Beta Test and Nondisclosure Agreement

If you do not agree to the terms of this Beta Test and Nondisclosure Agreement (the “Agreement”), do not access, download, install or use the Beta Test Product.

This Agreement is between Garden Software LLC (“Garden Software”, “Company”, “we” or “us”) and you (“you” or “Tester”). You must be 18 years or older to use the Beta Test Product.

TO THE FULLEST EXTENT PERMITTED BY LAW, THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 15 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO ANY DISPUTE (AS DEFINED IN SECTION 15 BETWEEN YOU AND US).

1. Beta Test Product

You agree to participate in testing the operation and features of the Garden Software beta test program (the “Beta Test”) for the interactive software product currently titled “Garden” (the “Platform”) as requested by Company in accordance with all of the terms and conditions of this Agreement. The version(s) of the Platform that is/are the subject of the Beta Test, together with all associated services and documentation are referred to herein collectively as the “Beta Test Product”. Company may terminate this Beta Test at any time without cause or advance notice to you. Features provided in the Beta Test Product may not be available in the final release.

2. License

Subject to the terms of this Agreement and solely for the Beta Test Period, Company grants Tester a temporary, limited, nontransferable, nonsublicensable, nonexclusive license to access and use the Beta Test Product and any related user manuals, guides and other documentation delivered or otherwise provided to Tester (“Documentation”) by Company, solely for their internal, individual personal and noncommercial use to evaluate and test the Beta Test Product. In connection with Tester’s use of the Beta Test Product, Tester will comply with all applicable laws, rules and regulations. Tester will not, and will not permit any third party to: (i) copy, modify, translate, or create derivative works of the Beta Test Product or any content therein; (ii) reverse engineer, decompile, disassemble, translate or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Beta Test Product; (iii) disclose or authorize disclosure of, lend, lease, license, offer for sale, sell, transfer, distribute, assign, or otherwise use the Beta Test Product to or for the benefit of third parties; (iv) attempt to circumvent any license, timing or use restrictions that are built into the Beta Test Product. Tester understands and agrees that negative experiences with the Beta Test Product during the Beta Test Period may occur, and Tester agrees that such negative experiences will be reported to Company and kept confidential by Tester indefinitely.

3. User Content

“User Content” means any and all information and content that Tester or any other user submits to, or uses with, the Beta Test Product (e.g., content submitted in forms, uploaded documents, communications with Company or otherwise through the Beta Test Product, etc.), including content that Testers post to the Beta Test Product such as text, images and video, and any other content of any kind submitted through the Beta Test Product. Tester agrees that it is solely responsible for and assumes all risks associated with its User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of its User Content that personally identifies Tester or any third party.

a. License to Company. Tester grants Company a nonexclusive, worldwide, royalty-free license to host, store, reproduce, transmit, display, and distribute Tester’s User Content solely as necessary to operate, provide, and promote the Beta Test Product, including making that User Content viewable by other Testers. This license ends when Tester’s User Content is removed from the Beta Test Product, except to the extent other Testers have already viewed, saved, or shared it, or Company is required to retain it under Section 11.

b. Restrictions. Tester agrees not to use the Beta Test Product to submit, collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; (iv) that impersonates any person or misrepresents Tester’s identity or affiliation with any person or entity; or (v) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party. Tester agrees not to: (i) upload, transmit, or distribute to or through the Beta Test Products any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Beta Test Product unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Beta Test Product to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Beta Test Product, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Beta Test Product (or to other computer systems or networks connected to or used together with the Beta Test Product), whether through password mining or any other means; (vi) harass, threaten or interfere with any other Tester’s use and enjoyment of the Beta Test Product; or (vii) use software or automated agents or scripts to produce multiple accounts on the Beta Test Product, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Beta Test Product.

c. Interactions with Other Testers. The Beta Test Product allows Tester to interact with other Testers through comments and other social and communications features. Company does not control and is not responsible for the identity, conduct, or content of other Testers. Tester assumes all risks arising from interactions with other Testers and releases Company from any claims arising out of those interactions, to the fullest extent permitted by law.

d. Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate any other provision of this Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your license to use the Beta Test Product and/or reporting you to law enforcement authorities.

4. Evaluation and Feedback

a. Feedback. Tester agrees to test the operation and features of the Beta Test Product as requested by Company and to provide Company input regarding the Beta Test Product and Tester’s reactions, comments, and suggestions for improvement regarding the same (“Feedback”). Such input may include, but is not limited to, usability, missing features, functional errors and bug reports. All Feedback made by Tester will be the property of Company and may be used by Company for any purpose whatsoever. Forms of feedback may include personal interview, online questionnaire or e-mail or other contact. For the avoidance of doubt, “Feedback” includes all Tester inputs into the Beta Test Product. Company will be the sole owner of any and all Beta Test Product, documentation or other inventions developed by Company in conjunction with Tester or based on the Tester’s input or otherwise created by Tester in the course of testing the Beta Test Product, including but not limited to general enhancements and additions to the Beta Test Product or any services provided by Company. Tester agrees not to input into the Platform or otherwise disclose to Company any information, content or materials that Tester considers to be proprietary or confidential or which Tester has an obligation not to disclose to Company.

5. Your information

Company will collect, use, disclose and dispose of personal information as described below:

a. Registration Information. When you create an account with us and participate in the Beta Test, we may use information you provide to us to communicate with you about the Beta Test Product and the commercial launch of the product. This information may include your name, username, display name, email, password, credit card details, country and zip code.

b. Use Information. When you use the Beta Test Product, we may collect information about your use of and interaction with the Beta Test Product including information and materials that you may upload to or input into the Platform, provide through surveys that we send to you (“Use Information”). You agree that we may retain Use Information and use it as we deem necessary and desirable solely for internal purposes. Additionally, you acknowledge and agree that we may utilize third party vendors, bots, or other services to collect information in the future.

c. No Sharing/ No Sale. We share your personal information only with service providers as necessary to operate the Platform. We do not and will not sell or otherwise monetize your personal information.

6. No Purchase Price

Tester recognizes that the Beta Test Product is an early, not-ready-for-release version software product. Tester will pay no purchase price for the Beta Test Product, but will abide by the terms of this Agreement, and neither party will be obligated to enter into any further agreement for the license or purchase of the Beta Test Product. Additionally, nothing herein shall be construed as prohibiting Company from charging Tester a fee in connection with other versions of the Platform.

7. Support

Company may, but is not obligated to, provide maintenance or updates to Tester for the Beta Test Product.

8. Ownership

Tester agrees that Company and its licensors own all right, title, and interest in and to the Beta Test Product as it exists as of the date of this Agreement and as may be developed in the future, including, without limitation, all code and screen formats including all patents, trademarks, copyrights, trade secrets, and all other intellectual property rights therein, and that other than the rights expressly granted pursuant to Section 2 above, Tester will not acquire any right, title, or interest therein or thereto. All rights in and to the Beta Test Product not expressly granted herein are reserved to Company.

9. Injunctive Relief

Tester acknowledges that the Beta Test Product and the Confidential Information are of a unique and valuable character, and that unauthorized dissemination or unauthorized use of such Beta Test Product, Feedback, or other Confidential Information would diminish or altogether destroy the value of the same. The damages to the Company that would result from the unauthorized use or dissemination would be impossible to calculate. Therefore, the Tester hereby agrees that the Company will be entitled to seek equitable relief, including temporary or permanent injunctive relief, without the necessity of proving damages, to prevent the dissemination or unauthorized use of the Beta Test Product, Feedback, or Confidential Information in violation of the terms hereof. Injunctive relief will be in addition to any other remedies available to Company, whether at law or in equity, without the necessity of proving actual damages and that Company will be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief and in connection with any other breach of this Agreement.

10. Confidentiality

Tester agrees to hold in strict confidence, not to disclose, except in accordance with this Agreement, and to take all necessary precautions to protect the confidentiality of Confidential Information received from Company or its agents under this Agreement, including, without limitation, requiring Tester’s employees or others with access to the Confidential Information to be subject to confidentiality agreements similar in nature to this Agreement and limiting access to the Confidential Information to employees on a “need to know” basis. For the purposes of this Agreement, “Confidential Information” of Company will include, without limitation, your Feedback, all information about the Beta Test Product not available to the general public and all accompanying Documentation and all other non-public information of or about Company, its employees, officers, directors, agents, customers, and representatives. Confidential Information does not include information that Tester can establish with competent documentary evidence: (i) was known by Tester at the time of its disclosure; (ii) is already in the public domain or becomes generally known or published through no fault of Tester; (iii) is lawfully disclosed to Tester by a third party free to disclose such information; or (iv) is subsequently independently developed by Tester. The provisions under this confidentiality provision will survive expiration or termination of this Agreement for any reason. Notwithstanding the foregoing, this confidentiality provision will not be construed so as to prohibit the use, demonstration and display of the Beta Test Product as permitted in Section 2 of this Agreement.

11. Term and Termination

The term of this Agreement will commence on the date the Beta Test Product is first accessed or used by the Tester and will continue until access to the Beta Test is suspended or terminated by the Company in its sole discretion (the “Beta Test Period”) unless terminated by either party in writing at any time, with or without cause. Upon expiration or termination of the Beta Test Period, unless Company notifies Tester otherwise in writing, Tester’s right to access and use the Beta Test Product will immediately terminate, Tester will cease all use of the Beta Test Product, delete and destroy all copies of the Beta Test Product (if any), and Company will have the right to prohibit Tester’s use of the Beta Test Product. Company may continue to host, display, and retain User Content that other participants have already viewed, saved, or shared prior to termination, consistent with Section 3(a). The preceding sentence shall not apply if Tester and Company enter into a commercial license agreement that, by its terms, supersedes and replaces this Agreement. At Company’s election, Tester may be permitted to keep their Platform account active. If Company elects to permit Tester to keep Tester’s Platform account, Tester acknowledges and agrees that all content and items, including user generated content, associated with Tester’s Platform account may be automatically erased at the end of the Beta Test Period. Additionally if Company elects to permit Tester to keep Tester’s Platform account, Tester acknowledges that Company may charge Tester a fee in connection with the same.

12. Disclaimer of Warranties; Limitation of Liability

THERE ARE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE BETA TEST PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION. THE BETA TEST PRODUCT IS LICENSED AND PROVIDED “AS IS” AND COMPANY DOES NOT WARRANT TO TESTER THAT THE BETA TEST PRODUCT WILL MEET TESTER’S REQUIREMENTS OR THAT TESTER’S USE OF THE BETA TEST PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE BETA TEST PRODUCT AND TESTER’S USE OF THE BETA TEST PRODUCT AND ANY RESULTS GENERATED BY THE BETA TEST PRODUCT IS BORNE BY TESTER. SHOULD THE BETA TEST PRODUCT PROVE DEFECTIVE IN ANY RESPECT, TESTER’S SOLE REMEDY IS TO TERMINATE ITS USE OF THE BETA TEST PRODUCT. THE BETA TEST PRODUCT CONSTITUTES A PRE-RELEASE PRODUCT AND MAY NEVER BE RELEASED BY COMPANY OR MAY BE CHANGED SUBSTANTIALLY BEFORE COMMERCIAL RELEASE BY COMPANY.

Under no circumstances will Company be liable for any loss, cost, expense, or damage to Tester resulting from the use, demonstration or display of the Beta Test Product or any decisions made with respect to the Beta Test Product. In no event will Company be liable to Tester for any direct, indirect, incidental, special or consequential damages, however caused and on any theory of liability, arising out of or related to this Agreement or Tester’s use of the Beta Test Product.

13. Severability

If any provision of this Agreement is determined to be unlawful and can be deleted without altering the essence of the Agreement, the unlawful provision will be deleted and the remaining provisions will remain in full force and effect. The failure by either party at any time to enforce its rights under this Agreement will not be construed as a waiver of such rights and no waiver by either party will be valid unless it is contained in a signed writing.

14. Governing Law

This Agreement and any related dispute will be governed by and interpreted in accordance with the laws of the State of California without regard to its conflicts of laws provisions.

15. Disputes

The term “Dispute” means any dispute, claim, or controversy between you and Company or any of its current or former affiliates, including parents and subsidiaries, and any predecessor or successor entity to any of the foregoing, regarding the use of the Beta Test Product, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). If you have a Dispute (other than one described as excluded from arbitration below) with us or any of our officers, directors, employees or agents (“Adverse Entity”) that cannot be resolved through negotiation, you and the Adverse Entity must seek resolution of the Dispute only through confidential arbitration of that Dispute according to this Section’s terms, and not litigate that Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.

a. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND THE COMPANY SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.

b. The party initiating the arbitration proceeding may initiate it with the JAMS, www.jamsadr.com. This Section’s terms govern if they conflict with the rules of the arbitration organization that the parties select.

c. The Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes involving interstate commerce. However, applicable federal or state law may also apply to the substance of a Dispute.

d. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. The arbitrator’s award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

e. You or the Adverse Entity may initiate arbitration only in Orange County, California.

If any clause within this Section (other than the Class Action Waiver clause above) is illegal or unenforceable, that clause will be severed, and the remainder of this Section will be given full effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided exclusively by the courts of Orange County, California. Both parties consent to the personal jurisdiction of these courts. This Section survives this Agreement’s termination.

16. Relationship of the Parties

The relationship between Company and Tester under this Agreement is intended to be that of independent contractor. Nothing in this Agreement will be construed to create any partnership, joint venture, employer-employee or agency relationship of any kind. Neither party has any authority under this Agreement to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking any third party.

17. Assignment

Tester may not transfer or assign this Agreement or any of its rights or obligations hereunder, directly or indirectly, by operation of law or otherwise without the prior written consent of Company. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon each of the parties and its successors and permitted assigns.

18. Integration

This Agreement constitutes the final, complete and exclusive agreement and understanding between Company and Tester and supersede all prior and contemporaneous agreements, oral and written as they regard the licensing of the Beta Test Product. This Agreement may not be amended except in a writing executed by each of the parties.