Beta Program – Non-Disclosure Agreement
This Non-Disclosure Agreement (“NDA”) is made by and between VIZPARK (the “Developer”) and you, the beta tester (“Tester”) and will become effective by downloading and installing beta software provided by VIZPARK.
Developer is the owner and developer of prototype products, specifically software plugins (the “Product”) for the software 3Ds Max by Autodesk. The Tester wishes to test and evaluate these Products.
The Product contains valuable, confidential and/or trade secret information owned by Developer.
The Recipient desires to test and evaluate the Product’s suitability for use in its personal or commercial business.
NOW, THEREFORE, in consideration of the clauses set forth herein, the parties hereunder agree as follows:
Developer agrees to provide the Product to Recipient and Recipient accepts the Product, subject to the terms of this Agreement. Recipient agrees to evaluate the Product as provided herein, provide feedback about the same and return the Product to Developer at the conclusion of the Evaluation Period, all pursuant to this Agreement.
A. Recipient acknowledges and agrees that in providing the Product, Developer may disclose to Recipient certain confidential, proprietary and/or trade secret information of Developer (the “Confidential Information”). Confidential Information may include, but is not limited to, the Product, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans. During this Agreement and for a period of 6 months thereafter, Recipient agrees that Recipient will not, without the express prior written consent of Developer, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information: a) is or becomes generally available to the public through no fault of Recipient; b) is rightfully received by Recipient from a third party without limitation as to its use; or c) is independently developed by Recipient.
B. Recipient also agrees that Recipient shall not duplicate, translate, modify, copy, printout, disassemble, de-compile, reverse engineer or otherwise tamper with any of the parts of the Product.
Recipient acknowledges that Recipient shall have only a limited, non-exclusive, non-transferable license to use the Product for a period not exceeding 6 months (the “Evaluation Period”). Any use of the software for commercial purposes, which may be but are not limited to creating images, parts of images which may be stills or animations which become part of commercial products or parts of advertisements of commercial products, shall be coordinated between Recipient and Developer and approved by both sides in writing. Recipient acknowledges and agrees that he will not use the Product for any purpose that is illegal. Because the Product is for evaluation purposes only and is not error free, Recipient agrees that he will use the Product carefully and will not use it in any way which might result in any loss of its or any third party’s property or information.
Recipient is obliged with this Agreement to provide feedback about the Product to the Developer as such feedback construes an important component of the software development process of the Developer for the purposes of which the Product has been provided to Recipient. All feedback received by Developer from Recipient shall be used only for improving the Product and resolving software issues to achieve a final software release of the highest quality possible. Recipient must provide feedback on any kind of problem and/or issue in the software occurring in relation to its usage individually or together with platforms or any other plug-ins or software, as any such problems or issues may not be assumed as to be already known to Developer.
In addition to the above, any feedback may also include reports, questionnaires, e-mails, and/or inquiries, which may or may not be provided or requested or any response to any such as might be requested periodically or on a regular basis from Recipient.
For the purposes of conducting communications regarding the present article Recipient shall use the beta forums: VP BETA FORUMS.
Recipient may terminate this Agreement at any time prior to expiration of the Evaluation Period by returning the Product including all Confidential Information and copies thereof, to Developer. Developer may terminate this Agreement upon notice to Recipient, subject to Recipient’s obligation to return the Product, Confidential Information and all copies thereof. The obligations of Recipient in Section 2 above shall survive the termination of this Agreement. If not earlier terminated, this Agreement shall terminate automatically upon the end of the period set forth in Section 3 and following Recipient’s return of the Product and the Confidential Information. Upon termination, Recipient agrees to remove from Recipient’s computer any files related to the product.
6. Developer’s Warranties
Developer represents and warrants that he has the requisite right and legal authority to grant the license and provide the Product and the Confidential Information as contemplated by this Agreement. DEVELOPER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT OR ANY OTHER CONFIDENTIAL INFORMATION AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DEVELOPER’S SOLE LIABILITY FOR BREACH OF THE REPRESENTATION AND WARRANTY ABOVE, AND RECIPIENT’S SOLE REMEDY, SHALL BE THAT DEVELOPER SHALL INDEMNIFY AND HOLD RECIPIENT HARMLESS FROM AND AGAINST ANY LOSS, SUIT, DAMAGE, CLAIM OR DEFENSE ARISING OUT OF BREACH OF THE REPRESENTATION AND WARRANTY, INCLUDING REASONABLE ATTORNEYS’ FEES.
7. No Assignment
Recipient may not assign this Agreement without the prior written consent of Developer. This Agreement shall be binding upon and inured to the benefit of the parties and their respective administrators, successors and assigns.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
9. Final Agreement
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may only be modified by a further writing that is duly executed by both parties.
10. Applicable Law
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the Arbitration Rules as at present in force of the International Arbitration Association, Switzerland.
VIZPARK® is a registered trademark of Martin Jann, Krottnaurerstraße 55, D-14129 Berlin, Germany.
Autodesk® and 3Ds Max® are registered trademarks of Autodesk Inc. in the United States and/or other countries.