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.

SOFTWARE EVALUATION AGREEMENT

Agreement Between Developer And Potential Customer Providing For And independent Consultant To Evaluate Software For Compliance With Specifications

 

THIS SOFTWARE EVALUATION AGREEMENT (“Agreement”) is made and entered into on this _______ day of ______________________________, 20____, by and between _________________________________________, a _______________, ____________________ (hereinafter referred to as the “Customer”) and _________________________________________, a _______________, ____________________ (hereinafter referred to as the “Developer”) and __________________________, a _______________, ______________ (hereinafter “Independent Consultant”).

 

RECITALS

 

A.                  The Customer is a [corporation] organized under the laws of the State of _______ who operates a [Describe business briefly] with principal business offices located at [Address].

 

B.                   The Developer is a [corporation] organized under the laws of the state of ____________ which is in the business of developing, owning and licensing certain software programs.

 

C.                   Developer is the owner of a certain Software Program (“Software Program”) developed by the Developer as described in the Software Description and Specifications attached hereto as Exhibit “A” (“Specifications”).

 

D.                  The Developer and the customer have entered negotiations concerning the license of the Software Program to the Customer from the Developer.

 

E.                   The Customer wishes to obtain an evaluation of the Software Program from an independent party who is in the business of evaluating the performance of software programs.

 

F.                   The parties have mutually agreed on the identity of the Independent Consultant and the Independent Consultant has consented to providing evaluation services relative to the Software Program as described in this Agreement.

 

G.                   Developer has agreed to deliver a demonstration copy of the Software Program to the Developer to evaluate pursuant to the terms of this Agreement.

 

H.                  The parties acknowledge and agree that the Software Programs must be protected as the proprietary and trade secret information of the Developer.

 

I.                     Depending on the outcome of the evaluation, the parties intend to negotiate in good faith concerning the license of the Software Program from the Developer to the Customer on terms and conditions to be negotiated between the parties.

 

NOW THEREFOR, the parties hereto, intending to be legally bound by the terms hereof,  herby enter into the following agreements:

 

ARTICLE I

INDEPENDENT EVALUATOR RETAINED

 

1.1                 Evaluator Retained.  The Developer and the Customer hereby retain the services of the Independent Consultant to provide evaluation services as defined in this Agreement relative to the Software Program.

 

1.2                 Compensation.  [Portions Omitted - included In fully Licensed Version]

 

1.3                 Independent Judgment.  The parties acknowledge and agree that the independent Consultant shall exercise independent judgment and professional discretion in the performance of the services described herein and shall not owe any special duty of loyalty of fiduciary duty to Developer or to Customer.

 

1.4                 Hold Harmless.  Provided that the Independent Consultant complies with the terms of this Agreement and is acting in good faith, Developer and Customer each hold the [Portions Omitted - included In fully Licensed Version] Consultant related to the Software Programs to either the Developer or the Customer.

 

1.5                 Confidentiality.  The Independent Consultant agrees that the report concerning the evaluation of the Software Program and the conclusions and opinions of the Independent Consultant shall be [Portions Omitted - included In fully Licensed Version] not be disclosed to any party other than the Developer and the Customer.

 

ARTICLE II

DELIVERY OF EVALUATION COPY TO EVALUATOR

 

2.1                 Delivery and Acceptance of Software Program.  No later than ____ (___) days from the effective date of this Agreement, the Developer shall deliver to the Independent Consultant, and evaluation copy of the Software Program and one complete set of user documentation (“Evaluation Copy”) that is usually and [Portions Omitted - included In fully Licensed Version] to parties who license the use of the Software Program.  Independent Consultant and Developer shall cooperate regarding the manner and mode of delivery.  The Evaluation Copy shall be in machine readable compact disc format and shall be in substantially the same format as is provided to other customers in the usual course of [Portions Omitted - included In fully Licensed Version], the Developer shall deliver to the Independent Consultant one complete copy of the source code to the Software Program, to be held in strict confidence only for the purposes of this Agreement by the Independent Consultant.

 

2.2                 Limitation On Use.  The Independent Consultant acknowledges and agrees that is receiving the Evaluation Copy and the source code in the strictest of confidence, to be held in trust for the benefit of the Developer,  and only for fulfillment of the Independent Consultant’s responsibilities to [Portions Omitted - included In fully Licensed Version] only for the purposes of evaluating the Software Program and preparing Independent Consultant’s Software Evaluation Report as required by the terms of this Agreement.  Upon completion and delivery of the Software Evaluation Report [Portions Omitted - included In fully Licensed Version] Developer without retaining any copies, notes, or other materials relating to the Software Program except a file copy of the Software Evaluation Report which shall be clearly marked as confidential and proprietary and not to be released or disclosed to any party except as permitted pursuant to the terms of this Agreement.  [Portions Omitted - included In fully Licensed Version]ftware Program except for installation of the Evaluation Copy on one single CPU.  The Evaluation Copy shall be uninstalled from such CPU upon completion of the Independent Consultant’s services hereunder.

 

ARTICLE III

PERFORMANCE OF EVALUATION

 

3.1                 Commencement of Evaluation.  [Portions Omitted - included In fully Licensed Version]

 

3.2                  Goals of Software Evaluation.  The goal of the independent Consultant in evaluating the Software Program shall be to ascertain whether the Software Program [Portions Omitted - included In fully Licensed Version] functionality and general operating performance of the Software Program as the independent Consultant deems necessary in its sole business and technical judgment.  It shall not be the responsibility of the Independent Consultant to determine whether and to what extent the Software Program meets the specific business needs of the Customer.  It shall be the responsibility of the Customer to determine whether the Software Program meets its business needs assuming operation to specifications.

 

3.3                 Source Code Confidential.  [Portions Omitted - included In fully Licensed Version]

 

3.4                 Report of Evaluation.  [Portions Omitted - included In fully Licensed Version]

 

ARTICLE IV

PROPRIETARY RIGHTS ON THE DEVELOPER

 

4.1                 Acknowledgement of Developer Rights.  The independent consultant and the Customer acknowledge and agree that the Software Program, the source code and other items related to the Software Program contain [Portions Omitted - included In fully Licensed Version]e to maintain the confidentiality of all such information that they may receive or obtain knowledge of in the course of this Agreement and that they shall not disclose any such information to any [Portions Omitted - included In fully Licensed Version]uately perform their functions pursuant to the terms of this Agreement and who have executed a written agreement acknowledging Developer’s proprietary rights and agreeing not to use or disclose any such information.  Independent Consultant agrees that it shall not release any proprietary information of the Developer to the Customer.

 

4.2                 Developer Copyright.  [Portions Omitted - included In fully Licensed Version]ftware Program and the Independent Consultant and the Customer acknowledge such rights and the Developer’s desire to protect the same.  Neither the Independent Consultant nor the Customer shall take any actions, or permit any actions to be taken that infringe on the Developer’s exclusive rights as the sole and exclusive copyright owner and holder in and to the Software Program and all components thereof.

 

ARTICLE V

TERM AND TERMINATION

 

5.1                 Term.  The term of this Agreement shall commence upon the execution hereof by all parties.  This Agreement shall remain in effect until the completion of the evaluation of the Developer’s products by the Customer and the Independent Consultant.

 

5.2                 Termination For Default.  Any party may terminate this Agreement in the event that any other party hereto substantially defaults in any obligation hereunder.

 

5.3                 Termination Without Default.  The Developer or the Customer may terminate this Agreement upon written notice to all other parties.  In the event that this Agreement is terminated pursuant to this Section, the Independent Consultant shall immediately discontinue work but shall be paid for all services performed through the date of termination.

 

5.4                 Survival of Certain Terms.  Following any termination hereof, all confidentiality covenants, proprietary rights covenants, and all other provisions that by their context are intended to survive a termination and be of a continuing nature, shall survive and remain in full force and effect.

 

ARTICLE VII

MISCELLANEOUS

 

6.1                  Excusable Delays.  Any delay or nonperformance of any provision of this Agreement caused by conditions beyond the  reasonable control of any party shall not constitute a breach of this Agreement, provided that such party  has taken reasonable measures to notify the other parties of the delay in writing and uses [Portions Omitted - included In fully Licensed Version]wer failure, fire, flood, acts of God, labor disputes,  riots, acts of war and epidemics.

 

6.2                    Notices. Any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall deemed to be delivered if transmitted via Email at the Email addresses listed below, except for any notice of termination of this Agreement which shall be in writing and sent by United States Mail, Certified Mail, Return Receipt Requested and shall be deemed to have been delivered five (5) business days after the date of mailing. Addresses and Email addresses for such notices shall be:

 

 

If To Developer: _____________________________________________

 

If To Customer: ______________________________________________

 

If To Independent Consultant: ___________________________________

 

6.3                  No Assignment. No party shall be permitted to assign this Agreement or to perform obligations hereunder through or by any other party.  Any attempted assignment of this Agreement or responsibilities shall be null and void.

 

6.4                  Independent Contractor Status. The parties agree that they shall be an independent contractors and not agents, employees or representatives of any other party. The parties shall be [Portions Omitted - included In fully Licensed Version]ts and expenses of complying with their respective obligations hereunder.

 

6.5                  Arbitration. [Portions Omitted - included In fully Licensed Version]

 

6.6                  Controlling Law.  In interpreting the terms of this Agreement, the parties agree that the laws of the State of ___________ shall be applicable. All suits permitted to be brought in any court shall be venued in __________ County, State of ____________.

 

6.7                  This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supercedes and replaces all prior discussions, agreements, proposals, understandings, whether orally or in writing, between the parties related to the subject matter of this Agreement. This Agreement may be changed, modified or amended only in a written agreement that is duly executed by authorized representatives of the parties. If any provisions hereof is deemed to be illegal or unenforceable by a court of competent jurisdiction, the enforceability of effectiveness of the remainder of the Agreement shall not be effected and this Agreement shall be enforceable without reference to the unenforceable provision. No party’s waiver of any breach or accommodation to the other party shall be deemed to be a waiver of any subsequent breach.

 

IN WITNESS WHEREOF, the parties hereto have duly entered and executed this Agreement as of the day and year first above written and represent and warrant that the party executing this Agreement on their behalf is duly authorized.

 

 

 

 

 

 

 

 

EXHIBIT “A”

SPECIFICATIONS

 

 

EXHIBIT “B”

COMPENSATION SCHEDULE