Beta Tester
Agreement
This Beta Test Agreement ("Agreement")
is made and effective this 1st day of July, 2007, by and between Triggit
Inc. ("Developer") and Beta Tester ("Recipient").
Developer is the owner of a
prototype product (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 for 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 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 the Beta Test,
all pursuant to this Agreement.
2. Non-Disclosure.
1. Recipient acknowledges and agrees that in providing the Product,
Developer may disclose to Recipient certain confidential, proprietary
trade secret information of Developer (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
[time period for nondisclosure, e.g. 2 years] 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
a) is or becomes generally available to the public through no fault
of Recipient; b) is rightfully received by Recipient from a third party
without limitation as to its use; or c) is independently developed by
Recipient. At the termination of this Agreement, Recipient will return
the Product and all other Confidential Information to Developer.
2. 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 provided therewith.
3. License.
Recipient acknowledges that Recipients shall have only a limited, non-exclusive,
nontransferable license to use the Product for a period to be concluded
by notification by Developer. 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.
4. Report.
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,
including both positive and negative aspects.
5. Termination.
Recipient may terminate this Agreement at any time prior to expiration
of the Beta Test by deleting the Product including all Confidential
Information and copies thereof. 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.
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 [list state of governing law].
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.
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 the city where the
Developer's headquarters are located, or such other place as may be
mutually agreed upon by the parties. 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 arbitrators
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.
Triggit Inc,
JULY 2007