This Confidential Alpha Test License Agreement ("Agreement") is entered into between Sunbird Messaging Inc. ("Vendor") and You, as the Tester. The Agreement is effective as of the date that Tester first used the Sunbird Messaging Application.

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1. Definition

The term “Sunbird Messaging Application” shall mean all computer programs and related documentation and websites at https://www.sunbirdapp.com/. Sunbird Messaging Application is an Android and web application that gives users the ability to unify the world’s most popular messaging applications into one application inbox including iMessage, SMS/MMS, Facebook Messenger and WhatsApp (“Existing Messaging Applications”). Telegram, RCS, Instagram Messenger, Slack, Line, and Discord may be included in future updates. 

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2. Acknowledgment of Alpha Testing

Tester and Vendor acknowledge and agree that the Sunbird Messaging Application is an Alpha test version that may contain bugs, defects and errors and that the Sunbird Messaging Application is not expected to function fully upon installation. Tester and Vendor acknowledge that certain features of  Existing Messaging Applications may not be enabled in the Sunbird Messaging Application. Tester and Vendor further acknowledge and agree that the Sunbird Messaging Application is being supplied to Tester without charge in exchange for Tester's evaluation. Tester agrees and acknowledges that the Sunbird Messaging Application is a unification tool for messaging applications and Tester’s access thereto is good and valuable consideration for this Agreement. Tester agrees and acknowledges that the Testing is limited to the Discord platform, and that Tester shall have no access to the Sunbird Messaging Application if the Tester leaves the Discord platform. Tester further represents that Tester is over the age of 13. If Tester is aged 13 or under, Tester’s participation in the Alpha Test shall be approved by Tester’s parent or guardian.

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License

1. Grant of License. Vendor grants Tester a royalty-free, nonexclusive, non-transferable license to use the Sunbird Messaging Application at https://www.sunbirdapp.com/ prior to launch (the “Testing Period”), subject to all terms and conditions of this Agreement.
2. Term of License. The license granted by this Agreement began on the date that Tester first used the Sunbird Messaging Application. Tester shall be automatically enrolled in the Beta Test. This license shall apply to the Beta Test.  This license shall be in force during the Alpha and Beta Testing Periods unless earlier terminated by either party or Tester signs up for the service upon launch. 
3. Termination by Tester. Tester may drop out of the Alpha Test or the Beta Test and terminate the license granted by this Agreement by providing written notice to Vendor stating the effective date of the termination. If Tester uninstalls the Sunbird Messaging Application, Tester shall so inform Vendor immediately by emailing alpha@sunbirdapp.com with their Play Store email and their Sunbird account email
4. Termination by Vendor. At any time after the Effective Date, and for any reason, Vendor may terminate the license granted by this Agreement by providing written notice to Tester stating the effective date of the termination. Vendor agrees to provide Tester with the written notice at least one day  prior to the effective date of the termination. 
5. Disabling Access to Sunbird Messaging Application. Upon termination of the license granted by this Agreement, unless Tester has signed up for the service, Vendor shall disable Tester’s access to the Sunbird Messaging Application. 

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4. Testing

1. Test Instructions. Vendor and Tester agree that Tester's evaluation of the Sunbird Messaging Application shall be conducted in accordance with Tester’s instructions. These instructions are a living document locatedin Discord. Be sure to check them often.
2. Role of Vendor. In accordance with the Test Instructions, Vendor agrees to provide a ticket support system in Discord to assist Tester in using and evaluating the Sunbird Messaging Application.
3. Role of Tester. In accordance with the Test Instructions, Tester agrees to use and evaluate the Sunbird Messaging Application. On the Discord platform, Tester agrees to provide Vendor with periodic reports that fully describe (i) the results of Tester's use and evaluation of the Sunbird Messaging Application, including any defects found in the Sunbird Messaging Application and any information necessary for Vendor to evaluate such defects, and (ii) any recommendations for suggestions, changes, corrections or modifications to the Sunbird Messaging Application (“Feedback”).

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5. No Obligation to Support Sunbird Messaging Application

Except as expressly set forth in Subsection 4.b of this Agreement and the Test Instructions, Vendor shall have no obligation under this Agreement to correct any bugs, defects or errors in the Sunbird Messaging Application or to otherwise support or maintain the Sunbird Messaging Application.

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6. Ownership of Sunbird Messaging Application

To the fullest extent permitted by law, the Sunbird Messaging Application and all intellectual property rights in the Application worldwide are the sole and exclusive property of Vendor. To the extent that Tester has or may develop any rights in the Sunbird Messaging Application, including without limitation rights in the Feedback, Tester irrevocably and exclusively assigns, transfers and conveys to Vendor all right, title and interest (including all patent, copyright, trademark, trade secret and any other intellectual property right therein) therein. 

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8. Confidentiality

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1. .Acknowledgment of Trade Secrets. Tester acknowledges that the Sunbird Messaging Application contains valuable trade secrets and confidential information owned by Vendor, including but not limited to the development status of the Sunbird Messaging Application, the functionality of the Sunbird Messaging Application, the appearance, content and flow of the Sunbird Messaging Application's screens, the method and pattern of user interaction with the Sunbird Messaging Application, and the content of the Sunbird Messaging Application's documentation. This Agreement is Confidential.
2. Restrictions. Tester agrees that Tester shall not, directly or indirectly (i) sell, lease, assign, sublicense or otherwise transfer, (ii) duplicate, reproduce, copy, take screen shots, (iii) disclose, divulge or otherwise make available to any third party, including Vendor’s competitors, (iv) use except as authorized by this Agreement, or (v) decompile, disassemble or otherwise analyze for reverse engineering purposes the Sunbird Messaging Application, including all trade secrets and confidential information therein. Tester shall take all reasonable precautions to prevent inadvertent disclosure of the Sunbird Messaging Application, including all trade secrets and confidential information therein.

c. No Disclosure to Third Parties. Without in any way limiting Subsection 8.b, Tester specifically acknowledges and agrees that it shall not permit any third party, nor any employee, representative or agent thereof, that develops, markets or licenses computer programs with functionality similar to the functionality of the Sunbird Messaging Application to have access to the Sunbird Messaging Application or to any trade secrets and confidential information therein.

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No Warranty

Tester and Vendor agree that the Sunbird Messaging Application is provided "AS IS" and that Vendor makes no warranty as to the Sunbird Messaging Application. Tester agrees that its use of the Sunbird Messaging Application is at its own risk. VENDOR DISCLAIMS ALL WARRANTIES; EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO THE SOFTWARE, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. THESE LIMITATIONS SHALL APPLY DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY. THE PARTIES AGREE THAT THE ABOVE PROVISIONS FAIRLY ALLOCATE THE PARTIES’ RISKS AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN. Vendor is not responsible for the actions, content, information or data of third parties, and Tester releases Vendor, its directors, shareholders, officers, employees and agents from any and all claims and damages, known and unknown, arising out of or in any way connected with any claims Tester may have against any such third parties. If Tester is a California resident, Tester waives California Civil Code §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.” Vendor will not be liable to Tester for any lost profits or other consequential, special, indirect, or incidental damages arising out of or in connection with this statement or the Sunbird Messaging Application, even if Vendor has been advised of the possibility of such damages. Vendor’s aggregate liability arising out of this statement or the Sunbird Messaging Application will not exceed the greater of one hundred dollars ($100). Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to Tester. In such cases, Vendor's liability will be limited to the fullest extent permitted by applicable law.

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10. Limitation of Liability

1. Damages Limitation. In no event shall Vendor be liable for any damages, whether in contract or tort (including negligence), including but not limited to direct, consequential, special, exemplary, incidental and indirect damages, arising out of or in connection with this Agreement or the use, the results of use, or the inability to use the Sunbird Messaging Application.
2. Data Protection. Tester agrees that it shall have the sole responsibility for protecting its data used in connection with the Sunbird Messaging Application.

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11. No Assignment

Neither Tester nor Vendor may assign or otherwise transfer in any way any of the rights and obligations arising out of this Agreement without the prior written consent of the other party.

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12. Force Majeure

Neither party shall be responsible for any delay or failure to perform obligations specified in this Agreement and the Test Plan due to causes beyond the party's reasonable control.

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13. Other Provisions

1. Independent Parties. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agent or employment relationship between Vendor and Tester.
2. Waiver. The waiver or failure of either party to exercise in any respect any rights provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
3. Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction or by operation of law, the remaining terms and provisions of this Agreement shall be unimpaired, and the invalid term or provision shall be replaced by such valid term or provision as comes closest to the intention underlying the invalid term or provision.
4. Notices. Any notice or other communication required or permitted in this Agreement from the Tester to the Vendor shall be in writing and shall be deemed to have been duly given three (3) days after mailing by first class certified mail, postage prepaid, to Sunbird Messaging Inc., . Vendor shall provide notice to Testers via the Discord platform.
5. Integration. This Agreement and its exhibits constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof.
6. Amendments. No amendment or modification of any provision of this Agreement shall be effective unless the same shall be in writing and signed by both parties.
7. Applicable Law. This Agreement shall be governed by the laws of the State of New York.
8. Arbitration. Any controversy or claim arising out of or relating to this Agreement, with the exception of injunctive relief sought by either party, shall be submitted to arbitration before an arbitrator agreed upon by the parties, or if the parties cannot agree upon an arbitrator within thirty (30) days, to an arbitrator selected by the American Arbitration Association. The arbitration shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrators may award attorneys' fees and costs as part of the award. The award of the arbitrators shall be binding and may be entered as a judgment in any court of competent jurisdiction. The arbitration shall occur in New York, New York.

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