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CREATIVE DECISIONS BETA SOFTWARE TESTING AGREEMENT
This is an agreement, effective upon initial access, between the Creative Decisions Foundation. (www.creativedecisions.net) (the “Company”) and you (the “Tester”), in which Tester agrees to test various releases of the Company’s Beta (experimental) software program and promptly inform the Company of the test results.
1. Company’s obligations:
The Company shall provide Tester with a copy of the software and any necessary documentation and instruct Tester on how to use it and the desired test data to be gained.
2. Tester’s Obligation
Tester shall test the software under normally expected operating conditions in Tester’s environment during test period. Tester shall gather and report test data as mutually agreed upon with the Company.
3. Software a Trade Secret
Tester acknowledges that the Software is proprietary to, and a valuable trade secret of, the Company and is entrusted to Tester only for the purpose set forth in this Agreement. Tester shall treat the Software in the strictest confidence. Tester agrees that it will not, without the Company’s express prior written consent:
1. disclose any information about the 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;
2. copy any portion of the software or documentation, except to the extent necessary to perform the beta testing; or
3. reverse engineer, decompile or disassemble the Software or any portion of it.
4. Security precautions
Tester shall take reasonable security precautions to prevent the software from being seen by unauthorized individuals. This includes but is not limited to, locking all copies of the software and associated documentation in a desk or file cabinet when not in use, keeping all security codes or passwords in a secure environment and not distributing or sharing any passwords or security codes granted.
5. Disclaimer of Warranty
Tester understands and acknowledges that the Software is a test product and its accuracy and reliability are not guaranteed. Owing to its experimental nature, Tester is advised not to rely exclusively on the Software for any reason. Tester waives any and all claims it may have against the Company arising out of the performance or nonperformance of the Software.
THE SOFTWARE IS PROVIDED AS IS, AND THE 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.
6. Limitation of Liability
The Company shall not be responsible for or liable to Tester or any
third party for any loss or damage caused by the Software or by the Company’s performance of this Agreement.
THE 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 THE SOFTWARE OR ANY PERFORMANCE OF THIS AGREEMENT.
7. No Rights Granted
Tester understands and acknowledges that the Software is provided for its own use for testing purposes only. Tester understands and acknowledges it’s obligation to report testing data to Company in a prompt and timely fashion. Further, Tester acknowledges and understands that Tester shall not be entitled to receive any compensation for any information provided to Company. Compensation includes, but is not limited to, payment of money, granting of rights, acknowledgment of any kind information, or any other form of compensation.
This Agreement does not constitute a grant or an intention or commitment to grant any right, title or interest in the in the Software or the Company’s Trade secrets to Tester. Tester may not sell or transfer any portion of the Software to any third party or use the Software in any manner to produce , market or support its own products. Tester shall clearly identify the Software as the Company’s property.
8. No Assignments
This Agreement is personal to Tester. Tester shall not assign or otherwise transfer any right or obligation under this Agreement.
9. Testers Authority
Tester warrants and represents that Tester has the authority to enter this Agreement.
10. Breach of the Agreement
The parties acknowledge that the terms, conditions and restrictions contained herein are reasonable, equitable and fairly bargained for. In the event Tester breaches this Agreement, Tester acknowledges that a breach would result in irreparable injury to the Company. Tester agrees that the remedy at law for any breach will be inadequate, and that, in the event of such breach, the Company shall be entitled to preliminary and permanent injunctive relief as well as an equitable accounting of all earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.
Neither the failure, nor any delay on the part of a party to exercise any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver of any right or remedy, with respect to any occurrence be construed as a waiver of such right or remedy with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted the waiver.
12. Entire Agreement
This Agreement contains the entire understanding and agreement of the parties relating to the subject matter hereof. Any representation, promise or condition not explicitly set forth in this Agreement shall not be binding on either party. All additions or modifications to this Agreement must be made in writing and acknowledged by both parties to be effective.
13. Applicable Law
This Agreement and all questions relating to its validity, interpretation, performance and enforcement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, notwithstanding any conflict of laws provisions to the contrary.
14. Signed Copies
The parties agree that checking the “I Agree” button prior to downloading the ANP beta or alpha software constitutes an aknowledgment of and their agreement to the above policy.