SOFTWARE BETA TESTER NONDISCLOSURE AGREEMENT
This is an agreement, effective , between Calico Pie ("Company") and the person named below ("Tester"), in which Tester agrees to test a software program known as Family Historian ("the Software") and keep Company aware of the test results.
1. Company's Obligations
Company shall make available to Tester by download, a copy of Software for beta testing, and any necessary documentation, and instruct Tester on how to use it.
2. Tester's Obligations
Tester shall test Software under normally expected operating conditions in Tester's environment during the test period. Tester shall gather and report test data as agreed upon with Company.
3. Software a Trade Secret
Software is proprietary to, and a valuable trade secret of, Company. It 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 nondisclosure 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.
4. Security Precautions
Tester shall take reasonable security precautions to prevent Software from being seen by unauthorized individuals whether stored on Tester's hard drive or on physical copies such as CD-ROMS, diskettes or other media.
5. Term of Agreement
This Agreement shall terminate at the end of the test period or when Company asks Tester to uninstall and delete all downloaded copies of Software made available by Company for beta testing - whichever occurs first. The restrictions and obligations contained in Clauses 4, 7, 8, 9 and 10 shall survive the expiration, termination or cancellation of this Agreement, and shall continue to bind Tester, its successors, heirs and assigns.
6. Deletion of Software and Materials
Upon the conclusion of the testing period or at Company's request, Tester shall uninstall and delete all downloaded copies of Software, and all related materials, made available by Company for beta testing.
7. Disclaimer of Warranty
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.
8. Limitation of Liability
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.
9. No Rights Granted
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.
10. No Assignments
This Agreement is personal to Tester. Tester shall not assign or otherwise transfer any rights or obligations under this Agreement.
11. Tester Warrants
Tester warrants and confirms that although he or she may use, and even be a beta tester for, one or more genealogy programs, other than Family Historian, Tester does not have any other interest (any other stake) in any genealogy program other than Family Historian. More specifically, Tester warrants and confirms that he or she is not an employee, director or shareholder of any company, other than Calico Pie, that publishes or develops genealogy software; nor does he or she have a financial interest in any such company; nor is he or she a close friend or relative of anyone who has such an interest.
12. General Provisions
(a) Relationships: Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose.
(b) Severability: If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.
(c) Integration: 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.
(d) Waiver: The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
(e) Attorney Fees and Expenses: In a dispute arising out of or related to this Agreement, the prevailing party shall have the right to collect from the other party its reasonable attorney fees and costs and necessary expenditures.
(f) Governing Law: This Agreement shall be governed in accordance with the laws of England and Wales.
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