BETA TEST AGREEMENT
This Beta Test Agreement (hereinafter referred
to as ""Agreement") is made and effective this __ day of
__________, 199_, by and between ________________ (hereinafter referred
to as ""Developer") and _____________________ (hereinafter
referred to as ""Recipient").
Developer is the owner of a prototype product
identified __________________ (hereinafter referred to as "the "Product")
which it desires to have tested by a prospective user in what is commonly
referred to as "Beta Test".
The Product contains valuable, confidential,
trade secret information owned by Developer.
The Recipient desires to test and evaluate
the Product's suitability for use in its business.
NOW, THEREFORE, in consideration
of the promises set forth herein, the parties hereto agree as follows:
Developer agrees to provide to Recipient the Product, and Recipient accepts
the Product, subject to the terms of this Agreement. Recipient agrees
to test and evaluate the Product as provided herein, report to Developer
with respect to the usefulness and functionality of Product, and return
the Product to Developer at the conclusion of the Beta Test, all pursuant
to this Agreement.
A. Recipient acknowledges and agrees that in providing the Product, Developer
may disclose to Recipient certain confidential, proprietary trade secret
information of Developer (hereinafter referred to as "the "Confidential
Information"). Confidential Information may include, but is not limited
to, the Product, computer programs, flowcharts, diagrams, manuals, schematics,
development tools, specifications, design documents, marketing information,
financial information or business plans. During this Agreement and for
a period of ________________ thereafter, Recipient agrees that it will
not, without the express prior written consent of Developer, disclose
any Confidential Information or any part thereof to any third party, except
to the extent that such Confidential Information:
i) is or becomes generally available to
the public through no fault of Recipient;
ii) is rightfully received by Recipient
from a third party without limitation as to its use; or
iii) is independently developed by Recipient.
At the termination of this Agreement, Recipient will return the Product
and all other Confidential Information to Developer.
B. Recipient also agrees that it shall not
duplicate, translate, modify, copy, printout, disassemble, decompile or
otherwise tamper with the Product or any firmware, circuit board or software
Recipient acknowledges that Recipients shall have only a limited, non-exclusive,
nontransferable license to use the Product for a period not to exceed
[Beta Test Period] days. Recipient acknowledges and agrees that it will
not use the Product for any purpose that is illegal. Because the Product
is a "Beta Test" version only and is not error or bug free,
Recipient agrees that it will use the Product carefully and will not use
it in any way which might result in any loss of its or any third party's
property or information.
Recipient shall report to Developer, as soon as practical, any perceived
defect in the Product and, following the discovery of any material defect,
shall terminate its use of the Product. At the conclusion of the Beta
Test, Recipient shall provide to Developer an evaluation of the Product,
ncluding both positive and negative aspects.
Recipient may terminate this Agreement at any time prior to expiration
of the Beta Test by returning the Product including all Confidential Information
and copies thereof, to Developer, along with its evaluation report. Developer
may terminate this Agreement upon notice to Recipient, subject to Recipient's
obligation to return the Product, Confidential Information and all copies
thereof. The obligations of Recipient in Section 2 above shall survive
the termination of this Agreement. If not earlier terminated, this Agreement
shall terminate automatically
upon the end of the period set forth in Section 3 and following Recipient's
return of the Product and the Confidential Information. Upon termination,
Recipient agrees to remove from Recipient's computer any files related
to the product.
6. Developer's Warranties.
Developer represents and warrants that it has the requisite right and
legal authority to grant the license and provide the Product and the Confidential
Information as contemplated by this Agreement. DEVELOPER MAKES
NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT OR
ANY OTHER CONFIDENTIAL INFORMATION AND ALL OTHER WARRANTIES, WHETHER EXPRESS
OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
DEVELOPER'S SOLE LIABILITY FOR BREACH OF THE REPRESENTATION AND WARRANTY
ABOVE, AND RECIPIENT'S SOLE REMEDY, SHALL BE THAT DEVELOPER SHALL INDEMNIFY
AND HOLD RECIPIENT HARMLESS FROM AND AGAINST ANY LOSS, SUIT, DAMAGE, CLAIM
OR DEFENSE ARISING OUT OF BREACH OF THE REPRESENTATION AND WARRANTY, INCLUDING
REASONABLE ATTORNEYS' FEES.
7. Governing Law.
This Agreement is to be governed by, construed and enforced according
to the laws of the State of _____________ .
8. No Assignment.
Recipient may not assign this Agreement without the prior written consent
of Developer. This Agreement shall be binding upon and inured to the benefit
of the parties and their respective administrators, successors and assigns.
Headings used in this Agreement are provided for convenience only and
shall not be used to construe meaning or intent.
10. Final Agreement.
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof. This Agreement may be modified only by a
further writing that is duly executed by both parties.
The parties agree that they will use their best efforts to amicably resolve
any dispute arising out of or relating to this Agreement. Any controversy,
claim or dispute that cannot be so resolved shall be settled by final
binding arbitration in accordance with the rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator or
arbitrators may be entered in any court having jurisdiction thereof. Any
such arbitration shall be conducted in the city where the Developer's
headquarters are located, or such other place as may be mutually agreed
upon by the parties. Within fifteen (hereinafter referred to as "15)
days after the commencement of the arbitration, each party shall select
one person to act as arbitrator, and the two arbitrators so selected shall
select a third arbitrator within ten (hereinafter referred to as "10)
days of their appointment. Each party shall bear its own costs and expenses
and an equal share of the arbitrators expenses and administrative fees
IN WITNESS WHEREOF, the
parties hereto have executed this Beta Test Agreement as of the date first