Miscellaneous Tester Agreement

MISCELLANEOUS TESTER AGREEMENT

This Miscellaneous Tester Agreement ("Agreement") is entered into effective as of (the "Effective Date"), by and between:

Recitals

WHEREAS, Company develops, manufactures, markets and owns rights in the product(s) or software described in Schedule A and desires to engage Tester to perform testing, evaluation and feedback services under the terms set forth herein;

WHEREAS, Tester has relevant expertise and facilities to perform acceptance, usability, performance and related testing services and is willing to perform such services on the terms and conditions of this Agreement;

WHEREAS, the parties wish to set forth the scope, payment, confidentiality and other terms applicable to such engagement.

Scope of Work

Tester shall perform testing services as described below. Tester shall exercise commercially reasonable skill and care and shall provide timely written reports of findings and defects to Company.

Payment Terms

In consideration for Tester’s performance of the Scope of Work, Company will pay Tester in accordance with the following terms.

Term and Termination

This Agreement commences on and, unless earlier terminated in accordance with this Agreement, will expire on .

Either party may terminate this Agreement for convenience upon written notice to the other party delivered at least days prior to the effective date of termination. Either party may terminate immediately for material breach that remains uncured for a period of thirty (30) days after receipt of written notice specifying the breach.

Confidentiality

Tester acknowledges that during the performance of services it will receive Confidential Information of Company. Tester shall: (a) hold such Confidential Information in strict confidence; (b) not disclose Confidential Information to any third party except as expressly permitted by Company in writing; and (c) use Confidential Information solely to perform the Scope of Work. Confidential Information does not include information that is (i) already known to Tester without obligation of confidentiality, (ii) becomes publicly available through no fault of Tester, or (iii) is independently developed by Tester without use of Company Confidential Information. Upon termination or expiration of this Agreement, Tester shall promptly return or destroy all Confidential Information at Company’s direction.

Confidentiality obligations shall remain in effect for following the later of disclosure or termination of this Agreement.

Intellectual Property; Work Product

Except as otherwise expressly provided in writing, all reports, test results, software modifications, discoveries and other materials developed by Tester in the performance of this Agreement (collectively, "Work Product") shall be the exclusive property of Company. Tester hereby assigns, and agrees to assign, to Company all right, title and interest in and to such Work Product. Tester may retain copies of non-confidential, generic methodologies but shall not retain or use Company’s Confidential Information or Work Product for any other client or purpose.

Indemnification; Limitation of Liability

Each party shall defend, indemnify and hold harmless the other party from and against third-party claims arising from the indemnifying party’s breach of this Agreement or negligent acts or omissions. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, AND EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY COMPANY TO TESTER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

Compliance with Laws

Tester shall perform its obligations in compliance with all applicable laws, regulations and industry standards. Tester shall obtain and maintain all required permits, licenses and approvals to perform the Scope of Work.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to choice of law principles.

Entire Agreement; Amendments

This Agreement, together with any exhibits or schedules executed by the parties, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications, whether written or oral. No amendment or modification of this Agreement shall be effective unless in a writing signed by authorized representatives of both parties.

Severability; Waiver

If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Failure or delay by either party to exercise any right shall not constitute a waiver of that right.

The parties have executed this Agreement as of the dates set forth below.

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