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TRIAL LICENSE AGREEMENT
BACKGROUND
Company has developed and intends to market and license a certain software product and service called ”SimCAD” which,
among other things, is a scientific engineering simulation tool (“Software”). Company wishes to provide access, on a
trial basis, to users of a “beta” version of the Software to test and provide feedback to Company. Licensee wishes to
participate in Company’s beta trial of the Software and to provide feedback to Company with respect to Licensee’s use
thereof.
Accordingly, the parties hereby agree as follows:
1. BETA PRODUCT.
This Agreement applies to any pre­release version of the Software and any updates and changes thereto during the Term
(collectively, “Beta Product”). As an essential condition of this Agreement, Licensee understands and acknowledges that:
(a) Licensee is participating in a beta test of the Beta Product; (b) the Beta Product has not been field tested or
trialed; and (c) the Beta Product may not operate properly or be error free and may not perform all functions for
which it is intended or represented.
2. FEEDBACK.
As a condition of this Agreement, during the Term of this Agreement, Licensee agrees to provide Company with comments,
feedback, criticisms, and suggestions for changes to the Beta Product (“Feedback”), and to help Company identify errors
or malfunctions, and performance issues, in the operation of the Beta Product, as Company may reasonably request. All
rights to any Feedback or other intellectual property derived from Licensee’s use of or relating to the Beta Product,
as well any data collected from the use of the Beta Product, belong solely to Company and Licensee hereby irrevocably
assigns all such rights to Company. Company reserves the right to use all Feedback and data collected as a result of the
use of the Beta Product to advertise and promote the Company and the Software.
3. LICENSE AND RESERVATION OF RIGHTS.
3.1 Subject to the terms and conditions set forth in this Agreement, Company hereby grants Licensee, and Licensee
accepts, during the Term, a non­exclusive, royalty­free, revocable, non­transferable, limited license to access and use
the Beta Product for its internal, non­commercial use for evaluation purposes only, and to give permission to employees
of Licensee and employees of Licensee’s subsidiaries (“Permitted Users”) to use the Beta Product in accordance with the
foregoing.
3.2 The Beta Product and the Software comprise the intellectual property of Company. All right, title and interest in
and to the Beta Product (and, more generally, in and to the Software), and to all Feedback and data arising from its
use, in whole or in part, and all patent, copyright, trade­marks, trade secret and all other intellectual and industrial
property rights therein and the structure, sequence and organization of same, and the media on which such material is
contained belong exclusively to Company. Licensee and its Permitted Users will not, directly or indirectly: reverse
engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure,
ideas, know­how or algorithms relevant to the Beta Product; modify, adapt, alter, edit, correct, translate, publish,
sell, transfer, assign, convey, rent, lease, loan, pledge, sublicense, distribute, export, enhance or create derivative
works based on the Beta Product; or remove, alter, cover or otherwise obscure any proprietary notices or labels
displayed on or within the Beta Product any documentation relating thereto.
4. DISCLAIMER.
4.1 COMPANY MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE BETA PRODUCT,
INCLUDING, BUT NOT LIMITED TO, THE AVAILABILITY, QUALITY OR PERFORMANCE OF THE BETA PRODUCT. COMPANY SPECIFICALLY
DISCLAIMS ALL EXPRESS, STATUTORY AND IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, WITHOUT LIMITATION (A) THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON­INFRINGEMENT, (B) ANY WARRANTIES AGAINST HIDDEN
OR LATENT DEFECTS, (C) AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE AND (D) ANY
WARRANTY OR REPRESENTATION THAT THE BETA PRODUCT IS ERROR­FREE, VIRUS­FREE, SECURE, UNINTERRUPTED, OR FREE FROM
UNAUTHORIZED ACCESS (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS). THE BETA PRODUCT
IS SUPPLIED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTY.
4.2 NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES OR LOSS
(INCLUDING DEATH AND PERSONAL INJURY), IRRESPECTIVE OF THEIR CAUSE, NOTWITHSTANDING THAT A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGE, NOR FOR ANY CLAIMS FOR SUCH LOSS OR DAMAGE INSTITUTED AGAINST A PARTY OR ITS
CUSTOMERS BY ANY THIRD PARTY.
5. CONFIDENTIALITY
5.1 All Confidential Information disclosed by either party shall be kept by the receiving party in strict confidence and
shall not be disclosed to any third party without the disclosing party’s express written consent. For purposes of this
Agreement, “Confidential Information” means all information regarding either party’s business which has been marked or
is otherwise communicated as being “proprietary” or “confidential” or which reasonably should be known by the receiving
party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential
Information of Company includes non­public information regarding features, functionality and performance of the Beta
Product, including all Feedback and related data. Notwithstanding the foregoing, each party’s confidentiality
obligations hereunder shall not apply to information that: (a) is already known to the receiving party without a
pre­existing restriction as to disclosure; (b) is or becomes publicly available without fault of the receiving party;
(c) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is
approved for release by written authorization of the disclosing party; (d) is developed independently by the receiving
party without use of the disclosing party’s Confidential Information; or (e) is required to be disclosed by law or
regulation, including, but not limited to, supplying such information or making such statements or disclosures relating
to this Agreement before any competent court, governmental agency or authority in response to a lawful requirement or
request from a court of governmental agency or authority, provided that the disclosing party shall give the other party
prompt notice of such request, to the extent practicable, so that the other party may seek (at its sole cost and
expense) an appropriate protective order or similar relief.
5.2 In the event of a breach of Sections 2, 3 or this Section 5, the non­breaching party shall be entitled to seek
equitable relief to protect its interests, including, but not limited to, injunctive relief. In the event of expiration
or earlier termination of this Agreement, each party shall immediately return to the other party such other party’s
Confidential Information, or at such other party’s option, destroy any remaining Confidential Information and certify
that such destruction has taken place.
6. FEES; EXPENSES.
Neither party shall be entitled to any compensation in connection with this Agreement or its use or provision of the
Beta Product. Each party shall bear its own costs and expenses arising from this Agreement and its use or provision of
the Beta Product, as the case may be.
7. TERM OF AGREEMENT.
This Agreement shall begin on the Effective Date and shall continue until it has been terminated (such period, the
“Term”). Either party shall have the right to terminate this Agreement at any time on one (1) month written notice to
the other party, or in the case of a breach of this Agreement by Licensee or its Permitted Users, Company may terminate
this Agreement immediately on written notice to Licensee. Upon termination of this Agreement, all rights granted to
Licensee (and any Permitted User) under this Agreement will immediately terminate and Licensee (and all Permitted Users)
must immediately cease all use of the Beta Product at such time. Notwithstanding any termination of this Agreement,
Sections 2, 3.2, 4, 5, 6, this Section 7 and Section 8 shall survive and remain binding on the parties.
8. MISCELLANEOUS.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York. All disputes
relating to this Agreement shall be resolved in the federal and state courts of New York County, New York and the
parties submit to the jurisdiction of such courts. This Agreement does not create any agency, partnership, or joint
venture relationship between Licensee and Company. This Agreement is the entire understanding of the parties with
respect to the subject matter hereof and supersedes any previous or contemporaneous communications, representations,
warranties, discussions, arrangements or commitments, whether oral or written with respect to such subject matter. This
Agreement cannot be amended except by a written amendment that expressly refers to this Agreement and is signed by an
authorized representative of each party. This Agreement may be executed in one or more counterparts, including via
facsimile or email (or any other electronic means such as “.pdf” or “.tiff” files), each of which shall be deemed an
original, and all of which shall constitute one and the same Agreement.