This Agreement is made, effective __________________, 20___ (the “Effective Date”), between CIRCA607 INC. (“Company”) and __________________ (“Tester”), in which Tester agrees to use software known as ____________________________________ (the “Software”) and Company will collect information from Tester’s use of the software.
Company shall provide Tester with access to the Software and any necessary documentation and instruct Tester on how to use it
Tester shall use Software under normally expected operating conditions. Tester shall allow Company access to Software for inspection, modifications, maintenance and data collection
The Software is proprietary and a valuable trade secret of the Company. The Software is entrusted to Tester only for the purpose set forth in this Agreement. Tester shall maintain Software in the strictest confidence. Tester will not, without Company’s prior written consent:
(a) disclose any information about Software, its design and performance specifications, its code, and the existence of the beta test and its results to anyone other than Tester’s employees who are performing the testing and who shall be subject to non-disclosure restrictions at least as protective as those set forth in this Agreement;
(b) copy any portion of Software or documentation, except to the extent necessary to perform beta testing; or
(c) reverse engineer, decompile or disassemble Software or any portion of it
Tester shall take reasonable security precautions to prevent Software from being seen by unauthorized individuals, whether stored on Tester’s electronic device(s), or on physical copies such as CD-ROMS, diskettes or other media. Tester shall not leave Software accessible to unauthorized users on Tester’s electronic device(s) and shall lock all copies of Software and associated documentation in a desk or file cabinet when not in use.
(a) Definition:
“Confidential Information” means any and all information for which reasonable precautions have been taken to protect its secrecy, disclosed orally or in writing to Tester by Company, regardless of whether Tester obtained the information before or after the Effective Date or whether the information is specifically identified or marked as “Confidential” or “Proprietary”
(b) No Obligation to Disclose
Company may, in its sole discretion, provide any of the Confidential Information to Tester as Company determines is required for the Software use. Nothing in this Agreement obligates the Company to make any particular disclosure of Confidential Information. Company may stop providing Confidential Information to Tester at any time
(c) Scope of use
Confidential Information shall be used only for the exclusive purpose of carrying out activities necessary for the Software use, in accordance with the Agreement. The Tester agrees to take all steps required to preserve the secrecy of the Confidential Information and shall not disclose, either directly or indirectly, the Confidential Information to any third party or person, save and except as otherwise provided for herein or as may be authorized from time-to-time in writing, in advance, by the Company. The Tester shall only provide Confidential Information to its employees who have entered into a written non-disclosure agreement with Tester containing provisions similar to those found herein (and at least as protective of the Confidential Information). The Tester further agrees to use all necessary efforts to prevent any unauthorized acquisition or use of the Confidential Information. The Confidential Information shall not be reproduced in any form except as required to accomplish the Software use. This section 5(c) shall survive termination of this Agreemen
(d) Need to Know
Confidential Information shall only be disclosed by Tester to those employees with a need to know the Confidential Information in order to carry out activities necessary for the Software use
(e) No Warranties, Representations or Liability
ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”, WITHOUT WARRANTY OR GUARANTEE OF ANY KIND AS TO ITS ACCURACY, COMPLETENESS, OPERABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED. THE COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES, LOSS, EXPENSE OR CLAIM OF LOSS ARISING FROM THE USE OF, OR RELIANCE ON, THE CONFIDENTIAL INFORMATION BY THE TESTER
(f) Written consent
Tester shall not use, copy, store in any retrieval system or otherwise deal with the Confidential Information in any manner whatsoever without Company’s prior written consent except as is reasonably required for the Software testing.
(g) Compliance with Privacy Laws
Tester shall satisfy and comply with all applicable privacy legislation and any other statute or regulation applicable to the Confidential Information.
(h) Notification of Unauthorized Disclosure
The Tester shall immediately notify the Company, in writing, in the event that it becomes aware of any unauthorized disclosure of Confidential Information by the Tester.
Confidential Information shall not include information which: Becomes generally available to the public through no fault of Tester or breach by Tester of any of its obligations of confidence; Was known to Tester prior to receipt from the Company on a non-confidential basis and is not subject to another obligation of secrecy and non-use, as documented by written records possessed by Tester prior to its receipt from the Company; Is independently developed by Tester prior to the receipt from Company, as documented by written records possessed by Tester; Becomes available to a Tester on a non-confidential basis from a source other than Company that is not under other obligations of confidence
The test period of the Software shall last from __________________, 20___ until __________________, 20___. This Agreement shall terminate at the end of the test period or when Company asks Tester to return or delete Software, whichever occurs first. The restrictions and obligations contained in Clauses 4, 5, 10, 11, 12 and 13 shall survive the expiration, termination or cancellation of this Agreement, and shall continue to bind Tester, its successors, heirs and assign
Upon the conclusion of the testing period or at Company’s request, Tester shall within 10 days return the original and all copies of Software and all related materials to Company and delete all portions of Software from computer memory
Nothing in this agreement or in any of the discussions the parties have engaged in or in the correspondence between the parties, shall constitute a confirmation, approval, consent or other agreement, to begin any project or any other business in the future between the parties hereto
This Agreement does not constitute a grant or an intention or commitment to grant any right, title or interest in Software or Company’s trade secrets to Tester. Tester may not sell or transfer any portion of Software to any third party or use Software in any manner to produce, market or support its own products. Tester shall not identify Software as coming from any source other than Company
Software is a test product and its accuracy and reliability are not guaranteed. Tester shall not rely exclusively on Software for any reason. Tester waives any and all claims Tester may have against Company arising out of the performance or nonperformance of Software.SOFTWARE IS PROVIDED AS IS, AND COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
Company shall not be responsible for any loss or damage to Tester or any third parties caused by Software. COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF SOFTWARE OR ANY PERFORMANCE OF THIS AGREEMENT.
This Agreement is personal to Tester. Tester shall not assign or otherwise transfer any rights or obligations under this Agreement
(a) Governing Law
The provisions of this agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario, and shall be binding upon the parties herein, and upon their respective successors and assigns.
(b) Entire Agreement
This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations, and understandings. This Agreement may not be amended except in a writing signed by both parties.
(c) Severability:
If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as to best to effect the intent of the parties.
(d) Headings
The section and paragraph headings herein are for reference only and are not intended to be a part of or to effect the meaning or interpretation of this Agreement.
(e) Counterparts
This Agreement may be executed in counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same original agreement. Delivery of this Agreement by electronic mail shall constitute valid and effective delivery
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written above.
Signature _________________________
Print Name _________________________
Title _________________________
Date _________________________
Tester_________________________
Signature _________________________
Print Name _________________________
Date _________________________