A Beta Testing Agreement is a software license agreement between a software
developer, and a customer known as a beta tester, regarding the use of a pre-release
version of a software company’s software. The agreement allows the customer to use
the software program in a “live” environment before it is released to the general public.
This agreement, also known as is a “click wrap” agreement that is deemed agreed to
when the beta tester downloads the agreement, and provides the terms, and conditions
including confidentiality and non-disclosure terms. It contains both standard clauses as
well as opportunities for customization to ensure the understandings of the parties are
properly set forth. Use this form when selecting Beta Software Testers.
BETA TESTING AGREEMENT
READ THIS BETA TESTING AGREEMENT CAREFULLY. BY DOWNLOADING,
INSTALLING OR USING THE SOFTWARE YOU INDICATE ACCEPTANCE OF
AND AGREE TO THE TERMS AND CONDITIONS OF THIS BETA AGREEMENT.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT
DOWNLOAD, INSTALL OR USE THE SOFTWARE.
The purpose of this beta testing agreement (“Agreement”) is to set forth the terms and
conditions under which ___________ [Instruction: Insert Name of Company],
___________ [Instruction: Insert Address] ("Company"), at its sole discretion will
provide to you (the "Beta Tester") a copy of Company’s software product known as
“___________” [Instruction: Insert Name of Software] ("Software"). Use of the
Software shall be for the sole purpose of ongoing pre-release evaluations and testing by
Beta Tester only. The specific conditions pertaining to this evaluation are as follows:
1. Grant of License. Company grants to the Beta Tester, during the Term (as defined in
paragraph 2 of the Agreement), the non-transferable, non-exclusive right to use one (1)
copy of the Software solely for the purpose of internal pre-release evaluation and testing
only. This grant is subject to the following additional specific agreements and covenants
by the Beta Tester regarding the Beta Tester’s use of the Software:
A. The Beta Tester agrees that the Software is for the Beta Tester’s own internal,
non-production use only and that the Beta Tester shall not sell or transfer any copies of
the Software, shall not relicense, rent or lease the Software, use the Software for third
party training, commercial time-sharing or service bureau use, or otherwise make the
Software available to third parties;
B. The Beta Tester agrees not to make any copies of the Software;
C. The Beta Tester agrees not to cause or permit the disassembly, reverse
compilation, or reverse engineering of the Software;
D. The Beta Tester agrees to use the Beta Tester’s best efforts to prevent others from
making or obtaining copies of the Software; and
E. The Beta Tester hereby acknowledges Company’s copyright in the Software
regardless of whether the copyright notice appears on the Software or whether it has been
filed with the United States Copyright Office, and the Beta Tester shall not acquire any
rights in the Software, express or implied, other than those specified in this Agreement.
2. Term and Termination.
A. The term (“Term”) of this Agreement shall commence upon the earlier of: (i) the
Beta Tester’s downloading of the Software; (ii) the Beta Tester’s installation of the
software; or (iii) the Beta Tester’s use of the software and shall terminate upon the
earlier of: (i) the termination of this Agreement by Company or (ii) the date of general
commercial availability of the Software. Company shall have the right, at its sole
discretion, to terminate this Agreement, with or without cause, upon written notice to
B. Nothing in this Agreement shall be deemed to require Company to make the
Software commercially available on any particular date nor does Company make any
such representation or warranty, express or implied, regarding any such commercially
available version. Nothing in this Agreement shall be deemed to convey to Beta Tester
the rights to use a commercially released version of the Software or any components
thereof, if and when such are available. Use of such commercial product shall be
subject to a separate agreement between Company and the Beta Tester.
C. Upon termination of the Term, the Beta Tester shall cease using the Software, or
shall certify in writing that the Software and all copies have been destroyed within ten
(10) calendar days of termination of the right to use the Software hereunder.
3. Feedback. The Beta Tester agrees to provide Company with comprehensive
information regarding the Software (“Feedback”) as soon as possible after Beta Tester
learns of such Feedback. Feedback shall include, but is not limited to, all information
regarding any problems or defects in the Software encountered by the Beta Tester. Beta
Tester shall transmit Feedback to Company in any medium reasonably requested by
Company, including via telephone, facsimile, written communication and email. All
Feedback shall become the sole and exclusive property of Company and may be used by
Company in any way without restriction or obligation to the Beta Tester. Company shall
be free to use the Feedback for any purpose. Any ideas, concepts, know-how, or
techniques resulting from the Feedback shall belong solely to Company.
A. THE BETA TESTER UNDERSTANDS THAT THE SOFTWARE IS
EXPERIMENTAL AND THAT COMPANY DOES NOT WARRANT THE
SOFTWARE IN ANY WAY, INCLUDING BUT NOT LIMITED TO PERFORMANCE
OR FEATURES OF THE SOFTWARE. ALL WARRANTIES REGARDING THE
SOFTWARE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-
INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR
IMPLIED, ARE HEREBY DISCLAIMED BY COMPANY.
B. THE SOFTWARE IS PROVIDED “AS IS” FOR EVALUATION AND
TESTING PURPOSES ONLY, AND BECAUSE OF THE SOFTWARE’S
EXPERIMENTAL NATURE, THE BETA TESTER IS ADVISED NOT TO RELY ON
THE FEATURES OR PERFORMANCE OF THE SOFTWARE FOR ANY REASON.
THE BETA TESTER AGREES TO USE THE SOFTWARE WITH ALL DUE
CAUTION, AND TO TAKE EVERY PRECAUTION TO ENSURE THE INTEGRITY
OF DATA, HARDWARE, AND SOFTWARE IN THE SOFTWARE'S OPERATING
ENVIRONMENT. THE BETA TESTER FURTHER AGREES THAT COMPANY
SHALL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT
LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS,
REVENUE, DATA OR USE, INCURRED BY BETA TESTER OR ANY THIRD
PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT. IN NO EVENT
SHALL COMPANY’S LIABILITY FOR DAMAGES HEREUNDER EXCEED THE
AMOUNTS RECEIVED BY COMPANY AS A RESULT OF THIS AGREEMENT.
THESE WARRANTY DISCLAIMERS SHALL SURVIVE THE TERMINATION OF
5. Trade Secrets and Confidentiality. In evaluating the Software, the Beta Tester
recognizes that the Software is confidential and proprietary to and a trade secret owned
and/or licensed by Company. Beta Tester hereby agrees not to disclose any information
relating to Software (including, but not limited to, its existence, design and performance
capabilities, the results of any performance/benchmark tests, and any authorization codes
or license keys) to third parties without the prior written permission from Company. The
Beta Tester shall treat all information regarding the Software provided by Company as
Company’s “Confidential Information”, including without limitation the Software, source
code, object code, documentation and any proprietary tools, proprietary knowledge or
proprietary methodologies disclosed by Company to the Beta Tester under this
Agreement. The Beta Tester shall hold such Confidential Information in the strictest
confidence and take all reasonable steps to protect such from any use, reproduction,
publication, disclosure or distribution.
A. This Agreement shall be interpreted under the laws of the State of ___________
[Instruction: Insert Name of State], applicable to agreements to be wholly performed
therein, with jurisdiction exclusive to the Federal and State courts located in the County
of _____________ [Instruction: Insert County], State of ______________
[Instruction: Insert State], and the parties hereto irrevocably consent to the jurisdiction
of such courts.
B. This Agreement sets forth the entire agreement and understanding between the
parties with respect to the subject matter hereof and supersedes any and all prior
discussions, understandings, agreements, representations, warranties or covenants
between the parties related to the subject matter hereof. This Agreement may only be
amended by a writing signed by the authorized representative of each of the parties,
except as otherwise set forth herein. Any waiver of a breach or default under this
Agreement shall not constitute a waiver of any subsequent or other breach or default and
shall not serve to modify the agreements set forth herein.
C. No failure of Company to pursue any remedy resulting from a breach of this
Agreement by the End User shall be construed as a waiver of that breach, or as a waiver
of any subsequent or other breach unless such waiver is in writing and signed by an
authorized representative of Company.
D. If any provision or term of this Agreement is held to be invalid, illegal or
unenforceable for any reason, such a provision shall be considered separate and severable
from the remaining provisions of this Agreement, and the validity, legality or
enforceability of any of the remaining provisions of this Agreement shall not be affected
or impaired by such provision in any way.