This Beta Trial and Confidentiality Agreement (the “Agreement”), is effective as of the date You accept this Agreement (“Effective Date”) and is entered into by and between ZeniMax Media Inc., with offices at 1370 Piccard Drive, Rockville, Maryland 20850 (“ZeniMax”), and You, an individual, serving as a play-tester (“You” or “Reviewer”), and relates to Your access to and use of one or more yet to be released games, game content and/or software identified in the beta sign-up (collectively, the “Game”), any and all content in and related to the Game, related Software and related Services (collectively, the “Beta Trial”).
From time to time after the Effective Date You may elect to be a play-tester and participate in one or more other Beta Trials that are made available to You by ZeniMax in ZeniMax’s discretion. As used in this Agreement the phrase “the Beta Trial” refers to each such Beta Trial individually and all such Beta Trials collectively. Similarly, in this Agreement, the phrase “the Game” refers to each Game that is the subject of a Beta Trial individually and all such Games collectively. Unless ZeniMax requires You to agree to a different agreement at the time You register or sign up to be a play-tester or participate in a specific Beta Trial, this Agreement will apply to all Beta Trials of ZeniMax Games.
Your participation in and confidential access to the Beta Trial are subject to the ZeniMax Terms of Service, Privacy Policy and Bethesda.net Code of Conduct You agreed to at the time You established Your Bethesda.net Account with ZeniMax and may be found, respectively, at: https://bethesda.net/#en/termsofservice; https://bethesda.net/#en/privacypolicy; and https://bethesda.net/#en/codeofconduct.
By agreeing to this Agreement and participating in the Beta Trial, You agree to comply with the terms of this Agreement, the Terms of Service, the Privacy Policy and the Code of Conduct.
This Agreement is a “beta agreement” as referenced in the Terms of Service and this Agreement is incorporated into, and this Agreement forms a part of, the Terms of Service as if the terms and conditions in this Agreement were included in the Terms of Service on the date You agreed to the Terms of Service. This Agreement is not a separate, independent agreement between You and ZeniMax.
ZeniMax may amend or modify this Agreement at any time in its sole discretion by posting amendments on the ZeniMax website. When ZeniMax make changes to any component of this Agreement, the effective date of such change shall also be posted. When logging onto the Services (as defined in the Terms of Service), You will be asked to confirm Your acceptance to the revised Agreement (or component thereof) the first time that You log-in after the change has become effective. If You do not agree to the revised Agreement, You will not be able to continue participating in the Beta Trial and You should email ZeniMax immediately at support@bethsoft.com to discuss immediate termination of your Beta Trial participation.
By participating in the Beta Trial or using any of the Services that are related to or connected with the Beta Trial, You affirm that that You have read and agree to comply with the Terms of Service, this Beta Trial Agreement, the Privacy Policy, and the Code of Conduct.
From time to time, ZeniMax may offer or operate yet-unreleased Game Services and/or provide a range of other Game related services and features in connection with the Beta Trial. Each of these are “Services” for purposes of the Terms of Service. These Services may include, for example, the possibility of creating a profile page, participating in a Beta Trial forum(s) (“Beta Forums”), downloading and uploading media and User Generated Content or “UGC” (as defined in the Terms of Service), and additional features.
ZeniMax reserves the right to reset the Game, Your Game account (if any), Your characters, inventory items, achievements, and/or in-Game settings at any time during the Beta Trial. In connection with a reset, ZeniMax may require You to agree to a new version of this Agreement in order to continue Your participation in the Beta Trial and the terms above regarding modifications and amendment to this Agreement will apply to such new versions of this Agreement. ZeniMax also reserves the right to change and modify (i) the URL address for the Game, (ii) the Game, (iii) any Beta Forums, and (iv) the Services at any time. You agree that any such changes and modifications may cause a loss of data or Content or loss of function or utility related to the Beta Trial. You agree that, to the extent permitted by applicable law, ZeniMax is not liable for any loss of data, Content, function or utility.
If the Beta Trial includes the use of (i) Virtual Currency (as defined in the Terms of Service) or (ii) in-game purchases (including without limitation Downloadable Content), the following terms apply. In connection with a reset of the Game during the Beta Trial, ZeniMax may (i) reset all Virtual Currency to Your original amount, (ii) simply carry forward Your then-existing amount of Virtual Currency or (iii) zero out, delete or cancel any Virtual Currency in Your account at the time of the reset. All virtual items (including without limitation Downloadable Content and Virtual Currency), achievements, progressions and in-game services of any nature that You acquire during the Beta Trial, either purchased with Virtual Currency, via a storefront or in-game wallet with real-world currency, with earned bonus points or otherwise (collectively, “Virtual Items”), may be deleted or removed from your inventory at any point by ZeniMax during the Beta Trial. Without prejudice to the Statutory Obligations (as defined in Section 1 of the Terms of Service), if a Virtual Item You purchased with real-world currency is deleted or removed from your inventory during the Beta Trial, Your account will be credited with Virtual Items of equal value. In the case of Virtual Items that include randomly selected items (such as card packs), Your account will be credited with an equivalent replacement and such replacement may have a different set of randomly selected items.
By agreeing to this Agreement, You represent and warrant to ZeniMax that (i) You have read this Agreement, the Terms of Service, the Privacy Policy, and the Code of Conduct prior to accepting this Agreement and are fully familiar with the terms and conditions; and (ii) You have not, and will not in the future, enter into any agreement or understanding, whether written or oral, with any third party that impedes or conflicts with the performance of Your obligations set forth in this Agreement. If You do not so agree to the terms and conditions in this Agreement or if You cannot make such representations, You will not be permitted to playtest the Game or participate or the Beta Trial.
To participate in the Beta Trial, You will need to install software on Your computer or console system, as applicable, including any and all items accompanying the software, such as an access key (collectively, the “Software”). An access key can be used only once. You agree that You will not provide any such Software (including any access key) to any other person or entity.
Any Software provided to You by ZeniMax in connection with the Beta Trial may be distributed to You by ZeniMax alongside certain third party software (the "Third-Party Software") provided under separate license terms (the "Third-Party Terms"). All Third-Party Software is licensed to You only under the applicable Third-Party Terms, except that the disclaimers of warranty and limitation of liability sections of the Terms of Service shall also apply to such Third-Party Software.
You agree that ZeniMax is not liable for nor has control over Your actions; Your Account and/or sub-account(s); Your child account, if applicable; or any loss of data, character and/or inventory data, Content, function or utility related to the Game during the Beta Trial; or any behavior of other person participating in the Beta Trial.
In connection with the Beta Trial, and as further discussed in Section 4, below, You may provide comments to ZeniMax from the perspective of an end user consumer concerning the features or related elements of the Game. You agree to perform such tasks as ZeniMax shall direct related to the Beta Trial in a timely manner as requested by ZeniMax.
You acknowledge the reliance of ZeniMax on Your honest, good faith, and unbiased commentary, suggestions, and evaluations of the Game during the Beta Trial. You represent and agree that You will act at all times with the highest ethical standards in connection with Your participation in the Beta Trial.
You agree that all tasks that You may undertake for or on behalf of ZeniMax relating to the Beta Trial, whether at the request of ZeniMax or otherwise, shall be performed without monetary or financial compensation or benefit of any kind, and without any expectation of such financial compensation or benefit now or in the future. This paragraph will survive the termination of this Agreement.
You agree that You are acting as an independent contractor. Nothing contained in this Agreement shall in any way constitute or establish an intention of any employment relationship, association, partnership, or joint venture between the parties hereto. Neither party shall have the right, power, or authority to make any representation or warranty on behalf of, or to assume or create any obligation, whether express or implied, binding on, the other party in any manner whatsoever.
You acknowledge that ZeniMax may request from You and You may provide to ZeniMax suggestions, feedback, commentary, ideas, concepts, inventions, characters, plots, titles, designs, art work, programs, programming techniques, or other statements (collectively, “Feedback”) concerning the Game or other Confidential Information. You acknowledge that all Feedback, expressly including but not limited to any and all patent, copyright, trademark, trade secret and other intellectual property rights related to the Feedback, is original, voluntary and automatically shall become the property of ZeniMax and its designees. You acknowledge and agree that ZeniMax shall be free to disclose and use Your Feedback as ZeniMax sees fit without any obligation of any kind to You. You hereby assign and agree to assign ZeniMax all right, title, and interest in and to, and hereby waive and agree not to exercise any “moral rights” to, all Feedback provided to ZeniMax that relate to the Beta Trial (including the Game and Confidential Information). To the extent that ZeniMax cannot claim exclusive ownership rights in all Feedback by operation of law or pursuant to the assignment noted above, and to the fullest extent permitted by law You hereby expressly grant to ZeniMax and its licensors, licensees and designees a perpetual, irrevocable, worldwide, paid-up, non-exclusive, royalty-free, transferrable, sublicenseable right and license to exercise all rights of any kind or nature associated with such Feedback in all formats and medium, whether existing now or in the future, and You agree not to assert or enforce any moral or similar rights You may have which may now or may hereafter be recognized, and all ancillary and subsidiary rights, in any languages and media now known or not currently known. You hereby constitute and appoint ZeniMax as Your attorney-in-fact for the purpose of executing such documentation. The rights of ZeniMax pursuant to this subparagraph constitute a power coupled with an interest, with rights of substitution and delegation, and are irrevocable. All Feedback will be the Confidential Information of ZeniMax. This paragraph will survive the termination of this Agreement.
You acknowledge that ZeniMax, through the investment of significant time, effort, and expense has created the Game and the related confidential information and that ZeniMax is providing You confidential and/or proprietary trade information, intellectual property, business information or materials as part of the Beta Trial and that ZeniMax wishes to maintain the confidentiality of its Confidential Information. As a material inducement to ZeniMax to enter into this Agreement and to permit You access to participate in the Beta Trial, You hereby expressly represent and agree that You will not disclose, nor make any use of, or benefit from, directly or indirectly, the Confidential Information of ZeniMax. This Section 5 and the terms below in this Section 5 will survive the termination of this Agreement.
(a) “Confidential Information” as used in this Agreement shall mean any and all information or material, of every kind and form, in electronic or tangible form, relating to the Beta Trial, the Game or any other ZeniMax products and services which are made available to You by ZeniMax under this Agreement, whether or not designated as Confidential Information by ZeniMax. Confidential Information includes, but is not limited to, all Feedback and all other information relating to the Beta Trial, Your selection as a Beta Trial participant, the Game (including but not limited to information and ideas relating to the Game, software, software code, designs, graphics, rules, playing strategies, artwork, visual depictions, plot, theme, settings, characters, characterizations, skills, emails, screenshots, marketing emails, marketing and promotional plans, current, future or proposed products or services of ZeniMax, written or printed documents, announcements or prereleases, product samples, artwork, graphics, promotional and/or marketing items), the Beta forums and other private ZeniMax forums, business and/or trade secrets, testing protocols, processes, and standards relating to the Game and/or associated products or services of ZeniMax.
(b) For the purposes of this Agreement, the term Confidential Information does not include information or material ZeniMax discloses to You that You can demonstrate by written record (i) was known to You and in Your possession, without restriction as to use or disclosure prior to the disclosure by ZeniMax; or (ii) is obtained, without restriction as to use or disclosure, from a source lawfully in possession of the information and having the right to disclose it without an obligation of confidentiality; or (iii) is independently developed by You (excluding Feedback) without use or knowledge of ZeniMax’s Confidential Information; or (iv) has been made publicly available by ZeniMax.
(c) You agree to hold in strictest confidence and not to disclose or reveal to any person or entity Confidential Information without the express prior written consent of a duly authorized representative of ZeniMax. In particular, You must not discuss the Beta Trial with anyone associated with a competing videogame, any videogame publisher or developer, any news or information service (whether television, magazine, online, newspaper or otherwise), or review, report, Game footage, online blog, or in any online forum or chat room, other than the official Beta Forum or specifically designated private ZeniMax forum. Except as expressly authorized by ZeniMax, You additionally agree not to use any of the Confidential Information for any purpose whatsoever or to disclose any of the Confidential Information at any time to any third party by direct or indirect means. Without limiting the generality of the foregoing, You agree that any reports or announcements concerning Confidential Information which are not made or authorized by ZeniMax, and which appear prior to ZeniMax’s official disclosure of such Confidential Information, shall not release You from Your obligations hereunder with respect to such Confidential Information. It shall be Your duty to secure the authorization of ZeniMax in the event of any reasonable doubt on Your part regarding the status of disclosed Confidential Information.
(d) You shall not copy, alter, modify, disassemble, reverse engineer, or decompile the Game, Confidential Information, or any materials received during the Beta Trial or otherwise attempt to derive source code from the Game without the prior written consent of ZeniMax.
(e) Nothing contained in this Agreement shall be construed to create any obligation on the part of ZeniMax to disclose any Confidential Information to You. ZeniMax reserves the right to suspend, restrict, or cancel the Beta Trial, and/or may terminate Your participation in the Beta Trial at ZeniMax’s sole and absolute discretion.
Subject to Your compliance with all of the terms and conditions in this Agreement and the Terms of Service, ZeniMax grants to You, for Your personal and private use only, a nonexclusive, revocable, nontransferable license to use the Game, Software, Content, and Services solely in connection with Your participation in the Beta Trial. You may not participate in the Beta Trial or use the Game, Software, Content or Services for any other purpose or using any other method. Upon the completion of the Beta Trial, if directed by ZeniMax, you agree to uninstall and/or remove the Game, Software and/or Content from your computer or console system, as applicable.
You agree that all intellectual property associated with or relating to the Beta Trial, the Game, software, techniques, know-how, processes and methodologies (including but not limited to test results, statistical information, and other information generated from or created during the undertaking of the Beta Trial) are and shall remain the sole and exclusive property of ZeniMax. Except for the express license set forth above, nothing in this Agreement shall be construed in any way to grant You any license, right, interest, or expectation whatsoever, express or implied, under any patent, trademark, copyright, trade secret, know-how or technology that ZeniMax may now have or hereafter have or generate relating to the Beta Trial or the Game, this Agreement, other ZeniMax games or ZeniMax affiliates’ game or property that may be disclosed hereunder. Nothing in this Agreement shall be construed in any way to create or confer a right, interest, or expectation of You in or to any tangible or intangible property or property right of ZeniMax, or in or to any ZeniMax information which may be disclosed by ZeniMax to You. This paragraph will survive the termination of this Agreement.
You agree that ZeniMax may terminate the Beta Trial and the license set forth above at any time, including without limitation, prior to the commercial release of the Game. In addition, ZeniMax may revise and change the Game at any time during the Beta Trial.
Prior to the termination of the Beta Trial for the Game, ZeniMax may limit access to and use of the Game, including without limitation, when ZeniMax is making updates and changes to the Game.
During the course of the Beta Trial, regular and unscheduled wipes of player progression (which may include characters, character names, guild names and/or other personas) and/or saved games (which may include inventory) may occur at any time, at the sole discretion of ZeniMax. ZeniMax makes no guarantees about the persistence or availability of player progression or inventory items at any time during the Beta Trial and assumes no liability for lost or deleted account data, including character data.
The restrictions and limitation in the Terms of Service will apply to the Beta Trial and Your use the Game, Software, Content and Services.
For the avoidance of doubt, You agree that the terms in Section 11 of the Terms of Services titled “Disclaimer of Warranty” apply to each element of the Beta Trial and the related Services.
For the avoidance of doubt, You agree that the terms in Section 12 of the Terms of Services titled “Limitation of Liability; Limited Remedies” apply to each element of the Beta Trial and to this Agreement.
The parties agree that Your obligations in Section 4, Section 5 and Section 6 of this Agreement are of a unique character and that the material breach of any obligation in such Sections by You will cause ZeniMax irreparable injury. Therefore, ZeniMax shall be entitled to immediate equitable relief to prevent such injury and/or damage. All remedies hereunder, and all remedies provided at law, shall be deemed cumulative and are not exclusive. This paragraph will survive the termination of this Agreement.
If You do not agree to the current or revised terms and conditions of this Agreement, the Terms of Service, the Nondisclosure Agreement, the Privacy Policy, or the Code of Conduct, You should email ZeniMax immediately at support@bethsoft.com to discuss immediate termination of your Beta Trial participation.
Any Disputes related to the Beta Trial or this Agreement will be resolved as provided in Dispute Resolution and Arbitration terms in the Terms of Service.
I hereby acknowledge that I have read and understand this Agreement and agree that by clicking “Accept”, participating in the Beta Trial, installing the Game, or using any of the Services (including use of Beta Forums, if applicable) I am acknowledging my agreement to be bound by the terms and conditions of this Agreement.