The latest version was saved by David Blanco Giró on 2007-07-27 14:30:08
You can use this contract if you are about to send hardware equipment for evaluation purposes to a potential buyer.
Bear in mind that this is "Seller favorable" agreement. It contains several clauses to protect the seller position vs the buyer position.
Tip: Pay special attention to the evaluation period (and enforce it)
EVALUATION LICENSE AGREEMENT
THIS EVALUATION LICENSE AGREEMENT (the “Agreement”) is made and entered into on [CONTRACT/DATE], 2007 (the “Effective Date”) by and between [SELLER/COMPANY_NAME], a [SELLER/COUNTRY] company, having a registered office at [SELLER/COMPANY_ADDRESS] (“[SELLER/COMPANY_SHORTNAME”), and [BUYER/COMPANY_NAME] (“Licensee”), a company, having a principal place of business at [BUYER/COMPANY_ADDRESS].
Whereas, Licensee has expressed an interest in evaluating certain product(s) of [SELLER/COMPANY_SHORTNAME]; and
Whereas, is willing to grant a license for such evaluation on the terms and conditions described below.
NOW, THEREFORE, the parties hereby agree as follows:
1. License Grant.
(a) [SELLER/COMPANY_SHORTNAME] grants to Licensee, during the term of this Agreement, a temporary, non exclusive license to use the product(s) listed on Schedule A hereto (the “Product”), and related documentation as provided by [SELLER/COMPANY_SHORTNAME] to Licensee, for evaluation purposes only, at the facility shown Schedule A. Licensee may make copies of the Product for back-up purposes only, provided that Licensee reproduces [SELLER/COMPANY_SHORTNAME]'s copyright and other proprietary rights notices on all such copies.
(b) This license does not include any rights to copy, alter, modify, reverse engineer,decompile, disassemble, make derivative works, rent, lease, disclose, sublicense, or otherwise transfer the Product, related documentation, or other proprietary information of [SELLER/COMPANY_SHORTNAME]. [SELLER/COMPANY_SHORTNAME] shall provide reasonable telephone and e-mail support or maintenance services with respect to the Product.
The Product, the related documentation, and all authorized copies thereof, shall remain the exclusive property of [SELLER/COMPANY_SHORTNAME], and shall not be used in any way other than as allowed by this Agreement. Licensee acknowledges that, as between [SELLER/COMPANY_SHORTNAME] and Licensee, the Product and its related documentation and all copyrights, trade secret rights and other intellectual property rights with respect thereto, are and will at all times be the property of [SELLER/COMPANY_SHORTNAME], even if suggestions made by Licensee are incorporated into current or subsequent versions of the Product or related documentation.
3. Beta Test.
(a) If Licensee and [SELLER/COMPANY_SHORTNAME] have agreed that Licensee will participate in a Beta Test for the Product, such agreement evidenced by the inclusion of a Beta Test Plan as Schedule B hereto, then the parties agree as follows with respect to such Beta Test:
(b) Licensee shall perform the tests outlined in the Beta Test Plans attached as Schedule B, during the Term described on Schedule A.
(c) Following the end of the Term, the Licensee shall prepare the Beta Test completion report as outlined in the Beta Test Plan. After the completion report has been submitted to [SELLER/COMPANY_SHORTNAME], the Beta Test will be deemed completed.
(a) Licensee acknowledges that the Product, related documentation and other related materials provided by [SELLER/COMPANY_SHORTNAME], and any Beta Test results compiled by Licensee, are confidential information of [SELLER/COMPANY_SHORTNAME] (“Confidential Information”) except to the extent any Beta Tests include confidential information of Licensee . Licensee agrees to use the Confidential Information only for the limited term of this license and solely for the purpose of evaluation, and to take all steps reasonablynecessary to maintain and protect the Confidential Information in the strictest confidence for the benefit of [SELLER/COMPANY_SHORTNAME]. Licensee agrees that it will not, at any time without the express written permission of [SELLER/COMPANY_SHORTNAME], disclose the Confidential Information directly or indirectly to any third person, excepting employees of Licensee who have expressly agreed in writing to be bound by the terms of confidentiality. This obligation of confidentiality set forth in this Section will survive the termination of this Agreement for a period of three years.
(b) The definition of Confidential Information shall not include information that is
- already in the public domain;
- becomes generally known or available by publication, commercial use, or general sale of copies of the Product by Licensee;
- discovered or created by Licensee independently of any involvement with [SELLER/COMPANY_SHORTNAME] or the Product; or
- otherwise learned by Licensee through lawful means other than from [SELLER/COMPANY_SHORTNAME] or anyone connected with [SELLER/COMPANY_SHORTNAME]
- known by Licensee prior to the Beta Tests.
5. Disclaimer of Warranty.
LICENSEE AGREES AND ACKNOWLEDGES THAT [SELLER/COMPANY_SHORTNAME] SHALL HAVE NO RESPONSIBILITIES TO LICENSEE TO CORRECT ANY DEFECTS OR PROBLEMS IN THE SOFTWARE OR THE RELATED DOCUMENTATION, OR TO ASSURE THAT THE SOFTWARE OPERATES PROPERLY. [SELLER/COMPANY_SHORTNAME] DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE PRODUCT AND THE RELATED DOCUMENTATION, WHETHER EXPRESS OR IMPLIED,INCLUDING SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PRODUCT AND THE RELATED DOCUMENTATION IS PROVIDED “AS IS”, AND LICENSEE UNDERSTANDS THAT IT ASSUMES ALL RISKS OF ITS USE, QUALITY, AND PERFORMANCE.
(a) [SELLER/COMPANY_SHORTNAME] shall have no liability whatsoever to Licensee in connection with this Agreement, including without limitation, liability for any problems in or caused by the Product or the related documentation, whether direct, indirect, special or consequential (including lost profits).
(b) Licensee shall be liable to [SELLER/COMPANY_SHORTNAME] for any losses, costs or damages arising from damage to the Product that occurs while the Product is in Licensee’s possession as a result of Licensee’s negligence.
7. Term and Termination.
(a) The term (“Term”) of this Agreement shall be as set forth in Schedule A, unless sooner terminated as provided herein. [SELLER/COMPANY_SHORTNAME] may terminate this agreement immediately upon notice to Licensee in the case of breach of this Agreement by Licensee.
(b) Licensee agrees to return the Product to [SELLER/COMPANY_SHORTNAME], to be received by [SELLER/COMPANY_SHORTNAME] within ten(10) days of the end of the Term. Furthermore, if the Product includes software, Licensee shall destroy or erase all copies of such software in its possession at the end of the Term. If the Product is not so returned to [SELLER/COMPANY_SHORTNAME] within ten (10) days of the end of the Term, provided [SELLER/COMPANY_SHORTNAME] has previously sent a notice to Licensee with ten days opportunity for Licensee to cure, [SELLER/COMPANY_SHORTNAME] may invoice and Licensee shall pay for the Product by Purchase Order or credit card and Licensee’s rights in the Product shall be as stated in the [SELLER/COMPANY_SHORTNAME] Standard Terms and Conditions of Sale current as of the end of the Term, unless an extension to this Agreement is made in writing by [SELLER/COMPANY_SHORTNAME] and Licensee.
Licensee warrants that it will not use the Product outside of the country of receipt, and that Licensee will not export or re-export, directly or indirectly, in any manner, any portion of the Product to any country for which the Canadian and/or U.S. Government or any agency thereof, at the time of export, requires an export license or other Government approval without first obtaining such license or approval. Licensee also warrants that the Product will not be exported, transferred or re-exported or accessed for use in any nuclear or missile proliferation activities or in the design (including all stages of development and manufacture) of chemical or biological weapons.
(a) This Agreement may not be assigned by Licensee or by operation of law to any other person, persons, firms, or corporation without the express written approval of [SELLER/COMPANY_SHORTNAME].
(b) All notices and demands hereunder shall be in writing and shall be served by personal service, facsimile or by mail at the address of the receiving party set forth above (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier, and shall be deemed complete upon receipt.
(c) This Agreement shall be governed by and construed in accordance with the laws of England and Wales without regard to any conflict of laws that might otherwise apply. The parties here to submit to the exclusive jurisdiction of the English courts, and agree that any disputes hereunder shall be litigated in such courts.
(d) Each party is acting as an independent contractor and not as an agent, partner, or joint venturer with the other party for any purpose. Except as provided in this Agreement, neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.
(e) No provisions in either party's purchase orders, or in any other business forms employed by either party will supersede the terms and conditions of this Agreement, and no supplement,modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.
(f) The parties have read this Agreement and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the license and to the subject matter hereof. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year set forth above.
- [SELLER/COMPANY_SHORTNAME] contact:
- [SELLER/COMPANY_SHORTNAME] Product:
- Model No.:
- Attn:Tel No.:
- Fax No.:
- Term: The Term of this Agreement shall begin on the Effective Date and end on [CONTRACT:END_DATE].
- Ship Via:
Beta Test Plan
(DESCRIBE, IF APPLICABLE)