A. Developer is the owner of a prototype product identified as WowZapp (the "Product") and desires to have a beta version of the Product (the “Pre-Release Software”) tested by a prospective user in what is commonly referred to as a "Beta Test."
B. The Pre-Release Software contains valuable, confidential, trade secret information owned by Developer; and
C. The Tester agrees 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:
1. Arrangement: Developer agrees to provide Tester the Product, and Tester accepts the Product, subject to the terms of this agreement. Tester agrees to use and evaluate the Product as provided herein for a period of 30-days and report to Developer as provided herein by completing a Beta Test Evaluation Form supplied by the Developer in respect to usefulness and functionality of Product.
2. Non-Disclosure. Tester acknowledges and agrees that in providing the Product, Developer may disclose to Tester certain confidential, proprietary trade secret information of Developer ("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. Once Tester installs the product, Tester 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:
a. is or becomes generally available to the public through no fault of Tester;
b. is rightfully received by Tester from a third party without limitation as to its use; or is independently developed by Tester.
c. Tester 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 provided therewith.
3. License: Tester acknowledges that Tester shall have only a limited, non-exclusive, nontransferable license to use the Product. Tester shall permit the Pre-Release Software to be used only be the person specified as the “Contact” below, or other persons under the direct control of the Contact, and all of whom shall be subject to the confidentiality and nondisclosure provisions of this Agreement. Tester 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, Tester 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. Tester agrees to use the Product solely for the purposes of evaluating and testing the Pre-Release Software and any related information. Tester warrants that neither Tester nor the Contact is a competitor or potential competitor of Developer, and Tester shall not use the Confidential Information or allow use of the Confidential Information for the creation and/ or the development of any competing products. Tester agrees not to make any copies of the Pre Release Software, in whole or in part, except as expressly allowed by an authorized representative of Developer, or to transfer, assign, sublicense, use, copy, distribute or modify the Pre-Release Software, in whole or in part, except as expressly permitted in this Agreement; This Agreement does not authorize Tester to make any modifications to or adaptations of any part or whole of the Pre Release Software or to merge the Pre Release Software into other programs or other materials, and any such modification, adaptation or merging is expressly prohibited. Tester agrees not to decompile, disassemble, or otherwise reverse engineer the Pre Release Software.
4. This agreement is subject to change upon reasonable notice.
5. Termination. Tester may terminate this Agreement at any time prior to expiration of the Beta Test by returning or removing the Product including all Confidential Information and copies thereof, to Developer, along with its evaluation report. Developer may terminate this Agreement upon notice to Tester, subject to Tester’s obligation to return and/or remove the Product, Confidential Information and all copies thereof. The obligations of Tester in Section 2 above shall survive the termination of this Agreement.
6. Disclaimer of Warranties. Tester understands that the Pre-Release Software is an incomplete version and does not represent a final product. Tester also understand that the Pre-Release Software may contain, errors, "bugs" and other problems which may result in system failure or failure in the use of the Pre-Release Software, or loss of data or programs, including data or programs previously owned by Tester and unrelated to the Pre-Release Software. Consequently, it is provided to Tester "AS IS", and Developer disclaims any warranty or liability obligations to Tester of any kind.. DEVELOPER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRE_RELEASE SOFTWARE 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.
7. Governing Law. This Agreement is to be governed by, construed and enforced according to the laws of the State of California.
No Assignment. Tester 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.
9. Headings. 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.
11. Arbitration. 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 Los Angeles. Within fifteen (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 (10) days of their appointment. Each party shall bear its own costs and expenses and an equal share of the arbitrator’s expenses and administrative fees of arbitration.
IN WITNESS WHEREOF, the parties hereto have executed this Beta Test Agreement as of the date first above written.