This Beta Testing EULA is a legal agreement between NomaDesk, N.V. and you, either an individual or a single entity, (hereinafter "Licensee"). This Agreement covers all software, the associated media, any printed materials, data, files and information and any "online" or electronic documentation ("Software") which it accompanies. This Agreement takes precedence over any other agreement or terms embedded within the software.

Assent to Be Bound

By ticking the "I accept these terms..." checkbox on the Mac Alpha and Beta Test Program page, by executing a written copy of this Agreement, or by installing, copying or otherwise using this Software, Licensee agrees to be bound by the terms of this Agreement. If Licensee does not agree with any term or condition, do not download, order, open, install or use the Software or product package. Contact NomaDesk to cancel the Service, Software and accompanying materials at no charge to Licensee.

RECITALS:

Alpha and Beta version of future Release of NomaDesk, hereinafter called: "Test Product", has been designed and developed by NomaDesk, either alone or together with other third parties. Subject to the terms and provisions hereinafter set forth, the Licensee is willing to accept delivery, installation at Licensee’s plant or offices, and utilization of the Test Product for the purpose of evaluating the same for a period of 1 month (“the Test Period”).

NomaDesk is willing to permit the Licensee to use and evaluate the Test Product under the terms and conditions hereinafter contained in order to obtain user information pertaining to such Test Product which may be helpful to NomaDesk for debugging purposes, in making any changes, enhancements or modifications with respect thereto.

Licensee has been properly informed, before this agreement was signed, about the special character and the risks of installing and using Alpha and Beta version test software and of the test program
Therefore, in consideration of the mutual promises herein contained, the parties agree as follows:

1. Ownership of Proprietary Rights and Grant

1.1 NomaDesk does hereby grant to Licensee at no charge a nonexclusive, non-transferrable right to use the software furnished in connection with or as the Test Product for the Test Period.

1.2 At the end of the Test Period or after termination of this agreement the Licensee will be granted a free subscription period of two months for one Team Fileserver.

1.3 Licensee will not receive, nor claim any payment or compensation for participating in this test program and performance of this agreement.

2. Evaluation and Reports

2.1 Licensee shall utilise and evaluate the Test Product in its day to day business environment and conduct such tests and evaluations as may be reasonably necessary to form an opinion concerning the performance of the Test Product. The Licensee shall provide NomaDesk with written reports concerning its experience, opinion and evaluation of the Test Product.

2.2 NomaDesk shall make its best efforts to assist Licensee in resolving possible problems with the Test Product. NomaDesk shall take into account the Licensee’s reports, remarks and suggestions as much as will reasonably be possible.

Licensee agrees that all rights, title and interest to any reports, feedback or suggestions relating to the Test Product or any inventions relating to an improvement of the Test Product conceived in or made as a result of Licensee’s performance of this Agreement shall become the exclusive property of NomaDesk and that NomaDesk may disclose and use such information for any purposes whatsoever, entirely without obligation of any kind to Licensee.

3. Confidential Information and Data

3.1 Licensee acknowledges that the Test Product consists of computer software which is proprietary and confidential to NomaDesk or its licensors and is protected under [Belgian and foreign] copyright laws; all rights, title and interest therein or thereto, including without limitation, all patents, copyrights, trademarks and trade secrets remain in NomaDesk or its licensors. Therefore, Licensee shall not disclose, directly or indirectly, or take any other action, which would result in the unauthorised disclosure of any confidential or proprietary data whatsoever, including, but not limited to, reproduction of data furnished to Licensee by NomaDesk.

3.2 The release of confidential information to Licensee does not constitute a commercialisation of the Test Product, but rather is a release for testing purposes only. Licensee shall not disclose to any third party the terms of this Agreement nor the results of any evaluation hereunder except with the written consent of NomaDesk. Licensee shall, upon NomaDesk ‘s request, certify in writing as to the return or destruction of all such confidential information.
Licensee shall not translate, copy, disassemble, reverse engineer, or decompile any Test Product, nor shall Licensee make copies or translations of any Test Product documentation. Furthermore, Licensee will not make any pre-release reports or give pre-release interviews concerning the Test Product or the confidential information without NomaDesk’s prior written consent.

3.3 Licensee solemnly declares not to have entered into any contract, understanding or agreement – be it written, oral or only tacit or implied – with any of NomaDesk’s competitors which could possibly influence Licensee’s way of testing, reporting or, in general, performing this agreement.

3.4 Licensee will be held responsible for any breach of the obligations in this article by its shareholders, directors, officers, employees, agents, representatives or appointees.

4. Disclaimer of Warranty

Licensee acknowledges that the Test Product has not yet been completely finished, nor completely tested and may contain serious remaining bugs, hidden defects or deficiencies that may not or not immediately be detected and corrected. It is not totally to be excluded that the Test Product proves unfit for use.

As the purpose of this Alpha and Beta Testing and free Licensing Agreement is to have the Test Product used, tried out and tested in an operational business environment and under real circumstances, NomaDesk has cautioned and once again cautions Licensee to determine for itself the risks and suitability of the use of the Test Product for any purpose. The Licensee shall act as a prudent professional and shall take all suitable actions, precautions and measures in order to be able to switch to the previous release of the software program, if necessary, and not loose critical or valuable data.

Accordingly, NomaDesk makes no representations or warranties, express or implied, regarding the use or performance of the Test Product, including without limitation the implied warranties of merchantability and fitness for a particular purpose. Licensee accepts to install and to use the Test Products in "as is" condition, and NomaDesk shall not be liable for any direct, indirect, incidental, special, consequential or punitive damages, regardless of the nature of the claim, including without limitation lost profits, costs of delay, any failure of delivery, costs of lost or damaged data or documentation or liabilities to third parties arising from any source, even if NomaDesk has been advised of the possibility of such damages.

Licensee acknowledges that NomaDesk has no express or implied obligation to announce or introduce the Test Product or any similar or compatible product. Licensee acknowledges that all testing, research and development performed by it pursuant to this Agreement are done entirely at its own risk.

5. Miscellaneous

This Agreement and the license contained herein shall not be assigned by the Licensee without the express written consent of NomaDesk.

This Agreement constitutes the entire Agreement between the parties and supersedes all prior agreements, whether written or oral, concerning the subject matter herein, and may not be amended or modified except by written consent of both parties. Any notices or other communication shall be addressed to the parties at the address shown above.

This Agreement shall be governed by the laws of the Kingdom of Belgium, without regard to conflicts of law rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.