Toad World

Quest Software, Inc.


Beta Test Agreement




PLEASE READ THIS BETA TEST AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. THIS AGREEMENT DOES NOT SUPERSEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND QUEST SOFTWARE.



This Beta Test Agreement (the "Agreement") is made between Quest Software, Inc., with its principal place of business located at 5 Polaris Way, Aliso Viejo, California 92656 ("Quest") and you ("Licensee") for the purpose of testing the beta software, which for purposes of this Agreement shall be referred to as the "Beta Product". The terms and conditions of this Agreement are intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding which may involve the Agreement. This Agreement may not be modified except by a writing executed by both parties hereto.



1. License. In consideration for Licensee’s agreement to and performance of the Customer Obligations as outlined below, and subject to Licensee’s agreement to and compliance with the terms and conditions of this Agreement, Quest hereby grants to Licensee and Licensee hereby accepts from Quest a non-perpetual, non-exclusive, non-transferable and non-sublicensable license to install, execute, access, run, or otherwise interact with the Beta Product during the Beta Test Period (as defined below) for its own internal, non-production evaluation and testing only (the “Beta Test”).



2. Beta Test Period. The Beta Test Period is the thirty (30) day period beginning upon Quest’s delivery to Licensee of the Beta Product, or such other period of time as may be agreed by the parties. However, in no event shall the Beta Test Period continue after Quest withdraws the applicable Beta Product from testing.



3. Customer Obligations. The purpose of the Beta Test is for Quest to obtain information from Licensee sufficient to determine the functionality, performance and usability of the Beta Program. Licensee agrees to use reasonable efforts to provide Quest with comprehensive information regarding the Beta Products (“Feedback”) as soon as possible after Licensee learns of such Feedback. Feedback shall include, but is not limited to, all information regarding any problems or defects in the Beta Product encountered by Licensee and user customized application system files (add-ins), user files, packages, sets of scripts, dictionaries, and styles which may be created related to the Beta Product. Licensee shall transmit Feedback to Quest in any medium reasonably requested by Quest, including via Quest’s Internet customer support page, or by telephone, facsimile, or written or electronic communication. Feedback shall also include simplified test cases sufficient to adequately demonstrate problems or suspected errors Licensee encounters with the Beta Product. All Feedback shall become the sole and exclusive property of Quest and may be used by Quest in any way without restriction or obligation to Licensee. Quest has an unconditional right to use for any purpose any ideas, concepts, know-how, or techniques resulting from Quest’s access to or work with any Feedback or other information exchanged pursuant to this Agreement.



4. Restrictions. Quest reserves any and all rights, implied or otherwise, which are not expressly granted to Licensee hereunder, and retains all rights, title and interest in and to the Beta Product. Licensee may not reverse engineer, decompile, disassemble, modify, rent, lease, loan, create or prepare derivative works of, create a patent based on, or attempt to discover or modify in any way the underlying source code of the Beta Product or any part thereof. Licensee may not use the Beta Product in combination or conjunction with any third party product not properly licensed by Licensee nor use the Software for competitive analysis purposes. Nothing in this Agreement entitles Licensee to receive source code for any part of the Beta Product.



5. Term And Termination. This Agreement or an individual license granted hereunder may be terminated (a) by mutual agreement of Quest and Licensee, (b) by Licensee, upon ten (10) days prior written notice to Quest, and (c) by Quest, if Licensee breaches this Agreement and fails to cure such breach to Quest’s reasonable satisfaction within five (5) days following receipt of Quest’s notice thereof. Upon any termination of this Agreement or a license granted hereunder, Licensee shall immediately cease use of the applicable Beta Product and certify in writing to Quest within thirty (30) days after termination that Licensee has destroyed or returned to Quest such Beta Product and any copies thereof. Termination of this Agreement or a license granted hereunder shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay any fees that may have accrued or have become payable by Licensee hereunder. The provisions of Sections 5, 7, 11 and 12 will survive termination of this Agreement.



6. Export Law Assurances. Licensee acknowledges and agrees that the Software is subject to the export control laws and regulations of the United States ("Export Controls"), including the Export Administration Regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Control, and agrees to comply with the Export Controls. Licensee further agrees that (i) Licensee is not an entity restricted or prohibited by the Export Controls; (ii) the Software will not be exported, re-exported or otherwise transferred to any country subject to a United States trade embargo (currently Cuba, Iran, North Korea, Sudan, and Syria), or to a national or resident thereof; and (iii) the Software will not be exported, re-exported, or transferred to an end-user engaged in activities related to the design, development, production, or use of nuclear materials, nuclear facilities, nuclear weapons, missiles or chemical or biological weapons.




7. Confidential Information. “Confidential Information” shall be defined to include the Beta Product, Feedback, any software, source code, object code, documentation, information regarding the functionality and performance of the Beta Product, Beta Product benchmark test results, Beta Product license keys, and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by Quest to Licensee under this Agreement. Licensee shall observe complete confidentiality with respect to the Confidential Information, and shall use its best efforts and take all reasonable steps to protect such from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. Licensee shall promptly notify Quest of any known unauthorized use or disclosure of the Confidential Information and will cooperate with Quest in any litigation brought by Quest against third parties to protect its proprietary rights. Licensee may not permit a third party access to, or use of, the Confidential Information without Quest's prior written authorization. Licensee agrees not to disclose to persons in its own organization who do not have a need to know the existence or contents of (i) the Beta Product(s); (ii) the Beta Test and its results, or (iii) this Agreement.



8. Technical Support. Quest shall have no obligation to support or provide support services to Licensee relating to the Beta Product. Quest may, however, make such services available to Licensee at its sole discretion, including from time to time making available updates, enhancements and/or modifications to the Beta Product, but Quest is under no obligation to do so. Any such updates, enhancements and/or modifications to the Beta Product shall be subject to the terms and conditions of this Agreement.



9. Beta Product Design and Commercial Availability. The Beta Product is a pre-release of a Quest product that is not generally available for distribution at the time it is shipped to Licensee and it is not intended for use in a production environment. The design of the Beta Product may be changed prior to general availability from Quest without notice, and Quest does not guarantee that compatibility of Licensee's system can or will be maintained with versions of the Beta Product that may become generally available from Quest. Quest reserves the right to withdraw any Beta Product from Beta Testing and never release it as a commercial product. Quest's plans to market the Beta Product is subject solely to Quest's internal business and technical reviews. Nothing in this Agreement shall be deemed to convey to Licensee the right or license to use a commercially released version of the Beta Product or any components thereof. If and when a commercially released version of the Beta Product becomes available, any use by Licensee of such shall be subject to a separate written agreement between Licensee and Quest and also subject to Licensee’s payment to Quest of the applicable fees.



10. No Warranty. The Beta Product may not be at the level of performance, compatibility or safety of generally available Quest products. Licensee understands and agrees that Quest makes no representation or warranties regarding use of the Beta Product. Licensee shall have sole responsibility for adequate protection and backup of its data or equipment used in connection with the Beta Product and Licensee shall not claim against Quest for lost data, re-run time, inaccurate input, work delays or lost profits resulting from the use of the Beta Product. THE BETA PRODUCTS AND TECHNICAL SUPPORT, IF ANY, ARE EXPERIMENTAL AND PROVIDED "AS IS" WITHOUT WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.



11. Limitation of Liability. IN NO EVENT WILL QUEST BE LIABLE FOR ANY DAMAGES UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS OR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY LICENSEE BASED ON A THIRD PARTY CLAIM.



12. General. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Furthermore, the parties acknowledge that terms of the Uniform Computer Information Transaction Act (also known as UCITA) shall not apply to this Agreement, regardless of the states in which the parties do business or are incorporated. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in the County of Orange, State of California, United States of America. Each party hereby agrees to submit to the jurisdiction of such courts. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. The Beta Product is a “commercial item” under FAR 12.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Beta Product by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Shipping shall be FOB Shipping Point.