This Undertaking is entered into by and between X.D. Network Inc., a Chinese corporation with offices at Building A1, No.700 Wanrong Road Jing’an District, Shanghai (“XD”) and the tester who participate the game testing holding by XD (“Tester”) to protect certain confidential information being disclosed between XD and the Tester solely for the purpose of performing user experience testing for a game program. XD and Tester may be referred to in this Undertaking individually as a “party” and collectively as “parties”.
1.Confidential Information.
“Confidential Information” means the proprietary information exchanged between parties, which shall include all information or material that has or could have commercial value or other utility in the business in which the XD is engaged, including but not limited to the characteristics, performance, and potential shipment date of the Game, the Game itself (including all software, images, screenshots, and any documentation)
2.Nondisclosure of Confidential Information.
Tester agrees to hold Confidential Information in confidence and to not use or disclose it to a third party and will use Confidential Information of XD only for the testing of the Game. Tester shall not share the test account obtained during the test period with any other third party. Tester will also protect such Confidential Information with at least the same degree of care that Tester uses to protect its own Confidential Information, but in no case, less than reasonable care (including reasonable security measures) to prevent the unauthorized use, dissemination or publication of Confidential Information. Tester must promptly notify XD of any misuse, misappropriation or unauthorized disclosure of Confidential Information of XD which may come to Tester’s attention.
3.No rights to Confidential Information granted.
XD will retain all right, title and interest to its Confidential Information. This Undertaking does not grant to Tester patent, copyright or other intellectual property right that has issued or that may issue, based on Confidential Information or other rights, except the limited right to use Confidential Information for the testing of the Game. Nothing in this Undertaking creates or will be deemed to create any employment, joint venture, or agency between Parties. Nothing in this Undertaking requires XD to enter into any transaction with Tester in connection with which Confidential Information may be disclosed.
Tester agrees that the contents of all oral, written, electronic reports to XD, and any other materials, information or ideas, concepts, and know-how provided by Tester (including corrections to problems in the Game and documentation) become property of XD and may be used by XD for all business purposes, without any accounting or any payment to Tester. Under no circumstances will XD become liable for any payment to Tester for any information that Tester provides, whether concerning the Game or otherwise, no matter how such information is used by XD or anyone else.
4.No reverse engineering.
Tester will not modify, reverse engineer, decompile, reproduce, create other works from or disassemble any software programs contained in Confidential Information of XD. Any reproduction by Tester of any Confidential Information of XD will remain the property of XD.
5.No warranty.
All Confidential Information is provided “as is” for use by Tester at its own risk. XD disclaims any warranties, express, implied, statutory or otherwise, regarding Confidential Information, including without limitation, any warranties of title, merchantability, fitness for a particular purpose or non-infringement.
Tester understands that the Game may have errors and produce unexpected results. Tester agrees that any use of the Game, whether as part of this beta test or otherwise, will be entirely at Tester's own risk. Tester agrees to backup data and take any other appropriate measures to protect programs and data.
THE GAME IS PROVIDED "AS IS" AND WITHOUT WARRANTY, EXPRESS OR IMPLIED. XD SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL XD BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, OR ANY INCIDENTAL OR COINSEQUENTIAL DAMAGES, WHETHER RESULTING FROM IMPAIRED OR LOST DATA, SOFTWARE OR COMPUTER FAILURE OR ANY OTHER CAUSE, EVEN IF XD IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY OTHER CLAIM BY TESTER OR FOR ANY THIRD PARTY CLAIM.
6.Term.
This Undertaking will terminate two (2) year after the date of this Undertaking or may be terminated by XD at any time upon thirty (30) days written notice to Tester.
7.Remedies.
Tester agrees that due to the unique nature of XD’s Confidential Information any breach of this Undertaking may result in irreparable damage to XD for which monetary damages would be an inadequate remedy. Therefore, in addition to any other remedies that may be available, in law, in equity or otherwise, XD will be entitled to obtain injunctive relief against the threatened breach of this Undertaking or the continuation of any such breach by Tester.
8.Governing law.
The laws of the People’s Republic of China will govern this Undertaking. The parties agree that any dispute arising under this Undertaking will be submitted by either party to the Shanghai Jing'an District Court for jurisdiction.
9.General Provisions.
a)This Undertaking constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, and understandings, whether written or oral, except obligations imposed by law which shall be deemed a part of this Undertaking. No failure or delay by any party in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder. The invalidity or unenforceability of any provision of this Undertaking shall not affect the validity or enforceability of any other provisions of this Undertaking, which shall remain in full force and effect. Nothing in this Undertaking shall be implied, except as required under statue.
b)The obligations under this Undertaking shall not be assigned or otherwise transferred in whole or in part by either party without the prior written consent of the other parties.