CITRIX SYSTEMS, INC.
You, (‘the User”), accept the terms of this Master Beta Test Agreement (this “Agreement”) with Citrix Systems, Inc., a Delaware corporation (“Citrix”). The term of this Agreement shall begin on the date of execution by User and shall continue until terminated in accordance with this Agreement. During the term of this Agreement, Citrix may provide User with one or more copy(ies) of one or more Test Program(s), in object code form, or appliances comprised of hardware and embedded software (“Appliances”), or both (collectively, the “Beta Items”), to enable User to test and evaluate the Beta Items and to report to Citrix the results of such testing and evaluation. User agrees to the terms of this Agreement with respect to each Beta Item requested by User. Citrix shall confirm shipment of each Beta Item and the duration of the evaluation and testing as to each by e-mail.
1.License Grant. Citrix grants to User, subject to the terms and conditions of this Agreement, a temporary, limited, royalty-free, non-transferable, non-sublicenseable and non-exclusive license to use, for testing purposes only, each Appliance, Test Program, embedded software and such technical support, information, equipment, materials and documents as Citrix may provide to User in respect of such products (such Appliance, Test Program, embedded software, technical support, information, equipment, materials and documents hereinafter collectively referred to as the “Products”). Such license for each Product shall terminate upon the date identified in the shipping confirmation, or if no date is identified, ninety (90) days after delivery (the “Evaluation Period”). Test Programs may contain a “time bomb” to automatically disable them upon such license termination. User acknowledges that it receives no right under this Agreement to license commercial products.
2.Termination. In the event that User shall at any time neglect, or fail or refuse to comply with the terms of this Agreement, Citrix, at its option, may terminate this Agreement without prior notice. Either party may terminate this Agreement without cause by providing thirty (30) days’ prior written notice to the other party.
3.Delivery of Products. Products will be delivered to User at Citrix’s sole expense. User acknowledges that this Agreement shall not create any obligation on the part of Citrix to make products developed from the Products commercially available.
4.User Responsibilities. In exchange for the license granted under Section 1, License Grant, User shall define and perform tests in order to determine suitability of the Products for use in User’s business and environment. User shall evaluate design of the Products, search for and report to Citrix any defects, errors and inadequacies therein, and recommend any improvements. User shall make available to Citrix its test and evaluation data pertaining to the Products, including, without limitation, test results, corrections, deficiency information, and suggested alterations, additions and improvements, and shall assist in Citrix’ review and analysis of such data. However, User shall make no actual alteration, addition or improvement to the Products without the prior written consent of Citrix. Any alteration, addition or improvement to the Products shall be the sole and exclusive property of Citrix, subject to the use thereof by User only under the terms of this Agreement.
5.Use of Products. User agrees that it shall not use the Products for any purpose other than testing or evaluation thereof. User shall not use or rely on the Products, or any excerpts, variations or derivations thereof, in connection with the development by User of any programs, writings or works or in connection with the production of products or the performance of services for third parties without the prior written authorization of Citrix. If applicable, the Products shall be maintained in the same condition as originally provided by Citrix, except for normal wear and tear.
6.Location. The Products shall be located at the location to which they are delivered by Citrix and User shall not move the Products from such location, transmit the Products electronically outside the User’s location, or post the Products on any Bulletin Board System, FTP site, or World Wide Web site without the prior written approval of Citrix. Citrix shall have the right to inspect the Products at User’s facility at any time during User’s regular business hours. Upon reasonable notice from Citrix, user will also permit limited numbers of Citrix customers to observe the Products in operation.
7.Non-Disclosure of Confidential Information. “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing, organization, business or finances of or relating to Citrix or any information obtained by Citrix in confidence or in trust from a third party. Confidential Information does not include information, technical data or know-how which:
7.1. is in the possession of the User at the time of disclosure as shown by the User’s files and records immediately prior to the time of disclosure; or
7.2. prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the User, or
7.3. is approved by Citrix, in writing, for public release.
User agrees to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized in writing by Citrix to have any such information, which measures shall include the same degree of care that User utilizes to protect User’s own confidential information of a similar nature. User agrees not to use any Confidential Information disclosed to User by Citrix for User’s own use or for any purpose except to carry out any contractual relationship between User and Citrix.
8.Publicity. Without prior written consent from Citrix, User shall not; (i) disclose or otherwise make known to any party that it is testing or has tested the Products; or (ii) disclose or otherwise make known to any party any information of any kind pertaining to the performance, function, use or quality of the Products, or the existence of defects, bugs, or deficiencies of any kind therein, to any third party.
9.Title. All right, title and interest in and to the Products and all copies and revisions thereof shall at all times remain vested in Citrix. If applicable, User assumes the entire risk of loss of the Products while they are in its possession. User shall not, and shall not permit any of its employees to: (i) reproduce or copy any Products except as expressly provided in this Agreement; (ii) remove any copyright or proprietary notice contained or included in the Products; (iii) translate, decompile, disassemble, reverse compile, decode or reverse engineer the Test Program(s) or software embedded in a Product or in any other manner reduce it to human perceivable form; (iv) bypass or delete any copy protection methods that are intended to prevent unauthorized copying or use of any Test Program or software embedded in a Product; (iv) use the Products in a production or revenue generating environment; or (v) transfer any interest in the Products or cause or permit any lien to be placed on the Products. User shall not incorporate any Products in any product designed, developed, marketed, sold or licensed by User. User shall not copy, alter or modify the Products, or any part thereof, without the prior written authorization of Citrix, or create derivative works therefrom. User’s obligations hereunder shall not depend on the presence or absence of any copyright and/or proprietary legends on any Product. All improvements, updates, modifications or enhancements (“Revisions”) made to the Products, whether or not conceived or made in the course of or as a result of User’s performance hereunder, are and shall remain the property of Citrix, and User acknowledges and expressly agrees that any contribution in the form of services, suggestions, ideas, reports, listing of defects or deficiencies, expenditures, logs or otherwise by User to any such improvements, updates, modifications or enhancements shall not give or grant User any right, title or interest in any such Revisions. User agrees to allow Citrix to incorporate into any commercial product derived from a Product any User suggested Revisions of any kind, without compensation and without retention by User of any proprietary claim.
10.Maintenance. Citrix shall be under no obligation to make any tests, revisions, or repairs to the Product requested by User, or to maintain any Product at any User-desired level of performance, or to keep it in operating condition, or even to continue to market or sell the Product.
11.Return of Products. Upon the earlier of expiration of the Evaluation Period for each Product pursuant to Section 1 above, or termination of this Agreement, User must return each Product to Citrix or its designee at Citrix’s expense, together with any and all copies.
12.Disclaimer of Warranty and Risk of Use. It is understood by User that the Products have NOT BEEN TESTED AND MAY CONTAIN DEFECTS and that CITRIX MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THEIR USE, PERFORMANCE, OPERATION OR SUPPORT. By way of example, but not of limitation, CITRIX MAKES NO REPRESENTATIONS OR WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. It is further understood by User that, except as otherwise agreed in writing by Citrix, no commitment exists on the part of Citrix either to install the Products or to render the Products in a condition suitable for installation in any User-owned or User-leased computing facility. USER ACKNOWLEDGES THAT THE PRODUCTS ARE TEST PRODUCTS ONLY, DELIVERED ON AN “AS IS” BASIS AND THAT USER’S USE OF THE PRODUCT SHALL BE AT USER’S SOLE RISK. USER SHALL HAVE THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACK-UP OF ANY DATA USED IN CONNECTION WITH THE TESTING OF THE PRODUCTS.
13.Limitation of Liability. USER AGREES THAT IN NO EVENT SHALL CITRIX BE LIABLE FOR (i) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES SUCH AS, BUT NOT LIMITED TO, EQUIPMENT DOWN-TIME, LOSS OF DATA, LOST PROFITS, OR EXEMPLARY OR PUNITIVE DAMAGES, WHETHER OR NOT FORESEEABLE AND EVEN IF CITRIX OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DELIVERY, USE OR PERFORMANCE OF THE PRODUCTS, WHETHER IN AN ACTION IN CONTRACT OR TORT, INCLUDING NEGLIGENCE. THE REMEDIES SET FORTH IN SECTION 12, DISCLAIMER OF WARRANTY AND RISK OF USE, ARE THE SOLE AND EXCLUSIVE REMEDIES OF USER. THIS LIMITATION OF LIABILITY AND THE LIMITATION OF REMEDIES ALSO APPLIES TO ANY DEVELOPER, SUPPLIER OR LICENSOR, INCLUDING CITRIX, OF ANY OF THE PRODUCTS OR PORTION THEREOF. SUCH DEVELOPER, SUPPLIER OR LICENSOR, INCLUDING CITRIX, IS AN INTENDED BENEFICIARY OF THIS SECTION. User shall defend, indemnify, and hold forever harmless Citrix and its officers, agents and employees from and against all claims, actions, proceedings, damages, losses, liabilities, and expenses, including reasonable attorney fees, by reason of bodily injury, including death, and/or property damage or any other economic loss sustained by any person as a result of the use or operation of any Product while in User’s possession.
14.Survival. User’s obligations under Section 5, Use of Products, Section 7, Non-Disclosure of Confidential Information, Section 8, Publicity, Section 9, Title, Section 12, Disclaimer of Warranty and Risk of Use, Section 13, Limitation of Liability, and Section 17, Certification Statement for Compliance with US Export Law, hereof shall survive termination of this Agreement.
15.Equitable Relief. User hereby acknowledges that unauthorized disclosure or use of the Products or the Confidential Information would cause irreparable harm and significant injury to Citrix that may be difficult to ascertain. Accordingly, User agrees that Citrix will have the right to obtain immediate injunctive relief to enforce User’s obligations under this Agreement in addition to any other rights and remedies Citrix may have.
16.Notices. Any notice, request, instruction, or other document to be given by a party under this Agreement shall be delivered to the other party (i) in person, (ii) by one day express courier service, (iii) by first class mail, certified or registered, return receipt requested, or (iv) by telex or telefax (such telex or telefax to be confirmed within 12 hours by letter posted by first class mail, certified or registered, return receipt requested, or by one day express courier service).
17.Certification Statement for Compliance with US Export Law. User certifies that the Products will only be used for beta testing purposes, and will not be rented, leased, sold, sublicensed, assigned or otherwise transferred. Further, User certifies that User will not transfer or export any product, process or service that is the direct product of the Products.
18.Miscellaneous. This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes any and all prior agreements, discussions and understandings, express or implied, oral or written, between the parties with respect to the subject matter hereof. There are no promises, covenants or undertakings other than those expressly set forth herein. This Agreement may not be modified except by a writing, executed by authorized representatives of Citrix and User. This Agreement and the other licenses granted hereby are not assignable by User without the prior express written consent of Citrix. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof shall be affected thereby and the remaining provisions shall continue with the same effect as if such unenforceable or invalid provisions shall not have been inserted herein, provided that the ability of either party to obtain substantially the bargained-for performance of the other shall not have thereby been impaired. It is expressly understood that in the event either party shall, on any occasion, fail to perform any term hereof and the other party shall not enforce that term, the failure to enforce on any occasion shall not constitute a waiver of any term and shall not prevent enforcement on any other occasion. The headings and captions contained herein shall not be considered to be part hereof for purposes of interpretation or application hereof, but are for convenience only. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Florida, without giving effect to the principles of conflicts of laws of such state, and shall be binding upon the parties hereto in the United States and worldwide. The United Nations Convention on the International Sale of Goods shall not apply. Any claims or legal actions by one party against the other arising under this Agreement or concerning any rights under this Agreement shall be commenced and maintained in any state or federal court located in the State of Florida and both parties hereby submit to the jurisdiction and venue of any such court.
In witness whereof, the User accepts the terms of this Agreement, as offered by Citrix