BETA TEST AND CONFIDENTIALITY AGREEMENT
This Beta Test Agreement ("Agreement") is made and effective this Immediately, by and between TrafficCentral LLC ("TrafficCentral") and the person or entity purchasing a license to the MUTANT Node Architecture ("Node Owner").
TrafficCentral is the owner of a prototype product identified MUTANT™ Architecture Node with supporting products (the "Software Product") which it desires to have tested by a prospective user in what is commonly referred to as "Beta Test".
The Software Product contains valuable, confidential, trade secret information owned by TrafficCentral.
The Recipient desires to test and evaluate the Software Product's suitability for use in its business.
NOW, THEREFORE, in consideration of the promises set forth herein, the parties hereto agree as follows:
Arrangement
TrafficCentral agrees to provide to Recipient the Software Product, and Recipient accepts the Software Product, subject to the terms of this Agreement. Recipient agrees to test and evaluate the Software Product as provided herein, report to TrafficCentral with respect to the usefulness and functionality of Software Product, and return the Software Product to TrafficCentral at the conclusion of the Beta Test, all pursuant to this Agreement.
Non-Disclosure
A. Recipient acknowledges and agrees that in providing the Software Product, TrafficCentral may disclose to Recipient certain confidential, proprietary trade secret information of TrafficCentral (the "Confidential Information"). Confidential Information may include, but is not limited to, the Software 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 three (3) years thereafter, Recipient agrees that it will not, without the express prior written consent of TrafficCentral, 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. At the termination of this Agreement, Recipient will return the Software Product and all other Confidential Information to TrafficCentral.
B. Recipient also agrees that it shall not duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with the Software Product or any firmware, circuit board or software provided therewith.
C. Recipient understands that any information provided to node owners (licensors) that renew or maintain an on-going relationship with TrafficCentral beyond this beta phase and testing period outlined herin, will continue to maintain all communications with TrafficCentral as outlined by the terms and obligations of confidentiality herein.
License
Recipient acknowledges that it agrees to the terms of the MUTANT Node License. Because the Software Product is a "Beta Test" version only and is not error or bug free, Recipient agrees that it will use the Software 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.
Report
Recipient shall report to TrafficCentral, as soon as practical, any perceived defect in the Software Product. At the conclusion of the Beta Test, Recipient shall provide to TrafficCentral an evaluation of the Software Product, including both positive and negative aspects.
Termination
Recipient may terminate this Agreement at any time prior to expiration of the Beta Test by returning the Software Product including all Confidential Information and copies thereof, to TrafficCentral, along with its evaluation report. In the event that Recipient elects to terminate this Agreement for any reason whatsoever, Recipient understands that Recipient will not be entitled to any refund of any sums paid whatsoever. Termination of this Agreement does not in any way remove Recipient's obligation to comply with the Royalty provisions of this Agreement. TrafficCentral may terminate this Agreement upon notice to Recipient, subject to Recipient's obligation to return the Software Product, Confidential Information and all copies thereof. Further, additional details explaining the Beta Test period are outlined in the Node Owners Memorandum under the section heading "ANTICIPATED PERIOD OF BETA LAUNCH".
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 Software Product and the Confidential Information unless provisions of purchased license agreement extend use of the Software Product. Upon termination, Recipient agrees to remove from Recipient's computer any files related to the Software Product.
Warranties
TrafficCentral represents and warrants that it has the requisite right and legal authority to grant the license and provide the Software Product and the Confidential Information as contemplated by this Agreement. TRAFFICCENTRAL MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE 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.
Governing Law
This Agreement is to be governed by, construed and enforced according to the laws of the State of Florida.
No Assignment
Recipient may not assign this Agreement without the prior written consent of TrafficCentral. This Agreement shall be binding upon and inured to the benefit of the parties and their respective administrators, successors and assigns.
Final Agreement
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.
Extension
This Agreement may be modified or extended by a purchased license agreement with the understanding that the Software Product is still in Beta test for the period noted herein or licensed.
Special Compensation
During beta phase operations, each node owner's commission (compensation) for node sales previously as outlined in the Strategic Business and Marketing Alliance Agreement (SBMAA) will be increased from 35% to 50% for up to the first ten (10) node licenses that are resold by You. A special consideration related to this special compensation amount is that it is to be leveraged for verbal or email negotiation of node price only and not publicized in sales ads or other sales writings other than for purposes of closing a sale once contact with a potential node licensors is made through normal advertising. An example of valid use may also include "accepting offers" type advertising as is common with some auction systems, where the retail price or a price at least 65% of retail is offered, and then you may accept offers below the normal 65% you would have to pay to TrafficCentral for the related node licenses. During application of this provision and relative to the SBMAA provisions, upon sale of a node license, you will be responsible for remitting a total of 50% of the retail price of the related license or any proceeds received whichever is more as compared to the normal 65% traditionally paid by You to TrafficCentral. TrafficCentral reserves the right to terminate this provision and to establish the normal compensation rate of 35% (65% of proceeds remitted to TrafficCentral) as outlined in the SBMAA document at anytime and without prior notice to you.
Arbitration
The parties agree that they will use their best efforts to amicably resolve any dispute arising out of or relating to this Agreement. Any controversy, claim or dispute that cannot be so resolved shall be settled by final binding arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof. Any such arbitration shall be conducted in the city where the TrafficCentral's headquarters are located, or such other place as may be mutually agreed upon by the parties. Within fifteen (45) days after the commencement of the arbitration, each party shall select one person to act as arbitrator, and the two arbitrators so selected shall select a third arbitrator within ten (30) days of their appointment. Each party shall bear its own costs and expenses and an equal share of the arbitrators expenses and administrative fees of arbitration.
Headings
Use of headings in this document is for convenience only and does not identify legal boundaries or terms explicitly, and further shall not be used to construe meaning or intent. Presentation of this document within the confines of screen/browser real estate of a web page or web document does not diminish its intended use or identify legal boundaries or terms explicitly.
Instructions
For existing node owners (updating contracts); by your electronic signature related to this agreement, and your acceptance of a MUTANT node license, you are hereby agreeing to all terms and conditions set forth in this Agreement. Within 30 days pending your electronic signature, please sign and fax a copy of this agreement into TrafficCentral at fax: 1-941-870-0939.
For new node owners; by your electronic signature related to this agreement, and your acceptance of a MUTANT node license, you are hereby agreeing to all terms and conditions set forth in this Agreement. You must also print, sign, and fax a legible copy of this agreement and a government issued id (depending on the identification provided, other supplemental credentials may be requested) to TrafficCentral at fax: 1-941-870-0939 or you may mail the documents to the address shown below:
TrafficCentral LLC
attn: Doug Ashbaugh
603 Coquina Ct.
Nokomis, FL USA 34275-2728