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Software Agreement Document Package |
Redacted Document Package |
| This agreement is a sample of a document contained in our Software Agreement Document Package. Omitted portions are included in the fully licensed version. Documents are provided in Word and in Rich Text Format (RTF). All documents are conveniently accessed through an E-Book indexing system. |
BETA TESTING LICENSE AGREEMENT
This BETA TESTING LICENSE AGREEMENT (“Agreement”) is made and entered on this ______ day of ________________, 20___ by and between ___________________, a ________________ corporation (hereinafter referred to as the "TESTER"), and _________________, a ______________ corporation ("DEVELOPER").
WHEREAS, DEVELOPER has developed certain proprietary software products as described in more detail in Exhibit “A” attached hereto and made a part hereof (hereinafter referred to as the “Software”).
WHEREAS, the Software has been developed by DEVELOPER but has not yet been thoroughly tested in a working environmen[Portions Omitted - included In fully Licensed Version]ther modifications need to be performed in order for the Software to perform to specifications or to enhance the performance specifications of the Software.
WHEREAS, Tester agrees to utilize the Software in conformance with this Agreement in order to assist DEVELOPER in its assessment[Portions Omitted - included In fully Licensed Version]rding the Software and its operation.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to the following terms and conditions:
ARTICLE I
1.1 DEVELOPER hereby grants to the Tester, a limited term, personal, non-assignable, single CPU license to use the S[Portions Omitted - included In fully Licensed Version]y for Tester’s internal purposes and for the purpose of providing the beta testing services set forth in this Agreement.
1.2 The term of the license granted hereunder shall be for a term of _____ months from the date of execution hereo[Portions Omitted - included In fully Licensed Version]to renew this Agreement on a month to month basis through the duration of the beta testing period.
1.3 Prior to the initiation of testing, DEVELOPER shall provide to TESTER a copy of the Software in form [Portions Omitted - included In fully Licensed Version].
1.4 TESTER shall have the right to make a single backup copy of the Software which may be retained in a s[Portions Omitted - included In fully Licensed Version] TESTER during the term of this Agreement.
1.5 During the term of this Agreement, DEVELOPER shall provide to the TESTER such additional materials, u[Portions Omitted - included In fully Licensed Version] deemed appropriate by DEVELOPER to assist the TESTER in performing the testing services hereunder.
ARTICLE II
TESTING OF SOFTWARE
2.1 TESTER hereby agrees to install and to test the Software and provide reporting and input to DEVELOPER solely i[Portions Omitted - included In fully Licensed Version]to use the Software granted by DEVELOPER within the terms and subject to the scope of this Agreement.
2.2 TESTER shall install, use and operate the Software on a single CPU in compliance with documentation, specificati[Portions Omitted - included In fully Licensed Version]d procedures to be supplied by DEVELOPER.
2.3 TESTER agrees to utilize the Software in compliance with the testing standards and procedures a minimum of _____ hours[Portions Omitted - included In fully Licensed Version]of this Agreement and all renewals.
ARTICLE III
TESTING REPORTS
3.1 TESTER shall have a continual duty and obligation to report to DEVELOPER any malfunctioning, bu[Portions Omitted - included In fully Licensed Version]in the Software (“Software Deficiency”), or if the Software is not performing in accordance with specifications.
3.2 In the event that TESTER encounters and instance of any malfunctioning, bugs, errors of functional deficiencies in the Software, it shall report such instance to DEVELOPER on the “Software [Portions Omitted - included In fully Licensed Version]ll out such form and deliver it to DEVELOPER within ____ days of encountering any Software Deficiency. Each Software Deficiency Report shall describe the [Portions Omitted - included In fully Licensed Version] executed that resulted in such Software Deficiency and any actions that were subsequently take by the TESTER following the occurrence of such Software Deficiency. If known to the TESTER, the Software Def[Portions Omitted - included In fully Licensed Version]ggestions that the TESTER has concerning remedying such Software Deficiency.
ARTICLE IV
LICENSE FEE AND TESTING COMPENSATION
4.1 The parties agree that there shall be no monetary license fee payable during the term of this Agreement and tha[Portions Omitted - included In fully Licensed Version]the sole and exclusive manner of compensating DEVELOPER for the license to use the Software granted herein.
4.2 The parties agree that there shall be no fee payable to the TESTER for the performance of testing [Portions Omitted - included In fully Licensed Version]the grant of the license to use the Software during the term hereof shall be the sole and exclusive compensation to the TESTER for performing the services hereunder.
4.3 Following the end of the term of this Agreement and upon the Software achieving the performance standards desired by [Portions Omitted - included In fully Licensed Version]ubject to the standard end-user licensing provisions offered by DEVELOPER in connection with the Software, except that TESTER [Portions Omitted - included In fully Licensed Version]erms for the Software license as set forth in Exhibit “B” attached hereto.
ARTICLE V
WARRANTY DISCLAIMERS
5.1 TESTER understands and agrees that it is accepting the Software on an experimental basis for tes[Portions Omitted - included In fully Licensed Version] The purpose of the relationship established in this Agreement is to determine whether and to what extent there are Software Deficiencies. [Portions Omitted - included In fully Licensed Version]oftware Deficiencies and that the occurrence of such Software Deficiencies is inherent in the beta testing relationship establi[Portions Omitted - included In fully Licensed Version]eta tester of the Software, TESTER agrees that the Software should not be exclusively relied upon in connection with the operation of any aspect of its business.
5.2 TESTER accepts the Software, [Portions Omitted - included In fully Licensed Version] “AS IS” basis and “with all faults and defects.” TESTER understands and agrees that DEVELOPER does not warrant [Portions Omitted - included In fully Licensed Version]ress or implied.
5.3 DEVELOPER DISCLAIMS AND ALL WARRANTIES, EXPRESS OR IMPIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OR MERCHA[Portions Omitted - included In fully Licensed Version]PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
5.4 IN NO EVENT WILL DEVELOPER BE LIABLE[Portions Omitted - included In fully Licensed Version], INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. DEVELOPER IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY TESTER OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. ANY DATA INCLUDED IN A PRODUCT UPON SHIPMENT FROM DEVELOPER IS FOR TESTING USE ONLY AND DEVELOPER HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING THEREFROM.
ARTICLE VI
PROPRIETARY RIGHTS
6.1 TESTER acknowledges and agrees that the Software is the proprietary property of DEVELOPER and that DEVELOPER is the owner of all copyrights, trademarks, patents, trade secrets and other proprietary inf[Portions Omitted - included In fully Licensed Version]a beta copy of the Software which shall not have been released to the general public. As such, all information related directly or indirectly to the Software, its development, testing and all other matters are trade secrets of DEV[Portions Omitted - included In fully Licensed Version]ed or used by the TESTER for any purpose except for the testing services to be conducted by the TESTER hereunder.
6.2 Title, ownership rights, and intellectual property rights in the Software and any and all improvements, modifica[Portions Omitted - included In fully Licensed Version]ether such items are created or suggested by TESTER, shall remain in DEVELOPER. TESTER acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner[Portions Omitted - included In fully Licensed Version]ted by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Software are the property of the applicable content owner[Portions Omitted - included In fully Licensed Version] law. The license granted under this Agreement gives TESTER no rights to such content.
ARTICLE VII
CONFIDENTIALITY
7.1 [Portions Omitted - included In fully Licensed Version]
ARTICLE VIII
8.1 Except as otherwise expressly permitted in this Agreement, TESTER may not: (i) modify or create any derivative wor[Portions Omitted - included In fully Licensed Version]pile, disassemble, reverse engineer, or otherwise attempt to derive the source code for any Software; (iii) redistribute, encumber, sell, rent, lease, sublicense, use the Software in a timesharing or service bureau arrangement, or otherwise transfer rights to any Software; (iv) copy any Software or Docume[Portions Omitted - included In fully Licensed Version]ary rights that were contained in the Software originally delivered by DEVELOPER); (v) remove or alter any trademark; logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (vi) modify any header files[Portions Omitted - included In fully Licensed Version]orts relating to any database portion of the Software (except as necessary for operating the Software); (viii) publish an[Portions Omitted - included In fully Licensed Version]ten consent; (ix) use the Software on a system with more CPUs than the number licensed.
ARTICLE IX
MISCELLANEOUS
9.1 This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or wri[Portions Omitted - included In fully Licensed Version]ling or industry custom. The terms and conditions hereof shall prevail exclusively over any written instrument submitted by TESTER,[Portions Omitted - included In fully Licensed Version] therein relating to product description, quantity thereof, pricing therefore, shipment and delivery.
9.2 This Agreement may be amended only by a writing signed by an executive vice president of DEVELOPER and a[Portions Omitted - included In fully Licensed Version]e of TESTER.
9.3 Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of _______________, U.S.A., excluding its conflict of law provisions.
9.4 Any dispute hereunder will be negotiated between the parties commencing upon written notice from one party to the other. Settlement discussions and materials will be confidential and inadmissible in any s[Portions Omitted - included In fully Licensed Version]d by negotiation within 45 days following such notice, the parties will refer the dispute to non-binding mediation conducted[Portions Omitted - included In fully Licensed Version]oftware industries in ______________, ______________ (the "Venue"). The parties will share the costs of mediation. If the dispute is not resolved after 45 days of mediation, the parties will refer the dispute to binding [Portions Omitted - included In fully Licensed Version]pealable, except that either party may petition any court of competent jurisdiction in the Venue to review any decision relating to intellectual property matters (including the scope of license rights) vacating or modifying errone[Portions Omitted - included In fully Licensed Version]rator will render a written decision, which may be entered in and enforced by any court of competent jurisdiction, but which will have no preclusive effect in other matters involving third parties. The losing party will pay the costs of the arbitration and the reaso[Portions Omitted - included In fully Licensed Version] and expenses of the prevailing party, as determined by the arbitrator. The parties will jointly pay arbitration costs pending a final allocation by the arbitrator. At any point in the dispute resolution process, either party may seek injunctiv[Portions Omitted - included In fully Licensed Version]the parties hereby waive any right to judicial process. The U.S. Arbitration Act rules will govern the arbitration process. Absent fraudulent concealment, neither party may raise a claim more than 3 years after it arises or[Portions Omitted - included In fully Licensed Version]foregoing, DEVELOPER reserves the right to invoke the jurisdiction of any competent court to remedy or prevent violation of any provision in the Agreement relating to payment, DEVELOPER Confidential Information or [Portions Omitted - included In fully Licensed Version]
9.5 If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for a[Portions Omitted - included In fully Licensed Version]ts associated therewith.
9.6 This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.7 If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision [Portions Omitted - included In fully Licensed Version]ent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
9.8 The controlling language of this Agreement is English. If TESTER has received a translation into another language, i[Portions Omitted - included In fully Licensed Version]ESTER's convenience only.
9.9 A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
9.10 The provisions [Portions Omitted - included In fully Licensed Version]ire or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.
9.11 TESTER may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or oblig[Portions Omitted - included In fully Licensed Version]rior express written consent of DEVELOPER, which will not be unreasonably withheld.
9.12 This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.
9.13 Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which to[Portions Omitted - included In fully Licensed Version]e same agreement.
9.14 Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
9.15 The relationship between DEVELOPER and TESTER is that of independent contractors and neither TESTER nor its agents shall have any authority to bind DEVELOPER in any way.
9.16 If any DEVELOPER professional services are being provided, then such professional services are provided pursuant to the terms of a separate agreement between DEVELOPER and TESTER. The parties acknowledge t[Portions Omitted - included In fully Licensed Version] provision of such services is not essential to the functionality of such Products.
9.17 The headings of the sections of this Agreement are used for convenience only and shall have no substantive meaning.
9.18 DEVELOPER may use TESTER's name in any customer reference list or in any press release issued by DEVELOPER regar[Portions Omitted - included In fully Licensed Version]r provide TESTER's name and the names of the Products licensed by TESTER to third parties.
9.19 The Product is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such t[Portions Omitted - included In fully Licensed Version]7.7202-4 (June 1995), all U.S. Government acquire the Software with only those rights set forth herein.
SIGNATURES
EXHIBIT “A”
SOFTWARE DESCRIPTION
EXHIBIT “B”
PRICING OF LICENSE AFTER TESTING PERIOD