Beta Test Agreement 

WHEREAS, Company is willing to supply within the protection of a confidential relationship, products and related materials to Recipient solely for testing and product evaluation (“Evaluation”).

WHEREAS, Recipient desires to have access to the Evaluation Item and is aware of the experimental and untested nature of the Evaluation Item, and is willing to enter a confidential relationship and to use and test the Evaluation Item and report to Company on the performance of the Evaluation Item;

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, the parties hereby agree as follows:

1.     Use of Evaluation Item and [Software] License. Subject to the terms of this Agreement, Company grants to Recipient a personal, nonsublicensable, nonexclusive license to use the Evaluation Item in accordance with the documentation supplied by Company at the location specified above, and solely for Recipient's internal testing purposes during the term of this Agreement. The Company shall at all times retain all title to and ownership of the Evaluation Item and all copies thereof. Recipient will not reproduce or modify the Evaluation Item or any portion thereof. Recipient shall not rent, sell, lease or otherwise transfer the Evaluation Item or any part thereof or use it for the benefit of a third party. Recipient shall not reverse assemble, reverse compile or reverse engineer the Evaluation Item, or otherwise attempt to discover any Evaluation Item source code or underlying Proprietary Information (as that term is defined below).

2.     Confidentiality; Ownership.  Recipient acknowledges that, in the course of using the Evaluation Item, it may obtain information relating to the Evaluation Item and/or Company (“Proprietary Information”).Such Proprietary Information shall belong solely to Company and includes, but is not limited to, the existence of the Evaluation Item, its features and mode of operation, this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. In regard to this Proprietary Information:

(a)    Recipient shall not during the term of this Agreement disclose Proprietary Information without the prior written consent of Company unless such Proprietary Information becomes part of the public domain without breach of this Agreement by Recipient, its officers, directors, employees or agents.

(b)    Recipient hereby assigns to Company any invention, work of authorship, mask work, idea, information, feedback or know-how (whether or not patentable) that is conceived, learned or reduced to practice in the course of performance under this Agreement and any patent rights, copyrights (including moral rights; provided that any non-assignable moral rights are waived to the extent permitted by law), trade secret rights, mask work rights, sui generis database rights and all other intellectual and industrial property rights of any sort with respect thereto. Recipient agrees to take any action reasonably requested by Company to evidence, perfect, obtain, maintain, enforce or defend the foregoing.

3.     WARRANTY DISCLAIMER.

The parties acknowledge that the Evaluation Item is experimental in nature and that the Evaluation Item is provided “AS IS” and may not be functional in any environment. COMPANY DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION ITEM, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

4.     Limitation of Remedies and Damages.

COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR [(EXCEPT FOR RETURN OF AMOUNTS, IF ANY, PAID TO COMPANY HEREUNDER)] COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

5.     Nonassignability.   Although fully assignable and transferable by Company, neither the rights nor the obligations arising under this Agreement are assignable or transferable by Recipient, and any such attempted assignment or transfer shall be void and without effect.

6.     Execution of Agreement, Controlling Law, Attorneys' Fees and Severability.  This Agreement shall become effective only upon its execution by both Company and Recipient and it shall be governed by and construed in accordance with the laws of the State of Oregon without regard to the conflicts of laws provisions therein. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys' fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

7.     Entire Agreement.  This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. Any modifications of this Agreement must be in writing and signed by both parties.

8.     Equitable Relief.  Recipient acknowledges and agrees that due to the unique nature of Company's Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Recipient or third parties to unfairly compete with Company resulting in irreparable harm to Company, and therefore, that upon any such breach or threat thereof, Company shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.

9.     Termination.  This Agreement may be terminated by Company for any reason or no reason upon two days' written notice to the Recipient at the email address listed below, or immediately upon notice of any breach by Recipient of the provisions of this Agreement, and in any case will terminate on ______________, 2024.  Upon termination, the license granted hereunder shall terminate and Recipient shall immediately return the Evaluation Item, together with any and all documents, notes and other materials regarding the Evaluation Item to Company, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect.