Beta Testing Agreement

THREE MELONS S.A., a company duly incorporated under the laws of the Republic of Argentina, with its principal place of business in Av. Lacroze 2252, 1o ‘A’, Buenos Aires, Argentina (known, for the purposes of this agreement as “Three Melons”), hereby submits this VIDEOGAME BETA TESTING AGREEMENT PROPOSAL to the consideration of you (“You”). Once accepted by You in the manner set forth in Section 13, you would be considered a “Beta Tester” and this proposal shall constitute the VIDEOGAME BETA TESTING AGREEMENT (the “Agreement”) between the Parties regarding the subject matter herein.

1.    RECITALS

1.1.    Three Melons.

Three Melons is a company in the business of designing, developing and publishing videogame products.

1.2.    The Videogame.

Three Melons has designed and developed an online videogame for social networks entitled “Bola” (the “Videogame). 

1.3.    The Program.

Three Melons has established a beta testing program (the “Program”) to, among other things, allow a limited number of people to give feedback and comments to Three Melons regarding the Videogame (including any versions thereof) as well as to test, at Three Melons’ sole discretion, the features, capabilities and performance of any other software or materials as may be provided by Three Melons as part of this Program (the “Beta Software”). Collectively the Videogame and Beta Software are referred to as the “Beta Materials” in this Agreement. 

For those who would participate in the Program by the acceptance of this Proposal (the “Beta Tester”), Three Melons shall offer access, through certain Social Networks (such as Facebook) from where the Beta Tester shall be a registered member and have an account (the “Account”) to play the Videogame before its official publication and release. 

The Program shall be governed by the following legal terms and conditions.

2.    THE PROGRAM.

2.1.    Conditions to participate in the Program. The Beta Tester acknowledges, agrees, accepts, declares and warrants that:

a)    The Beta Tester is 18 (eighteen) years old or older, and is not a principal, employee, agent, independent contractor, officer or director of a developer or publisher of video or computer Videogames (other than Three Melons). If the Beta Tester is under 18 years of age, he may not participate in the Program. The Beta Tester is entering into this Agreement on a completely voluntary basis with no expectation of any form of compensation whatsoever other than what is expressly provided for in this Agreement. 
b)    The Beta Tester has a valid and legal Account, through which the Beta Tester shall access to play the Videogame and shall be used to participate in the Program. As a consequence, the Account shall be in compliance with the policies and or terms of use/ service of that social network.
c)    The Program shall run from the time he installs, copies, download, access or otherwise uses the Beta Materials, and shall end upon the expiration of the Program, unless otherwise extended or terminated unilaterally by Three Melons at Three Melons’ sole discretion. Furthermore, Three Melons may, in its sole discretion for any reason and at any time during the Program terminate his participation therein without any form of compensation due to him whatsoever for this termination. 
d)    In becoming part of the Program, that Three Melons is providing him free of charge the Beta Materials (which constitutes the sole and sufficient consideration for this agreement) and that Three Melons has not made any other promises, whether express or implied regarding any other form of consideration for his participation in the Program. Unless otherwise provided, the Beta Material provided free of charge shall not include the Videogame virtual in-game currency (such as points, cash or coins, which shall be designated as “Bollars”) or in-game digital items (such as football stadium parts), as detail in the Terms of Service and Membership Terms as detailed in Section 2.2.d).
e)    Three Melons may, in its sole discretion, terminate the Program at any time. 
f)    The participation of the Beta Tester in the Program does not constitute an employment Agreement or offer of such an agreement, between him and Three Melons and that Three Melons does not ask and/or require him to work a certain number of hours, shifts, etc. as part of his participation in the Program, and that his participation in the Program is strictly voluntary and done solely for his personal enjoyment; and, further that Three Melons expects the Beta Tester only to use his leisure time to participate in the Program, and does not expect him to forego other activities, including gainful employment, during the time he spends participating in this voluntary Program. As a consequence, the Beta Tester may stop being a volunteer tester of the Videogame at any time that he wishes. 
g)    Three Melons is not providing the Beta Tester with any hardware to run Three Melons’ software or connect to Three Melons’ servers. 
h)    While the role the Beta Tester will play in helping Three Melons develop better software is helpful; it does not constitute a critical or vital role in the development of the Videogame or Beta Software such as to entitle him to claims of ownership or rights to receive any other compensation of any kind for your participation. 
i)    All Bollars acquired during the Program are non-refundable and have no monetary value. 
j)    Three Melons reserves the right to add or remove Bollars to or from the Beta Tester’s account at any time and without warning. 
k)    Three Melons reserves the right to change, add or remove points rewarded at any time and without warning. 
l)    Bollars acquired during the Program could be saved up for or used by Beta Tester in the commercial version of Bola. 
m)    All Bollars will be removed from the Beta Tester’s account before going into the next beta phase (if applicable). 
n)    Bollars acquired during the Program do not entitle the Beta Tester to any Bollars during any other beta stages (if applicable) or for the commercial release of the Videogame. 

2.2.    Obligations of Beta Tester due to his participation in the Program. The Beta Tester acknowledges, agrees, and accepts that:

a)    As part of the Program, the Beta Tester is expected to suggest changes, improvements, additions to the Videogame as well as to provide analysis of the Videogame and its features and that any such material provided to Three Melons in any form whatsoever, including but not limited to email, text messages on message boards and/or oral become the sole property of Three Melons. The foregoing materials shall be deemed Feedback as such term is defined in Section 2.3 above. The Beta Tester hereby waives any rights to the Feedback or any remuneration for the Feedback. Three Melons shall have the right (but not the obligation), at its sole discretion, to credit the Beta Tester for the Feedback and he hereby grants Three Melons a license to attribute such Feedback to the Beta Tester. 
b)    As part of the Beta Tester’s participation in the Program, it is his responsibility to report all known bugs, abuse of bugs, undocumented features or other defects and problems related to the Videogame and Beta Software to Three Melons as soon as they are found (“Bugs”). If the Beta Tester knows about a Bug or has heard about a Bug and fails to report the Bug to Three Melons, Three Melons reserves the right to treat the Beta Tester no differently from someone who abuses the Bug. The beta Tester acknowledges that Three Melons reserves the right to lock anyone caught abusing a Bug out of all Three Melons products. 
c)    At the request of Three Melons, the Beta Tester shall return to Three Melons any and all copies of the Videogame and Beta Software, in any format, delivered to him for review. The return of the material shall not affect the Beta Tester’s obligations to treat the Confidential Information disclosed to him as confidential.
d)    The participation of the Beta Tester in the Program and use of Beta Materials are also governed by Three Melons’ then current terms of service (which can be found at http://www.threemelons.com/en/termsofservice, the “Terms of Service” and may be amended from time to time by Three Melons in their sole discretion), the “Privacy Policy” as detailed in Section 5, and any other additional membership terms, end user license agreement, and code of conduct (“Bola: Membership Terms”) that are reviewed and accepted by the Beta Tester during the registration or installation process, as well as any updates thereto which Three Melons may make from time to time. 

2.3.    The Beta Tester hereby agrees to perform all of the obligations set forth in Section 2.2. in connection with the Program, which shall include, but are not limited to, the obligation: (a) to test, evaluate and analyze the Videogame and specific aspects of it as identified by Three Melons to the Beta Tester; (b) to test, evaluate and analyze other Beta Software (if applicable) and its operation, features, capabilities and performance; (c) to comply with the reasonable requests of Three Melons from time to time regarding testing; and (d) to provide feedback, analysis, suggestions and comments to Three Melons (including, but not limited to, bug reports and test results) as reasonably requested by Three Melons, or as otherwise voluntarily provided by the Beta Tester (collectively, “Feedback”). All of the Beta Tester’s feedback shall be the sole and exclusive property of Three Melons and/ or its licensors or licensees, and the Beta Tester hereby assigns all of his right, title and interest in the Feedback, and all intellectual property rights related thereto to Three Melons. Without limiting the generality of the foregoing, the Beta Tester agrees that Three Melons and/ or its licensors or licensees shall have the perpetual and irrevocable right to use, modify, and otherwise exploit all or part of the Feedback or any derivative thereof in any manner or media now known or hereafter devised without any remuneration, compensation or credit to the Beta Tester. The Beta Tester hereby represents and warrants that he has the right to enter into this Agreement and to assign and grant the rights set forth herein, and that any Feedback which is provided by the Beta Tester hereunder is original work made solely by the Beta Tester and does not infringe any third party intellectual property rights. 

2.4.    The Beta Tester acknowledges, agrees, and accepts the following Code of Conduct for the Program:

a)    The Beta Tester is privileged guests on this system and as guest, Three Melons expects him to exhibit common courtesy to all Three Melons personnel as well as other members of the Program. Three Melons will exhibit the same courtesy towards the Beta Tester.
b)    The Beta Tester will be helping Three Melons shape Bola into a great product and Three Melons values his comments/insights/etc. However, that is not a license to be rude, nasty, demanding or generally unreasonable. The Beta Tester shall remember that Three Melons will be dealing with a lot of people and, as such, a lot of differing opinions regarding what is right or wrong with the Videogame. Just because Three Melons doesn’t agree with the Beta Tester doesn’t mean Three Melons doesn't value his continued input. 
c)    Three Melons needs the Beta Tester’s feedback. The Beta Tester’s access as a beta tester for the Videogame is not a free ride. Three Melons expects something in return and that is the Beta Tester’s help. 
d)    When posting messages about the Videogame in Three Melon’s private message boards or when sending email, the Beta Tester shall try to be as professional as possible. He shall repeat the facts as accurately as he can and without undue emotionalism. Saying things like “this game is crap” is not helpful. If you like something, don't hesitate to tell us. By the same token, in case the Beta Tester doesn’t like something or think that something can be improved he shall not hesitate to tell Three Melons that as well. The Beta Tester will never be banned, punished, taken to task, etc. for speaking his mind in an open, honest and professional manner. Honest, well thought out criticism is as valuable to Three Melons as are suggestions or praise.
e)    Before posting messages publicly about the Videogame outside the Three Melons boards, the Beta Tester shall be sure he’s adhering to the confidentiality terms of this Agreement. Provided that the Beta Tester is expressly permitted to disclose the information as provided in Section 7.4, Three Melons doesn’t mind if the Beta Tester says things that are critical about the Videogame. Three Melons does not expect the Beta Tester to be mindless shills for Three Melons or for the Videogame but neither expects the Beta Tester to trash the Videogame just for the sake of trashing it. 
f)    If requested by Three Melons personnel to help test an aspect of the Videogame, the Beta Tester is kindly asked to cooperate. The sooner we Three Melons works things out, the sooner the Videogame goes LIVE. 
g)    Vulgar expressions, coarse language, abusive behavior, verbal harassment will not be tolerated either towards Three Melons personnel or other beta testers. The use of such language, whether or not the Beta Tester considers it in-character, is not acceptable, whether he uses it in casual and public speech, 'private links', contacts or even in a character's name. 
h)    Part of beta testing a product is the responsibility to report all bugs to Three Melons. Abuse of 'bugs', 'undocumented features' or other such things will not be tolerated. It is the responsibility of all players to report all problems, errors or bugs in the Videogame to Three Melons as soon as they are found. The continued use of such is contrary to Three Melons policy as such bugs/errors can damage and delay the completion of this beta test. Additionally, if the Beta Tester knows about a bug or have heard about a bug and fail to report the bug to Three Melons, he will be treated no differently from someone who abuses the bug. Three Melons reserves the right to lock anyone caught abusing a bug out of all Three Melons products forever. 
i)    The Beta Tester will not behave in any manner that is contrary to the 'spirit of the Videogame' as defined by Three Melons in its sole discretion. 
j)    The Beta Tester will not represent himself as an officer or employee, sub-contractor or somehow being connected with Three Melons or the Videogame. Three Melons reserves the right to lock anyone caught doing that out of all Three Melons products forever. 
k)    The Beta Tester acknowledges and agrees that his communications with other users, beta testers or Three Melons via chats, conferences, bulletin boards, and any other avenues of communication within Bola or as part of the Program are public and not private communications, and that the Beta Tester has no expectation of privacy concerning his use of this Videogame and participation in the Program. The Beta Tester acknowledges that personal information that he communicates within Bola or in connection with the Program may be seen and used by others and result in unsolicited communications, therefore Three Melons strongly encourages the Beta Tester not to disclose any personal information about himself in his public communications within Bola or the Program. Three Melons is not responsible for information that the Beta Tester chooses to communicate to other users within Bola or the Program, or for the actions of other users.
l)    In the unfortunate event that the Beta Tester has engaged in unacceptable behavior, he will be treated accordingly. Three Melons in its sole discretion, reserves the right to terminate the Beta Tester’s access to the Program immediately and without further notice. 

3.    BETA TESTING LICENSE.

3.1.    Once the Beta Tester receives from Three Melons the Beta Materials, Three Melons shall grant to the Beta Tester a non-exclusive, non-transferable, and revocable, right and license (the “Beta Testing License”) to install the Beta Materials onto a single computer, for the sole purpose of evaluating the Beta Materials as permitted under Section 2.3 as part of the Program. 

3.2.    The Beta Testing License shall not include the following rights: 

a)    The right to use the Beta Materials for any purpose not specifically authorized in this Agreement. 
b)    The right to sublicense to, transfer, distribute or permit use of the Beta Materials by, any third party; 
c)    The rights to use, copy, modify, sell, lease, rent, distribute, transfer or disclose any part of the Beta Materials except as provided in this Agreement. 
d)    The right to reverse engineer, decompile, alteration, or disassemble the Beta Materials; 
e)    The right to export the Beta Materials in violation of the export control laws of the United States of America and other countries. 
f)    The right to share the Beta Tester’s Account with any third party. 

3.3.    As between the Parties, and despite the Beta Testing License, Three Melons retains all right, title and interest in and to the Beta Materials, and all Intellectual Property Rights therein. 

3.4.    No right, title or interest in or to any trademark, service mark, logo or trade name of Three Melons is granted under this Agreement.

4.    INDEMNIFICATION.

4.1.    The Beta Tester agrees to indemnify, defend and hold Three Melons harmless from and against all claims, losses, liabilities, damages, expenses, and costs (including, without limitation, reasonable fees for attorneys and expert witnesses) which result from any breach or alleged breach of any of his covenants, representations, warranties or obligations herein

4.2.    The Beta Tester hereby releases, Three Melons and its direct and indirect parents, subsidiaries, affiliates and sister corporations, and their respective officers, directors, employees and agents, from and against any losses, liabilities, claims, obligations, costs and/or expenses (including reasonable legal fees) which result from, arise out of or in connection with the use of the Beta Materials and/or the Beta Tester’s participation in the Program. 

5.    PRIVACY POLICY.

5.1.    The Beta Tester may be required to provide to Three Melons, as a condition to testing the Beta Materials, certain personally identifiable information (“Personal Information”). Three Melons’ retention and use of all Personal Information shall be subject to Three Melons' privacy policy as posted on www.threemelons.com/en/privacypolicy, as that policy may be updated by Three Melons in its discretion from time to time. Furthermore, the Beta Tester acknowledges and agrees that his communications with other users or with Three Melons via chats, conferences, bulletin boards, and any other avenues of communication within the Videogame, Beta Software and/or the Program are public and not private communications, and that he has no expectation of privacy concerning his use of the Videogame and/ or Beta Software (including, any character data or communication referenced in Section 10.3 below). The Beta Tester further acknowledges and agrees that Three Melons reserves the right to monitor any such content and communications. 

6.    TERM.

6.1.    The Beta Tester’s participation in the Program and the grant of the Beta Testing License herein, may be terminated by Three Melons at any time, for any reason or for no reason, in Three Melons’ sole and absolute discretion, by providing written or emailed notice to the Beta Tester. 

6.2.    The Beta Tester may, at any time and for any reason or for no reason, terminate his participation in the Program by providing written or emailed notice to Three Melons. The termination of the Beta Tester’s participation in the Program however, shall not modify or supersede the survival provision in Section 11.1 below. Upon termination of the Program or the Beta Tester’s participation in it for any reason as provided herein, all license rights granted hereunder (specifically the Beta Testing License) or under the Bola: Membership Terms (as defined in Section 2.2.d) shall terminate immediately. 

7.    CONFIDENTIALITY.

7.1.    Subject matter deemed “Confidential Information” for purposes of this Agreement shall include: (a) any and all information relating to, contained in or relayed through the Beta Software, the Videogame, and the Program, including, without limitation, information relating to (i) the performance, capabilities and contents of the Beta Materials, (ii) the Feedback, (iii) any other Program participant’s feedback, and (iv) any Three Melons employee’s feedback and comments; (b) the existence and terms of this Agreement; and (c) any and all information relating to the future or proposed Videogames, services or business operations of Three Melons. Specifically, and without limiting the foregoing but only as an example, Confidential Information shall be: any contact/private information for Three Melons personnel that is provided to the Beta Tester; any contact information (address, password, etc.) to any private areas for use in connection with the Program, including but not limited to, chat, email and message boards; any information/discussions/postings from the private boards or forum for the Program; any comments/information that would allow people who are not currently part of the Program to get access to the Program or Videogame through either legitimate or illegitimate means; post or distribute any screen captures, pictures, videos, podcasts, screenshots or any other representations, known or unknown, of any content in the Videogame or other Beta Materials; any public posting or commentary of the Videogame based on the Beta Tester’s participation the Program; any comments or discussions on new features or other new functionalities in the Videogame or other Beta Materials; any details regarding the stability of the Videogame or the Videogame servers; general comments about the Videogame’s overall development; any comments on any aspect of the Videogame or other Beta Materials not covered by Section 7.4 above. 

7.2.    The Beta Tester shall keep the Confidential Information in confidence and shall not publish, disclose, distribute, transmit, post or otherwise make available, directly or indirectly, any Confidential Information to any third party except as otherwise expressly set forth herein. However, the Beta Tester may disclose the Confidential Information in accordance with a judicial or governmental order; provided, however, that (a) the Beta Tester gives Three Melons prompt written notice of such order so Three Melons has opportunity to seek a protective order or other appropriate remedy to such order, prior to disclosure and shall comply with any applicable protective order or equivalent, (b) the Beta Tester provides Three Melons with all reasonable assistance in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information, and (c) the Beta Tester discloses only such portion of the Confidential Information as is either permitted by Three Melons or required by the court, tribunal, governmental agency or other authority, subject to any protective order or confidential treatment obtained by Three Melons 

7.3.    The Beta Tester shall use his best efforts to safeguard and to prevent unauthorized use or disclosure of the Confidential Information, unless otherwise expressly authorized in writing as provided in Section 7.4 below. The Beta Tester’s obligation to keep the Beta Materials confidential will continue until Three Melons publicly distributes, or has otherwise disclosed to the public through no fault of the Beta Tester, each of the Videogame product(s) and the content that the Beta Tester is testing. 

7.4.    Permitted Disclosures. The Beta Tester may only disclose the existence of the Program, and his being a member of the Program, on online message boards, forums or other similar venues in accordance with the restrictions set forth in this Agreement. Said restrictions are to be applied no matter whether the venue is open to the general public or with access that is regulated and/or restricted. Three Melons reserves the right to amend those restrictions from time to time upon written notice to the Beta Tester. Notwithstanding anything contained herein to the contrary, the Beta Tester shall not make any false statements to anyone about Three Melons, its licensors, the Program, other participants in the Program, or any Three Melons products or services, including the Videogame and Beta Software 

8.    OWNERSHIP.

8.1.    Except for the revocable, limited Beta Testing License expressly granted hereunder, Three Melons retains all right, title and interest in and to the Beta Materials and all copies thereof, and all Videogame character data in connection therewith. The Videogame and any other Beta Materials provided hereunder are copyrighted and are protected by the Republic of Argentina copyright laws and international treaty provisions. The Beta Tester acknowledges that Three Melons and/ or its licensors own all intellectual property rights in and to the Beta Materials, including, without limitation, all patent rights, copyrights, inventions, trade secret rights, trade dress rights, trademark rights and intellectual property rights therein and thereto. The Beta Tester may not remove the copyright and other proprietary rights notices from the Beta Materials. The Beta Tester agrees that this Agreement shall be retained with all printed and electronic copies of the Beta Materials and documentation constituting the Beta Materials. The Beta Tester agrees to prevent any unauthorized copying of the Beta Materials. Except for the revocable, limited Beta Testing License as expressly provided herein, Three Melons does not grant the Beta Tester any express or implied right in any patents, copyrights, trademarks, or trade secret information of Three Melons, and/or its licensors. In accordance with Section 2.3, the Beta Tester agrees that Three Melons and/ or its licensors or licensees own all right, title, and interest in any and all of the Feedback, without any remuneration, compensation or credit to the Beta Tester. To the extent that any of the rights assigned herein cannot presently be assigned under applicable law, the Beta Tester agrees to assign such rights at such time as the rights are capable of being assigned. The Beta Tester agrees at Three Melons’ request to execute such further documents and to do such further acts as may be necessary or desirable to document, perfect, register or enforce Three Melons’ and/or its licensor’s ownership of any of the rights, title and/or interests hereunder, in whole or in part including, without limitation, execution of a copyright assignment in a form provided by Three Melons in its sole discretion. If the Beta Tester fails or refuses to execute any such documents, the Beta Tester hereby appoints Three Melons as his attorney-in-fact, which appointment is coupled with an interest and is irrevocable, to act on the Beta Tester’s behalf and to execute, deliver, record and file such documents. The rights granted, assigned and/or to be assigned by the Beta Tester hereunder are granted for the entire universe and shall inure in perpetuity, and, as set forth above, no further consideration shall be payable to the Beta Tester at anytime in connection therewith. The Beta Tester will acquire no right to use, and will not use without Three Melons’ prior written consent, the names, characters, artwork, designs, tradenames, copyrighted materials, trademarks or service marks of Three Melons or its parent, related or subsidiary companies, employees, directors, officers, shareholders, assigns, successors, licensors or licensees: (a) in any advertising, publicity, marketing, promotion or on any website; or (b) in any manner other than in accordance with this Agreement. 

9.    INJUNCTIVE RELIEF.

9.1.    The Beta Tester acknowledges and agrees that a breach or threatened breach of Sections 1-8 of this Agreement will cause irreparable injury, that money damages would be an inadequate remedy and that Three Melons shall be entitled to ex parte injunctive relief without bond, to restrain the Beta Tester, from such breach or threatened breach. Nothing in this Section 9 shall be construed as preventing Three Melons from pursuing any and all remedies available to it, including the recovery of money damages from the Beta Tester. 

10.    DISCLAIMERS. LIMITATIONS.

10.1.    THE BETA TESTER ACKNOWLEDGES THAT THE VIDEOGAME AND ANY BETA SOFTWARE PROVIDED HEREUNDER ARE PRE-RELEASE PRODUCTS. THE BETA TESTER ACKNOWLEDGES THAT THE VIDEOGAME AND BETA SOFTWARE MAY WELL CONTAIN ERRORS AND DEFECTS AND ARE NOT FINAL PRODUCTS. THE VIDEOGAME AND BETA SOFTWARE ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. THE BETA TESTER FURTHER AGREES THAT THREE MELONS HAS NO OBLIGATION TO MAKE THE VIDEOGAME AND BETA SOFTWARE AVAILABLE FOR PLAY WITHOUT CHARGE FOR ANY PERIOD OF TIME, OR TO MAKE THEM AVAILABLE AT ALL. 

10.2.    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THREE MELONS SHALL NOT BE LIABLE TO THE BETA TESTER OR ANYONE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING WITH RESPECT TO THIS AGREEMENT, THE VIDEOGAME, OR OTHER BETA MATERIALS PROVIDED HEREUNDER, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT THE BETA TESTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL THREE MELONS’ AGGREGATE LIABILITY TO THE BETA TESTER UNDER THIS AGREEMENT EXCEED FIFTY US DOLLARS (US$50.00). 

10.3.    Three Melons does not provide any support for the Videogame and Beta Software. However, Three Melons may provide an e-mail address and/or a private message board for the Beta Tester to send any questions and/or comments regarding the Beta Materials. Three Melons does not, however, make any representations or warranties as to the accuracy of any statements or advice provided in response to the Beta Tester’s e-mail(s) and/or board postings. 

10.4.    The Beta Tester acknowledges that the Videogame and Beta Software will run in a test environment, that Videogame characters, character data, or any other value or status indicators that the Beta Tester achieves through Videogame play as part of the Program may be erased or modified at Three Melons’ sole discretion at any time, and that such data shall likely not be exported into the Videogame once the Videogame is commercially released.

11.    MISCELLANEOUS.

11.1.    Survival. The provisions of Sections 2.3., 3, 4, 7, 8, 9 and 10 shall continue in full force and effect even after (a) the Program has been terminated or completed and/or (b) the Beta Tester’s participation in the Program has been terminated. 

11.2.    Governing Law; Jurisdiction. The laws of the Republic of Argentina, excluding its conflicts-of-law rules, govern this Agreement. The Beta Tester expressly agrees that exclusive jurisdiction for any claim or dispute with Three Melons or relating in any way to the Beta Tester’s participation in the Program or his use of Beta Materials in the courts of the Republic of Argentina and the Beta Tester further agrees and expressly consent to the exercise of personal jurisdiction in the courts of the Republic of Argentina in connection with any such dispute including any claim involving Three Melons or its parent, affiliates, subsidiaries, employees, contractors, officers, directors, vendors and content providers. 

11.3.    Severability. If any provision of this Agreement shall be held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, and the validity and enforceability of all other provisions of this Agreement shall not be affected thereby. 

11.4.    Amendment. This Agreement may be amended by Three Melons from time to time at their sole discretion. The Beta Tester agrees to check http://www.threemelons.com/en/betaagreement periodically for new information and terms that govern his participation in the Program. Revisions to terms affecting existing elements of the Program shall be effective 30 (thirty) days after posting at http://www.threemelons.com/en/termsofservice Terms for new elements of the Program are effective immediately upon posting at http://www.threemelons.com/en/betaagreement. 

11.5.    Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties, except for the Terms of Service and Bola: Membership Terms as defined in Section 2.2.d) above. 

12.    BREACH.

12.1.    Breach. In the event that the Beta Tester violates any of the terms set forth in this Agreement or in the Program Code of Conduct as detailed in Section 2.4, the Beta Tester hereby acknowledges that Three Melons, in its best business judgment, may remove his access to the Program, by means of which the Beta Testing License shall be terminate, as well as subject the Beta Tester to any legal remedies that Three Melons may take. 

13.    ACCEPTANCE OF AGREEMENT PROPOSAL.

BY PRESSING THE “I ACCEPT” BUTTON, THE BETA TESTER ACCEPTS THIS PROPOSAL AND THE FOREGOING TERMS AND CONDITIONS. BY PRESSING THE “DECLINE” BUTTON, THE BETA TESTER DECLINES THIS PROPOSAL, IN WHICH CASE THE BETA TESTER SHOULD CONTACT THREE MELONS REGARDING REMOVAL FROM THE PROGRAM. In the event the Beta Tester chooses not to accept this Agreement or by technical means can bypass/disable the “I ACCEPT” BUTTON, by installing, copying, downloading, accessing or otherwise using the Videogame, the Proposal shall be deemed accepted by the Beta Tester, who shall be deemed to have agreed to be bound by the terms of this Agreement. Further, the Beta Tester hereby acknowledges that he chooses to accept the Proposal and be bound by the terms of this Agreement every time the Beta Tester enters or re-enter the Videogame. If the Beta Tester does not agree to the terms of this Agreement, he shall not install or use the Videogame.

©2009 Three Melons S.A.