Software Beta Test Agreement

TABLE OF CONTENTS

Updated on 14th June 2018

PARTIES:                CYTRACK INTELLIGENCE SYSTEMS PTY LIMITED (ABN 95159509949[For tax reasons, normally an ABN will be required.  However if a company has no ABN, the ACN may be used in certain circumstances.  See sections 153 and 1344 of the Corporations Act.]) a company registered in Queensland and having its registered office at 155 Varsity Parade, Varsity Lakes, Queensland 4227 ("CyTrack")

AND                You, the user of the software under this beta agreement ("Licensee")

INTRODUCTION

  1. CyTrack has developed the CyReport Business Intelligence (BI) Dashboard including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material ("Software").
  2. The Software which is in "beta" format is currently in the development stage. The Software released by CyTrack is not generally available for distribution at the date of this Agreement and is not intended for use in a production environment.
  3. CyTrack is willing to release the Software to the Licensee to allow the Licensee to scrutinise the Software and help to locate problems, which can be solved before the official release.
  4. The Licensee has agreed to assist CyTrack in the testing process of the Software before its general release to the public and serve as a Beta version test site for the Software on the terms and conditions set out below.
  5. In return CyTrack provides 1x additional Dashboard license for use on your site.  The Beta license will include all updated release versions until such time it is released from beta into full production.  At that time updates will only be available to those customers under our software care service – please see our support terms and conditions for further details

IT IS AGREED

    1. INTERPRETATION
      1. In this Agreement, unless otherwise indicated by the context:
        1. words importing the singular include the plural and vice versa;
        2. headings are for convenience only and do not affect interpretation of this Agreement;
        3. a reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of this Agreement;
        4. where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
        5. an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
        6. a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;
        7. a reference to a party to a document includes that party's legal personal representatives, successors and permitted assigns;
        8. a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally; and
    2. GRANT OF LICENCE
      1. CyTrack grants the Licensee a non exclusive non transferable license to use one copy of the Software on a single computer at the Licensee's business location solely for Beta testing and Beta use on the date of this Agreement subject to the terms and conditions below.
      2. The Licensee acknowledges that the Licensee is granted for evaluation purposes only during the terms of this Agreement.
      3. In consideration of receiving a copy of the Software and one additional Dashboard license for testing, the Licensee agrees to serve as a Beta version Test Site for the Software and will notify CyTrack as soon as possible and at least within 14 days of all problems and ideas for enhancements during the period of this Agreement.
      4. The Licensee acknowledges that no agency, partnership, joint venture or other joint relation is created by this Agreement.
  1. TERM
    1. This Agreement shall become effective upon the Licensee's acceptance of the Agreement and installation of the Software, and subject to the terms of this Agreement will continue until CyTrack informs the Beta trial is over and the product is made generally available to the public;
  2. TITLE AND ASSIGNMENT
    1. CyTrack retains all right, title and interest in the Software and in all materials delivered in connection with such.
    2. The Licensee assigns to the Licensor all right, title and interest to any enhancements which come to the Licensee's attention during the term of this Agreement and all property rights therein including or without limitation or patent, copyright, trade secret, mask word, trademark, moral right or other intellectual property rights.
    3. The Licensee acknowledges that the Software is the sole property of the Licensor until it is officially released and includes the trade secrets of Licensor.
    4. The Licensee agrees will not without the express written authorization of CyTrack:
      1. Demonstrate, copy, sell or market the Software to any third party; or
      2. Publish or otherwise disclose information relating to performance or quality of the Software to any third party.
    5. The Licensee shall not modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the Software or any portion thereof.
    6. The Licensee shall comply with all applicable laws, regulations, and ordinances in connection with its obligations pursuant to this Agreement.
  3. CONFIDENTIAL INFORMATION
    1. "Confidential Information" shall mean and include the Software, any source code, object code, documentation, test results, and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by CyTrack to the Licensee under this Agreement.
    2. The Licensee shall not make public or divulge to any person, company or other legal entity any Confidential Information for a period of two (2) years from the date of this Agreement or until available in the public domain as applicable and use its best efforts and take all reasonable steps to protect such from any use, reproduction, publication, disclosure, or distribution except as specifically authorised by this Agreement PROVIDED THAT the Licensee's obligations under this clause shall not apply to any of the Confidential Information which:
      1. the Licensee is required by statute or law to disclose, reproduce, use or disseminate, subject to reasonable written prior notice being given to CyTrack; or
      2. is in or enters the public domain, otherwise than as a result of a breach by the Licensee or disclosure by any person receiving the Confidential Information from the Licensee.
    3. The Licensee shall promptly notify CyTrack of any known unauthorised use or disclosure of the Confidential Information and will cooperate with CyTrack in any litigation brought by CyTrack against third parties to protect its proprietary rights.
    4. The Licensee shall not disclose any Confidential Information to persons in its own organisation who do not have a need to know of its existence or content.
    5. Upon completion of the Beta Test of the Software the Licensee agrees to provide
      1. material, statistics, or information that is not deemed confidential to the Licensee's business for use in press releases, customer testimonials, and as a reference in marketing and sales initiatives by CyTrack; and
      2. a quote to CyTrack in connection with the testing of the Software that may be used in a press release in connection with the Beta Test.
  4. DISCLAIMER AND LIMITATION OF LIABILITY
    1. The Licensee acknowledges and agrees that
      1. The Software is prerelease code and is not at the level of performance or compatibility of a final, generally available product offering.
      2. The Software may not operate correctly and may be substantially modified prior to first commercial shipment, or withdrawn and never shipped.
      3. The entire risk arising out of the use or performance of Software remains with Licensee.
      4. The Software may not be made generally available to the public or that any target dates will be met.
      5. The Licensee shall have sole responsibility for adequate protection and backup of its data or equipment used in connection with the Software .
      6. The design of the Software may be changed prior to general availability from CyTrack without notice, and CyTrack does not guarantee that compatibility of the Licensee's system can or will be maintained with subsequent versions of Software, that may become generally available from CyTrack
      7. CyTrack reserves the right to withdraw any software or product from   testing and never release it as a commercial product.
    2. Subject to clause 6.3 of this Agreement or as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded.
    3. Where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. In such event the liability of CyTrack for any breach of the term will, if permitted by that statute, be limited, at CyTrack's option, to the resupply of the services again; or payment of the cost of having the services supplied again.
    4. CyTrack, its subsidiaries, officers, directors, employees and/or partners will not be liable to you or any third party for any special, punitive, incidental, indirect or consequential damages of any kind, whether arising in tort, contract or otherwise including without limitation loss of business profits, business interruption, or loss of data arising out of use of the Software or inability to use the Software, even if CyTrack has been informed of the possibility of such damages.
    5. The Licensee warrants that at the time of entering into this agreement the Licensee is not relying on any representation made by CyTrack or its officers, directors, employees and/or partners which has not been stated expressly in this Agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which CyTrack has produced.
  5. TERMINATION
    1. This Agreement shall terminate upon the earlier of (i) first commercial shipment by CyTrack of the Software, (ii) written notice of termination by either party.
    2. Upon termination the Licensee must cease use of the Software and shall promptly return or certify destruction of all copies of the Software and all other materials provided by or through CyTrack AND the Licensee shall remove the Software from any computer on which it is installed.
    3. Clause 7.2 shall survive any termination of this Agreement
  6. NOTICES
    1. A notice or other communication required or permitted to be given by one party to another may be by email.
  7. WAIVER OR VARIATION
    1. A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
    2. The exercise of a power or right does not preclude:
      1. its future exercise; or
      2. the exercise of any other power or right.
    3. The variation or waiver of a provision of this Agreement or a party's consent to a departure from a provision by another party will be ineffective unless in writing executed by the parties.
  8. GOVERNING LAW AND JURISDICTION
    1. This Agreement is governed by the laws of QUEENSLAND
    2. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of  QUEENSLAND.
  9. WHOLE AGREEMENTIn relation to the subject matter of this Agreement:
    1. this Agreement is the whole agreement between the parties; and
    2. this Agreement supersedes all oral and written communications by or on behalf of any of the parties.
  10. NO RELIANCE ON WARRANTIES AND REPRESENTATIONSIn entering into this Agreement, the Licensee:
    1. has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of this Agreement made by any person; and
    2. has relied entirely on its own enquiries in relation to the subject matter of this Agreement.
  11. SEVERANCEIf any part of this Agreement is invalid or unenforceable, this Agreement does not include it.  The remainder of this Agreement continues in full force.
  12. NO MERGERNothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that a party may have against another party or any other person at any time.