the foregoing, the recipient of Confidential Information shall not remove any proprietary or other legend or restrictive notice contained or included in any materials provided by the discloser.  Company shall not release the results of any benchmark or other evaluation of any Beta Test Product(s) to any third party without the prior written approval of TQI for each such release. At TQI’s request, Company shall return or certify destruction of all tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom.

7.3          Exclusions to Confidentiality.  A recipient shall have no obligation as to Information that (i) is known to recipient at the time of disclosure, (ii) is independently developed by recipient provided recipient can show that such development was accomplished by or on behalf of recipient without the use of or any reference to Information supplied to recipient by discloser, (iii) becomes rightfully known to recipient from another source without confidentiality restriction on subsequent disclosure or use, (iv) is or becomes part of the public domain through no wrongful act of recipient, or (vi) is furnished to a third party by discloser without such third party undertaking a similar obligation of confidentiality. Further, recipient may disclose Information pursuant to a judicial or governmental request, requirement or order, provided that recipient gives discloser sufficient prior notice in order to contest such request, requirement or order.

8.0    TERMINATION

8.1          Termination. The term of this Agreement shall commence as of the Effective Date and shall continue until the end of the Term.  Either party may terminate this Agreement with or without cause at any time by giving ten (10) days written notice of termination to the other party.

8.2          Survival.  The provisions of Articles 3 (Ownership), 4 (Exclusions), 6 (Delivery, Installation and De-Installation), 7 (Confidential Information), this Article 8 (Termination), 9 (Indemnification), 10 (Limitations), and 12 (General) will survive any expiration or termination of this Agreement.  All obligations that accrued prior to the effective date of termination and any remedies for breach of this Agreement shall survive any termination.

9.0          INDEMNIFICATION.  The Company hereby agrees to defend, indemnify and hold TQI and its directors, officers, employees, and consultants (each, an “Indemnified Party”) harmless from any claims or suits against an Indemnified Party arising from the Company’s material breach of this Agreement that directly relates to the Company’s use of the Beta Test Product and Non-Beta Test Software, including use by its employees (“Claims”), but excluding any claims or suits over intellectual property infringement.  An Indemnified Party will provide prompt notice to the Company of any such Claims.  The Company will pay all costs, damages, losses and expenses (including reasonable attorneys’ fees) of any Claims incurred by any Indemnified Party and will pay any award or settlement with respect to any such Claims.

10.0      WARANTY DISCLAIMER. ALL SOFTWARE AND RELATED DOCUMENTATION IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

11.0      LIMITATION OF LIABILITY. TQI WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF THIS AGREEMENT OR THE RECEIVING PARTY’S USE OF THE LICENSED SOFTWARE OR THE RELATED DOCUMENTATION.

12.0      GENERAL

12.1      Export. Company acknowledges that Beta Test Product and Non-Beta Test Software may be governed by the U.S. laws and regulations on export.  Company agrees it will not knowingly export, either directly or indirectly, any Beta Test Product and/or Non-Beta Test Software or other TQI-supplied product, or any portion thereof, to any country for which such approval is required, without the prior written approval of the Office of Export Administration of the U. S. Department of Commerce or any other applicable U.S. Government agency. Company shall comply fully with all relevant export laws and regulations of the United States, including without limitation the U.S. Export Administration Regulations (collectively “Export Controls”).

12.2      Applicable Law; Venue.  This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, excluding its choice of laws rules.  Company consents to the exclusive jurisdiction of, and venue in, the California state courts in Santa Clara County, California, U.S.A., or if there is federal jurisdiction the U.S. District Court for the Northern District of California, U.S.A., and the prevailing party shall recover all of its costs, including reasonable attorneys’ fees.

12.3      No Waiver.  The failure of either Party at any time to require performance by the other Party of any provision hereof will not affect, in any way, the full rights to require such performance at any time thereafter, nor will the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

12.4      Assignment.  This Agreement and the rights and obligations hereunder shall not be subcontracted, delegated, assigned or otherwise transferred, in whole or in part, without the non-transferring Party’s prior written consent.  Notwithstanding this, without the other Party's consent, either Party may assign this Agreement to any of its affiliates or to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise).  This Agreement will bind each party and its permitted successors and assigns.

12.5      Notices. All notices and demands of any kind which either User or TQI may be required or desire to serve upon the other under the terms of this Agreement shall be in writing and shall be served by personal service or by mail at the address of the receiving party set forth above (or at such different addresses as may be designated by either party by written notice to the other party).

12.6      Independent Contractors.  The Parties shall be independent contractors under this Agreement, and nothing herein will constitute either Party as the employer, employee, agent or representative of the other party, or both Parties as joint venturers or partners for any purpose.

12.7      Unenforceable Provisions.   In the event that any of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining Agreement will remain in full force and effect.

12.8      Remedies. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity.  Each Party agrees in the event of any breach or threatened breach of Articles 2 (License), 3 (Ownership) or 7 (Confidential Information), the non-breaching Party will suffer irreparable damage for which it will have no adequate remedy at law and shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach.

12.9      Modifications.  Any modifications to this Agreement shall be valid only if in a written amendment and signed by both Parties.    

12.10   U.S. Government Rights.  The provisions of this Section 12.10 apply to the license of software to the U.S. government and supersede any conflicting language herein.  This temporarily licensed Software hereunder was developed at private expense; it is licensed as "commercial computer software" as defined under FAR 2.101 and subject to the provisions of this license as specified in (a) FAR 52.227-19, or (b) DFAR 227.7202.  All rights in the Beta Test Product, including any Software supplied therewith, are reserved to TQI and its licensors under the Copyright law of the United States.

12.11   Entire Agreement.  This Agreement, including all attachments, constitutes the final, complete and exclusive statement of the agreement between Company and TQI, and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.  This Agreement may be executed in counterparts and by facsimile, each of which when so executed, will be deemed an original, and all of which together shall constitute one and the same instrument.