Product Testing Program Terms and Conditions
Date of Last Update: April 30, 2019
Description of the Program and these Terms
These Product Testing Program Terms and Conditions (the “Terms”) govern your participation in the Product Testing Program (the “Program”). Under the Program, you agree to sample a test version of a developed product prior to release of such product for sale to the general public (a “Test Product”) and complete a provided questionnaire concerning the Test Product. In return for your complete participation in the Program and compliance with these Terms, you will be allowed to purchase a product before it is available for sale to the general public. By participating in the Program, you represent and warrant that you have read, understand and agree to be bound by these Terms.
The Program is sponsored by Espresso Forge, a North Carolina based company, and/or its corporate affiliates (collectively referred to herein as “EspressoForge”, “us”, “we” or “the Company”). We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms at any time without further notice. If we do this, we will post the changes to these Terms on this page and will indicate at the top of this page the date these Terms were last revised. Your continued participation in the Program after any such changes constitutes your acceptance of the new Terms. If you do not agree to abide by these or any future Terms, do not continue to participate in the Program. It is your responsibility to regularly check this page to determine if there have been changes to these Terms and to review such changes.
PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE TERMS INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
ALL TEST PRODUCTS ARE PROVIDED ON AN “AS IS”, NO WARRANTY BASIS, AND ARE FOR USE ONLY UNDER THIS PROGRAM AS TESTING MODELS. TESTERS PARTICIPATE IN THIS PROGRAM AT THEIR OWN PERIL, AND ESPRESSO FORGE’S LIABILITY CONCERNING THE TEST PRODUCTS IS LIMITED AS SET FORTH HEREIN.
THE SELECTION, DEVELOPMENT, MANUFACTURE, TESTING AND SALE OF ANY PRODUCT IS SUBJECT TO THE COMPANY’S SOLE AND ABSOLUTE DISCRETION AND THE COMPANY RESERVES THE RIGHT, FOR ANY OR NO REASON, TO (I) NOT TEST, MANUFACTURE OR SELL ANY PRODUCT, (II) TERMINATE THE DEVELOPMENT, TESTING, MANUFACTURE OR SALE OF ANY PRODUCT, OR (III) SELL OR LICENSE A PRODUCT, AND/OR ANY INTELLECTUAL PROPERTY RELATED THERETO, TO ANY THIRD PARTY.
Commonly Used Terms and their Definitions
All capitalized terms used in these Terms shall have the meaning ascribed to such terms. In addition to the terms defined elsewhere in these Terms, the following terms shall have the meaning listed below:
- “Account” means your espressoforge.com user account.
- “Feedback” means information or other reaction or input provided by a Tester concerning a Test Product, including without limitation, response to a questionnaire.
- “Intellectual Property Rights” means any Invention, writing, trade name, trademark, service mark, mask work or any other material registered or otherwise protected or protectable under state, federal, or foreign patent, trademark, copyright, trade secret or similar laws.
- “Inventions” includes ideas, discoveries, inventions, developments and improvements, whether or not reduced to practice and whether or not patentable or otherwise within the definition of Intellectual Property.
- “Proprietary Information” includes any scientific, technical, trade or business secrets of any person or entity and any scientific, technical, trade or business materials that a person or entity treats, or is obligated to treat, as confidential or proprietary, including, but not limited to, Inventions belonging to a person or entity and confidential information obtained by or given to a person or entity about or belonging to a third party.
- “Person” means any individual, trust or legal entity.
- “Tester” means a participant in the Program.
Participation in the Program is void where prohibited. This Program is intended solely for people who are eighteen (18) years of age or older. Any participation in the Program by anyone under 18 is unauthorized, unlicensed and in violation of these Terms. By participating in the Program, you represent and warrant that you are 18 or older, and that you agree to and will abide by all of the terms and conditions of these Terms.
Proprietary Rights in Test Products; Limited License
All Test Products are the property of the Tester. They are free to modify or sell them as they wish. Any use of the Program or Test Products other than as specifically authorized herein, without the prior written permission of Company, as well as any breach of these Terms is strictly prohibited and will terminate the license granted herein. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to Intellectual Property Rights, whether by estoppel, implication or otherwise. The foregoing license is revocable at any time by the Company without notice and with or without cause.
Ownership of Test Products and Feedback
The Company and each Tester that is a party to these Terms acknowledges and agrees that, subject to the terms and conditions of these Terms, Testers may retain any and all applicable Intellectual Property Rights with respect to any Feedback a Tester submits in connection with the Program, to the extent such Tester has such rights under applicable law.
In connection with any Test Product, to the extent that you submit Feedback in connection with that Test Product and your Feedback is incorporated or made part of any commercialized version of that Test Product, you hereby assign, and agree to deliver such additional assignments or other instruments of transfer or Intellectual Property Rights perfection as may be reasonably requested by the Company, all of your right, title and interest in such Feedback, including without limitation all Intellectual Property Rights. You further agree that you will not make any claims against the Company or any third party who is assigned or licensed rights in such Feedback by the Company, based on any allegations that any activities by the Company or such third party infringe your (or anyone else’s) Intellectual Property Rights in such Feedback. You further acknowledge and agree that in connection with any such assignment you reserve no rights whatsoever and the Company shall have the right to enforce all Intellectual Property Rights in such Feedback against you and any subsequent use by you of such Feedback. You further acknowledge and agree that any remuneration that you might receive as a result of submitting such Feedback and its inclusion in a commercialized product, may be inadequate or below fair market value, and you expressly agree to bear such risk in connection with submitting Feedback under the Program. The provisions of this Section may be specifically enforced by either the Company or any third party who is assigned or licensed rights in such Feedback by the Company, and any such third party is intended to be a third party beneficiary of this provision.
You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Feedback hereunder; (ii) you are solely responsible for, and the Company will have no liability in connection with, the legal consequences of any actions or failures to act on your part while participating in the Program, including without limitation any legal consequences relating to your or any other Person’s Intellectual Property Rights or Proprietary Information; and (iii) Espresso Forge’s acknowledgement hereunder of your Intellectual Property Rights in your Feedback does not constitute a legal opinion or legal advice, but is intended solely as an expression of the Company’s intention not to require Testers to forego certain Intellectual Property Rights with respect to Feedback they submit in connection with the Program, subject to these Terms, including without limitation each Tester’s agreement to assign all right, title and interest in Feedback that is included in a commercialized version of a Test Product.
Espresso Forge retains ownership of Account data, regardless of any Intellectual Property Rights in Feedback.
You agree that even though you may retain certain copyright or other Intellectual Property Rights with respect to Feedback that is submitted under the Program, you do not own the Account, nor do you own any data Espresso Forge stores on its servers (including without limitation any data representing or embodying any or all of your Feedback). Your Intellectual Property Rights in any Feedback, if any, do not confer any rights of access to the espressoforge.com, Espresso Forge services or any rights to data stored by or on behalf of the Company.
Conduct by Testers; Prohibited Conduct
You agree that you shall not: (i) take any action or contribute any Feedback that infringes or violates any third party rights, including without limitation all Intellectual Property Rights, or that constitutes any other Person’s Proprietary Information; (ii) impersonate any Person without their consent, including, but not limited to, an Espresso Forge employee, or falsely state or otherwise misrepresent your affiliation with any Person; (iii) take any action or contribute any Feedback that violates any law or regulation; (iv) take any action or otherwise participate under the Program in any manner as determined by Espresso Forge at its sole discretion that is harmful, threatening, abusive, harassing, causes tort, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (v) take any action or otherwise transmit in connection with the Program any content that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vi) take any action or contribute any Feedback that would violate any right or duty under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vii) transmit in connection with the Program any unsolicited or unauthorized advertising, or promotional materials, that are in the nature of “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation that the Company considers in its sole discretion to be of such nature; (viii) interfere with or disrupt the Program or servers or networks relating to the Program, or disobey any requirements, procedures, policies or regulations of networks relating to the Program; (ix) attempt to gain access to any other Tester’s Account or password; (x) “stalk”, abuse or attempt to abuse, or otherwise harass another Tester; (xi) charge any third party for use of the Program or any Test Product. Any violation by you of the foregoing terms may result in: (a) immediate termination of your participation in the Program, and/or (b) immediate and permanent suspension or cancellation of your Account.
“EspressoForge” and other product names, graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress (collectively, the “Marks”) of Espresso Forge in the U.S. and/or other countries. The Marks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or association or affiliation with Espresso Forge and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
Tester Data; Account Security
In consideration of your participation in the Program, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms or questionnaire (“Tester Data”); (b) maintain the security of your login credentials and identification; (c) maintain and promptly update the Tester Data and any other information you provide to Company, and keep it accurate, current and complete; and (d) be fully responsible for all use of your Account and for any actions that take place using your Account.
All Services and Products are Provided “as is” Without Warranty
ESPRESSO FORGE PROVIDES THE PROGRAM AND TEST PRODUCTS STRICTLY ON AN “AS IS” BASIS, PROVIDED AND ACCEPTED AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you.
Espresso Forge ‘s liability to you is expressly limited, to the extent allowable under applicable law
IN NO EVENT SHALL ESPRESSO FORGE OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE PROGRAM OR TEST PRODUCTS (INCLUDING WITHOUT LIMITATION ANY MODIFICATION OR TERMINATION), OR THESE TERMS, WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. ESPRESSO FORGE IS NOT RESPONSIBLE FOR MISUSE OR INJURY RESULTING IN USE OF ANY OF OUR PRODUCTS. IN ADDITION, IN NO EVENT WILL ESPRESSO FORGE’S CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED ONE HUNDRED DOLLARS (U.S. $100.00).
Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is impermissible, such limitation may not apply to you. You agree that Espresso Forge shall not be held responsible or liable for anything that occurs or results from your participating in the Program or using Test Products.
You hereby agree to defend, indemnify and hold harmless Espresso Forge, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, distributors, successors and assigns, from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising directly or indirectly from any breach of these Terms by you.
The personal information you provide to Espresso Forge in connection with the Program is used for the Company’s internal purposes only. Espresso Forge uses the information it collects under the Program in the development of its products and services. Espresso Forge will not give any of your personal information to any third party or otherwise disclose your personal information without your express approval except: to comply with tax and other applicable law; as otherwise expressly permitted by these Terms or as otherwise authorized by you; to law enforcement or other appropriate third parties in connection with criminal investigations and other investigations of fraud; in connection with a merger, sale, reorganization, dissolution or liquidation of Espresso Forge businesses, to prospective or actual acquirers of Espresso Forge assets; or as otherwise necessary to protect the Company, its agents and other participants in the Program. Espresso Forge does not guarantee the security of any of your private transmissions against unauthorized or unlawful interception or access by third parties. Espresso Forge can (and you authorize Espresso Forge to) disclose any information about you to private entities, law enforcement agencies or government officials, as Espresso Forge, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law. You agree that Espresso Forge may communicate with you via email and any similar technology for any purpose relating to the Program. The Company may share general, demographic, or aggregated information with third parties about its Testers and their Feedback, but that information will not include or be linked to any personally identifiable information without your consent.
Dispute Resolution; Governing Law; Venue and Jurisdiction
By participating in the Program, you agree that the laws of the State of New York, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and the Company. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of the State of New York located in New York County, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of the State of New York located in New York County.
YOU AND THE COMPANY AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS, THE PROGRAM AND/OR THE TEST PRODUCTS SHALL BE FINAL AND BINDING ARBITRATION, except that Espresso Forge may seek injunctive relief in state or federal court located in Orange County, NC concerning violation by a Tester of any of the Tester conduct rules set forth in these Terms, and in such case, the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.
Arbitration under these Terms shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes ( the “AAA Consumer Rules”) (collectively the “AAA Rules”). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, YOU AND ESPRESSO FORGE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THAT NO ARBITRATION OR CLAIM UNDER THESE TERMS SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER TESTER. In no event shall any claim, action or proceeding by you related in any way to the Program or any Test Product be instituted more than three (3) years after the cause of action arose.
The Program is controlled and operated by Espresso Forge from its offices within the United States of America. The Company makes no representation that any aspect of the Program is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the Program from other locations are responsible for compliance with applicable local laws. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Program, Test Products and their use.
The Company’s failure to act with respect to a breach by you or others does not waive Espresso Forge right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Espresso Forge under these Terms shall be deemed effective unless delivered in a writing signed by a duly appointed officer of the Company. All or any of Espresso Forge’s rights and obligations under these Terms may be assigned to a subsequent owner or operator of the Program in a merger, acquisition or sale of all or substantially all of the Company’s assets. You may not assign or transfer these Terms or any or all of your rights or obligations hereunder without the prior written consent of the Company, and any attempt to do so is void. Notwithstanding anything else in these Terms, no default, delay or failure to perform on the part of Espresso Forge shall be considered a breach of these Terms if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Espresso Forge.
These Terms set forth the entire understanding and agreement between you and Espresso Forge with respect to the Program and Test Products. The section headings used herein, including descriptive headings, are for convenience only and shall not affect the interpretation of these Terms. If any provision of these Terms shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of the remaining provisions.
Espresso Forge may give notice to you by means of a general notice on our website, by electronic mail to your e-mail address in our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. All notices given by you or required under these Terms shall be mailed to us at email@example.com unless otherwise provided in these Terms.