Sample Contract       

 

This sample contract is a standard Beta Test Agreement. The ‘pop-up’ boxes that appear in this sample are to illustrate some of the issues to consider before completing this type of contract. A more comprehensive list of the issues are contained in the Explanatory Notes which accompany each contract when purchased.

 

TO SEE A LIST OF THE ISSUES AS THEY RELATE TO CERTAIN PARTS OF THE CONTRACT CLICK ON THE HIGHLIGHTED WORDS.

 

 

                                                   BETA TEST AGREEMENT

 

This AGREEMENT is made the [         ] day of [          ] 20[    ][1].

 

BETWEEN

 

1.         *[ ] a Company incorporated in [ ] having is registered office at [ ] (the “Developer” which expression shall include its subsidiaries, agents, successors and assigns.)

 

AND

 

2.         *[ ] [2]a Company incorporated in [ ] and having a place of business at [ ] (the “Tester” which expression shall be deemed to include those of its employees to whom any confidential information is to be disclosed.)

 

* Substitute as appropriate:

 

 

U.S.A.             “...[ ] Inc. a (name of State) corporation, with its principal offices at [ ] ...”

 

 

JAPAN                        “...[ ] K.K. having its principal office at [ ] ...”

 

 

AUSTRALIA   “...[ ] Limited, Australian Company No. (ACN)[ ], a company having is registered office at [ ] ...”

 

 

 

 

WHEREAS:

 

A.        The Developer is developing a new software[3] product (the “Product”) which requires testing prior to commercial release.

B.         The Tester has agreed to test the Product for the Developer free of charge [4]and at its own risk[5] upon the terms and subject to the conditions contained herein.

 

NOW THEREFORE THE PARTIES HEREBY AGREE AS FOLLOWS:

 

1.         Scope of the Agreement

 

            (a)        The Tester has agreed to test the Product free of charge by using the Product in the Tester’s office environment[6] by the Tester’s employee(s) skilled in the business[7] sector which would normally use such a product. Such employee(s) will be capable of evaluating the quality, content and functionality[8] of the Product as well as its marketability (“Beta Test”).

 

            (b)        The Product may be upgraded [9]from time to time during Beta Test and the Tester shall permit the Developer to install such upgrades.

 

2.         Beta Test Reports and Meetings

 

            (a)        As part of the Beta Test, the Tester will produce [daily/weekly] written reports on the Product’s performance, such reports[10] to include identification of any errors, bugs or shortcomings in the Product as well as the Tester’s comments and observations.

 

            (b)        The Tester’s employee(s) carrying out the Beta Test will be available for meetings and discussions[11] with the Developer’s personnel from time to time during the Beta Test period defined below.

 

3.         Beta Test Period

 

            The Tester undertakes to carry out such Beta Testing for a period of [ ] months or such other period as the parties shall mutually agree (the “Beta Test Period[12]“).

 

4.         Loan Equipment for Beta Testing

 

            (a)        For the purposes only of performing the Product Beta Test, the Developer shall provide the Tester with the necessary equipment[13] (the “Equipment”) on loan and free of charge for the Beta Test Period.

 

            (b)        The Tester will forthwith return or permit the Developer to collect the Equipment or change any part of the same at any time during or at the expiry of the Beta Test Period.

 

            (c)        The Tester shall not at any time do or permit anything which may affect the developer’s right, title or interest in the Equipment or in the Product.

 

5.         Exclusion of Warranty and Liability

 

            (a)        The Tester acknowledges that the Product is still under development and is for Beta Test purposes only and accordingly is provided “AS IS[14]“ without any warranty of any kind and is being tested by the Tester at its own risk.

 

            (b)        The Tester further agrees that neither the Developer nor any other person involved in creating, installing, delivering, testing or using the Product shall be liable for any direct, indirect, consequential or incidental loss or damage arising from or relating to the Product or its testing hereunder.

 

6.         Expiry of Beta Test Period

 

            At the end of the Beta Test Period, the Tester will return all copies of the Product, together with all software, documentation[15] and other data relating thereto whether prepared by the Tester or the Developer and return or permit the Developer to collect the Equipment (if any) provided by the Developer in accordance with Clause 4 above.

 

7.         Confidential Information and Non-Disclosure Provisions

 

            (a)        The Tester acknowledges that the information to be supplied and disclosed upon execution of this Agreement (including but not limited to the Product and software on whatever media) will contain and incorporate confidential information [16]in which the Developer has an interest as owner.

 

            (b)        The Tester hereby agrees to hold the same as confidential and agrees not to use any part or the whole of such information other than for the purpose of the Beta Test, directly or indirectly supplied or disclosed by the Developer or information which the Tester has gained from such disclosure until or unless such information becomes public knowledge through no fault of the Tester.

 

            (c)        The Tester shall, before any permitted disclosures are made[17], obtain from those of its employees to whom any confidential information is to be disclosed or who may in any way obtain access to any confidential information, enforceable undertakings in terms at least as binding upon the said employees as the Tester is bound to the Developer hereunder.

 

            (d)        In the event that the Tester requires the assistance of any party other than employees[18] of the Tester as provided for in (c) above, to whom disclosure of any confidential information is necessary, the Tester shall first seek the Developer’s approval[19] of such party and shall thereafter obtain from that party a duly binding agreement[20] on terms at least as binding upon that party as the Tester is bound to the Developer hereunder which terms will be agreed with the Developer.

 

            (e)        The foregoing provision shall not prevent the disclosure or use by the Tester of any information which is or hereafter, through no fault of the Tester, becomes public knowledge or to the extent permitted by law.

 

8.         Assignment

 

            The Tester shall have no rights to assign this Agreement.

 

9.         Severability

 

            In the event that any or any part of the terms, conditions or provisions contained in this agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining extent permitted by the Law governing this Agreement.

 

10.       Headings

 

            The headings contained in the Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms, conditions or provisions of this Agreement.

 

11.       Law

 

            This Agreement shall be governed in all respects by [ ][21] Law.

 

 

U.S.A.             Replace above clause with:

 

                                    “This Agreement shall be governed by and construed in accordance with the laws of the State of [ ] and the courts of the State of [ ] shall have exclusive jurisdiction over all disputes arising hereunder or in connection with the subject matter hereof. In any such action the parties hereby waive any right to allege lack of personal jurisdiction, improper venue or inconvenient forum.”

 

 

JAPAN                       Add to above clause:

 

                                    “The parties hereto agree that any suit, action or proceeding in relation to any claim, dispute or difference which may arise under this Agreement shall be brought in the [Tokyo] District Court, and irrevocably and unconditionally submit to the non-exclusive jurisdiction of the [Tokyo] [District Court].”

 

                                    NOTE: The Tokyo and Osaka District Courts have divisions specialising in intellectual property sized rights-related litigation.

 

 

 

AUSTRALIA             Substitute as appropriate in the above:

 

                                    “ . . . the law in force in the State of [ ], Australia . . .”

 

 

 

 

 


 

                                                      THE FIRST SCHEDULE

 

THE PRODUCT

 



[1] Insert the date of the last signatory unless otherwise agreed by both parties then a different date should be inserted.

[2] You must check that the tester employs the personnel skilled in the product to be tested.

[3] This Agreement is equally applicable to other products than software e.g. a new website should be beta tested.

[4] Beta testing is often carried out by a principal customer of the Developer, who will test the product free of charge to gain experience in the product before commercial release after which its competitors will also be able to use it. The Tester can also use this opportunity to ensure it’s own specific requirements are built into the product.

[5] The product is not yet proven robust enough for commercial release so the Tester must be aware it is tested at its own risk.

[6] The whole object of the Beta test is that it is used in as ‘normal’ (but not ‘live’) office environment as possible to show up its failings, defects or errors under ‘normal’ office use.

[7] Skill of the Tester is vital to the quality of the test results. Good testers often recommend corrections, amendments and enhancements to increase the products marketability and thereby the product can gain a market edge over competing products, since it can be tailored to the exact state of the art requirements of that industry.

[8] Skill of the Tester is vital to the quality of the test results. Good testers often recommend corrections, amendments and enhancements to increase the products marketability and thereby the product gains a market edge over competing products, since it can be tailored to the exact state of the art requirement of that industry.

[9] As the Beta test progresses the Developer can introduce ‘fixes’ and corrections which are then re-tested by the Tester.

[10] It is vital that the Tester reports frequently and that written reports log the products test results for analysis by the Developer in fixing defects or shortcomings in the product, why these occurred and for future reference and R&D.

[11] Close contact between Tester and Developer personnel is important for the understanding of the product functionality as well as to identify early in the test, the failings or shortcomings of the product. These meetings are also very important for future R&D and the further enhancement to the product which may be introduced into the next Release or Upgrade.

[12] The period of the test depends both on the complexity of the product functionality and the robustness of the Beta Test Release.

[13] For the test to be carried out on the proper specification/configuration of equipment, the Developer often provides on loan to the Tester the exact specification of equipment, to ensure the test results accurately reflect the products functionality and speed of operation, since a lower specification of equipment may not process the data fast enough or even, at all.

[14] The Tester must be made aware that the product I ‘under test’, not for commercial use, and is provided without any warranty of any kind.

[15] It is important to get all copies back to ensure that no test results, whether good or bad, are leaked to the public or worse, to a competitor.

[16] The Beta test product, documentation and results must be kept confidential to ensure no competitor or the public can see the same.

[17] Obligations of confidentiality must be obtained before any employees carry out the Beta test.

[18] Where consultants or sub-contractors are used, these independent parties are not bound by this contract unless specifically included or enter a separate agreement.

[19] Since third party consultants and/or sub-contractors may also work for competitors, it is important that the Developer knows exactly who they are and approve or otherwise their involvement in the Test.

[20] Where consultants or sub-contractors are used, these independent parties are not bound by this contract unless specifically included or enter into a separate agreement.

[21] The choice of law should be the jurisdiction of both parties, if possible, if the parties are in different jurisdictions the law should be that of the jurisdiction in which it is easiest to enforce this type of Agreement and/or collect most damages for breach.