In consideration for receiving the opportunity to test (the “Test”) the prototype product indicated below (the “Product”) produced by Audrey & Bear, LLC, a Utah Limited Liability Company (“Audrey & Bear”), I agree to the terms located at https://audreyandbear.com/pages/terms-of-service and to the terms of this Product Test, Waiver of Liability, Nondisclosure, and Hold Harmless Agreement (the “Agreement”).
I agree to perform the following as part of the Test:
• use the Product beginning within three (3) days of receiving the Product;
• respond truthfully to a questionnaire requesting demographic and other personal and non-personal information;
• respond truthfully to all Audrey & Bear surveys that may include questions around Product features such as comfort, utility, quality, and user experience and other Product-related questions;
• cooperate with Audrey & Bear’s requests concerning the Product; and
• keep the existence, details and results of the Test and Product confidential.
I understand and agree that I will not discuss the Product with any third parties, including, but not limited to posting anything on social media until Audrey & Bear provides written permission to do so or Audrey & Bear launches the Product commercially to the general public.
I acknowledge and understand that the Product is a prototype version that is not expected to function fully or flawlessly during the Test; may contain defects and/or other problems; and may include product features that are not features that will be included in commercially available versions of the Product.
I acknowledge and understand that the Product has not yet begun, or may still in the process of, testing for compliance with regulatory standards and may not currently meet those standards.
I understand and agree that the Product and Test are not publicly known, are confidential and sensitive in nature and are considered Confidential Information. I understand and agree that I will not use any information about the Product, Test or any other Confidential Information provided to me by Audrey & Bear for any reason other than to complete the Test. I agree not to disclose any Confidential Information to anyone other than Audrey & Bear. I agree to not reverse engineer, disassemble or decompile any Products, prototypes, or other tangible objects which are provided to me. I understand and agree that “Confidential Information” means any information disclosed by Audrey & Bear to me, either directly or indirectly, in writing, orally or by inspection of tangible objects. I understand and agree that Confidential Information shall not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Audrey & Bear; (ii) becomes publicly known and made generally available after disclosure by Audrey & Bear to me through no action or inaction on my part; (iii) is already in my possession at the time of disclosure by Audrey & Bear; (iv) is obtained by me from a third party without a breach of such third party's obligations of confidentiality; (v) is independently developed by me without use of or reference to the Confidential Information provided by Audrey & Bear to me, as shown by documents and other competent evidence in my possession or (vi) is required by law to be disclosed by me, provided that I promptly give Audrey & Bear written notice of such requirement prior to any disclosure so that Audrey & Bear may seek a protective order or other appropriate relief.
I, for myself, and on behalf of my family, estate, heirs, executors, trustees, personal representatives, successors and assigns, hereby release, waive, discharge and covenant not to sue Audrey & Bear, its members, officers, stockholders, agents and employees (hereinafter referred to as “Releasees”) from any and all liability, costs or expenses, claims, demands, actions and causes of action whatsoever for any loss, damage or injury, including death, that may be sustained by me, my spouse, child/children, or to any persons or property belonging to me or under my care, custody or control, arising out of or relating to my participation in the Test, or while in any way engaged with activities related to the Test, wherever, whenever, or however the same may occur, regardless of who is at fault and including as a result of the negligence or fault of any of the Releasees. IF I AM A CALIFORNIA RESIDENT, I WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
I acknowledge and understand that there are risks and hazards connected with participating in the testing of a prototype product. However, I hereby elect to voluntarily participate in the Test, even though participation in the Test may be inherently, or may become during the course of the Test, hazardous to me or my child’s/children’s health. I knowingly and voluntarily assume all such risks, both known and unknown, even if arising from the negligence of the Releasees, and assume full responsibility for my or my child’s/children’s participation in the Test. I agree to use the utmost caution and care to avoid injury or damage to myself and others. I further agree that prior to participating in the Test, I will inspect the Product to be used, and if I believe anything is unsafe, I will immediately cease to participate in the Test and will inform Audrey & Bear.
I further agree to indemnify, save and hold harmless the Releasees and each of them, from any and all losses, liabilities, damages or costs they may incur due to my participation in the Test, whether caused by the negligence of any or all of the Releasees, or otherwise, and to reimburse the Released Parties for any costs and expenses, including, without limitation, attorneys’ fees, incurred in defending such actions.
It is my express intent that this Agreement shall bind me, all members of my family, my heirs, assigns and personal representative and shall be deemed as a release, waiver, discharge and covenant not to sue the Releasees.
I understand and agree that this Agreement, and all disputes arising out of or related hereto or in any way concerning the Test, shall be governed by and construed under the laws of the State of Utah, United States of America, without reference to conflict of laws principles. All such disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in Utah County, Utah, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. In any dispute related to the subject matter of this Agreement, the prevailing party in such dispute shall have the right to collect reasonable attorney’s fees and court costs from the other party.
In signing this release, I acknowledge and represent that:
I am at least eighteen (18) years of age and fully competent to sign this Agreement; and/or
if participant is under eighteen (18) years of age, I am the parent or legal guardian of the minor(s) participating in the Test. I am of legal age and am freely signing this Agreement on behalf of the minor(s) participating in the Test, and intend my signature to be a complete and unconditional release of liability to the greatest extent allowed by law. I understand that I am responsible for determining whether participation in the Test is advisable for my child/children and I am responsible for my child’s/children’s behavior and actions while participating in the Test. I have read this Agreement and understand that by signing it, I am giving up legal rights and remedies on behalf of myself and my child/children. By my signature below, I represent and warrant to the Releasees that I are the parent or legal guardian of the minor(s) participating in the Test and the minor(s) has/have your permission to execute this Agreement. I acknowledge and confirm my knowledge of the minor(s)’s rights to disaffirm contracts under Cal. Fam. Code § 6710 (1994). ON BEHALF OF THE MINOR(S) AND MYSELF, I HAVE SIGNED THIS EVENT AGREEMENT, AND I HEREBY AGREE TO AND GUARANTEE MINOR(S)’S PERFORMANCE OF AND COMPLIANCE WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
No oral representation, statements or inducements, apart from the foregoing written Agreement, have been made; and
I HAVE READ THE FOREGOING AGREEMENT, UNDERSTAND IT, AND AGREE VOLUNTARILY OF MY OWN FREE WILL.