Participant is an individual or business that is interested in confidential “testing” of General Test Materials or services in development by manufacturers. Manufacturer wishes to obtain the benefit of Participant’s services and reports as a tester of manufacturer’s General Test Material or service. In consideration of the premises, and of the mutual covenants and conditions, the parties, agree to the following terms and conditions:
3. Manufacturer has no obligation to develop or provide any updates or revisions to the General Test Material, and Manufacturer reserves the right to alter or adjust performance specifications for the General Test Mater- ial as it deems necessary or desirable.
2.4 Manufacturer will provide the instructions, safety information, warnings or cautions concerning the General Test Material described or included in Exhibit A and no other.
3. Participant’s Obligations.
1. Participant agrees to test and evaluate the General Test Material as requested and described in Exhibit A. Participant agrees to familiarize itself with the General Test Material information provided by Manufacturer and to only use or test the General Test Material as directed. Participant will notify Manufacturer of any and all functional flaws, errors, anomalies and problems directly or indirectly associated with the General Test Material known to or discovered by Participant. In addition, Participant agrees to promptly respond to any and all reasonable inquiries, questionnaires, surveys and other test documents submitted to Participant by Manufacturer.
2. If Participant is a company or other entity, Participant shall designate to Manufacturer, in writing or online, an employee or representative who will serve as the single technical contact at their test site location for the General Test Material, and who will be responsible for maintaining communication with the Manufacturer team on a regular basis. In addition, the test site address, where Participant will test the General Test Material, will be given to Manufacturer in writing or online. If Participant changes either its technical contact person or test site address, it will promptly notify Manufacturer in writing or online of such change.
3. Upon Manufacturer’s request for the return of the General Test Material, Participant agrees to return the General Test Material in good condition (taking into account reasonable wear and tear) to Manufacturer within seven days of Participant’s receipt of Manufacturer’s request to do so. If Participant fails to return the General Test Material within this seven-day period, Participant will be legally liable for and agrees to pay the replacement costs of such General Test Material, along with all shipping costs and any applicable processing fees, as set forth in an invoice from Manufacturer. If the General Test Material is lost, damaged or destroyed during the term of this Agreement while in Participant’s possession, Participant shall be responsible for the costs of repair or replacement of such General Test Material at its sole expense.
4. Any feedback, ideas, modifications, suggestions, improvements and the like made by Participant with respect to the General Test Material (“Supportive Information”) will be the property of Manufacturer. Participant agrees to assign, and hereby assigns, all right, title and interest worldwide in the Supportive Information and the related intellectual property rights to Manufacturer and agrees to assist Manufacturer, at Manufacturer’s expense, in perfecting and enforcing such rights. Manufacturer may disclose or use Supportive Information for any purposes whatsoever without any obligation to Participant.
5. Participant agrees to pay all incidental costs (such as, costs for Internet and phone services, accessories, cabling, etc.) associated with the testing of the General Test Material and incurred during Participant’s posses- sion of the General Test Material, unless otherwise agreed to in writing by both parties and described in Exhibit A.
1. Participant acknowledges that as a tester, Participant may have access to, and Manufacturer may disclose to Participant, certain valuable information belonging to and relating to Manufacturer which Manufacturer considers confidential, including, but not limited to, information concerning the General Test Material, the General Test Material’s trademark(s) and trade name(s), computer programs, user manuals, sales and marketing plans, business plans, processes, customer lists and other trade secrets (“Confidential Information”). Participant shall use the Confi- dential Information solely for testing purposes and, for a period of three (3) years from Participant’s receipt of the Confidential Information, shall not disclose, without Manufacturer’s written consent, such Confidential Information to third parties or use such Confidential Information for its own benefit or for the benefit of third parties.
2. If Participant is a company or other entity, Participant shall disclose Confidential Information only to those of its employees who need to know such information for the purpose of the agreed-upon general testing, and shall ensure that its employees observe the confidentiality obligations in this Section 5. Participant acknowledges that the General Test Material contains Confidential Information developed or acquired by Manufacturer and that all rights therein and in other Manufacturer Confidential Information remain in Manufacturer. Participant will not disclose that it is evaluating or testing or has evaluated or tested the General Test Material to any third party without Manufacturer’s prior written consent. In addition, Participant agrees to treat any communications and reports prepared under this Agreement or such test site license, including, but not limited to, those prepared in accordance with Section 4.1, as Confidential Information and will not divulge the existence or content of such communications or reports to any third party without Manufacturer’s prior written consent.
3. This Agreement shall impose no obligation of confidentiality upon Participant with respect to any portion of the confidential information which: (i) now or hereafter, through no act or failure to act on Participant’s part, becomes generally known or available; (ii) is known to Participant at the time Participant receives same from Manufacturer as evidenced by written records; (iii) is hereafter furnished to Participant by a third party as a matter of right and without restriction on disclosure; or (iv) is furnished to others by Manufacturer without restriction on disclosure.
5. Proprietary Rights; No Right to Modify or Disassemble.
1. The General Test Material provided by Manufacturer and all copies thereof, are proprietary to and the property of Manufacturer. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents and other intellectual property rights in or associated with the General Test Material are and will remain in Manufacturer and Participant shall have no such intellectual property rights in the General Test Material.
2. Participant may not copy or reproduce the General Test Material without Manufacturer’s prior writ- ten consent, except as reasonably needed to perform its obligations hereunder and subject to the following restrictions. Participant may not copy or reproduce any software or documentation provided by Manufacturer, without Manufacturer’s prior consent, except as is reasonably needed to perform Participant’s obligations under this Agreement. Each copy of software or documentation made by Participant must contain Manufacturer’s proprietary and copyright notices in the same form as on the original. Participant shall not remove or deface any portion of any legend provided on any part of the General Test Material.
3. Participant agrees to secure and protect the General Test Material and all copies thereof in a manner consistent with the maintenance of Manufacturer’s rights therein and to take appropriate actions by instruction or agreement with any of its employees or agents permitted access thereto to satisfy its obligations hereunder.
4. Participant shall not reverse engineer, alter, modify, disassemble or decompile the General Test Material, or any part thereof, without Manufacturer’s prior written consent.
1. The term of this Agreement shall begin on the date set forth above (or, if no date is given, then the date both parties accept this Agreement by written signature or by online acceptance) and shall continue until terminated as set forth below. Upon termination of this Agreement for any reason, the three-year obligation to protect Confidential Information, as set forth in Section 4.1, shall survive such termination.
2. This Agreement may be terminated at any time for any reason by either party giving ten days prior written notice to the other party. A particular General Test Material Agreement shall automatically terminate upon the general release to the public of the final product derived from the General Test Material by Manufacturer, or sooner upon ten days prior written notice by either party. The parties acknowledge that Manufacturer is under no obligation to release any final product or General Test Material to the public.
Upon termination of this Agreement or a particular General Test Material Agreement, Participant agrees to (a) return the General Test Material and all copies thereof to Manufacturer within seven days after such termination, or (b) if requested by Manufacturer to do so, certify to Manufacturer in writing that the General Test Material and all copies thereof have been destroyed. The provisions of, and the obligations of the parties under, Sections 3.3, 3.4, 5, 6, 7, 8 and 9, and any other provisions that would normally survive, shall survive the termination of this Agreement or applicable General site license, as the case may be.
Software may include in the General Test Material being tested by Participiant pursuant to this Agreement. Participant agrees not to export or re-export any such software or accompanying documentation (or any copies thereof) or any General Test Material utilizing software or accompanying documentation in violation of any applicable laws and regulations of the United States or the country in which Participant obtained them. The software, firmware or other parts of the General Test Material covered by this Agreement may contain strong data encryption code, which cannot be exported outside the United States or Canada. Participant agrees not to export or re-export, either physically or electronically, an encrypted General Test Material or accompanying documentation without obtaining written authorization from the U.S. Department of Commerce.
10. Waiver. A waiver of any default hereunder or of any of the terms and conditions of this Agreement or a General site license shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
11. Assignment; Severability. Participant agrees not to assign any rights under this Agreement or any test site license; any attempted assignment shall be null and void and shall result in the termination of this Agreement or test site license. If any part of this Agreement or test site license shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement or test site license which shall remain in full force and effect.
Exhibit A for certain General Test Materials, and the test site licenses granted hereunder represent the entire agreement between the parties regarding the subject matter hereof and supersede any and all prior agreements between the parties, whether written or oral, regarding the subject matter hereof. Neither this Agreement nor any test site license may be modified or amended ex- cept by the written or online acceptance of both parties.