Agreement for vFEP Software Evaluation (“Beta Test”)

THIS AGREEMENT FOR TRIAL TESTING (this "Agreement") is made and entered into on and as of the 1st day of September, 2017, (“Effective Date”) by and between the tester and Rutgers, The State University of New Jersey, (“Rutgers”); individually a “party”, collectively the “parties”.

RECITALS

WHEREAS, Tester's role as state below; and

WHEREAS, Tester desires to test and evaluate certain products, and, in this regard, desires to test and evaluate Rutgers’ vFEP software (“SOFTWARE”); and

WHEREAS, Rutgers is willing to provide to Tester a limited, non-exclusive license to run, display, and use, the SOFTWARE for the sole purpose of testing and evaluation.

NOW THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter set forth, the parties agree as follows:

1.      Definitions

For purposes of this Agreement, the following terms shall have the respective meanings set forth below:

1.1      "Program" as used herein shall mean the computer software and / or     equipment identified in Appendix 1 hereto.

1.2      "Rutgers Technology" as used herein shall mean information or other materials provided in support of the use of the Program.

1.3    "Proprietary Assets" as used herein shall mean such of the Program or information which the Rutgers represents as confidential, copyrighted and / or patented.

2.      Trial/Evaluation Usage

2.1    Rutgers hereby agrees to provide Tester with the Program for the trial/evaluation period set forth in Appendix 1 hereto or such longer period as Rutgers may permit. The trial/evaluation period (“Beta Test Period”) shall commence upon the Effective Date and last for the duration specified in Appendix 1.  For the duration of the Beta Test Period, Rutgers hereby grants Tester a limited, non‑exclusive, non‑transferable license to run, display, or use the Program upon the terms herein set forth. Tester agrees that Rutgers shall retain all rights to the Program except for those rights granted to Tester in this Agreement, and that nothing herein shall serve to transfer ownership or title of the Program or any derivative works thereof from Rutgers to Tester.

2.2    Tester agrees to use the Program for testing and evaluation purposes only and to provide feedback to Rutgers according to Appendix 2.

2.3    Prior to or at the conclusion of the Beta Test Period on the first day of February, 2018, Tester agrees to delete all copies and/or components of the Program from Tester’s premises and computers.

2.4    Tester agrees that it will not copy or otherwise move the Program from the Tester premises or computers prior to its return to Rutgers without Rutgers's prior written consent.

2.5    Installation and use of the Program for the Beta Test Period shall be without cost to Tester or Rutgers.  Each Party shall bear its own costs and expenses incurred in its performance of evaluation.

2.7    Tester agrees to provide to Rutgers feedback and test results according to Appendix 2 and throughout the Beta Test Period, and hereby grant to Rutgers a perpetual, paid up, royalty free, non-exclusive license to use any such information for the purpose of modifying and/or improving the Program and related services.

3.      Proprietary Assets

3.1    Tester agrees to take the same reasonable and prudent steps to protect the confidentiality of the Proprietary Assets as it takes to protect the confidentiality of its own proprietary assets.

3.2    The obligations of Tester set forth in Section 3.1 above shall survive expiration of the Beta Test Period for a period of five (5) years.

3.3    The Program must be under Tester’s control and cannot be published, distributed, or otherwise transferred or made available to any entity or person other than persons involved in the Beta Test.

4.      Warranty and Liability

4.1    This license and the associated Program are provided “AS IS” and WITHOUT WARRANTY OF PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WITHOUT ANY OTHER WARRANTY WHETHER EXPRESS OR IMPLIED. RUTGERS MAKES NO REPRESENTATION AND DISCLAIMS ANY WARRANTY, WHETHER EXPRESS OR IMPLIED, THAT THE PROGRAM OR ANY OTHER USE OF RUTGERS TECHNOLOGY WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHT.  IN NO EVENT SHALL RUTGERS BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, RESULTING FROM EXERCISE OF THIS LICENSE BY OR ON BEHALF OF Tester. 

4.2  By execution of this Agreement, Tester represents and covenants that (i) Tester has been given an opportunity to conduct sufficient due diligence with respect to all items and issues pertaining to this Agreement and (ii) Tester has adequate knowledge and expertise, or has utilized knowledgeable consultants, to adequately conduct the due diligence.  Tester further represents and covenants that it is a duly organized, valid entity of the form indicated in the preamble to this Agreement, and is in good standing under the laws of its jurisdiction of organization as indicated in the preamble of this Agreement, and has all necessary corporate or other appropriate power and authority to execute and perform its obligations hereunder.

5.         Use of Names and Trademarks

5.1    Nothing contained in this Agreement shall be construed as granting any right to Tester to use for any purpose whatsoever, including in advertising, publicity, or other promotional activities or otherwise, or the names of any individuals employed by Rutgers, any name, trade name, trademark, logo or other designation of Rutgers or any of its units (including contraction, abbreviation, or adaption of any of the foregoing).  Unless required by law or consented to in advance in writing by Rutgers, the use by Tester of the name, "Rutgers, The State Rutgers of New Jersey" or any campus or unit of Rutgers is expressly prohibited.

6.         Indemnification

6.1             To the maximum extent permitted by applicable law, none of Rutgers, its governors, trustees, officers, employees, students, agents and the authors of the Program (each an “Indemnified Person”) shall have any liability or responsibility whatsoever to Tester or any other person or Entity for or on account of (and Tester agrees and covenants not to sue any Indemnified Person in connection with) any injury, loss, or damage of any kind or nature, sustained by, or any damage assessed or asserted against, or any other liability incurred by or imposed upon, Tester or any other person or Entity, whether direct, indirect, special, punitive, incidental, consequential or otherwise arising under any legal theory (and further excluding without limitation any existing or anticipated profits or opportunities for profits lost by Tester) arising out of or in connection with or resulting from (i) the use of the Program by Tester; (ii) the use of Rutgers Technology by Tester; or (iii) any advertising or other promotional activities with respect to either of the foregoing; or (iv) the production, use, or sale of any product, process or service, identified, characterized or otherwise developed by Tester with the aid or use of the Rutgers Technology.  Tester shall indemnify and hold each Indemnified Person harmless against all claims, demands, losses, damages or penalties (including, but not limited to, attorneys’ fees) made against any Indemnified Person with respect to items (i) through (iv) above, whether or not such claims are groundless or without merit or basis.  This indemnification shall include, but is not limited to, any and all claims alleging products liability or claims relating to infringement of Rutgers intellectual property rights or the intellectual property rights of any third party.

7.      Disclaimer of Obligation

7.1    Tester shall have no obligation whatsoever to purchase or otherwise obtain any products or materials or the Program from Rutgers, nor shall Tester have any obligation to invite Rutgers to respond to any procurement request issued by Tester.

8.      General

8.1    This Agreement shall be governed by, construed interpreted and enforced under the laws of the State of New Jersey, except for its conflict of laws principles.  The venue shall be the state and federal courts located in the State of New Jersey.

8.2    This Agreement may be modified or amended only by a written instrument executed by both parties.

8.3    This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors in interest, subsidiaries, affiliates and assigns.

8.4    The obligations of Tester under Sections 3, 4, 5, and 6 shall survive termination or expiration of the Beta Test Period for a period of five (5) years.

8.5    This Agreement, together with the Appendices hereto constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior communications, agreements and understandings, written or oral, with respect thereto.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized representatives.

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Must reference in publications:
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