CardSeer Beta Software Testing Agreement

CardSeer, Inc.

Effective: October 23, 2020 PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THE CARDSEER BETA SOFTWARE TESTING AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE CARDSEER BETA SOFTWARE, AS DEFINED IN SECTION 1 BELOW. IF YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “I ACCEPT” BUTTON BELOW. BY CLICKING THE “I ACCEPT” BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND THE TERMS AND CONDITIONS HEREIN, AND VOLUNTARILY AGREE TO BE BOUND BY SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS HEREIN, CLICK ON THE “DECLINE” BUTTON BELOW. The terms “CardSeer,” “us,” “we,” “Company,” or “our” refers to CardSeer. The term “you,” “your,” or “Beta Tester” refers to the Beta Software user or viewer and its employees, officers, directors, owners, shareholders, contractors, and agents, if any. This Agreement, our privacy policy, and our terms of use, along with any other terms or agreements agreed to on https://www.cardseer.com or the CardSeer downloadable mobile application, constitute the entire and only agreement between us and you in regard to your use of the Beta Software and any other CardSeer content. In exchange for your use of the Beta Software and participation in the Beta Program, as defined in Section 1, you agree as follows:

1. Beta Software Testing Program Participation.

1.1 Purpose. The purpose of the CardSeer Beta Software Testing Program (“Beta Program”) is to make available CardSeer, other pre-release software and services, and related documentation, materials, and information (the “Beta Software”) that may be available to the Beta Tester from time to time for the purpose of providing CardSeer with feedback on the quality, experience, usefulness, functionality, and usability of the Beta Software. By clicking “I Accept,” Beta Tester understands and agrees that its participation in the Beta Program is voluntary and does not create a legal partnership, agency, or employment relationship between Beta Tester and CardSeer. Beta Tester also understands that participation in the Beta Program does not obligate CardSeer to provide Beta Tester with any Beta Software. At all times, CardSeer reserves the right to modify the terms, conditions, and policies of this Beta Program from time to time and revoke your participation in this Beta Program at any time. If CardSeer makes changes to the terms and conditions herein, CardSeer will notify and provide Beta Tester with the revised terms and conditions to Beta Tester and Beta Tester’s continued participation in the Beta Tester will be conditioned on the agreement thereof. Beta Tester agrees to inform other participating members, such as its employees, officers, directors, owners, shareholders, contractors, and agents (“Participating Members”), of the Beta Tester of the terms and conditions herein.

1.2 Beta Tester Representations and Account Usage. By participating in the Beta Program, Beta Tester certifies that Beta Tester, if a natural person, is of the legal age of majority in the jurisdiction in which Beta Tester resides (at least 18 years of age) and represents that it is legally permitted to join the Beta Program or, if a legal entity, Beta Tester is authorized to execute this Agreement and bind Beta Tester thereto. The Agreement is void where prohibited by law and the right to become a Beta Program participant is not granted in such jurisdictions. Unless otherwise agreed or permitted by CardSeer in writing, you cannot share or transfer any software or other materials you receive from CardSeer in connection with being a Beta Program participant. The Account ID and password you use to login as a Beta Program participant cannot be shared in any way or with anyone. You are responsible for maintaining the confidentiality of your Account ID and password and for any activity in connection with your account. Notwithstanding the foregoing restrictions in this Section 1, you may provide your Account ID to Participating Members of the Beta Tester for their use solely in connection with the Beta Program and solely under your supervision and only in accordance with this Agreement. You are solely responsible for the Participating Member’s compliance with and violations of this Agreement and any other CardSeer agreements.

1.3 Restrictions. The Beta Software is solely for lawful purposes and uses and not to be used to violate the terms and conditions of any agreements between you and third parties or infringe the privacy of intellectual property rights thereof. Beta Tester is responsible for ensuring that its use and a Participating Member’s use of the Beta Software is in accordance with this Agreement and any applicable laws, statutes, ordinances, regulations, rules, and other government authority. Beta Tester shall (i) not use the Beta Software to transmit any unlawful, harassing, libelous, defamatory, racist, indecent, abusive, violent, threatening, intimidating, harmful, vulgar, obscene, offensive or otherwise objectionable material of any kind or nature, (ii) not use the Beta Software to distribute or transmit any file containing malware, (iii) not attempt to gain unauthorized access to other computer systems, (iv) not interfere or disrupt CardSeer’s networks or third party networks, and (v) comply with all regulations, policies, and procedures of the networks connected to the Beta Software.

2. Access to Beta Software and Other Licenses.

CardSeer may make Beta Software, and updates thereto, available to Beta Tester through a web application or downloadable software application. From time to time, CardSeer, at its option, may also provide the Beta Tester with software or services as part of the Beta Program, including, but not limited to code snippets, utilities, analytical tools, bug submission tools, sample code, profiles, and other applications (collectively, the “Ancillary Tools”) as part of your participation in the Beta Program. All use of the Ancillary Tools and Beta Software shall be in accordance with the terms and conditions of this Agreement. If the Ancillary Tools are accompanied by a separate license agreement(s), you agree the terms therein also govern your use of the Ancillary Tools. If there are no other license agreements accompanying Ancillary Tools, your use of the Ancillary Tools is subject to the terms of this Agreement.

3. License Grant and Restrictions.

Subject to your compliance with this Agreement, CardSeer grants Beta Tester a personal, limited, non-exclusive, non-transferable, revocable license to use Beta Software solely for testing and evaluation purposes and only in connection with the Beta Program. Except as otherwise permitted under Section 10, this license does not grant you the right to use the Beta software for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works of the Beta Software. Beta Tester agrees not to modify, decompile, reverse engineer, disassemble, decrypt, or otherwise attempt to derive the source code of any Beta Software (except as and only to the extent the foregoing restrictions are prohibited by applicable law, or to the extent as may be permitted by licensing terms governing use of open-sourced components included with any such Beta Software). All rights not expressly granted herein are reserved to CardSeer. Unless otherwise permitted under Section 10 below, you certify that the Beta Software will only be used for testing and evaluation purposes in connection with the Beta Program, and will not be rented, sold, leased, sublicensed, assigned, distributed or otherwise transferred. CardSeer retains ownership of all Beta Software, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any CardSeer intellectual property.

4. Beta Feedback.

As part of the Beta Program, CardSeer will provide the Beta Tester with opportunities to report issues and bugs, complete questionnaires, request enhancements and features, and request support (collectively, “Feedback”) to CardSeer. CardSeer may request this information from you through email, telephone conversations, videoconferencing, text messages, the Feedback Quest, bug submission forms, and other feedback-capturing methods. By agreeing to this Agreement, you agree CardSeer may contact the Beta Tester from time to time about the Beta Software and you consent to such contact by CardSeer. You further consent to CardSeer use of Beta Tester Feedback for any business purpose. Furthermore, CardSeer shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, modify, and otherwise exploit such feedback and information without restriction other than provided in this Section 4, provided that the public disclosure of any such feedback or information specifically identifiable to you shall only be by the mutual agreement of you and CardSeer.

5. Confidential Information; Non-Disclosure.

5.1 Confidential Information Defined. Beta Tester agrees that the Beta Software and any information concerning the Beta Software, including, but not limited to, its nature, existence, features, functionality, capabilities, and screen shots, and any other information, regardless of the form in which such information is communicated, CardSeer might disclose to Beta Tester will be considered and referred to in this Agreements as “Confidential Information.” Confidential Information does not include information, technical data or know how which (i) is in the possession of the Beta Tester at the time of disclosure, as shown by the Beta Tester’s files and records immediately prior to the time of disclosure, (ii) is prior to or after the time of disclosure becomes part of the public knowledge or literature other than as a result of any improper inaction or action of the Beta Tester, (iii) is independently developed by Beta Tester without the use of any Confidential Information, (iv) was rightfully obtained from a third party who had the right to transfer or disclose it to Beta Tester without restriction, or (v) is approved by CardSeer, in writing, for release.

In addition to the above, Confidential Information shall also include, and the Beta Tester shall have a duty to protect, other confidential or sensitive information, or both, which is (a) disclosed by CardSeer in writing and marked as confidential (or with other similar designation) at the time of disclosure; and/or (b) disclosed by CardSeer in any other manner and identified as confidential at the time of disclosure and is also summarized and designated as confidential in a written memorandum delivered to Beta Tester within thirty (30) days of the disclosure.

5.2 Nondisclosure. The Beta Tester agrees not to use any Confidential Information disclosed to it by CardSeer for its own use or for any purpose other than to carry out discussions concerning, and the undertaking, of the Confidential Relationship. The Beta Tester will not disclose any Confidential Information of CardSeer to (i) parties outside the relationship between CardSeer and Beta Tester (the “Confidential Relationship”) or (ii) Participating Members of the Beta Tester other than those under appropriate burden of confidentiality and who are required to have the information in order to carry out the discussions regarding the Confidential Relationship. The Beta Tester agrees that it will, and assures that Participating Members will, take all reasonable measures to (i) prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information, including preventing access to or display of the Beta Software to third parties and (ii) protect the secrecy of and avoid disclosure or use of Confidential Information of CardSeer in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include the highest degree of care that the Beta Tester utilizes to protect its own Confidential Information of a similar nature. The Beta Tester agrees to notify CardSeer in writing of any misuse or misappropriation of Confidential Information of the disclosing party, which may come to the Beta Tester’s attention. Beta Tester acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to CardSeer that may be difficult to ascertain. As such, Beta Tester agrees that CardSeer will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.

5.3 Publicity. The Beta Tester will not, without prior consent of CardSeer, disclose to any other person, outside of authorized Participating Members, or entity the fact that Confidential Information of CardSeer has been disclosed under this agreement, that discussions or negotiations are taking place between the parties, or any of the terms conditions, status or other facts with respect thereto, except as required by law and then only with prior notice as soon as possible to CardSeer.

5.4 Ownership of Confidential Information. Beta Tester agrees that all Confidential Information shall remain the property of CardSeer, and that CardSeer may use such Confidential Information for any purpose without obligation to Beta Tester. Nothing contained herein shall be construed as granting or implying any transfer of rights to Beta Tester in the Confidential Information, or any patents or other intellectual property protecting or relating to the Confidential Information.

5.5 Return of Materials. Any materials or documents that have been furnished by CardSeer to the Beta Tester in connection with the Beta Program will be promptly returned by the Beta Tester, accompanied by all copies of such documentation or certification of destruction, within (10) days after (i) this Agreement has been terminated or (ii) the written request of CardSeer.

5.6. No Use of Confidential Information. Beta Tester agrees to use the Confidential Information solely for the permitted uses as set forth in this Agreement and not to use the Confidential Information in any way, for Beta Tester’s own or any third party’s benefit, or to manufacture or test any product or service embodying Confidential Information, unless written consent has been obtained from CardSeer.

6. Beta Software Warning.

You acknowledge that the Beta Software, as an early stage software application, may contain errors, bugs, or inaccuracies that could cause failures, corruptions, or loss of data and/or information from online accounts, computers, and/or other devices. CardSeer strongly encourages you to back-up all data and information on your computer, devices, and accounts prior to your participation in the Beta Program. The Beta Software is not intended for use, and should not be used, with business-critical systems.

7. Data Collection and Usage.

7.1 Data Collection. In order to help CardSeer, its partners, and third party developers improve their products and services, you acknowledge that CardSeer and its subsidiaries and agents will be collecting, using, storing, transmitting, processing, and analyzing data from your use of the Beta Software. This information may be collected in a form that identifies you and may be collected at any time. The information that we may collect includes, but is not limited to, general diagnostic and usage data, device identifiers, operating systems and browsers used, performance statistics, and certain location information, if available. Beta Tester agrees and consents to CardSeer’s sharing of diagnostic, technical, and usage described in this Section 7 with partners and third party developers for purposes of allowing them to improve their products and services that operate on or in connection with the Beta Software or other CardSeer products and services.

7.2 Privacy Policy. Data collected pursuant to Section 7 will be treated in accordance with CardSeer’s Privacy Policy, which is incorporated by reference into this Agreement and can be viewed at: https://www.cardseer.com/privacy

7.3 Disclosure. CardSeer will disclose information where required by subpoena or other lawful process. CardSeer may also disclose information when it believes that such disclosure is necessary to protect the rights and safety of others or to enforce, or protect, CardSeer’s rights under this Agreement.

8. No Support and Maintenance.

During your participation in the Beta Program, CardSeer is not obligated to provide any maintenance, technical, or other support for the Beta Software. In its sole discretion, CardSeer may provide support. If support is provided, Beta Tester agrees to abide by any support rules and/or policies that CardSeer provides to Beta Tester in order to receive such support. CardSeer may from time to time make available updates, enhancements and/or modifications to the Beta Software and may, at its sole discretion, provide such updates to you, but is under no obligation to do so. The provision by CardSeer to you of such updates, enhancements and/or modifications to the Beta Software shall be subject to all covenants and conditions of this Agreement, including, but not limited to, the restrictions on your use of the Beta Software and CardSeer’s disclaimer of warranties.

9. Future Products.

You acknowledge CardSeer has no obligation, express or implied, to announce or make available a commercial version of the Beta Software to anyone in the future. Should a commercial version be made available, it may have features or functionality that are different from those found in the Beta Software licensed under this Agreement.

10. Third Party Software and Information.

The Beta Software may contain third party software and other intellectual property, e.g., copyrighted materials and trademarks. Acknowledgements, licensing terms, and disclaimers for such third-party materials may be contained in the Beta Software, and Beta Tester’s use of such material is governed by respective terms. Mention of third parties and third party products in any materials provided to the Beta Tester is for informational purposes only and constitutes neither an endorsement nor recommendation. All third-party product specifications and descriptions are supplied by the respective vendor or supplier, and CardSeer shall have no responsibility with regard to the selection, performance, or use of these vendors and their products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users. Beta Tester accepts full responsibility for use of third party software and other materials.

11. No Warranty.

The Beta Software provided hereunder may be designated as beta, development, pre-release, untested, or not fully test versions. You acknowledge and agree the Beta Software is in early stage development and experimental, and CardSeer does not warrant the Beta Software in any way. Additionally, you acknowledge that Beta Software may be incomplete and may contain errors or inaccuracies that could cause failures, corruption and/or loss of data or information. You expressly acknowledge and agree that, to the extent permitted by applicable law, all use of the Beta Software is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy, and effort is with you. CARDSEER IS PROVIDING ALL CONFIDENTIAL INFORMATION, INCLUDING THE BETA SOFTWARE, TO YOU SOLELY ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE. You acknowledge that CardSeer has not publicly announced the availability of the Beta Software, that CardSeer has not promised or guaranteed to you that such Beta Software will be announced or made available to anyone in the future, and that CardSeer has no express or implied obligation to you to announce or introduce the Beta Software or any similar or compatible product, or to continue to offer access to the Beta Software in the Future.

12. Term and Termination.

This Agreement will continue in effect until terminated in accordance with this Section 12. Following termination of this Agreement, the restrictions of Section 3 – 19, inclusive, will continue to bind parties hereto.

12.1 Term. The terms of the Beta Software license granted to you under Section 3 of this Agreement commences upon your use of the Beta Software and will terminate automatically, even without notice, from CardSeer upon the earlier of (i) the commercial release of the Beta Software, (ii) the termination of this Agreement as described in this Section 12, or (iii) the date specified in a separate license accompanying the Beta Software, if any.

12.2 Beta Tester Termination. You may terminate this Agreement at any time, for any reason, but only by returning or destroying any and all Confidential Information that is in your possession or control, including, but not limited to, the Beta Software; provided, however, that if you are unable to delete Beta Software from your computer and/or devices, then you agree that you will continue to hold the Beta Software as Confidential Information. Upon termination, you also agree to immediately discontinue your use of the Beta Software, which means you are prohibited from accessing your account for the Beta Software.

12.3 CardSeer Termination. CardSeer may terminate this Agreement at any time, with or without cause, immediately upon written notice to you, and may terminate this Agreement immediately for any breach of the confidentiality provisions set forth herein. Within five (5) days of your receipt of CardSeer’s termination notice, or earlier if requested by CardSeer, you will return, cease all use of, and/or destroy the Beta Software and all other Confidential Information as required under this Section 12.

13. Indemnification.

13.1 Indemnification. You shall indemnify, defend, and hold harmless (i) CardSeer, (ii) CardSeer’s affiliates, and (iii) CardSeer’s and its affiliate’s directors, officers, employees, and agents (each an “Indemnified Person”) against all liabilities, losses, damages, deficiencies, claims, actions, judgments, settlements, awards, interest, fines, penalties, expenses, or costs (including reasonable attorney’s fees) (collectively “Losses”) that, directly or indirectly, are based on Beta Tester’s breach of this agreement, information provided by Beta Tester, or Beta Tester’s infringement on the rights of a third party or breach of agreement with a third party.

13.2 Indemnification Procedure. CardSeer shall notify you promptly of any demand for indemnification. However, CardSeer’s failure to notify will not relieve you from your indemnification obligations except to the extent that the failure to provide timely notice materially prejudices you. You may assume the defense of any action, suit, or proceeding giving rise to an indemnification obligation unless assuming the defense would result in potential conflicting interests as determined by the Indemnified Person in good faith. You may not settle any claim, action, suit or proceeding related to this agreement unless the settlement also includes an unconditional release of all Indemnified Persons from liability.

13.3 Additional Liability. Your indemnification obligations are not CardSeer’s sole remedy for a breach and are in addition to any other remedies CardSeer may have against you under this agreement. Your indemnification obligations survive the termination of this agreement.

14. DISCLAIMER OF LIABILITY.

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH TESTING, INSTALLATION, OR USE OF THE BETA SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF THE BETA SOFTWARE ON YOUR COMPUTER, DEVICES AND/OR PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA, AND IN NO EVENT WILL CARDSEER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ANY LIABILITY THAT STEMS FROM ANY USE OF THE BETA SOFTWARE ON YOUR COMPUTER, DEVICES AND/OR ANY PERIPHERALS CONNECTED THERETO, AND/OR FROM ANY OTHER CONFIDENTIAL INFORMATION, AND/OR CARDSEER’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF CARDSEER HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CARDSEER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

15. Relationship of Parties.

Nothing in this agreement shall be deemed to constitute either party a partner, joint venture, or employee of the other party for any purpose.

16. Attorneys’ Fees and Costs.

In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

17. Arbitration.

Any dispute, controversy or claim arising out of or related to this Agreement or any breach of this Agreement shall be submitted to and decided by binding arbitration. Arbitration shall be administered exclusively by the American Arbitration Association (“AAA”) and shall be conducted consistent with the rules, regulations, and requirements thereof as well as any requirements imposed by state law. Any arbitral award determination shall be final and binding upon the parties.

18. Governing Law.

This Agreement is governed by and construed in accordance with the internal Laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule that would require or permit the application of Laws of any jurisdiction other than those of the State of Tennessee. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder may be instituted in the federal courts of the United States or the courts of the State of Tennessee in each case located in the city of Nashville and County of Davidson, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

19. Entire Agreement.

This Agreement contains all of the understandings and representations between CardSeer and Beta Tester relating to the subject matter herein and supersedes all prior and contemporaneous understandings, discussions, agreements, representations, and warranties, both written and oral, with respect to such subject matter. This agreement may not be amended, except in a writing signed by both parties.

20. No Waiver or Assignment.

No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of CardSeer, and no single waiver will constitute a continuing or subsequent waiver. This Agreement may not be assigned by you in whole or in part. Any contrary assignment shall be null and void.

21. Severability.

If any provision of this Agreement is held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement is held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall remain in full force and effect and continue to be binding upon the Parties, with any such modification to become a part hereof and treated as though originally set forth in this Agreement.

The Parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement, or by making such other modifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent permitted by law.

The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, if one or more of the provisions of this Agreement are held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had not been set forth herein.

22. Counterparts.

The Parties may execute this Agreement in counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.

23. Third Party Beneficiaries.

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

24. Force Majeure.

Neither CardSeer nor Beta Tester will be liable for a delay or failure to perform an obligation to the extent that the delay or failure is caused by an occurrence beyond the either party’s reasonable control. Each party acknowledges that the operation of the Internet is beyond the other party’s reasonable control, and neither party will be liable for a delay or failure caused by an interruption or failure of telecommunication or digital transmission links, Internet slow-downs or failures, or other such transmission failure.

25. Remedies.

The Beta Tester agrees that any violation or threatened violation will cause irreparable injury, both financial and strategic, to CardSeer and in addition to any and all remedies that may be available, in law, in equity or otherwise, CardSeer shall be entitled to injunctive relief against the threatened breach of this Agreement by the Beta Tester without the necessity of proving actual damages.

26. Acknowledgment of Full Understanding.

BETA TESTER ACKNOWLEDGES AND AGREES THAT BETA TESTER HAS FULLY READ, UNDERSTANDS, AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. BETA TESTER ACKNOWLEDGES AND AGREES THAT BETA TESTER HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF BETA TESTER’S CHOICE BEFORE SIGNING THIS AGREEMENT. BETA TESTER FURTHER ACKNOWLEDGES THAT BETA TESTER’S ACCEPTANCE BY CLICKING THE “I ACCEPT” BUTTON BELOW IS AN AGREEMENT TO RELEASE CARDSEER FROM ANY AND ALL CLAIMS THAT CAN BE RELEASED AS A MATTER OF LAW.